« ForrigeFortsett »
ON A CERTIFICATE from the Court
bia presenting questions as to the constitutionality of a congressional statute relating to tax assessments. Dismissed for want of jurisdiction.
People's R. Co. Del. Ch., 47 Atl. 245; People ex rel. Anderson v. Lee County, 196 Ill. App. 452; Kelley v. Northern Trust Co. 190 Ill. 401, 60 N. E. 585; McGann v. People, 194 Ill. 526, 62 N. E. 941; Daube v. Kuppenheimer, 272 Ill. 350, 112 N. E. 61; Spiehs v. Insull, 278 Ill. 184, 115 N. E. 816; People ex rel. Shaw v. Stewart, 281 Ill. 365, 118 N. E. 55; Halstead v. Woods, 48 Ind. App. 127, 95 N. E. 429; State ex rel. Trimble v. Swope, 7 Ind. 91; Anderson v. Bell, 140 Ind. 375, 29 L.R.A. 541, 39 N. E. 735; Hilliker v. Citizens' Street R. Co. 152 Ind. 86, 52 N. E. 607; Monroe County v. Conner, 155 Ind. 484, 58 N. E. 828; Brown v. Miller, 162 Ind. 684, 71 N. E. 122; Evans v. State, 165 Ind. 369, 2 L.R.A. (N.S.) 619, 74 N. E. 244, 75 N. E. 651, 6 Ann. Cas. 813; State ex rel. Western Constr. Co. v. Clinton County, 166 Ind. 162, 76 N. E. 986; Cronin v. Zimmerman, 169 Ind. 75, 81 N. E. 1083; Sopher v. State, 169 Ind. 177, 14 L.R.A. (N.S.) 172, 81 N. E. 913, 14 Ann. Cas. 27; Marshall v. Matson, 171 Ind. 238, 86 N. E. 339; Rupel v. Ohio Oil Co. 172 Ind. 300, 88 N. E. 508; State v. Ensley, 177 Ind. 483, 97 N. E. 113, Ann. Cas. 1914D, 1306; Ross v. Hannah, 173 Ind. 671, 91 N. E. 232; Smith v. Biesiada, 174 Ind. 134, 90 N. E. 1009; Jay v. O'Donnell, 178 Ind. 282, 98 N. E. 349, Ann. Cas. 1915C, 325; Moore-Mansfield Constr. Co. v. Indianapolis N. C. & T. R. Co. 179 Ind. 356, 44 L.R.A. (N.S.) 816, 101 N. E. 296, Ann. Cas. 1915D, 917; Metsker v. Whitsell, 181 Ind. 126, 103 N. E. 1078; Evans v. Bowman, 183 Ind. 264 108 N. E. 956; Barr v. Sumner, 183 Ind. 402, 107 N. E. 675, 109 N. E. 193; Vandalia R. Co. v. Mizer, 184 Ind. 680, 112 N. E. 522; Temple v. State, 185 Ind. 139, 113 N. E. 233; Fesler v. Bosson, Ind. -, 128 N. E. 145; Topeka v. Wasson, 101 Kan. 824, 168 Pac. 902; Overfield v. Sutton, 1 Met. (Ky.) 621; Wender Blue Gem Coal Co. v. Louisville Property Co. 137 Ky. 339, 125 S. W. 732; Chatterson v. Louisville, 145 Ky. 485, 140 S. W. 647; La Selle v. Whitfield, 12 La. Ann. 81; Crescent Bed Co. v. New Orleans, 111 La. 124, 35 So. 484; Lehman v. Lehman, 130 La. 960, 58 So. 829; Myrick v. Hasey, 27 Me. 9, 46 Am. Dec. 583; Cota v. Ross, 66 Me. 161; Tuxbury's Appeal,
The facts are stated in the opinion.
Messrs. Augustus S. Worthington and Vernon E. West argued the cause and filed a brief for John C. Heald et al.
