Statement of the Case.

CINCINNATI SAFE AND LOCK COMPANY v. GRAND RAPIDS SAFETY DEPOSIT COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO.

No. 872. Submitted October 17, 1892. - Decided October 31, 1892.

The judgment in the court below in this case was rendered April 25, 1891. On the 19th of June, 1891, an entry was made of record that the court "allows a writ of error to the Supreme Court of the United States, with stay of execution, upon the filing of a supersedeas bond." Such bond was filed and approved June 20, 1891. The jurisdiction of this court in cases dependent upon diverse citizenship was taken away March 3, 1891, except 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 petition for the writ and the assignment of errors were filed in the court below July 3, 1891, and the writ bore test on that day. On motion to dismiss for want of jurisdiction, Held, that the writ was not sued out or taken before July 1, 1891, and that it must be dismissed.

THIS was a motion to dismiss for want of jurisdiction, as the jurisdiction of the court below depended solely upon the diverse citizenship of the parties, and the writ of error was not sued out until July 3, 1891. By the act of March 3, 1891, (26 Stat. 826, c. 517,) establishing the Circuit Courts of Appeals, the jurisdiction of the court, in cases dependent upon diverse citizenship, was taken away; but by the joint resolution of March 3, 1891, (26 Stat. 1115,) the jurisdiction was preserved as to pending cases, and cases wherein the writ of error or appeal should be sued out or taken before July 1, 1891. The language of the joint resolution of March 3, 1891, (26 Stat. 1115,) is as follows: "And be it further resolved: That nothing in said act shall be held or construed in any wise to impair the jurisdiction of the Supreme Court or any Circuit Court of the United States in any case now pending before it, or in respect of any case wherein the writ of error or the appeal shall have been sued out or taken to any of said courts before the first day of July, anno Domini eighteen hundred and ninety-one."

Opinion of the Court.

The plaintiffs in error, in reply to the motion said that that part of the record which had been printed showed that an entry was made on the 19th of June, 1891, allowing the bill of exceptions presented by the plaintiffs in error, and also the writ of error to this court with stay of execution upon the filing of a supersedeas bond, and that a supersedeas bond was filed on the 20th day of June, 1891, which was duly approved. They contended, on the authority of Draper v. Davis, 102 U. S. 370, that the allowance of the writ of error and the filing of the supersedeas bond transferred the jurisdiction of the suit to this court.

Mr. Charles B. Wilby and Mr. Gustavus H. Wald for the motion.

Mr. John F. Follett and Mr. T. H. Kelley, opposing.

THE CHIEF JUSTICE: Judgment was rendered in this case by the Circuit Court of the United States for the Southern District of Ohio on April 25, 1891. An entry was made of record, June 19, 1891, that the court "allows a writ of error to the Supreme Court of the United States, with stay of execution, upon the filing of a supersedeas bond," as described, and such a bond was filed and approved June 20, 1891. A petition for the allowance of the writ of error and an assignment of errors were filed in the clerk's office of the Circuit Court, July 3, 1891, and the writ of error bears test and was filed in that office on that day, and a citation to the adverse party signed and served.

The motion to dismiss must be sustained upon the authority of Wauton v. De Wolf, 142 U. S. 138; Brooks v. Norris, 11 How. 204; Credit Co. v. Arkansas Central Railway Co., 128 U. S. 258, and cases cited.

Writ of error dismissed.

Statement of the Case.

HUBBARD v. SOBY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CONNECTICUT.

No. 1094. Submitted October 17, 1892. - Decided October 31, 1892.

This court has no jurisdiction over a writ of error sued out June 11, 1892, from a judgment rendered by a Circuit Court of the United States against a collector of customs in a suit brought to recover back an alleged excess of duties paid upon an importation of goods made prior to the going into effect of the act of Congress of June 10, 1890, "to simplify the laws in relation to the collection of the revenues," 26 Stat. 131, c. 407.

