diction is, by the very terms of the act, final. And so it was held in Cary Mfg. Co. v. Acme Flexible Clasp Co., 187 U. S. 427, this court saying, through the Chief Justice: "Although it is insisted that the judgment imposing the fine was a final judgment in a criminal matter, it is argued that it involved the denial of constitutional rights, and hence that this court has jurisdiction under § 5 of that act; but it is settled that even if a party might be entitled to come directly to this court under that section, yet if he does not do so, and carries his case to the Circuit Court of Appeals, he must abide by the judgment of that court," and the writ of error to the Circuit Court of Appeals was accordingly dismissed. Unless this case has been overruled, it governs the case at bar.

But it is argued that the right to this writ of error is supported by the decision of this court in Spreckels Sugar Refining Co. v. McClain, 192 U. S. 397. An examination of that case, however, shows that the exact decision has no relevancy to the question now before us. The language of the opinion should be interpreted in the light of the facts of the case. The plaintiff there brought an action against the collector of internal revenue to recover certain taxes imposed by the revenue laws of the United States, paid by it under protest. The plaintiff's claim as stated in his declaration was twofold; first, that the taxes were not due under the act as properly construed; and, second, that the act itself was unconstitutional. The jurisdiction, therefore, of the trial court was invoked upon two grounds; first, because it was a revenue case; and, second, because it arose under the Constitution and laws of the United States (25 Stat. 433), which means that the plaintiff's case thus arose. Louisville & Nashville R. R. Co. v. Mottley, 211 U. S. 149, and cases cited. Judgment went against the plaintiff, and it was affirmed by the Circuit Court of Appeals. A writ of error from this court to the Circuit Court of Appeals was sued out, and the question was whether it would lie. That question, as we have seen it, is determinable by the jurisdiction of the trial court. If the jurisdiction depended solely upon the fact that it was a case arising

under the revenue laws the judgment of the Circuit Court of Appeals was a final judgment. If, on the other hand, the jurisdiction depended solely upon the fact that it was a case arising out of the Constitution or laws of the United States, the jurisdiction of the Circuit Court of Appeals was not final, and it was reviewable upon the writ of error as matter of right in this

court.

Here was a case, then, which in one aspect of the jurisdiction was reviewable by this court and in another aspect of the jurisdiction was not reviewable here. The precise case had not arisen before, and the statute was silent upon it. It was held that the writ of error could be maintained, as the jurisdiction of the trial court did not depend solely upon grounds which by the terms. of the act would have made the judgment of the Circuit Court of Appeals final, but depended also upon grounds which would have permitted a writ of error from this court to the Circuit Court of Appeals. That this was the precise ground of the decision is clear from the whole trend of the reasoning and from the statement in the opinion, p. 410, that "the judgment of the Circuit Court of Appeals is not final, within the meaning of the sixth section, in a case which, although arising under a law providing for internal revenue and involving the construction of that law, is yet a case also involving, from the outset, from the plaintiff's showing, the construction or application of the Constitution or the constitutionality of an act of Congress." The case decides nothing more than that where the jurisdiction of the trial court is shown by the plaintiff's statement of his own case to rest upon two distinct grounds; first, a ground where the appellate jurisdiction of the Circuit Court of Appeals was made final by the statute; and, second, a ground where the appellate jurisdiction of the Circuit Court of Appeals was made by the statute reviewable in this court, the latter ground of jurisdiction would control and the writ of error to the Circuit Court of Appeals would lie. Thus construed, the case is consistent with all the decisions and has no application here, because the only ground of jurisdiction of the District Court in the case

213 U. S.

Argument for Petitioner

at bar was that it was a case arising under the criminal laws. In such a case the statute makes the judgment of the Circuit Court of Appeals final, and it is no less final because the petitioner here might, if he had been so advised, originally have invoked directly, under § 5 of the act, the appellate jurisdiction of this court.

We are of the opinion that the writ of error does not lie, and the application for it is

Denied.

UNITED STATES v. EVANS.

CERTIORARI TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.

No. 394. Submitted December 18, 1908.-Decided April 19, 1909.

