tion against the issuing of the proposed | MCMILLAN CONTRACTING COMPANY patent by the defendants. and Fidelity National Rank & Trust Company, Appts.,

The defendants moved to dismiss the bill on the ground that it asked the court

V.

to control the defendants in matters in- B. HAYWOOD HAGERMAN.

(No. 168.)

(See S. C. Reporter's ed. 438-443.)

This Appeal

Court.

jurisdiction

Supreme

volving exercise of the judgment and discretion vested in them by law, and also on the ground that Lillie S. Harner was an indispensable party to this suit. motion was granted by the supreme court 1. When the jurisdiction of the Fedof the District on both grounds, and that eral district court is invoked upon the sole action was affirmed by the court of ap-ground that the cause is one in which a peals.

substantial Federal constitutional question arises, the Supreme Court of the United States has exclusive appellate jurisdiction For other cases, see Appeal and Error, III.

thereof.

d, 8, in Digest Sup. Ct. 1908.]
Appeal
of appeals.

jurisdiction of circuit court

We think the motion was properly sustained on the second ground, and do not find it necessary to discuss the first. Lillie S. Harner is the person whom the administrative officers of the government have held to be entitled to a patent for this land. Clearly, the controversy be- 2. That in a suit in a Federal district tween the plaintiff and those officers, in-court, the jurisdiction of which is invoked volving the granting of a patent to her, cannot be settled without her presence in court. New Mexico v. Lane, 243 U. S. 52, 58, 61 L. ed. 588, 591, 37 Sup. Ct. Rep. 348; Litchfield v. Register (Litchfield v. Richards) 9 Wall. 575, 578, 19 L. ed. 681, 682. She is entitled to be heard. Inability to secure service on her because she lives in Arizona cannot dispense with the necessity of making her a party.

because a substantial Federal constitutional question is involved, questions of res judicata and as to whether or not assessments were in conformity to state laws are in

Note.-On direct review in Federal Supreme Court of judgments of district or circuit courts-see notes to Gwin v. United States, 46 L. ed. U. S. 741, and B. Altman & Co. v. United States, 56 L. ed. U. S. 894.

On appellate jurisdiction of Federal Dismissal was asked also on the ground Supreme Court over circuit courts of that no appeal lies in a case like this appeals-see notes to Bagley v. Genfrom the District court of appeals to this eral Fire Extinguisher Co. 53 L. ed. court, and that we thus have no jurisdic- U. S. 605, and Roman Catholic Church tion. We think, however, that the bill. Pennsylvania R. Co. 59 L. ed. U. S. disclosed a case in which the construction and application of the Act of May 14, 1880, was drawn in question by the plainBy the sixth paragraph of § 250 of the Judicial Code we are required to hear an appeal in such a case.

tiff.

We, therefore, cannot dismiss the appeal for want of jurisdiction, but can and do affirm the action of the District Court of Appeals in affirming the decree of the Supreme Court of the District in dismissing the bill for lack of an indispensable party.

Decree affirmed.

1119.

As to when time for taking appeal to, or suing out writ of error from, the Federal Supreme Court, begins to runsee note to United States v. Ellicott, 56 L. ed. U. S. 536.

As to when proceedings to transfer cause to Federal Supreine Court on writ of error or appeal are deemed to begin-see note to Old Nick Williams Co. v. United States, 54 L. ed. U. S. 318. As to when Federal question is raised [438] MCMILLAN CONTRACTING COM-in time to sustain the appellate jurisPANY and Fidelity National Bank & diction of the Federal Supreme Court Trust Company, Appts., over state courts-see notes to Chicago, I. & L. R. Co. v. McGuire, 49 L. ed. WALTER L. ABERNATHY and Carrie 1. U. S. 413, and Rooker v. Fidelity Trust Co. 67 L ed. U. S. 557.

878

V.

Abernathy. (No. 167.)

263 U. S.

Submitted on motions to remand and to
dismiss October 8, 1923. Decided Janu-
ary 7, 1924.