MOTION TO DISMISS. as follows:

The motion, entitled in the cause, was

"Charles Soby, defendant in the cause above entitled, moves the court to dismiss the writ of error therein, for want of jurisdiction in this court to hear and determine the same.

"This is a suit between two citizens of Connecticut, brought October 9, 1890, in the Circuit Court of the United States for the district of Connecticut by said Charles Soby against said Charles C. Hubbard, to recover an alleged excess of duties upon imports exacted by said Hubbard, in his capacity of collector of customs of the port of Hartford, from said Charles Soby; the jurisdiction of said Circuit Court being entirely dependent upon the federal question thus arising under the customs-revenue laws of the United States. The Circuit Court found the exaction to be illegal, and gave judgment for the plaintiff below, defendant in error here, on the 27th day of February, 1892. Thereupon, on the 11th day of June, 1892, the present plaintiff in error sued out the writ of error which brings the proceedings here.

"Inasmuch as, under the sixth section of the act of March 3, 1891, 26 Stat. c. 517, pp. 826, 828, no writ of error to this Court lies to such final judgment of said Circuit Court, the said defendant in error now moves that said writ be dismissed with costs."

Argument against the Motion.

The material part of the sixth section of the act of March 3, 1891, "to establish Circuit Courts of Appeals and to define and regulate in certain cases the jurisdiction of the courts of the United States," is as follows:

"The Circuit Courts of Appeals established by this act shall exercise appellate jurisdiction to review by appeal or 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, excepting," etc.

Mr. Lewis E. Stanton and Mr. Edwin B. Smith for the motion.

Mr. Assistant Attorney General Maury opposing.

It would be an abuse of the patience of the court to cite the cases in which it has been held that the mere fact that the subject-matter of a prior special law falls within the language of a subsequent general law does not warrant the conclusion that the two laws are in collision, and that the earlier is repealed by the later.

The language of the act of March 3, 1891, is, it may be conceded, broad enough to embrace the case at bar; but the question that arises in this case, and that arose in the many cases in which the above-mentioned principle of construction has been applied, is whether the legislative intent is coextensive with the generality of the language of the statute, for it is the intent, and not necessarily the literal sense of the words, that must prevail.

It will be remembered that the Customs Administrative act of June 10, 1890, 26 Stat. 131, c. 407, established an entirely new

Argument against the Motion.

procedure for the review of the acts of collectors of customs in assessing duties on importations. But as that act did not go into effect until August 1, 1890, except as to the provision for the appointment of nine general appraisers, it was necessary to make provision for rights that had accrued and proceedings that had been commenced under the old laws prior to August 1, 1890, and, accordingly, it was provided as an exception to the repealing section 29, as follows: "But the repeal of existing laws or modifications thereof embraced in this act shall not affect any act done, or any right accruing or accrued, or any suit or proceeding had or commenced, in any civil cause before the said repeal or modifications; but all rights and liabilities under said laws shall continue and may be enforced in the same manner as if said repeal or modifications had not been made. Any offences committed, and all penalties or forfeitures or liabilities incurred, prior to the passage of this act, under any statute embraced in or changed, modified, or repealed by this act, may be prosecuted or punished in the same manner and with the same effect as if this act had not been passed. All acts of limitation, whether applicable to civil causes and proceedings or to the prosecution of offences, or for the recovery of penalties or forfeitures embraced in or modified, changed, or repealed by this act, shall not be affected thereby; and all suits, proceedings, or prosecutions, whether civil or criminal, for causes arising or acts done or committed prior to the passage of this act, may be commenced and prosecuted within the same time and with the same effect as if this act had not been passed." It would seem clear that the right of the importer, Soby, to contest the collector's final liquidation of duty in July, 1890, was a right that accrued under the old law, and if a right that had accrued under the old law, then it was a right which the saving clause says "shall continue and may be enforced in the same manner as if said repeal or modifications had not been made."

The saving clause of the act of 1890 declares that no suit or proceedings under the former law in any civil cause shall be affected by the act. If, then, the importer's appeal to the