67 Me. 267; East Livermore v. Livermore Falls Trust & Bkg. Co. 103 Me. 418, 15 L.R.A. (N.S.) 952, 69 Atl. 306, 13 Ann. Cas. 631; Low v. Blanchard, 116 Mass. 272; Shelton v. Sears, 187 Mass. 455, 73 N. E. 666; Looney v. Saltonstall, 212 Mass. 69, 98 N. E. 698; Long v. Quinn Bros. 215 Mass. 85, 102 N. E. 348; Nichols v. Vaughan, 217 Mass. 548, 105 N. E. 376; King v. Thissell, 222 Mass. 140, 109 N. E. 880; Kelly v. Morrison, 231 Mass. 574, 121 N. E. 418; McEvoy v. Sault Ste. Marie, 136 Mich, 172, 98 N. W. 1006; Hoy v. Hoy, 93 Miss. 732, 25 L.R.A. (N.S.) 182, 136 Am. St. Rep. 548, 48 So. 903, 17 Ann. Cas. 1137; Illinois C. R. Co. v. White, 97 Miss. 91, 55 So. 593; Hamner v. Yazoo Delta Lumber Co. 100 Miss. 349, 56 So. 466; Henry v. Henderson, 103 Miss. 48, 60 So. 33; Camp v. Wabash R. Co. 94 Mo. App. 272, 68 S. W. 96; Handlin v. Morgan County, 57 Mo. 116; Easton v. Courtwright, 84 Mo. 27; Schwacker v. McLaughlin, 139 Mo. 333, 40 S. W. 935; State v. Schenk, 238 Mo. 429, 142 S. W. 263; State ex rel. Pearson v. Cornell, 54 Neb. 647, 75 N. W. 25; Kendall v. Garneau, 55 Neb. 403, 75 N. W. 852; Gould v. Wise, 18 Nev. 253, 3 Pac. 30; Tomson v. Ward, 1 N. H. 9; Jewell v. Holderness, 41 N. H. 161; Frink v. Pond, 46 N. H. 125; Waterman v. Lebanon, 78 N. H. 23, 95 Atl. 657; Cook v. Bennett Gravel Co. 90 N. J. L. 9, 100 Atl. 331; Erhard v. Kings County, 69 N. Y. S. R. 624, 36 N. Y. Supp. 656; Dominick v. Stern, 79 Misc. 271, 139 N. Y. Supp. 59, affirmed in 157 App. Div. 944, 142 N. Y. Supp. 1115, which is affirmed in 213 N. Y. 675, 107 N. E. 1075; Canelli Wine Co. v. Tassi, 88 Misc. 573, 151 N. Y. Supp. 46; People ex rel. Donegan v. Dooling, 141 App. Div. 31, 125 N. Y. Supp. 783; Re Ahlers, 141 App. Div. 891, 127 N. Y. Supp. 61, affirmed in 201 N. Y. 592, 95 N. E. 1122; People ex rel. Gagan v. Purdy, 173 Apn. Div. 350, 159 N. Y. Supp. 246; Brock v. Brock, 1 Pa. Co. Ct. 232, 18 W. N. C. 123; Guarantee Trust Co. v. Loughlin, 2 Pa. Co. Ct. Rep. 591, 17 Phila. 123; Delaware Mutual Safety Ins. Co. v. Loughlin 2 Pa. Co. Ct. 600; Kent v. Atlantic Delaine Co. 8 R. I. 305; Sampson v. Sampson, 16 R. I. 456, 3 L.R.A. 349, 16 Atl. 711; Brink v. Dann, 33 S. D.
Mr. F. H. Stephens argued the cause and filed a brief for the District of Columbia.
Mr. Chief Justice White delivered the opinion of the court:
The certificate made by the court of 81, 144 N. W. 734; Walker v. Bobbitt, 114 Tenn. 700, 88 S. W. 327; Supreme Council, A. L. H. v. Anderson, 36 Tex. Civ. App. 615, 83 S. W. 207; Cobb v. Dies, Tex. Civ. App. 203 S. W. 438; Lotto v. State, Tex. Civ. App. -, 208 S. W. 563; Lewis v. State, 58 Tex. Crim. Rep. 351, 127 S. W. 808, 21 Ann. Cas. 656; Adams v. State, 66 Tex. Crim. Rep. 220, 145 S. W. 940; Gearheart v. State, 81 Tex. Crim. Rep. 540, 197 S. W. 187; Cargill v. Kountze Bros. 86 Tex. 386, 24 L.R.A. 183, 40 Am. St. Rep. 853, 22 S. W. 1015, 25 S. W. 13; State v. Roberts, Utah, 190 Pac. 351; Mangus v. McClelland, 93 Va. 786, 22 S. E. 364; Swift v. Wood, 103 Va. 494, 49 S. E. 643.
