for the defendant to instruct the jury to return a verdict in its favor; an exception was taken to this ruling and it was assigned

as error.

"And the Circuit Court of Appeals for the Eighth Circuit further certifies that the following question of law is presented by the assignment of errors in this case, that its decision is indispensable to a determination of this case and that to the end that this court may properly decide the issues of law presented it desires the instruction of the Supreme Court of the United States upon the following question:

"Where the owner of cattle has the option to ship them to market at the same rate without free transportation for himself or his agents on the cattle train, to throw the entire responsibility of the care of the cattle during the transportation upon the railroad company and to travel to the market town on a passenger train of that company for the regular fare, or to accept free transportation to the market town upon the cattle train which carries his cattle, to assume the responsibility of their care during the transportation and to agree that the railroad company shall not be liable to him for any injury or damage which he sustains while he is being so carried, and without request, requirement or constraint he voluntarily chooses the latter alternative, is his contract that the railroad company shall not be liable to him for such injury or damage valid?"

Mr. O. H. Dean, with whom Mr. W. D. McLeod, Mr. Hale Holden, Mr. H. C. Timmonds and Mr. O. M. Spencer were on the brief, for Chicago, Burlington and Quincy Railway Company.

Mr. Timothy J. Butler, Mr. D. C. Allen, Mr. John H. Denison, Mr. John Hipp and Mr. Ralph Talbott for Edgar C. Williams.

MR. JUSTICE HARLAN, after making the foregoing statement, delivered the opinion of the court.

In Jewell v. McKnight, 123 U. S. 426, 432, 434, 435, the court

had occasion to determine the scope of those provisions of the Revised Statutes which authorized the judges of the Circuit Court in any civil suit or proceeding before it where they were divided in opinion, to certify to this court the point upon which they so disagreed. Rev. Stat., §§ 650, 652, 693. Speaking by Mr. Justice GRAY, this court held that each question certified must be a distinct point or proposition of law clearly stated, so that it could be definitely answered, without regard to other issues of law or of fact in the case. It said: "The points certified must be questions of law only, and not questions of fact, or of mixed law and fact-'not such as involve or imply conclusions or judgment by the court upon the weight or effect of testimony of facts adduced in the cause.' The whole case, even when its decision turns upon matter of law only, cannot be sent up by certificate of division." In that case the general creditors of one of the parties sought to set aside, as fraudulent, a warrant of attorney to confess judgment. The court further said: "The statement (embodied in the certificate and occupying three closely printed pages in the record) of what the judges below call 'the facts found' is in truth a narrative in detail of various circumstances as to the debtor's pecuniary condition, his dealings with the parties to this suit and with other persons, and the extent of the preferred creditors' knowledge of his condition and dealings. It is not a statement of ultimate facts, leaving nothing but a conclusion of law to be drawn; but it is a statement of particular facts, in the nature of matters of evidence, upon which no decision can be made without inferring a fact which is not found. The main issue in the case, upon which its decision must turn, and which the certificate attempts in various forms to refer to the determination of this court, is whether the sale of goods was fraudulent as against the plaintiffs. That is not a pure question of law, but a question either of fact or of mixed law and fact. Not one of the questions certified presents a distinct point of law; and each of them, either in express terms or by necessary implication, involves in its decision a con

.

205 U.S.

Opinion of the Court.

sideration of all the circumstances of the case.

"They

are mixed propositions of law and fact, in regard to which the court cannot know precisely where the division of opinion arose on a question of law alone;' and 'It is very clear that the whole case has been sent here for us to decide, with the aid of a few suggestions from the circuit judges of the difficulties they have found in doing so.' Waterville v. Van Slyke, 116 U. S. 699, 704." See also Fire Asso. v. Wickham, 128 U. S. 426, 434.

In United States v. Rider, 163 U. S. 132, the Chief Justice, speaking for the court, said that "it has always been held that the whole case could not be certified," and that "under the Revised Statutes, as to civil cases, the danger of the wheels of justice being blocked by difference of opinion was entirely obviated." In that case it was also held that certificates of questions of law by the Circuit Courts of Appeals under the Judiciary Act of March 3, 1891, are governed by the same general rules as were formerly applied to certificates of division of opinion in the Circuit Court-citing Columbus Watch Co. v. Robbins, 148 U. S. 266; Maynard v. Hecht, 151 U. S. 324.