Under § 935 of the Code of the District of Columbia, act of March 3, 1901, c. 854, 31 Stat. 1341, a writ of error will not lie from the Court of Appeals to the Supreme Court of the District at the instance of the Government to review a judgment based on a verdict of not guilty. When the judgment appealed from cannot be affected by the decision of the appellate court the case becomes a moot one and the appeal should be dismissed; hearing and deciding such an appeal for the purpose of establishing a rule of observance in cases subsequently arising is not an exercise of judicial power.

Writ of certiorari to review 30 App. D. C. 58, quashed.

THE facts are stated in the opinion.

The Solicitor General for petitioner:

Congress clearly intended to give the United States a right of appeal in criminal cases, after verdict. The statute seems to be free from doubt or ambiguity. 31 Stat. 1189, 1341 (§ 935, Code D. C.).

The policy or wisdom of a statute is for the determination of the legislature, not of the courts.

Argument for Petitioner.

213 U. S.

The allowance of an appeal for the purpose of settling questions of law, practice and procedure for the guidance of trial courts in future cases is not new in the legislation of this country. State v. Granville, 45 Ohio St. 264, 278; State v. Buechler, 57 Ohio St. 95; State v. Ruedy, 57 Ohio St. 224; State v. Van Valkenburg, 60 Indiana, 302; Commonwealth v. Bruce, 79 Kentucky, 560; Commonwealth v. Van Tuil, 1 Metcalf (Ky.), 1; State v. Ward, 75 Iowa, 637.

Congress undoubtedly had the power to enact § 935 of the District of Columbia Code. United States v. Sanges, 144 U. S. 310; United States v. Macdonald, 207 U. S. 120; State v. Lee, 65 Connecticut, 265.

This proceeding is a "case" or "controversy" within the meaning of the third article of the Constitution of the United States, by which the judicial power of the United States is extended only to "cases" and "controversies." 2 Story on Const., § 1646; Osborn v. Bank, 9 Wheat. 738, 819; Pacific Whaling Co. v. United States, 187 U. S. 447; Smith v. Adams, 130 U. S. 167; Fisk v. Henarie, 32 Fed. Rep. 417, 423; Home Ins. Co. v. North Western Packet Co., 32 Iowa, 223, 238.

But whether this is or not a case or controversy within the meaning of the third article of the Constitution, it is unnecessary to inquire, because the courts of the District of Columbia are not of the class referred to in that article, and Congress in conferring jurisdiction upon them is not limited, as it is by the third article of the Constitution with respect to the inferior Federal courts, to "cases" and "controversies."

The courts of the District of Columbia are created by Congress by virtue of its authority "to exercise exclusive legislation in all cases whatsoever over such district." Const., Art. I, § 8, clause 17. In this respect the courts of the District are to be classed with the territorial courts. This is the view clearly intimated in McAllister v. United States, 141 U. S. 174, 184.

No counsel appeared for respondents.

MR. CHIEF JUSTICE FULLER delivered the opinion of the court.

Appellees were tried under an indictment for murder in the Supreme Court of the District of Columbia on February 1, 1907, and found not guilty. The United States appealed to the Court of Appeals of the District, and assigned error on exceptions taken during the trial to the exclusion of certain evidence. This right to appeal was claimed under § 935 of the code, which reads as follows:

“In all criminal prosecutions the United States or the District of Columbia, as the case may be, shall have the same right of appeal as is given to the defendant, including the right to a bill of exceptions; provided, that if on such appeal it shall be found that there was error in the rulings of the court during the trial, a verdict in favor of the defendant shall not be set aside."

The appeal was dismissed for want of jurisdiction, and the case brought here on certiorari.

The case of United States v. Sanges, 144 U. S. 310, reiterated the then well-settled rule that the right of review in criminal cases was limited to review at the instance of the defendant after a decision in favor of the Government. United States v. Dickinson, ante, p. 92.

In United States v. Evans, 28 App. D. C. 264, under § 935 of the code, the right was exercised without question in a case where an indictment had been set aside on demurrer, and Chief Justice Shepard, in delivering the opinion of the court in this case (30 App. D. C. 58), said:

"It may be assumed also that such a writ of error would lie to review a judgment arresting a judgment of conviction for the insufficiency of the indictment, or one sustaining a special plea in bar, when the defendant has not been put in jeopardy."

But the Chief Justice further said that it was contended by appellants that a writ of error lies also "upon a judgment where there has been a verdict of not guilty, not, however, to obtain