TABLE OF CASES IN U. S. C. C. A.-PASSED UPON BY THE U. S. SUP. CT. TABLE OF CASES IN U. S. C. C. A. IN WHICH REHEARINGS HAVE BEEN WITH ANNOTATIONS. [The annotations will be found at the end of each section.] An act to establish circuit courts of appeals, and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes. Be it enacted by the senate and house of representatives of the United States of America, in congress assembled, that there shall be appointed by the' SEC. 2. That there is hereby created' in each circuit a circuit court of appeals, which shall consist of three judges, of whom two shall con- stitute a quorum, and which shall be a court of record with appellate jurisdiction, as is hereinafter limited and established. Such court shall prescribe the form and style of its seal, and the form of writs and other process and procedure, as may be conformable to the exercise of its ju- risdiction as shall be conferred by law. It shall have the appointment of the marshal of the court, with the same duties and powers, under the regulations of the court, as are now provided for the marshal of the supreme court of the United States, so far as the same may be applica- ble. The court shall also appoint a clerk, who shall perform and exer- cise the same duties and powers, in regard to all matters within its ju- risdiction, as are now exercised and performed by the clerk of the supreme court of the United States, so far as the same may be applica- ble. The salary of the marshal of the court shall be twenty-five hun- dred dollars a year, and the salary of the clerk of the court shall be three thousand dollars a year, to be paid in equal proportions quarterly. The costs and fees in the supreme court now provided for by law shall be costs and fees in the circuit courts of appeals; and the same shall be ex- pended, accounted for, and paid for, and paid over to the treasury de- partment of the United States, in the same manner as is provided in re- The court shall have power to establish all rules and regulations for the conduct of the business of the court within its jurisdiction as con- 1 The act went into immediate operation, so as to permit a review thereun- der of a judgment entered after its date on a verdict rendered prior thereto. In re Claasen, 140 U. S. 200, 11 Sup. Ct. 735; McLish v. Roff, 141 U. S. 661, 12 Sup. Ct. 118; Mason v. Mining Co., 153 U. S. 361, 14 Sup. Ct. 847; Railroad Co. v. Bennett (6th Circuit) 1 C. C. A. 392, 49 Fed. 598; Railroad Co. v. Amato (2d Circuit) 1 C. C. A. 438, 49 Fed. 881; Railroad Co. v. Andrews (6th Circuit) 1 C. C. A. 636, 50 Fed. 728. But the act is not retroactive, so as to permit a review by the circuit court of appeals of a judgment rendered before its passage. U. S. v. National Exch. Bank (7th Circuit) 3 C. C. A. 390, 53 Fed. 9. In Courtney v. President, etc. (8th Circuit) 1 C. C. A. 249, 49 Fed. Where a conviction of an infamous crime was had before the passage of the act, the granting of a writ of error by the supreme court because the final judgment was rendered subsequently to the act taking effect cannot create a right to a bill of exceptions which did not exist under the law at the time of the conviction. In re Claasen, 140 U. S. 200, 11 Sup. Ct. 737. A case settled by the circuit court for the hearing of a motion for a new trial and in arrest of judgment, in such a case, is no part of the record on error to the su- preme court; and errors in law therein set forth, though in the form of a bill of exceptions, cannot be considered by the supreme court. Claasen v. U. S., 142 U. S. 140, 12 Sup. Ct. 169. In such case neither the assignment of errors nor the plea of in nullo est erratum can give the supreme court jurisdiction of 2 Under this provision, an attorney's fee of $20 is taxable against plaintiff 3 Under this clause, the court has power to promulgate rules in relation to the introduction of additional evidence in admiralty appeals. The Phila- delphian (1st Circuit) 9 C. C. A. 54, 60 Fed. 423. SEC. 3. That the chief justice and the associate justices of the su- In case the full court at any time shall not be made up by the at- cause or question in the circuit court of appeals. A term shall be held annually by the circuit court of appeals in the several judicial circuits at the following places: In the first circuit, in the city of Boston; in the second circuit, in the city of New York; in the third circuit, in the city of Philadelphia; in the fourth circuit, in the city of Richmond; in the fifth circuit, in the city of New Orleans; in the sixth circuit, in the city of Cincinnati; in the seventh circuit, in the city of Chicago; in the eighth circuit, in the city of St. Louis; in the ninth circuit, in the city of San Francisco; and in such other places in each of the above circuits as said. court may from time to time designate. The first terms of said courts shall be held on the second Monday in January, eighteen hundred and ninety-one, and thereafter at such times as may be fixed by said courts. SEC. 4. That no appeal, whether by writ of error or otherwise, shall hereafter be taken or allowed from any district court to the existing circuit courts, and no appellate jurisdiction shall hereafter be exercised or allowed by said existing circuit courts, but all appeals, by writ of error or otherwise, from said district courts shall only be subject to review in the supreme court of the United States or in the circuit court of appeals hereby established, as is hereinafter provided, and the review, by appeal, by writ of error, or otherwise, from the existing circuit courts shall be had only in the supreme court of the United States or in the circuit courts of appeals hereby established, according to the provisions of this act regulating the same. The entire federal appellate jurisdiction is distributed, by the provisions of this act, between the