Missouri v. Iowa. troversy; and also the amount of expenses incurred in performing the duties imposed on said commissioners by our former decree; and these matters having been referred to the clerk of the court to ascertain the proper compensation and charges, and he having reported thereon; and also on other costs and charges incident to the suit: and said report not being excepted to, is in all things confirmed, and which report is in the words and figures following, to wit: TO THE HONORABLE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE UNITED STATES. Pursuant to an order of this honorable court made the 12th instant, in the case of the State of Missouri and the State of Iowa, now pending on bill and cross bill, the undersigned, after a careful examination of witnesses and all the sources of information within his reach, respectfully reports: 1. That the $8 per diem, which the commissioners agreed to pay each of the surveyors in the field, is a fair and reasonable compensation for their labors. 2. That $10 per day to each of the three commissioners while engaged in this duty is a fair and reasonable compensation for their services; and that a further per diem of $2 to each of the two commissioners engaged in the field would be a reasonable and proper allowance on account of their personal expenses. 3. That the statement of the expenditures by the commissioners, and of their purchases, appears to be very moderate and reasonable. 4. That the whole expense of the survey amounted to $ 10,880.41. 5. That each of the said States advanced $2,000. 6. That the commissioners realized from sales of camp furniture $13.15. 7. That the instruments purchased by the commissioners for the survey (which cost $247.22) have been retained by them for safe keeping, subject to the order of this court. 8. That the fees now due to the clerk of this court, and up to this term, by both parties in this case, amount to $48.67. Lastly, That in a detailed account, stated upon the preceding basis and hereto appended, each of the said States is charged with $3,457.96), being a moiety of the balance ($6,867.26) due on the survey, and a moiety of the fees ($48.67) now due the clerk of this court. All of which is respectfully submitted by 17 December 1850. WM. THOS. CARROLL, Clerk of Supreme Court U. S. Missouri v. Iowa. The States of Missouri and Iowa, in Account with the Adjustment of the Boundary Line between them. To 22 cast-iron monuments, to and returning from the line, and upon the "Wages to hands in the field, " Wm. Dewey, surveyor, for 184 days, at $8 per day, "Robt. Walker, surveyor, for 183 days, at $8 per day, "Robert W. Wells, commissioner, for 15 days, ( "Henry B. Hendershott, commissioner, for 187 Ďr. $ 386.95 246.40 826.92 1,718.92 1,472.00 1,464.00 150.00 2,124.00 Contra. By Cash received from State of Missouri,. And it appearing to the court here, that there will be due to the clerk of this court, for the duties devolved on him by this decree, and for the services performed by him at this term, the further sum of sixty-three dollars and sixty cents, in addition to the forty-eight dollars and sixty-seven cents stated in his report to be now due him; and it also appearing to the court, that the said clerk should be allowed, for making his report, for carrying on the correspondence incident to this cause and pay Missouri v. Iowa. ing the expense thereof, and also in consideration of any future service to be performed by him in the progress of this cause, the further sum of fifty dollars; it is thereupon ordered and decreed, that said commissioners, Hendershott and Minor, do pay to the clerk of this court, in full discharge of all costs and charges that have now accrued or that may hereafter accrue for any service done or to be performed by the said clerk, in the progress of this cause, the sum of $162.27 out of the first moneys received by them under this decree. And it appearing that certain advances had been made by the States of Missouri and Iowa, respectively, to the commissioners, and said advances having been credited, it now appears that the State of Missouri is bound to pay the further sum of $3,514.76; and that the State of Iowa is bound to pay the further sum of $3,514.761 of the charges and costs of the controversy. And it is ordered and decreed, that the State of Missouri pay over the said sum of $3,514.761, and that the State of Iowa pay over the said sum of $3,514.761, to the commissioners, Henry B. Hendershott and William G. Minor, in final and full discharge of their portions, respectively, of said costs and charges. And it is further ordered and adjudged, that said commissioners receive the several sums of money, and distribute and pay over the same to those entitled thereto, according to the report of the clerk of this court. And it also appearing that certain instruments purchased by the said commissioners are retained by them, subject to the order of this court, it is further ordered that the commissioners dispose of the said instruments at such times and places, and on such terms, as to them may seem most advantageous for the interests of the parties to this suit; and that they pay the proceeds of the sales into the treasuries of the said States of