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the final sentences and decrees in prize causes; 3 in any case that involves the construction or application of the Constitution of the United States; 4 in any case in which the constitutionality of any law of the United States, or the validity or construction of any treaty 6 made under its authority is drawn in question; and in any case in which the constitution or law of a State 6 is

was

for an appeal "upon the ground that this court was without jurisdiction to make the decree,'' without specifying the defect, The Bayonne, 159 U. S. 687, 40 L. ed. 306; Chappell v. U. S., 160 U. S. 499, 40 L. ed. 510; see also Van Wagenen v. Sewall, 160 U. S. 369, 40 L. ed. 460; Chappell v. U. S., 160 U. S. 499, 40 L. ed. 510; and a certificate of a jurisdictional question when it does not appear there or in the record that it was in issue or affected the decision, Arkansas v. Schlierholz, 179 U. S. 598, 45 L. ed. 335; are not sufficient. It is the safer practice to make the record show by a statement in the pleading, or by a bill of exceptions, or in some other appropriate manner, that a question of jurisdiction was raised and decided with the nature of such question. C. H. Nichols Lumber Co. v. Franson, 203 U. S. 278, 51 L. ed. 181.

The question of jurisdiction cannot be certified to the Supreme Court by a District Court until after the final judgment or decree; McLish v. Ruff, 141 U. S. 661, 35 L. ed. 893; Bardes v. Hawarden First Nat. Bank, 175 U. S. 526, 44 L. ed. 261. It seems that a decree upon a petition of intervention cannot be thus reviewed until the final decision in the original cause. Keatley v. Furey, 226 U. S. 399, 57 L. ed. But a Circuit Court of Appeals may certify such a question at any time before its decision of the

26 St. at L. 828, § 6; infra, 8 689.

A District Court cannot grant such a certificate after the

term at which the judgment or decree was entered. Colvin v. City of Jacksonville, 158 U. S. 456, 39 L. ed. 1053; The Bayonne, 159 U. S. 687, 40 L. ed. 306. It cannot at a later term grant the certificate nunc pro tunc; The Bayonne, 159 U. S. 687, 40 L. ed. 306; nor, it seems, can it then be set aside, or a new certificate made, for the reason that it was signed through inadvertence and that the decision

based upon another ground. Patch v. Wabash R. Co., 207 U. S. 277, 52 L. ed. 204. A dismissal for want of jurisdiction pursuant to a mandate of the Circuit Court of Appeals cannot be thus reviewed, Brown v. Alton Water Co., 222 U. S. 325, 56 L. ed. 221.

Nor can there be a review by the Supreme Court where the District Court, after a reversal by the Circuit Court of Appeals, without permission from the latter court introduces new questions into the litigation. St. Louis, Kansas City & Colorado R. R. Co. v. Wabash R. R. Co. and City of St. Louis,' 217 U. S. 247. 54 L. ed. 752.

8 Irrespective of the amount involved. The Paquete Habanan, 175 U. S. 677, 44 L. ed. 320.

4 Lamar v. U. S., 240 U. S. 60; McCurdy v. U. S., 246 U. S. 263. See infra, $ 692. The question whether a State tax on patent rights is constitutional is one that involves the construction or application of the Constitution of the United States and not one arising under the patent laws. Holt v. Indiana Mfg. Co., C. C. A., 80 Fed. 1. So are the ques

case.

tions whether the Constitution al. lows the rules and regulations of a Department to have the force of law. Boske v. Comingore, 177 U. S. 459, 44 L. ed. 846. Where the court had authority to make an order, irrespective of the constitutional -questions raised by the applicant for the same, no question concerning the construction or application of the Constitution is involved in an appeal from a judgment committing for contempt the party against whom the order is directed, Wise v. Mills, 220 U. S. 549, 55 L. ed. 579. Nor upon his appeal from an order denying his application for a writ of habeas corpus to discharge him from such commitment, Wise v. Henkel, 220 U. S. 556, 55 L. ed. 581. Where the only substantial point is whether an officer of the United States misconstrued a statute, an appeal from a District Court will be dismissed. Am. Sugar Refining Co. v. U. S., 211 U. S. 155, 53 L. ed. 129. See B. Altman & Co. v. U. S., 224 U. S. 583, 56 L. ed. 894. Where diverse citizenship exists, if the real question is the controlling effect as res judicata of a decree rendered between the parties in another suit, and whether the court rendering it had jurisdiction so to do and those questions are decided upon principles of general law the case is not one involving the construction and application of the Constitution and laws of the United States, and a direct appeal does not lie to the Supreme Court under $ 5. Nor can the decision appealed from be converted into one involving the con

struction and application of the Constitution by averring argumentatively that to give such effect to the former adjudication amounts to depriving a party of due process of law. Empire State-Idaho Mining and Developing Company v. Hanley, 205 U. S. 225, 51 L. ed. 799; Jones v. Buffalo Creek Coal & Coke Co., 245 U. $. 328. Cf. Cosmopolitan Min. Co. v. Walsh, 193 U. S. 460, 48 L. ed. 749. It was held otherwise where the objection was substantial and not merely colorable, Fayerweather v. Ritch, 195 U. S. 276, 49 L. ed. 193.

