UNITED STATES SUPREME COURT DECISIONS ON-LINE

The scheme of the Judiciary Act of March 3, 1891, c. 517, 26 Stat. 826, precludes the contention that certificates of division of opinion in criminal cases may still be had under Rev.Stat. §§ 651 and 697.

Review by appeal, by writ of error or otherwise, must be as prescribed by that act, and review by certificate is limited by it to the certificate by the circuit court, made after final judgment, of questions made as to their own jurisdiction, and to the certificate by the circuit courts of appeal, clubjuris

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of questions of law in relation to which the advice of this Court is sought as therein provided, and these certificates are governed by the same general rules as were formerly applied to certificates of division.

On the twenty-third day of November, A.D. 1891, the United States District Attorney 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 obstruction 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 Lieutenant Colonel 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 third 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,

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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 19, 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 of the Revised states, the points of disagreement to this Court, the questions upon which such division of opinion took place being as follows: clubjuris

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"1st. 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."

"2d. 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."