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Opinion of the Court.

Ansbro sued out a writ of error from this court, and we are met on the threshold of the case with the question whether we can take jurisdiction. Under section five of the judiciary act of March 3, 1891, appeals or writs of error may be taken from the District Courts or from the existing Circuit Courts directly to this court in any case in which the jurisdiction of the court is in issue and the question of jurisdiction is certified from the court below for decision; 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; and in any case in which the constitutionality of any law of the United States is drawn in question.

The offence for which Ansbro was indicted is not punishable by imprisonment for a term of over one year or at hard labor; and persons convicted thereof cannot be sentenced to imprisonment in a penitentiary. Rev. Stat. §§ 5541, 5542. Ansbro was not convicted, therefore, of an infamous crime.

If the jurisdiction of the Circuit Court was in issue, no certificate of such question of jurisdiction to this court for decision appears in the record, and without such certificate the case is not properly here on that ground.

The jurisdiction of this court must be maintained then, if at all, on the ground that this is a case "that involves the construction or application of the Constitution of the United States," or "in which the constitutionality of any law of the United States is drawn in question." But we cannot find that any constitutional question was raised at the trial. Motions to quash, to instruct the jury to find for the defendant, for new trial, and in arrest of judgment were made, but in neither of them, so far as appears, nor by any exception to rulings on the admission or exclusion of evidence, nor to instructions given or the refusal of instructions asked, was any suggestion made that defendant was being denied any constitutional right or that the law under which he was indicted was unconstitutional. The first time that anything appears upon that subject is in the assignment of errors, filed February 13, 1895. A case may be said to involve the construction or application of the Constitution of the United States when a title, right,

Counsel for Parties.

privilege, or immunity is claimed under that instrument, but a definite issue in respect of the possession of the right must be distinctly deducible from the record before the judgment. of the court below can be revised on the ground of error in the disposal of such a claim by its decision. And it is only when the constitutionality of a law of the United States is drawn in question, not incidentally but necessarily and directly, that our jurisdiction can be invoked for that reason. Borgmeyer v. Idler, 159 U. S. 408; Carey v. Railway Company, 150 U. S. 170; In re Lennon, 150 U. S. 395; Northern Pacific Railroad Company v. Amato, 144 U. S. 465, 472; Sayward v. Denny, 158 U. S. 180. An assignment of errors cannot be availed of to import questions into a cause which the record does not show were raised in the court below and rulings asked thereon, so as to give jurisdiction to this court under the fifth section of the act of March 3, 1891.

Writ of error dismissed.

LITTLE ROCK AND MEMPHIS RAILROAD COMPANY v. EAST TENNESSEE, VIRGINIA AND GEORGIA RAILROAD COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF TENNESSEE.

Argued and submitted November 14, 1895.

Decided December 2, 1895.

No appeal could be taken to this court from a decree in a Circuit Court made on the 1st of October, 1891, in a case like this case.

THE case is stated in the opinion.

Mr. U. M. Rose and Mr. G. B. Rose, for appellant, submitted on their brief.

Mr. John F. Dillon, (with whom was Mr. Winslow S. Pierce and Mr. Rush Taggart on the brief,) for St. Louis, Iron Mountain and Southern Railway Company, appellee.

Opinion of the Court.

MR. CHIEF JUSTICE FULLER delivered the opinion of the

court.

This was a bill in equity filed by the Little Rock and Memphis Railroad Company against the East Tennessee, Virginia and Georgia Railroad Company and the St. Louis, Iron Mountain and Southern Railroad Company in the Circuit Court of the United States for the Western District of Tennessee, April 13, 1889, praying for a mandatory injunction against the defendants, requiring them to afford complainant "the same equal facilities as are afforded to any other connecting road, and for such other relief as may be deemed equitable." Defendants filed their joint and several demurrers July 17, 1889, and on the first of October, 1891, the cause having theretofore been submitted to the court, a final decree was entered dismissing the bill of complaint for want of equity, from which decree complainant prayed an appeal to this court, which was allowed and duly perfected.

By the fifth section of the judiciary act of March 3, 1891, c. 517, 26 Stat. 826, appeals or writs of error can be taken directly to this court in six classes of cases there enumerated, and the case before us falls within none of them. Jurisdiction as existing before the passage of the act was preserved by a joint resolution of March 3, 1891, 26 Stat. 1115, as to pending cases and cases wherein the writ of error or appeal should be sued out or taken before July 1, 1891. In this case the decree was not rendered until the first day of October of that year. It follows that the appeal must be dismissed. National Exchange Bank v. Peters, 144 U. S. 570.

By the sixteenth section of the interstate commerce act, (24 Stat. c. 104, 379; 25 Stat. c. 382, 855,) it was provided that where the commission had made any lawful order or requirement, and a party refused to obey or perform it, it should be lawful for the commission, or any person or company interested therein, to apply to the Circuit Court sitting in equity for the enforcement of such order; and it was further provided, in respect of the action of the Circuit Court, that "whenever the subject in dispute shall be of the value of two

Opinion of the Court.

thousand dollars or more, either party to such proceeding before said court may appeal to the Supreme Court of the United States, under the same regulations now provided by law in respect of security for such appeal." In Interstate Commerce Commission v. Railroad Company, 149 U. S. 264, where an appeal was taken directly to this court after July 1, 1891, from an order in a proceeding under that act, we held that it would not lie. Certainly there can be no different result in this case. Appeal dismissed.

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MR. ATTORNEY GENERAL addressed the court as follows:

It is with more than a sense of official propriety that I comply with the request of the bar by presenting to the court their resolutions relating to the late Justice Jackson. We of his home circuit knew him best. There were his birthplace and his home. There his first regular judicial work was done, by which he made the reputation that led to the call from across the party wall to a seat beside Your Honors.

The active bar always feel some misgivings when a man in public life, even though he has won distinction there, is called to the bench, especially when he has reached middle age. But they soon found that Howell Edmonds Jackson was not so much a senator who had been appointed judge as a judge who had served for a time as senator. His mind, naturally broad and strong, symmetrically

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