APPEALS by defendants from decrees
Dby

Where the only question involved is one not covered by § 238, the proper circuit court of appeals has exclusive jurisdiction of an appeal from the district court.

Sugarman v. United States, 249 U. S. 182, 63 L. ed. 550, 39 Sup. Ct. Rep. 191. Where two or more questions are involved, one of which is covered by § 238, and one of which is not, then an appeal will lie to either court, neither being ousted of its jurisdiction because of the presence of questions which would give the other jurisdiction. To this extent, the appellate jurisdiction of the two courts is concurrent.

Robinson v. Caldwell, 165 U. S. 359,
41 L. ed. 745, 17 Sup. Ct. Rep. 343;
Carter v. Roberts, 177 U. S. 496, 44 L.

ed. 861, 20 Sup. Ct. Rep. 713; Loeb v.
Columbia Twp. 179

States for the Western District of Mis- 280, 21 Sup. Ct. Rep. 174; Spreckels
souri, enjoining the levying of assess-
Sugar Ref. Co. v. McClain, 192 U. S.
ments for public improvements, trans-397, 48 L. ed. 496, 24 Sup. Ct. Rep. 376;
ferred from the United States Circuit Macfadden v. United States, 213 U. S.
Court of Appeals for the Eighth Circuit. 288, 53 L. ed. 801, 29 Sup. Ct. Rep. 490;
Pomona v. Sunset Teleph. & Teleg. Co.
224 U. S. 330, 56 L. ed. 788, 32 Sup. Ct.
Rep. 477; Lemke v. Farmers' Grain Co.
258 U. S. 50, 66 L. ed. 458, 42 Sup. Ct.
Rep. 244.

Remanded.

See same case below, 274 Fed. 801. The facts are stated in the opinion. Messrs. Justin D. Bowersock and Arthur Miller submitted the cause for appellants. Messrs. Samuel J. McCulloch, Frank P. Barker. G. V. Head, and Hunter M. Meriwether were the brief:

It is by no means clear that there is a constitutional question involved in this appeal sufficient to bring the case to the Supreme Court directly from the district court. It is quite possible that The jurisdiction of the Supreme Court appellant would have found himself in to entertain and determine direct ap-as great difficulty if he had taken the peals from the district courts is not other horn of the dilemma by appealing affected in any way whatsoever by the to this court. grounds of jurisdiction of the district courts.

Holder v. Aultman, M. & Co. 169 U. S. 81, 42 L. ed. 669, 18 Sup. Ct. Rep. 269; Loeb v. Columbia Twp. 179 U. S. 472, 45 L. ed. 280, 21 Sup. Ct. Rep. 174; Boise Artesian Hot & Cold Water Co. v. Boise City, 230 U. S. 84, 57 L. ed. 1400, 33 Sup. Ct. Rep. 997.

Where the only question involved is one covered by 8 238 of the Judicial Code, the Supreme Court has exclusive jurisdiction of an appeal from the dis

trict court.

Union & Planters' Bank v. Memphis, 189 U. S. 71, 47 L. ed. 712, 23 Sup. Ct. Rep. 604; Vicksburg v. Vicksburg Waterworks Co. 202 U. S. 453, 50 L. ed. 1102, 26 Sup. Ct. Rep. 660, 6 Ann. Cas. 253; Carolina Glass Co. v. South Carolina, 240 U. S. 305, 60 L. ed. 658, 36 Sup. Ct. Rep. 293; Raton Waterworks Co. v. Raton, 249 U. S. 552, 63 L. ed. 768, 39 Sup. Ct. Rep. 384.

