well understood by both parties to the contract. The argument that, because the contract and its specifications contained many minute stipulations looking to prevent the interruption of railroad traffic across the bridge, and no express requirement as to the preservation of the navigability of the river, therefore, under the rule that the inclusion V. TERRITORY OF HAWAII, by C. S. Holloway, Superintendent of Public Works. COURTS (§ 387*)—"FINAL JUDGMENT.” 1. The mere entry upon the minutes by the clerk of the supreme court of the territory of a decision overruling exceptions taken under Haw. Rev. Laws 1905, 1862 et seq., which did not bring up the whole case, and called upon the reviewing court merely to pass upon specific questions raised by the bill, does not make such decision a final judgment, so as to be subject to review in the Federal Supreme Court. [Ed. Note.-For other cases, see Courts, Dec. Dig. § 387. For other definitions, see Words and Phrases, of one is the exclusion of the other, it should be interpreted as not having contemplated the necessity for preservation of navigability, when the terms of the contract are accurately considered, is self-destructive. We say this because, if the provision of the contract as to the time for completing the drawspan be given its necessary significance as elucidated by the intention of the parties as expressly established by the findings below, it must result that the insertion of the Vol. 3, pp. 2774-2798; vol. 8, p. 7663.] COURTS (387*)—HEARINg and DeteRMIrequirement as to the construction of the NATION-OBDER NOT APPEALED FROM. drawspan within the period fixed, which was 2. The order of a territorial supreme safely within the time when, by the opera- court, reversing the order of the court below, tion of nature, there would be no navigation granting a new trial, cannot be reviewed by on the river, excludes the conception that the Federal Supreme Court on a writ of the minds of the parties could have deemed error directed alone to a later decision in it necessary to expressly provide for the the same case, overruling exceptions, the contingency of the interruption of navi- record of which cannot be regarded as embracing the proceedings had below in regation by the execution of the work, when spect to the matter of a new trial. such interruption was impossible to arise if the duties which the contract imposed were executed according to their express require ments. [Ed. Note.-For other cases, see Courts, Dec. Dig. § 387.*] [No.7.] ber 30, 1908. As the findings, beyond peradventure, Argued October 27, 1908. Decided Novemestablished that the liftspan was the most feasible and least expensive substitute *for the false work which could have been em ployed after the accident, and, as they also established that the objection of the bridge company to pursuing that method was alone based upon the assumed right to complete the work by the use of false work in the navigable channel after the period stipulated in the contract, a right which we hold the bridge company did not enjoy,we think no express or implied obligation rested upon the United States to pay for the cost of the temporary liftspan, and that the court below was correct in so holding. Disposing of the case, as we do, upon the interpretation of the contract heretofore made, it is unnecessary to consider whether, even assuming that there could be a different interpretation, the bridge company would be entitled to recover, in view of the facts found below as to the state of the work on the drawspan at the time the accident occurred, that is, the backwardness of such work, which it was expressly found was due solely to the negligence of the bridge company. Affirmed. IN See same case below, 17 Haw. 618. Messrs. Charles A. Keigwin and William B. Matthews for plaintiffs in error. Mr. Charles R. Hemenway for defendant in error. *Mr. Justice White delivered the opinion of the court: The errors assigned are directed to the action of the court below on two subjects. Jurisdiction to consider them is challenged To understand by the defendant in error. the question as to jurisdiction and the issues which it will be necessary to consider, if it be that we have power to decide the merits, requires us to state briefly proceedings which are referred to by both parties and which are embraced in the printed transcript, without determining at this moment how far all the proceedings thus to be re For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes who thereupon prosecuted a writ of error to the supreme court of Hawaii. The supreme court, after overruling a motion to quash the writ, based on the ground that the action of the court in granting a new trial was not reviewable (17 Haw. 374), on March 8, 1906, reversed the order granting a new trial. Putting out of view all other questions, in substance, it was held that the filing of the bond within ten days, as required by the statute, was essential to give the court jurisdiction to entertain a motion for a new trial, and that the court had mistakenly decided that the ten days began to run only from the date of formal entry of the judgment. 