46 48 certificate of the presiding justice of the State court or a certificate of that court may also be examined for that purpose." But neither of these is conclusive.45 If the question was not raised until a motion for a rehearing, no writ of error will lie, unless the rehearing was granted." A mention of a Federal question in a petition for a writ of error, or in an assignment of errors,* after judgment by the State court," is insufficient to give the Supreme Court jurisdiction. When it appears that the decision below was adverse to the plaintiff in error upon two independent grounds, one of which is not a Federal question, the Supreme Court will dismiss the writ of error.50 v. Columbia Tp. Trustees, 179 U. S. 472, 482; England v. Gebhardt, 112 U. S. 502, 505, 506. 66 44 Murdock v. Memphis, 20 Wall. 590, 593; Johnson v. Risk, 137 U. S. 300, 307; Roby v. Colehour, 146 U. S. 153. Such certificate is insufficient to give us jurisdiction where it does not appear in the record, and that its office is to make more certain and specific what is too vague and general in the record." Brown, J., in Yazoo & Miss. R. Co. v. Adams, 180 U. S. 41, 48. 45 Adams County v. B. & Mo. R. R. Co., 112 U. S. 123, 129; Gross v. U. S. Mortgage Co., 108 U. S. 477: Roby v. Colehour, 146 U. S. 153; Powell v. Brunswick County, 150 U. S. 433; Dibble v. Bellingham Bay Land Co., 163 U. S. 63; Yazoo & Miss. R. Co. v. Adams, 180 U. S. 41, 48. 46 Texas & P. Ry. Co. v. So. Pac. Ry. Co., 137 U. S. 48; Turner v. Richardson, 180 U. S. 87. v. Akers, 132 U. S. 554; Blount v. Walker, 134 U. S. 607; Johnson v. Risk, 137 U. S. 300; Beaupré v. Noyes, 138 U. S. 397; Hammond v. Johnston, 142 U. S. 73; Yesler v. Washington Harbor Line Com'rs, 146 U. S. 646; Seeberger v. McCormick, 175 U. S. 274. Where the State court held that the plaintiff in error was estopped from raising the constitutional question, the writ of error was dismissed. Eustis v. Bolles, 150 U.S. 361; Pierce v. Somerset Ry. Co., 171 U. S. 641; Rutland R. Co. v. Central Vt. R. Co., 159 U. S. 630; Moran v. Horsky, 178 U. S. 205; Pittsburgh & L. A. I. Co. v. Cleveland Min. Co., 178 U. S. 270, 279. The Supreme Court refused to review a decision of a State court which denied a motion to punish a party for a contempt. Newport Light Co. v. Newport, 151 U. S. 527. Where it is claimed that the obligation of a contract has been impaired by a State law, the Supreme 47 Mallett v North Carolina, 181 Court of the United States may pass U. S. 589, 592. 48 Leeper v. Texas, 139 U. S. 462. 49 Chapin v. Fye, 179 U. S. 127. 50 Eustis v. Bolles, 150 U. S, 361, 370; Mo. Pac. Ry. Co. v. Fitzgerald, 160 U. S. 556; Murdock v. Memphis, 20 Wall. 590; Adams County v. B. & M. R. R. Co., 112 U. S. 123; De Saussure v. Gaillard, 127 U. S. 216; Hopkins v. McLure, 133 U. S. 380; Hale upon the question whether any contract was made, Mobile & O. R. Co. v. Tennessee, 153 U. S. 486; and upon the construction of the contract. Columbia Water Power Co. v. Columbia El. Ry., L. & P. Co., 172 U. S. 475; New Orleans Water Co. v. Louisiana Sugar Co., 125 U. S. 18, 38, per Gray, J.: (1) "When the State court decides against a right claimed Where there is a Federal question, but the decision may have been on another independent ground, and on which ground the judgment was based does not appear, then if the independent ground was clearly invalid and insufficient to sustain the judgment, the Supreme Court will take jurisdiction of the case, because when put to inference as to what points the State court decided, it ought not to assume that the judgment was based upon grounds clearly untenable; 51 but where a defense is distinctly made, resting on local statutes, the Supreme Court will not, in order to reach a Federal question, resort to critical conjecture as to the action of the State court in the disposition of such defense.52 When the Supreme Court is of the opinion that the Federal question was erroneously decided, it will still affirm the judgment, if it appears that on another ground, even if such ground were not considered by the State court, the decision was correct. It will not consider an independent constitutional question which appears upon the facts, but was 53 under a contract, and there was no law subsequent to the contract, this court clearly has no jurisdiction." (2) "When the existence and construction of a contract are undisputed, and the State court upholds a subsequent law on the ground that it did not impair the obligation of the admitted contract, it is equally clear that this court has jurisdiction." (3) "When the State court holds that there was a contract conferring certain rights, and that a subsequent law did not impair those rights, this court has jurisdiction to consider the true construction of the supposed contract, and, if it is of opinion that it did not confer the right affirmed by the State court, and therefore its obligation was not impaired by the subsequent law, may, on that ground, affirm the judg. ment." (4) "So, when the State court upholds the subsequent law on the ground that the contract did not confer the right claimed, this court may inquire whether the supposed contract did give the right, because, if it did, the subsequent law cannot be upheld." In McCullough v. Virginia, 179 U. S. 102, the plaintiff in error claimed that certain legislation subsequent to his contract impaired the obligation of the same. The State Court of Appeals, without expressly passing upon the validity of such legislation, gave substantial effect to the same by holding that the original contract was void and could not be enforced. The Supreme Court of the United States took jurisdiction and reversed the judgment. But see the dissenting opinion of Peckham, J., and Powell v. Brunswick County, 150 U. S. 433; Bacon v. Texas, 163 U. S. 207; St. Paul & M. M. Ry. Co. v. Todd County, 142 U. S. 282. 