The object of the Act of March 3, 1891, c. 517, 26 Stat. 826,
was to distribute the appellate jurisdiction of this Court between
it and the circuit court of appeals, and to abolish the appellate
jurisdiction of the circuit court.
Although where a real constitutional question exists, a writ of
error can be sued out directly from this Court to the trial court
under § 5 of the act of 1891, the right to do so is lost by taking
an appeal to the circuit court of appeals. Robinson v.
Caldwell, 165 U. S. 359
The circuit court of appeals does not lose its jurisdiction of
an appeal under § 6 of the act of 1891 because questions were
involved which would have warranted a direct appeal to this Court
under § 5 of that act.
Where the case can be taken directly to this Court under § 5, or
to the circuit court of appeals under § 6, and the latter appeal is
taken, while a writ of error will lie to the circuit court of
appeals if the jurisdiction of the Circuit Court rests, as shown by
plaintiff's statement, on grounds, one of which is reviewable by
this Court, it will not lie if the only ground of jurisdiction is
one where the judgment of the circuit court of appeals is
The judgment of the circuit court of appeals in a criminal case
is final, and is no less so because the appellate jurisdiction of
this Court might have been invoked directly under § 5 of the act of
The facts are stated in the opinion.
Page 213 U. S. 291
MR. JUSTICE MOODY delivered the opinion of the Court.
The petitioner, Bernarr Macfadden, was indicted in the
Page 213 U. S. 292
Court of the United States for the District of New Jersey for
mailing obscene literature, in violation of § 3893 of the Revised
Statutes. He pleaded not guilty, and upon trial before a jury was
Various questions of law arose in the course of the trial, which
need not be stated.
After the evidence was concluded, the petitioner presented to
the presiding judge many requests for instructions to the jury,
which were refused, under exception. For the purposes of this case,
four only need be referred to, and they summarily. The judge was
requested to rule that the statute under which the indictment was
returned was unconstitutional (a) because it abridged the freedom
of the press; (b) because it was uncertain and created no general
rule of conduct, and therefore the indictment was without due
process of law; (c) because it was an ex post facto
(d) because it delegated legislative power to the court or
There was a motion in arrest of judgment, which was overruled.
Thereupon judgment was entered, and the petitioner sued out a writ
of error to the Circuit Court of Appeals for the Third Circuit.
That court affirmed the judgment.
After a denial of a petition for a writ of certiorari, the
petitioner made application to one of the Justices of this Court
for a writ of error, directed to the circuit court of appeals. The
question of the right of the petitioner to such a writ of error has
been referred to the full Court, and, by direction of the Court,
briefs on the part of the United States and the petitioner have
been filed and considered.
The object of the Act of March 3, 1891, 26 Stat. 826, c. 517,
was to distribute the appellate jurisdiction of the Supreme Court
between it and the newly created circuit courts of appeal, and to
abolish the appellate jurisdiction of the circuit courts. The first
necessary step in this undertaking was to determine in what cases
appeals (using the word in its broader sense) might be taken
directly to this Court. This was done in § 5, which is as
Page 213 U. S. 293
"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 or otherwise infamous
"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
Clause 3 of this section has been amended by the Act of January
20, 1897, 29 Stat. 492, c. 68, by striking out the words "or
Assuming, without decision, that the constitutional questions
were real and substantial, it is clear that a writ of error might
have been sued out originally directly from this Court under clause
5. Loeb v. Columbia Township Trustees, 179 U.
. But this was not done, and, by the appeal to the
circuit court of appeals, the right of direct appeal here was lost.
Robinson v. Caldwell, 165 U. S. 359
Section 6 of the act provides that the circuit courts of appeal
shall exercise appellate jurisdiction "in all cases other than
those provided for in the preceding section of this act," and the
fact that there were in the case questions which would have
warranted a direct appeal to this Court does not deprive the
circuit court of appeals of its jurisdiction. American Sugar
Co. v. New Orleans, 181 U. S. 277
the case at bar, the circuit court of appeals has assumed
jurisdiction and rendered judgment. May the petitioner have a writ
of error directed to
Page 213 U. S. 294
that judgment? The answer to this question depends upon whether
the judgment of the circuit court of appeals was final. The act
contemplated that certain judgments of the circuit court of appeals
might be reviewed on writ of error in this Court, and that certain
other judgments could not be so reviewed. The line of division is
marked in § 6 of the act. It is to be observed that the line of
division between cases appealable directly to this Court and those
appealable to the circuit court of appeals, made by § 5 of the act,
is based upon the nature of the case or of the questions of law
raised. But the line of division between cases appealable from the
circuit court of appeals to this Court and those not so appealable,
drawn by § 6, is different, and is determined not by the nature of
the case or of the questions of law raised, but by the sources of
jurisdiction of the trial court -- namely, the circuit court or the
district court -- whether the jurisdiction rests upon the character
of the parties or the nature of the case. Huguley Mfg. Co. v.
