United States v. Rosenburgh

ON certificate of division in opinion between the judges of the Circuit Court for the Southern District of New York.

The Judiciary Act of 1802 provides that whenever any question shall occur before a Circuit Court, upon which the opinion of the judges shall be opposed, the point upon which the disagreement shall happen, may be certified to this court, and shall by it be finally decided.

With this statute in force, one Rosenburgh was indicted in the court below, for an offence alleged to be within an act of Congress specified. A motion being made to quash the indictment, on the ground, among others, that upon the true interpretation of the act under which the indictment was made, no offence had been committed, and that the indictment was insufficient, a division of opinion on these points existed between the judges, involving, of course, a division as to whether the motion to quash ought or ought not to be granted.

The division upon the meaning of the act, and upon the sufficiency of the indictment, being certified, these points were argued. But it appearing, also, that they arose upon a motion to quash, a preliminary question-one, as the result proved, which rendered the decision of the other questions unnecessary-was suggested here; the question, namely, whether this court could, under the above-quoted Judiciary Act of 1802, take cognizance of a certificate of division upon a motion to quash an indictment.

Mr. Evarts, Attorney-General, for the United States.

Mr. E. W. Stoughton, contra.

The CHIEF JUSTICE delivered the opinion of the court.