Cincinnati, Hamilton & Dayton Railroad Company v. Thiebaud/Opinion of the Court

When our jurisdiction is invoked under § 5 of the judicary act of March 3, 1891 [26 Stat. at L. 826], chap. 517, on the ground that the case falls within the fourth, fifth, or sixth of the classes of cases therein enumerated, it must appear that a title, right, privilege, or immunity was claimed under the Constitution, and a definite issue in respect to the possession of the right must be distinctly deducible from the record; or that the constitutionality of the particular law or the validity or construction of the particular treaty was necessarily and directly drawn in question; or that the Constitution or law of a state was distinctly claimed to be in contravention of the Constitution of the United States; and it is not sufficient that the point is raised in the assignment of errors. Ansbro v. United States, 159 U.S. 695, 40 L. ed. 310, 16 Sup. Ct. Rep. 187; Cornell v. Green, 163 U.S. 75, 41 L. ed. 76, 16 Sup. Ct. Rep. 969; Muse v. Arlington Hotel Co. 168 U.S. 430, 42 L. ed. 531, 18 Sup. Ct. Rep. 109; Miller v. Cornwall R. Co. 168 U.S. 131, 42 L. ed. 409, 18 Sup. Ct. Rep. 34.

The certirficate shows that no question as to the constitutionality of the statute of Indiana, relied on by the plaintiff below, was raised or considered or decided in the circuit court, but that the objection made its appearance for the first time in the assignment of errors in the circuit court of appeals.

In Carter v. Roberts, 177 U.S. 496, 20 Sup. Ct. Rep. 713, 44 L. ed. --, it was held that when cases arise which are controlled by the construction or application of the Constitution of the United States, a direct appeal lies to this court, and if such cases are carried to the circuit courts of appeals, those courts may decline to take jurisdiction; or, where such construction or application is involved with other questions, may certify the constitutional question and afterwards proceed to judgment; or may decide the whole case in the first instance. But when the circuit court of appeals has acted on the whole case, its judgment stands unless revised by certiorari to or appeal from that court in accordance with the act of March 3, 1891. Robinson v. Caldwell, 165 U.S. 359, 41 L. ed. 745, 17 Sup. Ct. Rep. 343; Holt v. ''Indiana Mfg. Co.'' 176 U.S. 68, 20 Sup. Ct. Rep. 272, 44 L. ed. ; United States v. Jahn, 155 U.S. 109, 39 L. ed. 87, 15 Sup. Ct. Rep. 39; New Orleans v. Benjamin, 153 U.S. 411, 38 L. ed. 764, 14 Sup. Ct. Rep. 905; Benjamin v. New Orleans, 169 U.S. 161, 42 L. ed. 700, 18 Sup. Ct. Rep. 298.

The third question propounded in the certificate must be answered in the negative, and we do not deem it necessary to answer the others.

The writ of error in No. 271 was brought while the case was pending in the circuit court of appeals on writ of error from that court. The whole case was open on each writ for review on the merits.

In ''Columbus Constr. Co. v. Crane Co.'' 174 U.S. 600, 43 L. ed. 1102, 19 Sup. Ct. Rep. 721, it was laid down that the act of March 3, 1891, does not contemplate several separate appeals or writs of error, on the merits, in the same case and at the same time to or from two appellate courts; and as the record disclosed in that case that two writs of error to the judgment of the circuit court were pending, one in the circuit court of appeals and the other and subsequent writ in this court, the latter was dismissed. The writ of error in No. 271 falls within this rule.

The third question propounded in No. 259 is answered in the negative.

The writ of error in No. 271 is dismissed.

Mr. Justice Harlan and Mr. Justice White were not present at the argument and took no part in the decision.