The circuit courts of appeals have power to review the judgments
of the circuit courts in cases where the jurisdiction of the
circuit court attaches solely by reason of diverse citizenship,
notwithstanding constitutional questions may have arisen after the
jurisdiction of the circuit court attached.
But in any such case, where a constitutional question arises on
which the judgment depends, a writ of error maybe taken directly
from this Court to revise the judgment of the circuit court,
although the case may nevertheless be carried to the circuit court
of appeals, but if so, and final judgment is there rendered, the
jurisdiction of this Court cannot thereafter be invoked directly on
another writ of error to the circuit court.
When the plaintiff invokes the jurisdiction of the circuit court
on the sole ground that the suit arises under the Constitution or
laws or some treaty of the United States, as appears on the record
from his own statement of his cause of action, in legal and logical
form, and a dispute or controversy as to a right which depends on
the construction of the Constitution, or some law or treaty of the
United States, is determined, then the appellate jurisdiction of
this Court is exclusive.
This was a petition for a writ of certiorari requiring the
United States Circuit Court of Appeals for the Fifth Circuit to
certify to this Court for its review and determination the case of
American Sugar Refining Company v. New Orleans, No. 920,
November Term, 1899, 104 F. 2, or, in the alternative, for a
writ of mandamus to command the judges of said court to hear, try,
and adjudge said cause.
The petition alleged that, on June 14, 1899, the City of New
Orleans brought suit by rule in a civil district court for the
Parish of Orleans, Louisiana, against the American Sugar Refining
Company for a city license tax for the year 1899 for the sum of
$6,250, with interest thereon, claiming said license tax
Page 181 U. S. 278
solely by virtue of the laws of Louisiana and an ordinance of
the City of New Orleans, as an occupation tax for carrying on the
business of refining sugar and molasses in that city; that the
American Sugar Refining Company petitioned the district court for
an order removing the suit to the Circuit Court of the United
States for the Eastern District for Louisiana, the petition for
removal being based solely upon the ground that the defendant was a
corporation of New Jersey, and the plaintiff a corporation of
Louisiana; which petition was granted, the bond required given, a
certified copy of the record filed, and the suit docketed in the
circuit court.
That thereafter, by order of the court, the city reformed its
pleadings in some parts,
"the only difference of substance between said reformed petition
and the original rule being that said reformed petition omitted the
formal prayer for a recognition of a lien and privilege on
defendant's property, and for an injunction against defendant
carrying on its business."
That the defendant answered:
"
First. That it was a manufacturer, and as such exempt
from license taxation under article 229 of the Constitution of the
State of Louisiana of 1898, which exempts all manufacturers from
state and municipal license taxation, except those of distilled,
alcoholic, and malt liquors, tobacco, cigars, and cottonseed oil;
and --"
"
Second. That the ordinance of the City of New Orleans
under which said tax was claimed was based upon act No. 171 of the
General Assembly of Louisiana of 1898, and that the said act was in
contravention of the Fourteenth Amendment to the Constitution of
the United States in that it exempted from license taxation
planters and farmers who refine their own sugar and molasses, and
thereby sought to make an illegal discrimination against those
sugar refiners who were not planters and farmers, and denied to
defendant, as one of such sugar refiners, the equal protection of
the laws of the State of Louisiana, and that the said act and city
ordinance based thereon were therefore unconstitutional and void as
to defendant."
That the suit was tried before the court and a jury, and
evidence was adduced showing the nature and character of
Page 181 U. S. 279
defendant's business in support of its claim that it was a
manufacturer, which evidence of the defendant was uncontradicted in
every particular, and also showing that the gross receipts of
defendant's business were of such amount that, if liable at all for
license tax, it was liable for the sum claimed, and defendant also
filed an exception of no cause of action.
That, at the close of the evidence, defendant requested the
court to direct the jury to render a verdict in its favor, which
the court refused to do, and charged in plaintiff's favor, and
plaintiff obtained a verdict and judgment. On defendant's
application, a bill of exceptions was duly settled and signed by
the presiding judge, and the case carried on error to the United
States Circuit Court of Appeals for the Fifth Circuit. The cause
was there heard, and on May 29, 1900, judgment was rendered by the
circuit court of appeals dismissing the writ of error on the ground
of want of jurisdiction. 104 F. 2. Petitioner thereupon applied for
a rehearing, which was denied November 20, 1900.
Petitioner prayed for the writ of certiorari, or for the writ of
mandamus as before stated. Leave was granted to file the petition,
and a rule to show cause was thereupon entered, to which due return
was made.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
The jurisdiction of the circuit court rested on diverse
citizenship, and not on any other ground, and had the circuit court
of appeals gone on and decided the case, its decision would have
been final, and our interposition could only have been invoked by
certiorari.
This was so notwithstanding one of the defenses was the
unconstitutionality of the ordinance.
Colorado
Central Mining
Page 181 U. S. 280
Co. v. Turck, 150 U. S. 138;
Press Publishing Co. v. Monroe, 164 U.
S. 105;
Ex Parte Jones, 164 U.