supreme court and the circuit court of appeals. McLish v. Roff, 141 U. S. 667, 12 Sup. Ct. 120; Lau Ow Bew v. U. S., 144 U. S. 47, 12 Sup. Ct. 517; Badaracco v. Cerf (8th Circuit) 3 C. C. A. 491, 53 Fed. 169. This section does not limit the power of the supreme court under Rev. St. § 716, 1000, 1007, to issue a writ of supersedeas upon a writ of error in a criminal case. In re Claasen, 140 U. S. 200, 11 Sup. Ct. 735. SEC. 5. That appeals or writs of error may be taken from the district courts or from the existing circuit courts direct to the supreme court in the following cases: In any case in which the jurisdiction of the court is in issue; in such cases the question of jurisdiction alone shall be certified to the supreme court from the court below for decision." From the final sentences and decrees in prize causes. In cases of conviction of a capital or otherwise infamous crime." In any case that involves the construction or application of the constitution of the United States. In any case in which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority, is drawn in question.' In any case in which the constitution or law of a state is claimed to be in contravention of the constitution of the United States.10 Nothing in this act shall affect the jurisdiction of the supreme court in cases appealed from the highest court of a state, nor the construction of the statute providing for review of such cases. The supreme court has no direct appellate jurisdiction over the circuit and district courts, except in the six classes of cases here enumerated, unless the cause was pending at the date of the act, and the appeal or writ of error was allowed before July 1, 1891, as provided by the joint resolution passed on the same day with the act. Bank v. Peters, 144 U. S. 570, 12 Sup. Ct. 767. An appeal or writ of error cannot be taken in the classes of cases here enumerated before final judgment. McLish v. Roff, 141 U. S. 661, 12 Sup. Ct. 118. The action of a circuit court of appeals in refusing to allow a case to be docketed, on the ground that it should have been taken to the supreme court, cannot be reviewed by the supreme court on a writ of error to the circuit court. Lutcher v. U. S., 157 U. S. 427, 15 Sup. Ct. 718. An appeal will not lie from the circuit court to the supreme court in a copyright case (which may be appealed to the circuit court of appeals, under section 6) merely because the circuit court, by the form of its entry, has made the decree of the circuit court of appeals, affirming a previous decree of the circuit court, its own decree. Webster v. Daly, 163 U. S. 155, 16 Sup. Ct. 961. On appeal or writ of error taken direct to the supreme court the entire controversy goes to that court, except in the case where the jurisdiction of the court below is in issue. Horner v. U. S., 143 U. S. 570, 12 Sup. Ct. 522. Appeals from decrees of the circuit courts on habeas corpus cannot be taken directly to the supreme court except in the classes of cases enumerated in this section. Lau Ow Bew v. U. S., 144 U. S. 47, 12 Sup. Ct. 517; Horner v. U. S., 143 U. S. 570, 12 Sup. Ct. 522; Cross v. Burke, 146 U. S. 82, 13 Sup. Ct. 24. Rev. St. D. C. § 846, giving the same right of appeal from the supreme court of the District of Columbia as is "provided by law" for appeals from circuit courts, does not render applicable to such court the provisions of the above act, passed subsequent thereto. Cross v. Burke, 146 U. S. 82, 13 Sup. Ct. 22; In re Heath, 144 U. S. 92, 12 Sup. Ct. 615. • An appeal or writ of error under this subdivision is not allowable before the cause has proceeded to final judgment. McLish v. Roff, 141 U. S. 661, 12 Sup. Ct. 120; Railway Co. v. Roberts, 141 U. S. 690, 12 Sup. Ct. 123. A party cannot at the same time appeal to the supreme court on the question of jurisdiction and to the circuit court of appeals on the merits. McLish v. Roff, 141 U. S. 661, 12 Sup. Ct. 120. But one party cannot be deprived of his right to appeal to the circuit court of appeals on the merits by his opponent's appealing to the supreme court on the question of jurisdiction; and in case of such separate appeals the cause will be continued in the circuit court of appeals to await the decision of the supreme court upon the question of jurisdiction. Railroad Co. v. Glaspell (8th Circuit) 1 C. C. A. 327, 49 Fed. 482. In McLish v. Roff, 141 U. S. 661, 12 Sup. Ct. 118, the court say: "The party against whom a final judgment is rendered must elect whether he will take his writ of error or appeal to the supreme court upon the question of jurisdiction alone, or to the circuit court of appeals upon the whole case. If the latter, then the circuit court of appeals may, if it deem proper, certify the question of jurisdiction to the supreme court." And this was followed in Barling v. Bank (9th Circuit) 1 C. C. A. 510, 50 Fed. 260; Maynard v. Hecht, 151 U. S. 324, 14 Sup. Ct. 353; Refining Co. v. Johnson (5th Circuit) 9 C. C. A. 110, 60 Fed. 503. When the record on an appeal from the circuit court to the circuit court of appeals presents both a question as to the jurisdiction of the former court and other questions which, if the circuit court is found to have had jurisdiction, must be disposed of, the court of appeals has jurisdiction, and must consider the question of the jurisdiction of the circuit court, though that court has dismissed the case for want of jurisdiction. Coler v. Grainger Co. (6th Circuit) 20 C. C. A. 267, 74 Fed. 16. When a final judgment or decision has been rendered in a district or circuit court, involving both questions of jurisdiction and other questions, the party against whom it is rendered may elect to take his writ of error to the supreme court on the question of jurisdiction alone, or to the circuit court of appeals on the whole case. When he chooses the latter course, the circuit court of ap |