So, re-enactment in a Code, of provisions contained in former statutes, must be taken as a legislative adoption of the judicial construction given to such provisions. Duramus v. Harrison, 26 Ala. 326; Anthony v. State, 29 Ala. 27; Bank of Mobile v. Meagher, 33 Aia. 622; O'Byrnes v. State, 51 Ala. 25: Ex parte Matthews, 52 Ala. 51; Huddleston v. Askey, 56 Ala. 218; White v. State, 134 Ala. 197, 32 So. 320; Bruce v. Sierra, 175 Ala. 517, 57 So. 709, Ann. Cas. 1914D, 125; Reynolds v. Lee, 180 Ala. 76, 60 So. 101; Mobile County v. Williams, 180 Ala. 639, 61 So. 963; State Commission in Lunacy v. Welch, 154 Cal. 775, 95 Pac. 181; Lindsay-Strathmore Irrig. Dist. v. Superior Ct. -, 187 Pac. 1056. Charter provisions are subject to this rule. Dalton v. LeLande, 22 Cal. App. 481, 135 Pac. 54.
appeals of the District of Columbia as the basis for the questions which  are propounded shows that they relate to a pending suit to recover taxes assessed by the District of Columbia upon intangible property, pursuant to an act of Congress, and paid tion that the legislature knew of the construction. Ibid.
The rule is founded upon reason. When words have a known signification when standing in a particular relation, or as applied to a particular subjectmatter, the signification is not varied because of their translation from one statute to another. The statutes have a common purpose, the same relation and subject-matter. Barnewall v. Murrell, 108 Ala. 366, 18 So. 831.
Thenceforth the rule becomes obligatory upon the court. Mangus v. McClelland, 93 Va. 786, 22 S. E. 364; Swift v. Wood, 103 Va. 494, 49 S. E. 643. Otherwise, naturally the words would have been changed. Consol. Min. Co. v. Territorial Bd. of Copper Queen Equalization, 206 U. S. 474, 51 L. ed. 1143, 27 Sup. Ct. Rep. 695; Barnewall v. Murrell, supra.
It is not straining the principle too far to say that where the practice has been long settled under a statute prescribing a mode of doing a certain act, a re-enactment of the statute in the same words should be construed as approving and confirming the practice unless it is entirely clear that such practice is defective in the very substance of the requirements of the law. Brock v. Brock, 1 Pa. Co. Ct. 232, 18 W. N. C. 123.
A statute which has been re-enacted after being construed by the court must be given the meaning which the court gave to it. Hope v. State, 5 Ala. App. 123, 59 So. 326.
And such a prior judicial construction And statutes of wills have been sub-is included in a re-enacted statute, even jected to this rule. Thus, in Hoy v. though such construction is unsound. Hoy, 93 Miss. 732, 25 L.R.A. (N.S.) 182, Jones v. State, 10 Ala. App. 152, 65 So. 48 So. 903, 17 Ann. Cas. 1137, it was held 411. that the re-enactment of a statute of wills adopts the construction which the courts have put upon it that, under it, there may be a revocation of a will by implication.
roneous they cannot be overruled, since Even though the decisions were erthe Supreme Court is not vested with legislative power. Barr v. Sumner, 183 Ind. 402, 107 N. E. 675, 109 N. E. 193.
The presumption of legislative adoption of the judicial construction of the While a construction placed upon a statute will apply where the decision is statute may not have been necessary to not by the state court, but by a district a determination of the question involved court of the United States. Gould in a case, yet, if the statute is re-enacted Wise, 18 Nev. 253, 3 Pac. 30. with that construction resting upon it, The rule is based upon the presump-it amounts to a legislative adoption of
Kelly v. Thuey, 143 Mo. 422, 45 S. W. 300; Kenney v. Seaboard Air Line R. Co. 166 N. C. 566, 82 S. E. 849; Cooper v. Yoakum, 91 Tex. 391, 43 S. W. 871; Whitcomb v. Rood, 20 Vt. 49; Newman v. Garfield, 93 Vt. 16, 5 A.L.R. 1507, 104 Atl. 881.
under protest, on the ground that the whole and in its several parts." It assessment was "illegal and void in suffices to say that the questions, such construction. Mobile County v. Williams, 180 Ala. 639, 61 So. 963. Where the law has been antecedently settled by clear expressions or adjudications, a mere change of phraseology is not to be construed a change of the law, unless such phraseology evidently purports an intention to work a change. Overfield v. Sutton, 1 Met. (Ky.) 621; Douglass v. Howland, 24 Wend. 34.