68 L. ed.

Barney v. New York, 193 U. S. 430, 48 L. ed. 737, 24 Sup. Ct. Rep. 502; Hamilton Gaslight & Coke Co. v. Hamilton, 146 U. S. 258, 36 L. ed. 963, 13 Sup. Ct. Rep. 90; Siler v. Louisville & N. R. Co. 213 U. S. 175, 53 L. ed. 753, 29 Sup. Ct. Rep. 451; Memphis v. Cumberland Teleph. & Teleg. Co. 218 U. S. 624, 54 L. ed. 1185, 31 Sup. Ct. Rep. 115; Carey v. Houston & T. C. R. Co. 150 U. S. 170, 37 L. ed. 1041, 14 Sup. Ct. Rep. 63; Cornell v. Green, 163 U. S. 75, 41 L. ed. 76, 16 Sup. Ct. Rep. 969; Cosmopolitan Min. Co. v. Walsh, 193 U. S. 460, 48 L. ed. 749, 24 Sup. Ct. Rep. 189; Burt v. Smith, 203 U. S. 129, 51 L. ed. 121, 27 Sup. Ct. Rep. 37; Empire State-Idaho Min. Developing Co. V. Hanley, 205 U. S. 225, 51 L. ed. 779, 27 Sup. Ct. Rep. 476; Childers v. McClaughry, 216 U. S. 139, 54 L. ed. 420, 30 Sup. Ct. Rep. 370; Goodrich v. Ferris, 214 U. S. 71, 53 L. ed. 914, 29 Sup. Ct. Rep. 580; Farrell v. O'Brien (O'Cal

379

AUT

1

The statutory time in which an ap peal must be taken and perfected is jurisdictional, and cannot be extended by the court.

Old Nick Williams Co. v. United States, 215 U. S. 541. 54 L. ed. 318, 30 Sup. Ct. Rep. 221; Credit Co. v. Arkansas C. R. Co. 128 U. S. 258, 32 L.

laghan v. O'Brien) 199 U. S. 89, 50 L. ed. 101, 25 Sup. Ct. Rep. 727; Brolan v. United States, 236 U. S. 216, 59 L. ed. 544, 35 Sup. Ct. Rep. 285; Manhattan L. Ins. Co. v. Cohen, 234 U. S. 123, 58 L. ed. 1245, 34 Sup. Ct. Rep. 874; Knop v. Monongahela River Consol. Coal & Coke Co. 211 U. S. 485, 53 L. ed. 294, 29 Sup. Ct. Rep. 188; American Sugared. 448, 9 Sup. Ct. Rep. 107; Conboy v. Ref. Co. v. United States, 211 U. S. 155, First Nat. Bank, 203 U. S. 141, 51 L. 53 L. ed. 129, 29 Sup. Ct. Rep. 89. ed. 128, 27 Sup. Ct. Rep. 50; 443 Cans Messrs. O. H. Dean, H. M. Lang-226 U. S. 172, 57 L. ed. 174, 33 Sup. Ct. of Frozen Egg Product v. United States, worthy, Roy B. Thomson, and Melville W. Borders submitted the cause for appellees in No. 167:

The appellants by this motion have attempted to reopen in this court the question of the jurisdiction of the appellate court, which is contrary to the fundamental purpose of the statutes relating to appeals.

Ohio ex rel. Seney v. Swift & Co. 260 U. S. 146, 67 L. ed. 176, 43 Sup. Ct. Rep.

22.

Mr. Albert S. Marley filed a brief for appellee in No. 168:

The sole and only ground of jurisdiction of the Federal trial court was that a Federal constitutional question was directly involved; and for that reason, the United States Supreme Court was and is the only court having appellate jurisdiction.

