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ACT ESTABLISHING

THE

CIRCUIT COURTS OF APPEALS

AND

AMENDMENTS THERETO.

ACT MARCH 3, 1891, c. 517.

An Act to Establish Circuit Courts of Appeals and to Define and

Regulate in certain cases the Jurisdiction of the Courts of the

United States, and for other Purposes. (26 Stat. 826.) Be it enacted by the senate and house of representatives of the United States of America, in congress assembled, that there shall be appointed by the president of the United States, by and with the advice and consent of the senate, in each circuit, an additional circuit judge, who shall have the same qualifications, and shall have the same power and jurisdiction therein, that the circuit judges of the United States, within their respective circuits, now have under existing laws, and who shall be entitled to the same compensation as the circuit judges of the United States in their respective circuits now have. Circuit courts of appeals established; powers, proceedings, officers,

costs and fees, and rules. Sec. 2. That there is hereby created in each circuit a circuit cour: of appeals, which shall consist of three judges, of whom two shall constitute a quorum, and which shall be a court of record with appellate jurisdiction, as is hereafter limited and established. Such court shall prescribe the form and style of its seal and the form of writs and other process and procedure as may be conformable to the exercise of its jurisdiction as shall be conferred by law. It shall have the appointment of the marshal of the court with the same duties and powers under the regulations of the court as are now provided for the marshal of the Supreme Court of the United States, so far as the same may be applicable. The court shall also appoint a clerk, who shall perform and exercise the same duties and powers in regard to all matters within its jurisdiction as are now exercised and performed by the clerk of the Supreme Court of the United States, so far as the same may be applicable. The salary of the marshal of the court shall be twenty-five hundred dollars a year, and the salary of the clerk of the court shall be three thousand dollars a year, to be 150 F.

(v)

paid in equal proportions quarterly. The costs and fees in each circuit court of appeals shall be fixed and established by said court in a table of fees, to be adopted within three months after the passage of this act: Provided, that the costs and fees so fixed by any court of appeals shall not, with respect to any item, exceed the costs and fees now charged in the Supreme Court; and the same shall be expended, accounted for, and paid for, and paid over to the Treasury Department of the United States in the same manner as is provided in respect of the costs and fees in the Supreme Court.

The court shall have power to establish all rules and regulations for the conduct of the business of the court within its jurisdiction as conferred by law.

Act March 3, 1891, c. 517, § 2, 26 Stat. 826. Act July 16, 1892, c. 196, § 1, 27 Stat. 222. Act Feb. 19, 1897, c. 263, 29 Stat. 536.

So much of this section as authorizes the appointment of a marshal is repealed by Act July 16, 1892, c. 196, § 1, set forth below. And in the eighth circuit, the appointment of a messenger of the court, who shall also perform the duties of librarian and crier, is authorized by Act May 28, 1896, c. 252, § 1, also set forth below.

The first sentence of the clause of this section relating to costs and fees, which, as originally enacted, read, “The costs and fees in the Supreme Court now provided for by law shall be costs and fees' in the circuit courts of appeals,” is amended to read as set forth here, and a revision by the Supreme Court of the table of fees fixed by each circuit court of appeals is provided for, by Act Feb. 19, 1897, c. 263, set forth below.

Provisions for returns by the clerks of the circuit courts of appeals of their fees, and for the settlement of their accounts, are contained in Act June 6, 1900, c. 791, § 1, following Rev. St. $ 846, found in U. S. Comp. St. 1901, p. 651.

Courts, by whom to be held; terms.

Sec. 3. That the Chief-Justice and the associate justices of the Supreme Court assigned to each circuit, and the circuit judges within each circuit, and the several district judges within each circuit, shall be competent to sit as judges of the circuit court of appeals within their respective circuits in the manner hereinafter provided. In case the Chief-Justice or an associate justice of the Supreme Court should attend at any session of the circuit court of appeals he shall preside, and the circuit judges in attendance upon the court in the absence of the Chief-Justice or associate justice of the Supreme Court shall preside in the order of the seniority of their respective commissions.

In case the full court at any time shall not be made up by the attendance of the Chief-Justice or an associate justice of the Supreme Court and circuit judges, one or more district judges within the circuit shall be competent to sit in the court according to such order or provision among the district judges as either by general or particular assignment shall be designated by the court: Provided, That 110 justice or judge before whom a cause or question may have been tried or heard in a district court, or existing circuit court, shall sit on the trial or hearing of such cause or question in the circuit court of appeals.

A term shall be held annually by the circuit court of appeals in the several judicial circuits at the following places: In the first circuit, in the city of Boston; in the second circuit, in the city of New York; in the third circuit, in the city of Philadelphia; in the fourth circuit, in the city of Richmond; in the fifth circuit, in the city of New Orleans; in the sixth circuit, in the city of Cincinnati; in the seventh circuit, in the city of Chicago; in the eighth circuit, in the city of Saint Louis; in the ninth circuit, in the city of San Francisco; and in such other places in each of the above circuits as said court may from time to time designate.

The first terms of said courts shall be held on the second Monday in January eighteen hundred and ninety-one, and thereafter at such times as may be fixed by said courts.