17 Haw. 445. ferred to may be considered as properly embraced in the record in the legal sense. *On May 27, 1904, as the result of a trial before a jury of an action brought by the territory of Hawaii to recover damages for the loss of a dredge boat belonging to the territory, through the negligence of the defendants (who are now plaintiffs in error), there was a verdict in favor of the territory for the sum of $25,000. On May 31, 1904, the defendants filed a motion for a new trial, and gave notice that it would be called for a hearing on June 3. On that date the motion was continued to June 7. On June 7 the territory objected to the court entertaining the motion because the defendants had not complied with § 1805, Revised Laws The formal judgment entered in the suof Hawaii, requiring that the party against preme court was simply one reversing the whom a verdict or judgment had been ren- order for a new trial. Thereupon, in the dered should, as a prerequisite to moving trial court, the defendants moved to be alfor a new trial, "file within ten days after lowed to make the summary bill of exceprendition of verdict or judgment" a bond tions which they had previously taken more securing the payment of costs, and condi- specific. Over the objection of the plaintiff tioned against the removal or disposition of this was allowed to be done, and the deany property within the jurisdiction, sub- fendants thereupon filed an amended bill of ject to execution. The defendants there exceptions, which was allowed, and upon upon asked further time to file the bond. this bill, conformably to the Hawaiian pracOn the same day the court entered a formal tice, the exceptions were taken by the dejudgment on the verdict, and also granted, fendants to the supreme court of Hawaii. over the exception of the plaintiff, the re- In that court a motion was made to quash quest of the defendants for further time to the bill of exceptions, on the ground that, make and file the bond. The court was of as amended, it embraced matters not legally the opinion that the statutory period com- included within the bill as originally filed, menced to run only from the date of the and which were, in consequence, not cogniz entry of judgment on the verdict. The bond able. This motion was overruled, on the was filed on June 7, the motion for a new ground that, although nothing was open for trial was renewed on the same day, and was review on the amended bill but such quesultimately taken under advisement. The tions as were legally incorporated in the plaintiff, reserving the benefit of its excep- original bill, the bill as amended could*not* tion as to the power of the court to consider be quashed, as it undoubtedly presented matthe motion, agreed that the motion might ters which were embraced in the first or be passed upon in vacation. Meanwhile the summary bill. 17 Haw. 645. Thereafter, defendants presented and filed a summary on the hearing of the exceptions, the court bill of exceptions relating to certain errors -excluding from consideration such matters which it was alleged had been committed as it held were not contained in the original by the court during the trial. In February bill, although incorporated in the amended following, the judge who presided at the bill-decided that the exceptions were withtrial, and who was detained in San Francis-out merit. 17 Haw. 618. Conformably to co by sickness, telegraphed the clerk of the court that he granted the motion for a new trial, and had forwarded his grounds for doing so by mail. This telegram was filed by the clerk. The term of office of the judge expired on March 2, 1905. A few days thereafter, viz., on March 4, 1905, the clerk received by mail the opinion of the judge, stating his reasons for granting a new trial, which opinion was also filed. In the following April the defendants moved the court, then presided over by the successor in office of the judge who had tried the cause, to make a formal entry of the granting of the new trial, and this was done over the objection and exception of the plaintiff, the opinion an order was entered in the minutes on September 27, 1906, overruling the exceptions. Thereupon the present writ of error was allowed by the chief justice of the supreme court of the territory. The two subjects to which, as, at the outset, we stated, all the assignments of error relate, involve the correctness of the action of the supreme court on September 27, 1906, in refusing to consider certain of the exceptions because deemed not to have been embodied in the summary bill previously filed and its decision on the exceptions which were passed upon, and the correctness of the action of the same court, taken nearly six months previously, reversing the As our power to review depends upon the acts of Congress, which it is beyond the authority of a territory, by forms of legal procedure, to modify or