Louisville & N. R. Co. v. Greene, 244 U. S. 527, 61 L. ed. 1297, 37 Sup. Ct. Rep. 683, Ann. Cas. 1917E, 97; Lemke v. Farmers' Grain Co. 258 U. S. 50, 66 L. ed. 458, 42 Sup. Ct. Rep. 244; Raton Waterworks Co. v. Raton, 249 U. S. 552, 63 L. ed. 768, 39 Sup. Ct. Rep. 384; Carolina Glass Co. v. South Carolina, 240 U. S. 318, 60 L. ed. 664, 36 Sup. Ct. Rep. 293; Union & Planters' Bank v. Memphis, 189 U. S. 71, 47 L. ed. 712, 23 Sup. Ct. Rep. 604; New York v. Consolidated Gas Co. 253 U. S. 219, 64 L. ed. 870, 40 Sup. Ct. Rep. 511; Vicksburg v. Vicksburg Waterworks Co. 202 U. S. 453, 50 L. ed. 1102, 26 Sup. Ct. Rep. 660, 6 Ann. Cas. 253; 443 Cans of Frozen Egg Product v. United States, 226 U. S. 172, 57 L. ed. 174, 33 Sup. Ct. Rep. 50; Siler v. Louisville & N. R. Co. 213 U. S. 192, 53 L. ed. 758, 29 Sup. Ct. Rep. 451; American Sugar Ref. Co. v. New Orleans, 181 U. S. 277, 45 L. ed. 859, 21 Sup. Ct. Rep. 646; Huguley Mfg. Co. v. Galeton Cotton Mills, 184 U. S. 290, 46 L. ed. 546, 22 Sup. Ct. Rep. 452; Sugarman v. United States, 249 U. S. 182, 63 L. ed. 550, 39 Sup. Ct. Rep. 191; Brolan v. United States, 236 U. S. 216, 59 L. ed. 544, 35 Sup. Ct. Rep. 285.

609, 34 L. ed. 246, 10 Sup. Ct. Rep. 771; Rep. 50; Farrar v. Churchill, 135 U. S. Title Guaranty & S. Co. v. United States, 222 U. S. 401, 56 L. ed. 248, 32 Curry, 6 How. 106, 12 L. ed. 363: CamSup. Ct. Rep. 168; United States v. den Iron Works Co. v. Sater, 139 C. C. A. 157, 223 Fed. 611; Blaffer v. New Orleans Water Supply Co. 87 C. C. A. ber, Oil & Land Co. v. Howes, 82 C. C. 341, 160 Fed. 389; Kentucky Coal, TimA. 337, 153 Fed. 163; Rutan v. Johnson, 64 C. C. A. 443, 130 Fed. 109; Logan v. Goodwin, 41 C. C. A. 573, 101 Fed. 654; Brewster v. Evans, 35 C. C. A. 500, 93 Fed. 628; Re Goodman, 42 C. C. A. 85, 101 Fed. 920; Noonan v. Chester Park Athletic Club Co. 35 C. C. A. 457, 93 Fed. 576; Green v. Lynn, 31 C. C. A. 248, 50 U. S. App. 380, 87 Fed. 839; Condon v. Central Loan & T. Co. 20 C. C. A. 110, 36 U. S. App. 579, 73 Fed. 907.

Mr. Chief Justice Taft delivered the opinion of the court:

These were two bills in equity in the United States district court, brought by citizens of Missouri, to enjoin citizens of the same state from proceeding to collect special assessments, of the necessary jurisdictional amount in each case, against complainants' lands in Kansas City for a public improvement, on the ground that the city charter and laws under which the assessments were levied were in conflict with the 14th Amendment of the Federal Constitution. This was the only basis for the jurisdiction of the district court. The bills also averred that the assessments did not comply with the laws under which they purported to be levied. The defendants, in their answers, in addition to a denial of the averments upon which the relief was asked, pleaded a former adjudication of the same causes of action in a Missouri state court.

The district court held with the complainants that the charter and laws, as carried out in levying the assessments, violated the 14th Amendment, overruled