In United States v. Union Pacific Railway, 168 U. S. 505, 512 (which was the case of certified questions from a Circuit Court of Appeals), the rule as announced in the Rider case was affirmed. To the same effect are Graver v. Faurot, 162 U. S. 435, 436; Cross v. Evans, 167 U. S. 60, 64; McHenry v. Alford, 168 U. S. 651, 658.

The present certificate brings to us a question of mixed law and fact and, substantially, all the circumstances connected with the issue to be determined. It does not present a distinct point of law, clearly stated, which can be decided without passing upon the weight or effect of all the evidence out of which the question arises. The question certified is rather a condensed, argumentative narrative of the facts upon which, in the opinion of the judges of the Circuit Court of Appeals, depends the validity of the live-stock contract in suit. Thus, practically, the whole case is brought here by the certified question, and we are, in effect, asked to indicate what, under all

the facts stated, should be the final judgment. It is, obviously, as if the court had been asked, generally, upon a statement of all the facts, to determine what, upon those facts, is the law of the case. We thus state the matter, because it is apparent that the case turns altogether upon the question propounded as to the validity, in view of all the facts stated, of the contract under which the plaintiff's cattle were transported. This court is without jurisdiction to answer the question certified in its present imperfect form and the certificate must be dismissed. Sadler v. Hoover, 7 How. 646.

MR. JUSTICE BREWER dissented.

It is so ordered.

PATTERSON v. COLORADO Ex rel. THE ATTORNEY GENERAL OF THE STATE OF COLORADO.

ERROR TO THE SUPREME COURT OF THE STATE OF COLORADO.

No. 223. Argued March 5, 6, 1907.-Decided April 15, 1907.

The requirement in the Fourteenth Amendment of due process of law does not take up the special provisions of the state constitution and laws into the Fourteenth Amendment for the purpose of the case, and in that way subject a state decision that they have been complied with to revision by this court.

Whether an information for contempt is properly supported, and what constitutes contempt, as well as the time during which it may be committed, are all matters of local law.

As a general rule the decision of a state court upon a question of law is not an infraction of the due process clause of the Fourteenth Amendment and reviewable by this court on writ of error merely because it is wrong or because earlier decisions are reversed.

While courts, when a case is finished, are subject to the same criticisms as other people, they have power to prevent interference with the course of justice by premature statements, arguments, or intimidation, and the truth is not a defense in a contempt proceeding to an improper publication made during the pending suit.

205 U.S.

Argument for Plaintiff in Error.

In punishing a person for contempt of court the judges act impersonally and are not considered as sitting in their own case. United States v Shipp, 203 U. S. 563, 674.

THE facts are stated in the opinion.

Mr. Thomas M. Patterson, pro se, with whom Mr. Henry M. Teller, Mr. Charles S. Thomas, Mr. Sterling B. Toney, Mr. James H. Blood, Mr. Harvey Riddell, Mr. S. W. Belford and Mr. John A. Rush were on the brief, for plaintiff in error:

The articles and cartoon were legitimate and privileged criticisms. They did not relate to "pending" cases within the meaning of the law; and whatever reference they made to cases were in no wise calculated to interfere with the due administration of justice. These matters are jurisdictional, and by reason of them the court was without jurisdiction to proceed against respondent for contempt and to adjudge a fine against him, and in so doing it was the rendering of a judgment that deprived him of his property without due process of law. Titus v. The People, 7 Colorado, 451; New Orleans v. Steamship Co., 20 Wall. 387.

It follows that in cases of criminal contempt not committed in the presence of the court, there must be a charge, in writing, and stating the facts constituting the contempts, and unless the facts set out constitute a contempt the court is without jurisdiction to either issue a citation or proceed further with the cause. Cooper v. The People, 13 Colorado, 337; Mullin v. The People, 15 Colorado, 440; Wyatt v. The People, 17 Colorado, 252.

Once a suit is decided newspapers may make whatever comments they will about it, and though the honor and integrity of the court may be assailed, judges, like other persons, are relegated to the courts for redress.

To issue a citation in contempt proceedings upon an unverified information confers no jurisdiction, and all proceedings thereafter in such proceedings are void for want of jurisdiction. 4 Blackstone's Commentaries, 286; Thomas v. The People,