The construction must be clear and uniform, and so the rule does not apply where the decisions have been antagonistic. Domestic Block Coal Co. v. DeArmey, 179 Ind. 592, 100 N. E. 675, 102 N. E. 99.
And the rule applies only when the statute is capable of the construction given to it, and when that construction has become a settled rule of conduct. Dollar Sav. Bank v. United States, 19 Wall. 227, 22 L. ed. 80.
So, the re-enactment of a statute will not effect the legislative adoption of an impossible construction. Ibid.
And where the phraseology of two enactments is essentially dissimilar there is no ground for applying the rule that a statute embodying the terms of a prior statute must be read in the light of the interpretation given to such prior statute. McGregor v. Burlingame, 159 Cal. 441, 114 Pac. 566.
Thus, Congress, in using the words "unmanufactured tobacco" in the Tariff Act of 1897, must be deemed to have adopted the construction given by the Federal Supreme Court to the words as used in an earlier act. Latimer v. United States, 223 U. S. 501, 56 L. ed. 526, 32 Sup. Ct. Rep. 242.
And the judicial construction of the word "vegetable" in a tariff act will be presumed to have been adopted by Congress as to the provision in a later tariff act relating to vegetables. Von Bremen, M. & Co. v. United States, 94 C. C. A. 301, 168 Fed. 889.
In Moore-Mansfield Constr. Co. V. Indianapolis, N. & T. R. Co. 179 Ind. 356, 44 L.R.A. (N.S.) 816, 101 N. E. 296, Ann. Cas. 1915D, 917, the court said that by analogy it would appear that if a word or term in a statute were susceptible of two meanings, one broad and the other narrow, and continuously for forty years the courts had enforced the statute in a manner consistent only with the broad defini tion of the word or term, the legisla ture, in re-enacting the statute containing the same word or term, intended to give it the broad meaning recognized by the court.
In the absence of a prior construction of words used in an old act that are used in a new act covering the same subject-matter, the court, in construing such words, must take into account the history of legislation, and be controlled by the generally accepted meaning of the words as used at the time of the passage of the new act. Dow v. United States, 140 C. C. A. 549, 226 Fed. 145.
So, too, the rule that a statute will be presumed to have been re-enacted in view of former construction has no application where the language of the new act, when construed in the light of the context, indicates a different legislative intention. Atton v. South Chicago City R. Co. 236 Ill. 507, 86 N. E. 277. And to the same effect is Topeka v. Wasson, 101 Kan. 824, 168 Pac. 902. Where, in a new enactment of the provisions of an earlier act, a particular word or phrase of the earlier act is adopted, it must, in the absence of a plainly expressed intention to the contrary, be held that the legislature However, the rule that a phrase in adopted the construction which the an earlier statute that is re-enacted in court had given to that word or phrase a later statute must have the same juunder the previous decisions, and made dicial construction does not apply such construction a part of the statu- where the expression is not re-enacted tory provision. Mason v. Fearson, 9 with the same limitations. How. 248, 13 L. ed. 125; Latimer v. Marion County, Ind. App. —, 124 N. United States, 223 U. S. 501, 56 L. ed. E. 704. 526, 32 Sup. Ct. Rep. 242; Von Bremen M. & Co. v. United States, 94 C. C. A. 301, 168 Fed. 889; Re American Lime Co. 201 Fed. 433; Dalton v. LeLande, 22 Cal. App. 481, 135 Pac. 54; Powers v. Worcester, 210 Mass. 471, 97 N. E. 95;
The same principle is applied to statutes or parts of statutes which have been re-enacted after they have been construed by executive or legislative departments of government. United States v. Falk, 294 U. S. 143, 51 L. ed.
which are stated in the margin, express the power conferred in a case where a the purpose of the court below to ask certificate is pending, to order up the our instructions as to the constitution- whole record, be exerted. But, as the ality of the act of Congress in the light want of power in the court below to of the construction of that act which was make the certificate has been suggested, the basis of the assessment of which and as that naturally arises on the face complaint is made. of the record, and will, if well founded, preclude present inquiry into other questions, we come to consider that subject. It is indisputable that the court bescribed by the act of Congress itself, and he had no power to dispense with the requisition. There is, therefore, no presumption that his decisions brought to the knowledge of Congress when [the re-enacted bill] was passed."