S. 691. These and many other cases to the same effect
related to the appellate jurisdiction of this Court over the court
of appeals under the sixth section of the Judiciary Act of March 3,
1891, but they necessarily involved consideration of our
jurisdiction under the fifth section, and that of the court of
appeals under the sixth section. By the fifth section, appeals or
writs of error may be taken from the district or circuit courts
direct to this Court in any case that "involves the construction or
application of the Constitution of the United States;" "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 which the Constitution or law of a state is
claimed to be in contravention of the Constitution of the United
States." Section 6 provides that the circuit courts of appeals
shall exercise appellate jurisdiction to review the final decisions
of the district and 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."
The jurisdiction referred to is the jurisdiction of the circuit
court, and as the judgment of the court of appeals is made final in
all cases in which the jurisdiction of the circuit court attaches
solely by reason of diverse citizenship, it follows that the court
of appeals has power to review the judgment of the circuit court in
every such case, notwithstanding constitutional questions may have
arisen after the jurisdiction of the circuit court attached, by
reason whereof the case became embraced by section five.
Thus, it was held in
Loeb v. Columbia Township
Trustees, 179 U. S. 472,
where the jurisdiction of the circuit court rested on diverse
citizenship, but the state statute involved was claimed in defense
to be in contravention of the Constitution of the United States,
that a writ of error could be taken directly from
Page 181 U. S. 281
this Court to revise the judgment of the circuit court, although
it was also ruled that the plaintiff might have carried the case to
the circuit court of appeals, and that, if a final judgment were
rendered by that court against him, he could not thereafter have
invoked the jurisdiction of this Court directly on another writ of
error to review the judgment of the circuit court.
The intention of the act in general was that the appellate
jurisdiction should be distributed, and that there should not be
two appeals, but in cases where the decisions of the courts of
appeals are not made final, it is provided that
"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."
And the right to two appeals would exist in every case (the
litigated matter having the requisite value), where the
jurisdiction of the circuit court rested solely on the ground that
the suit arose under the Constitution, laws, or treaties of the
United States, if such cases could be carried to the circuit courts
of appeals, for their decisions would not come within the category
of those made final.
As, however, a case so arises where it appears on the record,
from plaintiff's own statement, in legal and logical from, such as
is required by good pleading, that the suit is one which does
really and substantially involve a dispute or controversy as to a
right which depends on the construction or application of the
Constitution or some law or treaty of the United States,
Gold-Washing & Water Co. v. Keyes, 96 U. S.
199;
Blackburn v. Portland Gold Mining Co.,
175 U. S. 571;
Western Union Telegraph Co. v. Ann Arbor Railroad Company,
178 U. S. 239, and
as those cases fall strictly within the terms of section 5, the
appellate jurisdiction of this Court in respect of them is
exclusive.
If plaintiff, by proper pleading, places the jurisdiction of the
circuit court on diverse citizenship, and also an grounds
independent of that, a question expressly reserved in
Colorado
Central Mining Co. v. Turck, 150 U. S. 138, and
the case is taken to the court of appeals, propositions as to the
latter grounds may
Page 181 U. S. 282
be certified, or, if that course is not pursued and the case
goes to judgment (and the power to certify assumes the power to
decide), an appeal or writ of error would lie under the last clause
of section 6 because the jurisdiction would not depend solely on
diverse citizenship.
Union Pacific Railway Company v.
Harris, 158 U. S. 326.
In
Carter v. Roberts, 177 U. S. 496, we
said:
"When cases arise which are controlled by the construction or
application of the Constitution of the United States, a direct
appeal lies to this Court, and if such cases are carried to the
circuit courts of appeals, those courts may decline to take
jurisdiction, or, where such construction or application is
involved with other questions, may certify the constitutional
question and afterwards proceed to judgment, or may decide the
whole case in the first instance."
These observations perhaps need some qualification. Undoubtedly
where the jurisdiction of the circuit court depends solely on
diverse citizenship, and it turns out that the case involves the
construction or application of the Constitution of the United
States, or the constitutionality of a law of the United States, or
the validity or construction of a treaty, is drawn in question, or
the Constitution or law of a state is claimed to be in
contravention of the Constitution of the United States, the circuit
court of appeals may certify the constitutional or treaty question
to this Court, and proceed as thereupon advised, or may decide the
whole case; but language should not have been used susceptible of
the meaning that in cases where the jurisdiction below is invoked
on the ground of diverse citizenship the circuit court of appeals
might decline to take jurisdiction, or, in other words, might
dismiss the appeal or writ of error for want of jurisdiction. The
mere fact that in such a case one or more of the constitutional
questions referred to in section five may have so arisen that a
direct resort to this Court might be had does not deprive the court
of appeals of jurisdiction, or justify it in declining to exercise
it.
In the case at bar, the jurisdiction rested on diverse
citizenship. Two defenses were interposed, one of which asserted
exemption from the license tax, and the other denied the
constitutionality of the legislation under which the tax was
imposed.
Page 181 U. S. 283
Both defenses were overruled, and judgment rendered for the
plaintiff. The case was then carried on error to the circuit court
of appeals, which gave judgment dismissing the writ of error for
want of jurisdiction. In this we think the court erred, and that a
certiorari should issue that its judgment to that effect may be
revised. As the record is before us on the return to the rule
hereinbefore entered, and full argument has been had, it will be
unnecessary for another return to be made to the writ, or further
argument to be submitted.
Writ of certiorari to issue; return to rule to stand as
return to writ; judgment thereupon reversed and cause remanded with
a direction to take jurisdiction and dispose of the cause.
MR. JUSTICE GRAY concurred in the result.
