Where jurisdiction of the circuit court is invoked wholly on
diverse citizenship, but, in the course of the case, a
constitutional question arises, the unsuccessful party may bring
the case direct to this Court under § 5 of the Judiciary Act of
1891 or, at his election, he may carry it to the circuit court of
appeals which may either certify the question to this Court or
decide it.
The Judiciary Act of 1891 does not contemplate two reviews in
cases in which jurisdiction of the circuit court is invoked wholly
on diverse citizenship even as to the constitutional questions
which may arise, and the judgment of the circuit court of appeals
deciding such a case is final.
Writ of error to review 186 F. 705 dismissed.
The facts, which involve the jurisdiction of this Court of
appeals from the circuit court of appeals under the Judiciary Act
of 1891, are stated in the opinion.
Page 230 U. S. 99
MR. JUSTICE LURTON delivered the opinion of the Court.
This is a writ of error seeking to review a judgment of the
Circuit Court of Appeals of the Ninth Circuit reversing and
remanding for a new trial a judgment of the Circuit Court for the
District of Idaho, for "license fees" or rentals claimed to be due
to Boise City under ordinance No. 678, which had accrued prior to
the claim involved in cases No. 573 and 639, argued with this case
and disposed of by an opinion just handed down.
This writ of error must be dismissed. The jurisdiction of the
circuit court, as shown by the plaintiff's pleading, depended upon
diversity of citizenship, and upon that ground the water company
removed the action from the state court to the circuit court of the
United States. One of the defenses of the water company, asserted
in its answer, was that it had by purchase and agreement succeeded
to grants to street easements which had not expired, and that
ordinance No. 678 of June 7, 1906, imposing upon it a license fee
or rental for the use and occupation of the streets of the city
with its pipes and appliances for the distribution of water was in
derogation of the street rights theretofore granted, and void as in
contravention of Article I, § 10 of the Constitution of the United
States, and in violation of the Fourteenth Amendment thereto. This
claim was denied, and the ordinance held valid. Upon that and other
issues in the case, the circuit judge found for the plaintiff, the
facts being stipulated and a jury waived. The case was therefore
one
Page 230 U. S. 100
in which jurisdiction had been invoked wholly upon diversity of
citizenship, but in the course of the case there arose a question
as to the constitutionality of the ordinance which was the
foundation of the plaintiff's right. The unsuccessful party had
therefore a right to bring the case direct to this Court, or, at
its election, carry it to the circuit court of appeals. It elected
the latter course. The circuit court of appeals might have
certified the question to this Court, or it might decide it along
with the other questions in the case. But from its judgment no writ
of error will lie to this Court, as the judiciary Act of 1891 does
not contemplate two reviews, one by the circuit court of appeals
and another by this Court in such cases. For this reason, the writ
of error must be dismissed.
Robinson v. Caldwell,
165 U. S. 359;
Loeb v. Columbia Township, 179 U.
S. 472;
Macfadden v. United States,
213 U. S. 288.