At bar the subject is discussed as if the case were here on error or appeal; and, on the other hand, it is prayed that 411, 27 Sup. Ct. Rep. 191; United States v. Cerecedo Hermanos y Compania, 209 U. S. 337, 52 L. ed. 821, 28 Sup. Ct. Rep. 532; National Lead Co. v. United States. 252 U. S. 146, 64 L. ed. 496, 40 Sup. Ct. Rep. 237; Edwards v. Wabash R. Co. 264 Fed. 610; Mayes v. Paul Jones & Co. 270 Fed. 121; Van Veen v. Graham County, 13 Ariz. 167, 108 Pac. 252; Louisville v. Louisville School Board, 119 Ky. 574, 84 S. W. 729; Fuqua v. Hager, 119 Ky. 407, 84 S. W. 325; Greene v. Jones, 170 Ky. 757, 186 S. W.
To this rule the tariff acts have been subjected in United States v. Falk, 204 U. S. 143, 51 L. ed. 411, 27 Sup. Ct. Rep. 191; United States v. Cerecedo Hermanos y Compania, 209 U. S. 337, 52 L. ed. 821, 28 Sup. Ct. Rep. 532; National Lead Co. v. United States, 252 U. S. 146, 64 L. ed. 496, 40 Sup. Ct. Rep. 237; Mayes v. Paul Jones & Co. 270 Fed. 121,-the court in these cases having adopted the construction placed upon the provisions of a tariff act by the Treasury Department.
But in Dollar Sav. Bank v. United States, 19 Wall. 227, 22 L. ed. 80, a construction by the internal revenue commissioner of the proviso of the internal revenue law relative to the tax on savings banks was held not to have been adopted by Congress by a re-enactment of the tax. The court said: "The decisions of the internal revenue commissioner can hardly be denominated judicial constructions. That of ficer was not required by the law to prescribe what returns savings banks were required to make. That was pre
11. Does § 9 of an act of Congress approved March 3, 1917 (39 Stat. at L. 1046, chap. 160), under which said assessment was made, require that 'moneys and credits, including moneys loaned and invested, bonds and shares of stock ..of any person, firm, association, or corporation gaged in business within said District,' but residing outside of said District, shall be assessed by the District of Columbia for the purpose of taxation?
In the matter of the construction of compiled or revised statutes where there is ambiguity, resort may properly be had to the original enactment to ascertain the true meaning. United States v. Bowen, 100 U. S. 508, 25 L. ed. 631; United States v. Lacher, 134 U. S. 624, 33 L. ed. 1080, 10 Sup. Ct. Rep. 625; The Conqueror, 166 Ü. S. 110, 41 L. ed. 937, 17 Sup. Ct. Rep. 510; United States v. Dauphin, 20 Fed. 625; Schmidt v. United States, 66 C. C. A. 389, 133 Fed. 257; Thomas v. United States, 17 L.R.A. (N.S.) 720, 84 C. C. A. 477, 156 Fed. 897; Findlay v. United States, 139 C. C. A. 207, 225 Fed. 337; Baptist Female College v. Board of Education, 190 Ky. 565, 228 S. W. 19; Mass. 559, 2 N. E. 675; Franks v. EdinPratt V. Boston Street Comrs. 139 berg, 185 Mass. 49, 69 N. E. 1058; 300; Rodgers, MeC. & Co. v. Bell, 156 Kelly v. Thuey, 143 Mo. 422, 45 So. N. C. 378, 72 S. E. 817; Douglass v. Howland, 24 Wend. 34; State ex rel. Nimberger v. Bushnell, 95 Ohio St. 203, 116 N. E. 464.
And in construing those parts of the Code which re-enacted provisions originally enacted in both the English and French languages, both texts may be taken into consideration; but if the two cannot be reconciled, the English must prevail. Viterbo v. Friedlander, 120 U. S. 707, 30 L. ed. 776, 7 Sup. Ct. Rep. 962.
"2. If it does, is it invalid? And if invalid, does that fact render void the entire section?
