United States v. Rider

• Decision Date: 18 May 1896
• Docket Number: No. 197,197
• Citation: 163 U.S. 132,41 L.Ed. 101,16 S.Ct. 983
• Parties: UNITED STATES v. RIDER et al
• Court: U.S. Supreme Court

163 U.S. 132

16 S.Ct. 983

41 L.Ed. 101

UNITED STATES

v RIDER et al.

No. 197.

May 18, 1896.

On the 23d day of November, A. D. 1891, the United States district att rney for the Southern district of Ohio filed a criminal information in the circuit court of the United States for that district, against Frank M. Rider, John F. Burgess, and Samuel N. Rutledge, charging that on October 15, A. D. 1891, defendants 'were then and there the county commissioners in Muskingum county, in the state of Ohio, and then and there the persons empowered by the law of Ohio to construct, alter, and keep in repair all necessary bridges over streams and public canals, on all state and county roads, and then and there the persons as such county commissioners controlling the bridge across the Muskingum river, between Taylorsville and Duncan's Falls, Muskingum county, Ohio; and the secretary of war of the United States, having good reason to believe that said bridge was then and there an unreasonable obtruction to the navigation of said Muskingum river, one of the navigable streams over which the United States has jurisdiction, on the 19th day of December, 1890, gave notice in writing to the said defendants, commissioners as aforesaid, setting forth in substance that the said bridge was considered an obstruction to navigation, by reason of the fact that it had no draw for the passage of boats desiring to navigate the Muskingum river by way of the new lock just above the south end of the new bridge at Taylorsville, Ohio. And, in order to afford said commissioners a reasonable opportunity to be heard and give evidence in regard to said complainant, Tuesday, the 6th of January, 1891, was set and named as the day when such evidence should be heard before Lieut. Col. Wm. E. Merrill, corps of engineers, at the United States engineer's office in Zanesville, Ohio, and which said day of hearing, at the request of defendants, was extended to the 3d day of February, 1891. And afterwards, to wit, on the 25th day of February, 1891, and after said day of hearing, the secretary of war gave notice in writing to said defendants controlling said bridge as aforesaid, that the said bridge was and is an unreasonable obstruction to the free navigation of the said river, one of the navigable waters of the United States, on account of not being provided with a draw span below the new United States lock No. 9, in said river, and requiring the following change to be made, viz. the construction of a draw span in said bridge below the said lock, in accordance with the plan shown in a map attached to said notice, and served upon said defendants, and prescribing that said alteration shall be made and completed within a reasonable time, to wit, on or before the 30th day of September, 1891, and that the service of said notice as aforesaid was made on the 3d day of March, 1891, by delivering, personally, a copy thereof to said commissioners, at their office in Zanesville, Ohio. And the said Frank M. Rider, John F. Burgess, and Samuel N. Rutledge, county commissioners of Muskingum county, Ohio, as aforesaid, did unlawfully, on, to wit, the 15th day of October, 1891, at the place aforesaid, and after receiving notice to that effect, as hereinbefore required, from the secretary of war, and within the time prescribed by him, willfully failed and refused to comply with the said order of the secretary of war, and to make the alterations set forth in said notice, contrary to the form of sections 4 and 5 of an act of congress approved September 19th, 1890, in such case made and provided, and against the peace and dignity of the United States of America.'

The defendants were tried December 11, 1891, and found guilty as charged in the information, whereupon they moved for a new trial.

On the trial before the district judge, certain questions on the constitutionality of the sections of the act of September 19, 1890 (26 Stat. 453, c. 907, §§ 4, 5), under which the information was filed, were reserved for hearing and decision upon a motion for a new trial before the circuit and district judges. The motion coming on to be heard, those judges were divided in opinion, and certified, under section 697 o the Revised States, the points of disagreement to this court, the questions upon which such division of opinion took place being as follows:

'(1) Whether congress has the power to confer upon the secretary of war the authority attempted to be conferred by said sections 4 and 5 of the act of September 19th, 1890, to determine when a bridge is an unreasonable obstruction to the free navigation of a river.

'(2) Whether the failure to comply by persons owning and controlling the said bridge with the order of the secretary of war can lawfully subject them to a prosecution for a misdemeanor.'

Asst. Atty. Gen. Dickinson, for the United States.

S. M. Winn, for defendants.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

The appellate jurisdiction of this court is defined by the acts of congress. By section 6 of the act of April 29, 1802 (2 Stat. 159, c. 31), whenever there was a division of opinion in the circuit court upon a question of law, the question might be certified to this court for decision, provided that the case might proceed in the circuit court if, in its opinion, further proceedings could be had without prejudice to the merits, and that no imprisonment should be allowed or punishment inflicted upon which the judges were divided in opinion.

In U. S. v. Daniels, 6 Wheat. 542, 547, Chief Justice Marshall explained that, 'previous to the passage of that act, the circuit courts were composed of three judges, and the judges of the supreme court changed their circuits. If all the judges were present, no division of opinion could take place. If only one judge of the supreme court should attend, and a division should take place, the cause was continued till the next term, when a different judge would attend. Should the same division continue, there would then be the opinion of two judges against one; and the law provided that in such case that opinion should be the judgment of the court.' Act March 2, 1793 (1 Stat. 333, c. 22, § 2); Davis v. Braden, 10 Pet. 286. But, continued the chief justice, the act of 1802 made the judges of the supreme court stationary, so that the same judges constantly attended the same circuit; and, the court being always composed of the same two judges, any division of opinion would remain, and the question continue unsettled. 'To remedy this inconvenience, the clause under consideration was introduced.' 6 Wheat. 548; Ex parte Milligan, 4 Wall. 2.

The act of April 10, 1869 (16 Stat. 44, c. 22), provided for the appointment of a circuit judge in each circuit, but this did not repeal the act of 1802, as the same necessity existed as before for the power to certify questions. Insurance Co. v. Cunham, 11 Wall. 1.

By the act of June 1, 1872 (17 Stat. 196, c. 255), whenever, in any proceedings or suit in a circuit court, there occurred any difference of opinion between the judges, the opinion of the presiding judge was to prevail for the time being; but upon the entry of a final judgment, decree, or order, and a certificate of division of opinion as under the act of 1802, either party might remove the case to this court on writ of error or appeal, according to the nature of the case. This act continued in force about two years, when it was supplanted by sections 650, 652, and 693 of the Revised Statutes, by which its provisions were restricted to civil suits and proceedings; and by sections 651 and 697 the provisions of section 6 of the act of 1802 were re-enacted as to criminal cases. U. S. v. Sanges, 144 U. S. 310, 321, 12 Sup. Ct. 609. These sections are printed in the margin.¹

In civil cases, prior to March 3, 1891, the appellate jurisdiction was limited by the sum or value of the matter in dispute; but the jurisdiction on certificate was not dependent thereon, and after final judgment or decree, if the amount in controversy reached the jurisdictional amount, the whole case was open for consideration on error or appeal, while, if it fell below that, only the questions certified could be examined. Allen v. Bank, 120 U. S. 30, 7 Sup. Ct. 460; Dow v. Johnson, 100 U. S. 158. It has always been held that the whole case could not be certified. Jewell v. Knight, 123 U. S. 433, 8 Sup. Ct. 193.

In short, under the Revised Statutes, as to civil cases, the danger of...