5 Florida v. Furman, 180 U. S. 402, 45 L. ed. 596; Rice v. Ames, 180 U. S. 371, 45 L. ed. 577; Or. nelas v. Ruiz, 161 U. S. 502, 507, 40 L. ed. 787, 789; Borgmeyer v. Idler, 159 U. S. 408, 40 L. ed. 199; Muse v. Arlington Hotel Co., 168 U. S. 430, 42 L. ed. 531; Robinson v. Caldwell, 165 U. S. 359, 41 L. ed. 745; Budzisz v. Illinois Steel Co., 170 U. S. 41, 42 L. ed. 941; Mitchell v. Furman, 180 U. S. 402, 45 L. ed. 596; Pettit v. Walshe, 194 U. S. 205, 48 L. ed. 938; Towne v. Eisner, 245 U. S. 418, 38 Sup. Ct. 158, 62 L. ed. 372; McCurdy v. U. S., 246 U. S. 263, 38 Sup. Ct. 289, 62 L. ed. 706; The Pilot, C. C. A., 53 Fed. 11; Re Newman, 79 Fed. 615. This is the case although the jurisdiction was invoked solely because of diverse citizenship, as for other reasons, Florida v. Furman, 180 U. S. 402, 45 L. ed. 596; B. Altman & Co. v. U. S., 224 U. S. 583, 56 L. ed. 894; Wilson Cypress Co. v. Del Pozo y Marcos, 236 U. S. 635; and the questions arising under the treaties were not discussed upon the trial, McGovern v. Phila. & Reading Ry. Co., 235 U. S. 389 (where they had been discussed upon a previous motion when a new trial was directed). A suit by an Indian to determine his rights under a patent conveying lands to him in severalty, in accordance with the provisions of a treaty between his tribe and the United States, involves, it has been held, the construction of a treaty of the United States, is appealable directly to the Supreme Court and cannot be reviewed by the Circuit Court of Appeals. Terry v. Bird, C. C. A., 129 Fed. 592. So where the complainant's case depended upon the construction of treaties with Indians in regard to reservations and the contention that some of these had been repealed by the subsequent admission of the Terri. tory into the Union as a State, Johnson v. Gearlds, 234 U. S. 422. Where it was contended that the rate fixed by a tariff law is a violation of a reciprocal agreement between the United States and a foreign nation, entered into by the President under authority of a previous statute. B. Altman & Co. v. U. S., 224 U, S. 583, 56 L. ed. 894. Where the controversy below concerned the consequence of a change in sovereignty, by reason of the cession of the Philippine Islands, the construction of the treaty made between the United States and Spain in 1898 was involved, and the Supreme Court took jurisdiction of the appeal. Vilas v. City of Manila, 220 U. S. 345, 55 L. ed. 491. But not a decision as to the right to the

exclusive use of a trade mark or trade name in the Philippines, Compañia General v. Alhambra Cigar Co., 249 U. S. 73, 39 Sup. Ct. 224, 63 L. ed. 484. Nor a case involving the construction of the statutes reg. ulating the immigration of Chinese; Chin Fong v. Backus, 241 U. S. 1. As to Mexican land grants, see Cordova v. Grant, Executor of Cotton, 248 U. S. 413.

6 A municipal ordinance. Pend Mut. L. Ins. Co. v. Austin, 168 U. S. 685, 42 L. ed. 626; Owensboro v. Owensboro Water Works, C. C. A., 115 Fed. 318; or the order of a State commission, Arkadelphia Milling Co. v. St. Louis Southwestern Railway Co., 249 U. S. 134; Railroad Commission v. Morgan's L. & T. R. & S. S. Co., C. C. A., 195 Fed. 66, is a law of the State within the meaning of the statute; $ 692, infra; § 25, supra. Where the bill attacked a State statute as unconstitutional and a general demurrer for want of equity was sustained, the court refused to dismiss the appeal, although the bill also asserted that complainant's product was not one of those specified in the statute, when it further alleged that the State officer therein named had construed the statute as applicable thereto. Savage v. Jones, 225 U. S. 501, 56 L. ed. 1182. The contention that inge in the de. cision of the State courts as to the construction of a state statute is an impairment of an obligation of a contract does not give the Supreme Court immediate jurisdiction, Moore-Mansfield Constr. Co. v. Electrical Installation Co., 234 U. S. 619. But see infra, § 692.

claimed to be in contravention of the Constitution of the United States."7

A criminal case, when it involves the construction or application of the Constitution of the United States, may be taken by the defendant directly from a District Court to the Supreme Court of the United States, although there has been no conviction of a capital crime. So may an order denying the writ of habeas corpus.