"3. Does the section require the District of Columbia to assess the bonds and other securities of the states and their municipal en-corporations held by residents of the District of Columbia; and if it does, does its invalidity on that account render the entire section void ?"
low had no power to certify questions to In addition, as the paragraphs of § this court in any case where its judg- 250 in question but re-enact provisions ment or decree would be susceptible of of prior statutes which had been conreview in this court on error or appeal. strued as conveying authority to review United States ex rel. Arant v. Lane, 245 controversies  concerning the conU. S. 166, 168, 62 L. ed. 223, 224, 38 stitutional power of Congress to enact Sup. Ct. Rep. 94.  Whether the local statutes (Parsons v. District of power to certify exists, therefore, Columbia, 170 U. S. 45, 42 L. ed. must be decided by a consideration 943, 18 Sup. Ct. Rep. 521; Smoot of § 250 of the Judicial Code, which v. Heyl, 227 U. S. 518, 57 L. ed. 621, deals with the right to review by er- 33 Sup. Ct. Rep. 336), the proposiror or appeal. As, when that sec- tion conflicts with the settled rule tion is considered, it appears that its that where provisions of a statute third paragraph in express terms con- had, previous to their re-enactment, a fers power on this court to review on settled significance, that meaning will error or appeal judgments or decrees of continue to attach to them in the abthe court below "in cases involving the sence of plain implication to the conconstruction or application of the Con- trary. Latimer v. United States, 223 U. stitution of the United States, or the S. 501, 504, 56 L. ed. 526, 527, 32 Sup. constitutionality of any law of the Unit- Ct. Rep. 242; Anderson v. Pacific Coast ed States, or the validity or construction S. S. Co. 225 U. S. 187, 199, 56 L. ed. of any treaty made under its authority" 1047, 1053, 32 Sup. Ct. Rep. 626; Unit[36 Stat. at L. 1159, chap. 231, Comp. ed States ex rel. Louisville Cement Co. Stat. § 1227, 5 Fed. Stat. Anno. 2d ed. v. Interstate Commerce Commission, 246 p. 913], it is at once demonstrated that U. S. 638, 644, 62 L. ed. 914, 918, 38 the court below was devoid of any au- Sup. Ct. Rep. 408. thority to make the certificate, and hence that this court has no jurisdiction to answer the questions.
But it is suggested that as it was held in American Secur. & T. Co. v. District of Columbia, 224 U. S. 491, 56 L. ed. 856, 32 Sup. Ct. Rep. 553, that the power conferred upon this court by paragraph 6 of § 250, to review on error or appeal judgments or decrees of the court below "in cases in which the construction of any law of the United States is drawn in question by the defendant," embraced only the construction of laws of general operation, as distinguished from those which were local to the District of Columbia, therefore the grant of power to determine the constitutionality of acts of Congress must be treated as applying only to such acts as are general in character, as to which it is insisted the act involved in this case is not one.
But the contention disregards the suggestion of a difference between the two subjects which was made in the American Secur. & T. Co. Case, and overlooks the implication resulting from a subsequent case directly dealing with the same matter. United Surety Co. v. American Fruit Product Co. 238 U. S. 140, 59 L. ed. 1238, 35 Sup. Ct. Rep. 828.
65 L. ed.
That a decision below which merely deals with and interprets a local statute is not subject to review by error or appeal affords no basis for saying that the exertion of the infinitely greater power to determine whether Congress had constitutional authority to pass a statute local in character should be necessarily subjected to a like limitation. To the contrary, the elementary principle is that the right to pass upon the greater question, the constitutional power of Congress, draws to it the authority to also decide all the essential incidents, even though otherwise there might not be a right to consider them. Fields v. Barber Asphalt Paving Co. 194 U. S. 618, 620, 48 L. ed. 1142, 1152, 24 Sup. Ct. Rep. 784; Williamson v. United States, 207 U. S. 425, 432, 52 L. ed. 278, 284, 28 Sup. Ct. Rep. 163; Michigan C. R. Co. v. Vreeland, 227 U. S. 59, 64, 57 L. ed. 417, 419, 33 Sup. Ct. Rep. 192, Ann. Cas. 1914C, 176; Wilson v. United States, 232 U. S. 563, 565, 58 L. ed. 728, 730, 34 Sup. Ct. Rep. 347; Singer Sewing Machine Co. v. Brickell, 233 U. S. 304, 313, 58 L. ed. 974, 978, 34 Sup. Ct. Rep. 493.
It follows that the certificate must be and it is dismissed for want of jurisdiction.