Act March 3, 1891, c. 517, § 3, 26 Stat. 827.

The time fixed by this section for the first terms of the circuit courts of appeals was changed by Res. March 3, 1891, No. 17, set forth below.

Terms in the ninth circuit, additional to the terms at San Francisco provided for by this act, to be held at two other places in the circuit, are provided for by Act May 28, 1896, c. 252, § 1, set forth below.

Besides the terms appointed by section 3 of this act, additional terms of the circuit courts of appeals for the fifth circuit and for the eighth circuit are appointed or authorized by amendments of this act by various statutes, set forth below.

1

Appeals, etc., from district courts to circuit courts; circuit courts to

have no appellate jurisdiction. Sec. 4. 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 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.

Act March 3, 1891, c. 517, $ 4, 26 Stat. 827.

Appeals or writs of error from district courts or circuit courts to Su

preme Court.

Sec. 5. 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 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 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.

Act March 3, 1891, c. 517, § 5, 26 Stat. 827. Act Jan. 20, 1897, c. 68, 29 Stat. 492.

The provision of this section for appeals and writs of error to the Supreme Court in criminal cases, which, as originally enacted, read, In cases of conviction of a capital or otherwise infamous crime," is amended, by striking out the words "or otherwise infamous," to read as set forth here, and appeals and writs of error to the circuit courts of appeals in cases of conviction of an infamous crime not capital are authorized by Act Jan. 20, 1897, c. 68, set forth below.

Special provisions for appeals to the circuit courts of appeals from awards on arbitrations between carriers and their employés, under Act June 1, 1898, c. 370, are contained in section 4 of that act. U. S. Comp. St. 1901, Title LVI C, "National Trade Unions, and Controversies between Carriers and their Employés."

Appellate jurisdiction in bankruptcy proceedings, and jurisdiction to superintend and revise the proceedings of the inferior courts of bankruptcy, are given to the circuit courts of appeals by the Bankruptcy Act of 1898, Act July 1, 1898, c. 541, $$ 24, 25. See U. S.

Comp. St. 1901, Title LXI, "Bankruptcy." Appellate jurisdiction of circuit courts of appeals; questions certified

to Supreme Court; certiorari from Supreme Court; appeals or

writs of error to Supreme Court. Sec. 6. 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, excepting that in every such subject within its appellate jurisdiction the circuit court of appeals at any time may certify to the Supreme Court of the United States any questions or propositions of law concerning which it desires the instruction of that court for its proper decision. And thereupon the Supreme Court may either give its instruction on the questions and propositions certified to it, which shall be binding upon the circuit courts of appeals in such case, or it may require that the whole record and cause may be sent up to it for its consideration, and thereupon shall decide the whole matter in controversy in the same manner as if it had been brought there for review by writ of error or appeal.

And excepting also that in any such case as is hereinbefore made final in the circuit court of appeals it shall be competent for the Supreme Court to require, by certiorari or otherwise, any such case to be certified to the Supreme Court for its review and determination with the same power and authority in the case as if it had been carried by appeal or writ of error to the Supreme Court.

In all cases not hereinbefore, in this section, made final there shall be of right an appeal or writ of error or review of the case by the Supreme Court of the United States where the matter in controversy shall exceed one thousand dollars besides costs. But no such appeal shall be taken or writ of error sued out unless within one year after the entry of the order, judgment, or decree sought to be reviewed.

Act March 3, 1891, c. 517, § 6, 26 Stat. 828.

Besides the cases appellate jurisdiction of which is given by Act March 3, 1891, c. 517, § 6, set forth in Comp. St. 1901, p. 549, such jurisdiction of all suits at law or in equity respecting trade-marks registered in accordance with the provisions of Act Feb. 20, 1903, c. 592, set forth in U. S. Comp. St. 1901, under Title LX, “Patents, Trade-Marks, and Copyrights," c. 2, arising under that act, is conferred on the circuit courts of appeals, without regard to the amount in controversy, by section 17 of said act.

Writs of certiorari may be granted by the Supreme Court, for review, in the same manner as provided for patent cases by this act, of cases arising under Act Feb. 20, 1903, c. 592, set forth in U. S. Comp. St. 1901, under Title LX, "Patents, Trade-Marks, and Copyrights,” c. 2, which relates to registration and protection of trademarks.

Appeals to circuit courts of appeals from interlocutory orders or de

crees granting or continuing injunction or appointing receiver. Sec. 7. That where, upon a hearing in equity in a district court or in 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 cause 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: Provided further, That the court below may in its discretion require as a condition of the appeal an additional bond.

Act March 3, 1891, c. 517, § 7, 26 Stat. 828. Act Feb. 18, 1895, C. 96, 28 Stát. 666. Act June 6, 1900, c. 803, 31 Stat. 660.

This section, as originally enacted, authorized appeals to the circuit courts of appeals from interlocutory orders or decrees granting or continuing an injunction, as follows:

"That where, upon a hearing in equity in a district court, or in an existing circuit court, an injunction shall be granted or continued by an interlocutory order or decree, in a cause 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 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 during the pendency of such appeal."

This section was amended by Act Feb. 18, 1895, c. 96, cited above, so as to authorize appeals also from interlocutory orders or decrees

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