the plea of res judicata, and granted the, 241 of the Judicial Code. Section injunction as prayed. Appeals were per- 238 provides for direct appeals from fected to the circuit court of appeals. The the district court to this court in cerappellees moved to dismiss the appeals. tified questions of jurisdiction of the They contended that the jurisdiction of district court, in prize cases, and in all the appeals was exclusively in this court. cases in which Federal constitutional or The circuit court of appeals agreed with treaty questions are involved. Section them in this, but declined to dismiss the 128 gives the circuit courts of appeals ap[440] appeals because of an Act of pellate jurisdiction in all cases other than Congress approved September 14, 1922 those in which direct appeals may be taken (42 Stat. at L. 837, chap. 305, Comp. to this court under § 238, "unless otherStat. § 1215a, Fed. Stat. Anno. Supp. wise provided by law." Except where, 1922, p. 231), amending § 238 by adding under § 239, a question may be certified to a new § 238a, in part as follows: this court by a circuit court of appeals, or when, under § 240, this court may bring up a case from the circuit court of appeals by certiorari, the judgments of the circuit court of appeals in cases in which jurisdiction of the district court is dependent entirely on the diverse citizenship of the parties, in patent and copyright cases, in revenue cases, in criminal cases, and in admiralty cases, are made final by § 128. Certain other cases specified in the Act of January 28, 1915 (38 Stat. at L. 803, chap. 22, § 2, Comp. Stat. § 1120, 5 Fed. Stat. Anno. 2d ed. p. 607), amending § 128, and in the Act of September 6, 1916 (39 Stat. at L. 726, chap. 448, § 3, Comp. Stat. § 1120a, Fed. Stat. Anno. Supp. 1918, p. 420), are also made final in the circuit court of appeals. Judgments of the circuit court of appeals not thus made final, and in which more than $1,000 is involved, may be appealed to this court under § 241.

"If an appeal or writ of error has been or shall be taken to, or issued out of, any circuit court of appeals in a case wherein such appeal or writ of error should have been taken to or issued out of the Supreme Court; . such appeal or writ of error shall not for such reason be dismissed, but shall be transferred to the proper court, which shall thereupon be possessed of the same and shall proceed to the determination thereof, with the same force and effect as if such appeal or writ of error had been duly taken to, or issued out of, the court to which it is so transferred."

An order was accordingly made, transferring the appeals to this court. The final decrees of the district court were entered of record July 7, 1921. The three months in which an appeal could have been taken from that court to this expired on the following October 7 (September 6, 1916, 39 Stat. at L. 727, chap. 448, § 6, Comp. Stat. § 1228a, Fed. Stat. Anno. Supp. 1918, p. 420). The appeals to the circuit court of appeals were allowed January 4, 1922.

The appellants move to remand the appeals to the circuit court of appeals, with direction to consider them on their merits. The appellees insist that the new § 238a does not apply to the appeals, that they were improperly transferred, and should be remanded with instructions to dismiss. Two questions are thus presented for our decision:

The Act of 1891 was passed to relieve this court from a discouraging congestion of business. It was evidently intended that the circuit court of appeals should do a large part of the appellate business. The act was not happily drawn in defining the division of it between those courts and this court, and many difficulties have arisen. It suffices here to say that, under an unbroken line of authorities, when the plaintiff invokes the jurisdiction of the Federal district court on the sole ground that this case is one in which a substantial Federal constitution [442] or treaty question arises, this court has exclusive appellate jurisdiction thereof under § 238. American Sugar Ref. Co. v. New Orleans, 181 U. S. 277, 281, 45 L. ed. 859, 861, 21 Sup. Ct. Rep. 646; Huguley Mfg. Co. v. First. The circuit courts of appeals Galeton Cotton Mills, 184 U. S. 290, 295, were created by the Act of March 3, 1891 46 L. ed. 546, 548, 22 Sup. Ct. Rep. 452; (26 Stat. at L. 826, chap. 517). The Union & P. Bank v. Memphis, 189 U. S. division of the appellate business between 71, 73, 47 L. ed. 712, 713, 23 Sup. Ct. the new courts and this court was original- Rep. 604; Spreckels Sugar Ref. Co. v. ly provided for in §§ 5 and 6 of [441] McClain, 192 U. S. 397, 407, 48 L. ed. that act. Their substance, with amend- 496, 499, 24 Sup. Ct. Rep. 376; Carolina ments not here material, is now em- Glass Co. v. South Carolina, 240 U. S. bodied in §8 128, 238, 239, 240, and 305, 318, 60 L. ed. 658, 664, 36 Sup. Ct.

1st. Did the circuit court of appeals have jurisdiction of the appeals?

2d. If not, should it have dismissed them instead of transferring them to this

court?