51 Klinger v. Missouri, 13 Wall. 257; Johnson v. Risk, 137 U. S. 300, 307. 52 Johnson v. Risk, 137 U. S. 300, 307. 53 Murdock v. Memphis, 20 Wall. 590, 636. See Walter A. Wood Co. v. Skinner, 139 U. S. 293, 295. not raised below. In a proper case the decision of the State court upon a question of fact will be reviewed.55 The amount of the matter in dispute in the State court is immaterial to the right of review by the Supreme Court of the United States.56 Otherwise, writs of error to State courts and the practice and proceedings under them are substantially similar to writs of error to Circuit Courts of the United States, and the practice and proceedings thereunder."7 § 501. Writs of error from and appeals to the Circuit Courts of Appeals.- The Evarts Act which creates the Circuit Courts of Appeals provides: "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." "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 64 Dewey v. Des Moines, 173 U. S. 193; Chapin v. Fye, 179 U. S. 127. 55 Lloyd v. Matthews, 155 U. S. 222. But see Dower v. Richards, 151 U. S. 56 Buel v. Van Ness, 8 Wheat. 312. 57 U. S. R. S., § 1003. § 501. 126 St. at L., ch. 517, p. 827, § 4. law of a State is claimed to be in contravention of the Constitution of the United States. 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." 2 "That the Circuit Courts of Appeals established by this act shall exercise appellate jurisdiction to review by appeal or by writ of error final decision in the District Court and the existing Circuit Courts in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law. And the judgments or decrees of the Circuit Courts of Appeals shall be final in all cases in which the jurisdiction is dependent entirely upon the opposite parties to the suit or controversy being aliens and citizens of the United States or citizens of different States; also in all cases arising under the patent laws, under the revenue laws, and under the criminal laws and in admiralty cases.' 993 "That where, upon a hearing in equity in a District Court or a Circuit Court, or by a judge thereof in vacation, an injunction shall be granted or continued, or a receiver appointed by an interlocutory order or decree, in a case in which an appeal from a final decree may be taken under the provisions of this act to the Circuit Court of Appeals, an appeal may be taken from such interlocutory order or decree granting or continuing such injunction, or appointing such receiver to the Circuit Court of Appeals: Provided, that the appeal must be taken within thirty days from the entry of such order or decree, and it shall take precedence in the appellate court; and the proceedings in other respects in the court below shall not be stayed unless otherwise ordered by that court, or by the appellate court or a judge thereof during the pendency of such appeal: And provided further, that the court below may in its discretion require as a condition of the appeal, an additional bond."4 226 St. at L. 827. § 5. 326 St. at L. 827, § 6. For the cases in which the decisions are final, see supra, § 497, note. Whether a conviction is for a capital crime is said to depend not upon the penalty imposed but upon that which might have been imposed. Good Shot v. U. S. (C. C. A.), 104 Fed. R. 257. 4 26 St. at L. 828, §7; 31 St. at L. 660; Rowan v. Ide (C. C. A.), 107 Fed. R. 161, 164, per Pardee, J.: "The order or decree continuing an injunc tion, within the meaning of the stat Whenever, on appeal or writ of error or otherwise, a case coming from a District or Circuit Court shall be reviewed and determined in the Circuit Court of Appeals, in a case in which the decision in the Circuit Court of Appeals is final, such cause shall be remanded to the said District or Circuit Court for further proceedings to be there taken in pursuance of such determination." 5 "That no appeal or writ of error by which any order, judgment, or decree may be reviewed in the Circuit Court of Appeals under the provisions of this act shall be taken or sued out except within six months after the entry of the order, judg ment, or decree sought to be reviewed: Provided, however, that in all cases in which a lesser time is now by law limited for appeals or writs of error, such limits of time shall apply to appeals or writs of error, in such cases, taken to or sued out from the Circuit Courts of Appeals. And all provisions of law now in force, regulating the methods and system of review, through appeals or writs of error, shall regulate the methods and system of appeals and writs of error, provided for in this act in respect of the Circuit Courts of Appeals, including all provisions for bonds or other securities to be required and taken on such appeals and writs of error. And any judge of the Circuit Courts of Appeals, in respect of cases brought or to be brought to that court, shall have the same powers and duties ute, is an order or decree which has vitality, affecting in some way the rights of the parties, and without which the injunction would either cease to have force or be enlarged or limited in scope. Frequently orders of injunction, under the law and the equity rules, or by terms inserted by the court or judge, are made to expire at specific dates or on the happening of specific events, and in such cases orders continuing the injunction in force are necessary. See § 719, R. S., and Equity Rule 55. An order or decree refusing to dissolve or to discharge or to vacate an injunction is not an order continuing an injunction, within the meaning of the amendatory act." Heinze v. Butte & B. Consol. Min. Co. (C. C. A.), 107 Fed. |