change, it results that, whatever may be the forms of procedure prevailing in the territory for the review of judgments or decrees, nothing in the territorial laws or procedure can have the effect of conferring upon this court the power to consider causes coming from the territory by piecemeal; that is, to review judgments or decrees which, in their essential nature, are not final within the intendment of the legislation of Congress,-in other words, extend our jurisdiction to judgments which do not completely dispose of the controversy. But the application of this latter principle is not now required, since it will appear from a review of the territorial legislation that the decision of the supreme court overruling the exceptions was not, under the territorial laws, in any sense & final judgment. The relevant Hawaiian statutes are copied in the margint †Revised Laws of Hawaii for 1905, pp. 732 et seq. order of the trial court, granting a new trial. I did it purport in form to be a final judg Have we jurisdiction to pass upon these ment, conclusively disposing of the cause. issues, in the first question for decision. Our authority to review the judgments of the supreme court of the territory of Hawaii is derived from the act of April 30, 1900 (31 Stat. at L. 158, chap. 339, § 86), and the amendatory act of March 3, 1905 (33 Stat. at L. 1035, chap. 1465, § 3). In the first act jurisdiction is conferred over judgments or decrees of the supreme court of the territory only in cases like unto those where we would be empowered to review the judgments or decrees of the courts of the several states, conferred by § 709, Revised Statutes (U. S. Comp. Stat. 1901, p. 575). By the amendatory act our jurisdiction was extended so as to embrace, in addition, all cases, irrespective of the nature of the questions presented, where the amount involved, exclusive of costs, exceeds the sum or value of $5,000. In other words, whilst the first act conferred the power only in cases where it would exist if the decree or judgment had been rendered in a state court, the second, adopting the principle and necessarily therefore carrying with it the rules generally prevailing as to the review of judgments or decrees of the supreme court of the incorporated territories of the United States, gives an additional "Sec. 1862. Questions Reserved by Court. right to review, depending solely upon the-Whenever any question of law shall arise amount involved. Bierce v. Hutchins, 205 U. S. 340, 344, 51 L. ed. 828, 832, 27 Sup. Ct. Rep. 524. As jurisdiction, if it exists in this cause, depends not upon the existence of questions under Rev. Stat. § 709, but entirely upon the amount involved, the authority conferred by the act of 1900 may be at once put out of view. It is elementary, however, that the power to review, both under 709, Revised Statutes, and under the laws governing the right to review the judgments or decrees of the supreme courts of the incorporated territories generally, extends only to final judgments or decrees. It is apparent, therefore, that we have no jurisdiction to review the several rulings of the supreme court of the territory, the last one in September, 1906, overruling the exceptions, and the prior one in April, 1906, reversing the order granting a new trial, unless those rulings, independently considered, are final in the full sense of the term. Let us test their finality separately. On its face the proceeding by which the exceptions of the defendants were taken to the court of last resort in Hawaii for review did not purport to present to that court a consideration of the whole record in the cause, but only submitted the particular rulings embraced in the exceptions. The order which the court entered when it disposed of the exceptions was neither in substance nor "Exceptions. in any trial or other proceeding before a "Sec. 1863. Reserved on Motion.-Any question may be reserved in like manner upon the motion of either party, on account of any opinion, direction, instruction, ruling, or order of the judge in any matter of law. (Laws 1892, chap. 57, 8 73; C. L § 1437.)" Following a paragraph prescribing the method of settling exceptions, it is provided in § 1864 as follows: "Bills of exceptions upon like terms as to filing bond and payment of costs may be certified to the supreme court from decisions overruling demurrers or from other interlocutory orders, decisions, or judgments, whenever the judge, in his discretion, may think the same advisable for a more speedy termination of the case. The refusal of the judge to certify an interlocutory bill of exceptions to the supreme court shall not be reviewable by any other court. (Laws 1892, chap. 57, § 74; C. L. § 1438; Amended Laws 1898, chap. 40, § 2; Amended Laws 1903, chap. 32, § 18.) "Sec. 1865, Bond.