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7 Jud. Code, 238, 36 St. at L. 1087; Illinois Cent. Ry. Co. v. Adams, 180 U. S. 28, 45 L. ed. 419. An order of a State board or commission acting under a State statute is considered to be a State law within the meaning of this statute, Arkadelphia Milling Co. v. St. Louis Southwestern Ry. Co., 249 U. S. 134, 39 Sup. Ct. 237, 63 L. ed. 517. It is not essential to the jurisdiction of the appeal that a right under the Constitution and laws of the United States should be claimed in the plaintiff's pleading, when it was duly claimed during the case. City of Memphis v. Cumberland Tel. & Tel. Co., 218 U. S. 624, 54 L. ed. 1185. It is too late to raise the question for the first time in the assignments of error. Cincinnati, H. & L. R. Co. v. Thiebaud, 177 U. S. 615, 44 L. ed. 911. Apapas v. U. S., 233 U. S. 587. After a former review of a case arising under the Constitution the Supreme Court may review a supplemental decision of the District Court therein in which no constitutional ques. tions are considered; St. Louis, Iron Mountain & So. Ry. Co. v. J. F. Hasty & Sons, 255 U. S. 252. The fact that there are also allegations of diversity of citizenship in a bill praying relief founded upon the Federal Constitution does not prevent the immediate review of such a case by the Supreme Court. Field v. Barber Asphalt Paving Co., 194 U. S. 618, 48 L. ed. 1142. The Supreme Court has jurisdiction whether the right claimed under the

Constitution was upheld or denied in the court below, Holder v. Aultman M. & Co., 169 U. S. 81, 42 L. ed. 669, provided that the appellant is aggrieved by such decision, Empire State-Idaho Min. & Developing Co. v. Hanley, 198 U. S. 292, 49 L. ed. 1056; McCandless v. Pratt, 211 U. S. 437, 53 L. ed. 271. But where the constitutional question and the question of jurisdiction are both decided by the District Court in favor of the plaintiff, he cannot appeal to the Supreme Court from decree against him on the merits. AngloAmerican Provision Co. v. Davis Provision Co., 191 U. S. 376, 48 L. ed. 228. By taking and arguing an appeal to the Circuit Court of Appeals, which has jurisdiction thereof upon other grounds, in a case involving constitutional questions, the right to an appeal to the Supreme Court is waived. Carter v, Roberts, 177 U. S. 496, 44 L. ed. 861; Am. Sugar Refining Co. v. New Orleans, 181 U. S. 277, 45 L. ed. 859; Cary Mfg. Co. v. Acme Flexible Clasp Co., 187 U. S. 427, 47 L. ed. 244; Ayres v. Polsdorfer, 187 U. S. 585, 47 L. ed. 314; McFadden v. U. 8., 213 U. S. 288; Mackenzie v. Pease, C. C. A., 146 Fed. 743; infra, $ 693. Cf. Union Tr. Co. of St. Louis v. Westhus, 228 U. S. 519, 57 L. ed.

where a constitutional question was introduced in the court of first instance after a reversal by the Cir. cuit Court of Appeals. Brown v. Alton Water Co., 222 U. S. 325, 56 L. ed. 221.

Until a recent statute, the United States could not review by writ of error a judgment of acquittal in a criminal case, except possibly when a constitutional, jurisdictional or treaty question was involved.10 It is now provided : “That a writ of error may be taken by and on behalf of the United States from the District (or Circuit] Courts direct to the Supreme Court of the United States in all criminal cases, in the following instances, to-wit: From a decision or judgment quashing, setting aside, or sustaining a demurrer to, any indictment, or any count thereof, where such decision or judgment is based upon the invalidity, or construction of the statute upon which the indictment is founded. From a decision arresting a judgment of conviction for insufficiency of the indictment, where such decision is based upon the invalidity or construction of the statute upon which the indictment is founded. From the decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy.” 11

8 Motes v. U. S., 178 U. S. 458, 44 L. ed. 1150; Burton v. U. S., 196 U. S. 283, 49 L. ed. 482; Williamson v. U. S., 207 U. S. 425, 52 L. ed. 278. Prior to the Judicial Code, the Supreme Court had jurisdiction to review immediately the final judgment of any court of the United States in case of conviction of a capital crime. Act of Feb'y 6, 1889, 25 St. at L. 655, ch. 113, $ 6; Evarts Act, 26 St. at L. 826, § 5. It was said: that the jurisdiction in such a case depended on the sentence which could be imposed, although the actual punishment was imprisonment. Fitzpatrick v. U. S., 178 U. S. 304, 44 L. ed. 1078. A conviction of murder in the second degree, for which the statutory penalty was imprisonment alone, cannot be thus

reviewed. Rakes v. U. S., 212 U. S. 55, 53 L. ed. 401. Where the plaintiff in error was convicted of conspiracy under an indictment charging conspiracy and murder; it was held that the Circuit Court of Appeals should review the case. Davis v. U. S., C. C. A., 107 Fed. 753 ; approved in Rakes v. U. S., 212 U. S. 55, 57.

9 Horner v. U. S., No. 2, 143 U. S. 570, 36 L. ed. 266; Rice v. Ames, 180 U. S. 371, 45 L. ed. 577; supra,

$ 467.

10 U. S. v. Sanges, 144 U. S. 310, 36 L. ed. 445.

11 34 St. at L. 1246; quoted in full supra, $ 536. This statute is constitutional. Taylor v. U. S., 207 U. S. 120, 52 L. ed. 130; U. S. v. Bitty, 208 U. S. 393, 52 L. ed. 543.

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