Galeton Cotton Mills, 184 U. S. 290
where it was said by the CHIEF JUSTICE, citing cases, "The
jurisdiction referred to is the jurisdiction of the circuit court
as originally invoked." The difference in the test for determining
whether a case is appealable from the trial court directly to this
Court, and the test for determining whether a case is appealable
from the circuit court of appeals to this Court, is important, and
a neglect to observe it leads to confusion.
The statute says that the judgment of the circuit court of
"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."
In all other cases, there is a right of review by this Court if
the matter in controversy exceeds $1,000.
As this is a case arising under the criminal laws, the judgment
of the circuit court of appeals, rendered within its lawful
Page 213 U. S. 295
is, by the very terms of the act, final. And so it was held in
Cary Mfg. Co. v. Acme Flexible Clasp Co., 187 U.
, this Court saying, through the CHIEF
"Although it is insisted that the judgment imposing the fine was
a final judgment in a criminal matter, it is argued that it
involved the denial of constitutional rights, and hence that this
Court has jurisdiction under § 5 of that act; but it is settled
that even if a party might be entitled to come directly to this
Court under that section, yet, if he does not do so, and carries
his case to the circuit court of appeals, he must abide by the
judgment of that court"
and the writ of error to the circuit court of appeals was
accordingly dismissed. Unless this case has been overruled, it
governs the case at bar.
But it is argued that the right to this writ of error is
supported by the decision of this Court in Spreckels Sugar
Refining Co. v. McClain, 192 U. S. 397
examination of that case, however, shows that the exact decision
has no relevancy to the question now before us. The language of the
opinion should be interpreted in the light of the facts of the
case. The plaintiff there brought an action against the collector
of internal revenue to recover certain taxes imposed by the revenue
laws of the United States, paid by it under protest. The
plaintiff's claim, as stated in his declaration, was two-fold:
first that the taxes were not due under the act, as properly
construed, and, second that the act itself was unconstitutional.
The jurisdiction, therefore, of the trial court was invoked upon
two grounds: first because it was a revenue case and second because
it arose under the Constitution and laws of the United States (25
Stat. 433), which means that the plaintiff's case thus arose.
Louisville & Nashville R. Co. v. Mottley, 211 U.
, and cases cited. Judgment went against the
plaintiff, and it was affirmed by the circuit court of appeals. A
writ of error from this Court to the circuit court of appeals was
sued out, and the question was whether it would lie. That question,
as we have seen, is determinable by the jurisdiction of the trial
court. If the jurisdiction depended solely upon the fact that it
was a case arising
Page 213 U. S. 296
under the revenue laws, the judgment of the circuit court of
appeals was a final judgment. If, on the other hand, the
jurisdiction depended solely upon the fact that it was a case
arising out of the Constitution or laws of the United States, the
jurisdiction of the circuit court of appeals was not final, and it
was reviewable upon writ of error as matter of right in this
Here was a case, then, which, in one aspect of the jurisdiction,
was reviewable by this Court, and, in another aspect of the
jurisdiction, was not reviewable here. The precise case had not
arisen before, and the statute was silent upon it. It was held that
the writ of error could be maintained, as the jurisdiction of the
trial court did not depend solely upon grounds which, by the terms
of the act, would have made the judgment of the circuit court of
appeals final, but depended also upon grounds which would have
permitted a writ of error from this Court to the circuit court of
appeals. That this was the precise ground of the decision is clear
from the whole trend of the reasoning and from the statement in the
opinion, p. 192 U. S. 410
"the judgment of the circuit court of appeals is not final,
within the meaning of the sixth section, in a case which, although
arising under a law providing for internal revenue, and involving
the construction of that law, is yet a case also involving, from
the outset, from the plaintiff's showing, the construction or
application of the Constitution, or the constitutionality of an act
The case decides nothing more than that, where the jurisdiction
of the trial court is shown by the plaintiff's statement of his own
case to rest upon two distinct grounds -- first, a ground where the
appellate jurisdiction of the circuit court of appeals was made
final by the statute and second a ground where the appellate
jurisdiction of the circuit court of appeals was made by the
statute reviewable in this Court -- the latter ground of
jurisdiction would control, and the writ of error to the circuit
court of appeals would lie. Thus construed, the case is consistent
with all the decisions and has no application here, because the
only ground of jurisdiction of the district court in the case
Page 213 U. S. 297
at bar was that it was a case arising under the criminal laws.
In such a case, the statute makes the judgment of the circuit court
of appeals final, and it is no less final because the petitioner
here might, if he had been so advised, originally have invoked
directly, under § 5 of the act, the appellate jurisdiction of this
We are of the opinion that the writ of error does not lie, and
the application for it is