-Upon the allowance of such bill of exceptions and the deposit of $25, or a bond of the same amount, by the party excepting, with the clerk of such *173 It is clear that, under these statutes, the, such form as to permit an appeal to this supreme court may review the action of the court, moved in the appellate court that a trial courts by two separate forms of pro- final judgment be entered, affirming the cedure, either by writ of error or appeal, judgment of the trial court, and remanding which brings up the judgment or decree the cause, with directions to carry the judgwith the entire record, and the other by ex- ment into execution. The motion was deceptions, which does not bring up the whole nied. The court rendered a lengthy opinion, record, and calls upon the reviewing court in the course of which it was said (17 merely to pass upon specific questions raised Haw. 93): by the bill. The statutes, it will be observed, confer no express power upon the supreme court of the territory to enter a final judgment in a cause upon the overruling of exceptions, and, indeed, that the supreme court of the territory does not construe the territorial statutes as giving it such authority, and, therefore, that the court could not have intended to exert such power in this case, so conclusively appears from recent decisions of the supreme court of Hawaii as to leave the question not open to controversy. Meheula v. Pioneer Mill Co. 17 Haw. 91, was brought to the appellate court on exceptions. The exceptions were overruled. Thereupon counsel for the unsuccessful party, in order that the record might be in court, for costs to accrue in the supreme court, the questions arising thereon shall be considered by the supreme court; but judgment may be entered and may be enforced or arrested pending such exceptions, as provided in § 1861 in the case of an appeal, mutatis mutandis. (Laws 1892, chap. 57, § 75; C. L. § 1439; Amended Laws 1903, chap. 32, § 19.) "Sec. 1866. Exceptions, Frivolous, Immaterial. When, upon the hearing of a cause brought before the supreme court upon exceptions, it shall appear that the exceptions are frivolous or immaterial, or were intended for delay, the court may award against the party taking the exceptions double costs from the time when the same were alleged; and also interest, from the same time, at the rate of 9 per cent per annum on the sum, if any, found due for debt or damages; or may award any part of such additional costs and interest as it may deem proper. (Laws 1892, chap. 57, § 76; C. L. § 1440.) "Sec. 1867. Vacating Judgment by Supreme Court. When judgment has been entered in any cause in which exceptions have been allowed, the judgment may be vacated by the supreme court without any writ of error in like manner as if it had been entered by mistake; and thereupon such further proceedings shall be had in the cause as to law and justice shall appertain. (Laws 1892, chap. 57, § 77; C. L. § 1441.) "Sec. 1868. Jury Trial Not Delayed. No trial by jury shall be prevented or delayed by the alleging, filing, or allowance of such exceptions; but the verdict shall be received and such further proceedings shall be had in the cause as the court may order, in pursuance of the foregoing provisions. (Laws 1892, chap. 57, § 78; C. L. § 1442.) "If the exceptions are overruled, nothing further is required but to notify the circuit court, in the form of a remittitur. A bill of exceptions, unlike a writ of error or an appeal, does not bring the entire case or its record to this court. We have merely to decide whether the exceptions are good or bad. If they are overruled, that is the end of the functions of this court relating thereto, nothing remaining but the order, notice, or remittitur, on receipt of which the* judgment in the circuit court, if it had been entered, but suspended pending the exceptions, by the provisions of §§ 1861 and 1865, Rev. Laws, remains in full force, requiring no affirmance or other recognition from this court. If no judgment was entered on the verdict, it is en Writs of Error. "Sec. 1869. Had When.-A writ of error may be had by any party deeming himself aggrieved by the decision of any justice, judge, or magistrate, or by the decision of any court except in the supreme court, or by the verdict of a jury, at any time before execution thereon is fully satisfied, within six months from the rendition of judgment. (Laws 1892, chap. 95, § 1; C. L. 1443.) "Sec. 1870. In Jury-Waived Cases.Writs of error shall lie to any decision or ruling by a judge in any case in which jury has been waived. (Laws 1892, chap. 95, § 2; C. L. § 1444.) "Sec. 1871. To Correct What.-A writ of error may be had to correct any error appearing on the record, either of law or fact, or for any cause which might be assigned as error at common law; provided, however, that no writ of error shall issue for any defect of form merely in any declaration, nor for any matter held for the benefit of the plaintiff in error. 1892, chap. 95, § 3; C. L. § 1445.) (Laws "Sec. 1872. No Reversal When.