Missouri and Iowa, respectively, that is to say, one half of the proceeds into each treasury, and take receipts from the proper officers for the moneys paid. And it is further ordered, that said commissioners, Hendershott and Minor, report to the next term of this court the manner in which they have executed the duties hereby imposed upon them; and to which end this cause is kept open. And it is ordered, that the clerk of this court do forthwith transmit to his Excellency, the Governor of the State of Iowa, a copy of this decree (including the reports of the commissioners, surveyors, and clerk, together with a copy of the field notes of said surveyors), duly authenticated under the seal of this court. Webster v. Cooper. And it is further ordered, that a similar copy in all respects be by said clerk forwarded to his Excellency, the Governor of the State of Missouri. And it is further ordered, that the clerk forward a copy to each of said commissioners, Hendershott and Minor, of the order referring the matter of costs and charges, the clerk's report thereon, and so much of the foregoing decree as respects the costs and charges, for the guidance of said commissioners in the performance of their duties in this respect. HENRY WEBSTer, Plaintiff, v. Peter Cooper. Where it appears that the whole case has been certified pro forma, in order to take the opinion of this court, without any actual division of opinion in the Circuit Court, the practice is irregular, and the case must be remanded to the Circuit Court to be proceeded in according to law. The decision of this court in the case of Nesmith and others v. Sheldon (6 Howard, 41) affirmed. THIS case came up on a certificate of division of opinion, pro forma, between the judges of the Circuit Court of the United States for the District of Maine. It was a real action, in which the plaintiff demanded a certain parcel of land situated in Pittston, in the county of Kennebec and State of Maine, and claimed title under the will of one Florentius Vassal, made in England in 1777. Most of the points of division certified arose upon the construction of this will, and the remainder were upon the right of the plaintiff to maintain the action, and the rule of estimation as to improvements; covering in fact the whole case. The cause was argued by Mr. Dexter and Mr. E. H. Daveis, for the plaintiff, and Mr. Allen, for the defendant; but as no decision was had upon the merits, the arguments of counsel are omitted. Mr. Chief Justice TANEY delivered the opinion of the court. This case has been argued at the bar upon points certified as upon a division of opinion in the Circuit Court. But it appears by the record that the whole case has been divided into points and sent up to this court, and several of the latter points could not have arisen on the trial until the previous ones were first decided. We understand it was a pro forma division, certified at the request of the counsel for the respective parties. Webster v. Cooper. This court has frequently said that this practice is irregular, and would, if sanctioned, convert this court into one of original jurisdiction in questions of law, instead of being, as the Constitution intended it to be, an appellate court to revise the decisions of inferior tribunals. Indeed, it would impose upon it the duty of deciding in the first instance, not only the questions of law which properly belonged to the case, but also questions merely hypothetical and speculative, and which might or might not arise, as previous questions were ruled the one way or the other. The irregularity and evil tendency of this practice has upon several occasions attracted the attention of the court, although it has been occasionally acquiesced in, and the points so certified acted upon and decided. But at December term, 1847, the subject was very fully considered, and it was then deter mined that this practice ought not to be sanctioned, and that this court would in all cases refuse to take jurisdiction, when it was obvious that the whole case had been certified pro forma, in order to take the opinion of this court, without any actual division of opinion in the Circuit Court. The result of this determination will be found in the case of Nesmith and others v. Sheldon and others, 6 Howard, 41. The case before us cannot be distinguished from the one referred to. It is true that it was certified before that decision was pronounced. But the opinion in that case conformed to all the opinions previously expressed by this court upon the irregularity of this practice. This case, therefore, must be remanded to the Circuit Court, to be proceeded in according to law. Order. A This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Maine, and on the points and questions on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel. And it appearing to this court, upon an inspection of the said transcript, that no point in the case within the meaning of the act of Congress has been certified to this court, it is thereupon now here ordered and adjudged by this court, that this cause be, and the same is hereby, dismissed, and that this cause be, and the same is hereby, remanded to the said Circuit Court, to be proceeded in according to law. |