-There shall be no reversal on error of any find- "Sec. 1873. Record. For all purposes of $8 1869-1883, the record shall be deemed to include all pleadings, motions, notes, or bills of exceptions, exhibits, clerk's or magistrate's notes or proceedings, and, if so desired by the plaintiffs in error, a transcript of the evidence in the case. (Laws 1892, chap. 95, § 4; C. L. § 1446.)” tered by the circuit court upon notice of the overruling of the exceptions. This result follows as a matter of law, and not in consequence of any direction of this court." In the same case the court also took occasion to condemn the practice stated to be sometimes followed, of sending to the appellate court, with a bill of exceptions, "the records of the case and all papers filed in the circuit court." So, also, as also said by the territorial court in this case, in passing upon the motion of the territory to quash or dismiss the exceptions (17 Haw. 379): ment in an independent proceeding, or was but an interlocutory step in the cause, which would be subject to our review because of jurisdiction to revise the action of the territorial court in ruling on the exceptions, under the assumption that such ruling was a final judgment. The latter is disposed of by what we have previously said. As to the former, if the premise upon which the proposition rests be assumed, it would follow that we are without power to review the judgment, for the reason that this writ is directed alone to the so-called judgment of September 27, 1906, and the record of that judgment cannot be regarded as embracing the proceedings had below in respect to the matter of a new trial. Writ of error dismissed for want of juris diction. (211 U. S. 155) AMERICAN SUGAR REFINING COMPANY OF NEW YORK, Appt., V. UNITED STATES. "Exceptions and error are inherently proceedings of different character. On exceptions, various specific rulings, whether interlocutory or final, whether brought up immediately or only after final judgment, are made direct and independent subjects for review; only so much of the record is brought up as is necessary for passing upon the specific exceptions; the decision usually is that the exceptions be sustained or overruled and that such further proceedings be had as the rulings on the exceptions call for. On error the final judgment alone is brought up, and specific rulings, whether excepted to or not, are considered only inci-ury regulations respecting the polariscopic dentally in passing upon the correctness of the final judgment; the entire record is brought up, and the judgment of the appellate court is such as the facts and law warrant, as shown by the entire case." COURTS (§ 385*)—“Controversy Concern- A contention by importers that the Treastest for sugar assumed to add something to the dutiable standard prescribed by the tariff act of July 24, 1897 (30 Stat. at L. 168, chap. 11, U. S. Comp. Stat. 1901, p. 1647), par. 209, and that the Secretary of the Treasury thus exercised legislative power confided by the Constitution solely to Congress, does not constitute a real and substantial dispute or controversy concerning the construction or application of the Federal Constitution within the meaning of the act of March 3, 1891 (26 Stat. at L. 828, chap. 517, U. S. Comp. Stat. 1901, p. 549), § 5, so as to sustain a direct appeal from a Federal circuit court to the Supreme Court. Applying the construction thus given by the supreme court of Hawaii to the statutes of the territory, there being no reason to doubt their correctness, it clearly follows that the mere entry by the clerk, on the minutes, of the decision of the court overruling the exceptions, did not constitute a final judgment, subject to review by this court. Of course, our decision is confined to the case before us. We must not,*therefore, be considered as holding that if, on a case before it on exceptions, the supreme court of the territory, in sustaining exceptions, considered that the effect of its Argued November 11, 1908. Decided Noruling was such as to justify the entry of a judgment finally disposing of the cause, under the discretionary power conferred by 1867 of the Revised Laws of Hawaii, previously cited in the margin, that such a judgment, depending upon the circumstances of the case, might not be a final judgment, within our competency to review. Coming, then, to test whether we have jurisdiction to review the action of the supreme court of the territory reversing the order granting a new trial, it is apparent that our power must rest either upon the proposition that the order overruling the granting of a new trial was a final judg [Ed. Note.-For other cases, see Courts, Dec. Dig. 385.] [No. 3.] vember 30, 1908. PPEAL from the Circuit Court of the A United States for the Southern District of New York to review a judgment which affirmed a decision of the Board of General Appraisers, overruling protests of importers against the classification of certain imported sugars. Dismissed for want of jurisdiction. The facts are stated in the opinion. Messrs. John G. Johnson, Henry B. Closson, and John E. Parsons for appellant. Mr. J. C. McReynolds for appellee. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Iudexes |