191 U.S. FULLER, CH. J., BREWER, BROWN and PECKHAM, JJ., dissenting.

124 Fed. Rep. 18. The court stated that the judgment of the Franklin Circuit Court rested on a former decision of the Court of Appeals of Kentucky holding the revenue act of 1892 void as an impairment of the state's contract with the banks, and that, after the decree of the United States Circuit Court, the Court of Appeals of Kentucky overruled its former decision; and the United States Court of Appeals then held that the consequent reversal of the Franklin Circuit judgment furnished no adequate ground for the revision of the decree of the United States Circuit Court.

The prior decision of the Court of Appeals of Kentucky was rendered June 1, 1895, and is reported 97 Kentucky, 590. That decision was overruled by a decision rendered March 24, 1897, and reported 19 Ky. L. Rep. 248. The decree of the Circuit Court of the United States was rendered June 25, 1898. There were many cases under consideration in the state Court of Appeals, and it happened that the decree of the Franklin Circuit Court was not in fact reversed until June 19, 1900. But as the ground on which that decree rested had been swept away in 1897, the Circuit Court of the United States might well have applied the rule laid down by Lord Redesdale, that where a party comes into a court of equity to have the benefit of a former decree, the court is at liberty to inquire whether the circumstances justified the relief. Mitf. Pl. 96; 138 U. S. 552, 561. This was not done, and the Federal decree has not, as yet, been set aside.

But Lord Redesdale's rule is applicable in this case, and that is in itself sufficient to require the affirmance of the judgment of the Court of Appeals of Kentucky.

My Brothers BREWER, BROWN and PECKHAM concur in this dissent.

Statement of the Case.

191 U.S.

SPENCER v. DUPLAN SILK COMPANY.

ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIR

CUIT.

No. 83. Argued December 7, 1903.-Decided December 21, 1903.

A suit does not arise under the Constitution and laws of the United States unless a dispute or controversy as to the effect or construction thereof, upon the determination of which the result depends, appcars in the record by the plaintiff's pleading.

Where jurisdiction of the Circuit Court is rested on diverse citizenship and plaintiff relies wholly on a common law right, the fact that defendant invokes the Constitution and laws of the United States does not make the action one arising under the Constitution and laws of the United States and the judgment of the Circuit Court of Appeals is final. Where a trustee in bankruptcy commences an action in the state court its removal on the ground of diverse citizenship places it in the Circuit Court as if it had been commenced there on that ground of jurisdiction and not as if it had been commenced there by consent of defendant under section 23 of the bankruptcy act.

THIS was an action of trover commenced by plaintiff in error in the Court of Common Pleas for the County of Lehigh, Pennsylvania, October 18, 1900, the declaration averring in substance that on January 13, 1900, certain lumber and building materials were the property of the firm of Bennett & Rothrock, and that by virtue of an adjudication in bankruptcy of that date plaintiff succeeded to the title of that firm to said lumber and materials, and that on January 15, 1900, defendant in error wrongfully converted the lumber and materials to its own use.

November 19, 1900, defendant in error presented its bond and petition for the removal of the cause to the Circuit Court of the United States for the Eastern District of Pennsylvania, the petition alleging that the controversy in the suit was wholly between citizens of different States; that the plaintiff, trustee in bankruptcy of Bennett and Rothrock, and Bennett and Rothrock themselves, were at the time of the commencement

of the suit, and at the time the petition for removal was presented, citizens of the State of Pennsylvania; and that the defendant was at the time of the commencement of the suit, and at the time the petition for removal was presented, a citizen of New York; and thereupon the cause was removed. The cause having been docketed and the record filed, defendant filed a plea of not guilty, and a trial was had November 11, 1901, resulting in a verdict for plaintiff for $12,183. January 15, 1902, a motion by defendant for judgment non obstante veredicto was overruled and judgment entered in favor of plaintiff, 112 Fed. Rep. 638, to review which defendant prosecuted a writ of error from the United States Circuit Court of Appeals for the Third Circuit, and that court on May 7, 1902, reversed the judgment of the Circuit Court and remanded the cause with instructions to enter judgment for defendant on the verdict. 115 Fed. Rep. 689. This writ of error was then allowed.

Mr. T. M. B. Hicks, with whom Mr. William H. Spencer and Mr. Clarence L. Peaslee were on the brief, for plaintiff in error.

Mr. Richard C. Dale and Mr. William T. C. Anderson, with whom Mr. William J. Turner was on the brief, for defendant in error,

MR. CHIEF JUSTICE FULLER delivered the opinion of the court.

In our opinion the jurisdiction of the Circuit Court depended entirely on diverse citizenship, the judgment of the Circuit Court of Appeals was final, and the writ of error must be dismissed. Colorado Central Consolidated Mining Company v. Turck, 150 U. S. 138; Borgmeyer, Admr., v. Idler, 159 U. S. 408; Press Publishing Company v. Monroe, 164 U. S. 105.

The views expressed in the latter case will suffice to indicate the governing rules. In that case the complaint in the Circuit

Court showed that the parties were citizens of different States, and did not claim under the Constitution or laws of the United States. At the trial plaintiff relied wholly upon a common law right, but defendant invoked the Constitution and laws of the United States. Judgment having passed for plaintiff, which was affirmed by the Circuit Court of Appeals, we dismissed a writ of error to that court on the ground that its judgment was made final by the statute. Mr. Justice Gray, delivering the opinion, said:

"Of suits of a civil nature, at law or in equity, the Circuit Courts of the United States have original jurisdiction, by reason of the citizenship of the parties, in cases between citizens of different States or between citizens of a State and aliens; and by reason of the cause of action, 'in cases arising under the Constitution or laws of the United States, or treaties made or which shall be made under their authority,' including, of course, suits arising under the patent or copyright laws of the United States. Act of August 13, 1888, c. 866, § 1; 25 Stat. 433; Rev. Stat. § 629, cl. 9. In order to give the Circuit Court jurisdiction of a case as one arising under the Constitution, laws or treaties of the United States, that it does so arise must appear from the plaintiff's own statement of his claim. Colorado Company v. Turck,-150 U. S. 138; Tennessee v. Union & Planters' Bank, 152 U. S. 454; Oregon &c. Railway v. Skottowe, 162 U. S. 490; Hanford v. Davies, 163 U. S. 273.

"From final judgments of the Circuit Court in civil suits an appeal or writ of error lies to this court, or to the Circuit Court of Appeals. It lies directly to this court in any case in which the jurisdiction of the Circuit Court is in issue; and in such case the question of jurisdiction only is certified to and decided by this court. It also lies directly from the Circuit Court to this court in cases involving the construction or application of the Constitution, or the constitutionality of a law, or the validity or construction of a treaty, of the United States, or in which the Constitution or a law of a State is claimed to be in contra

vention of the Constitution of the United States; and in any of these cases the appellate jurisdiction of this court is not limited to the constitutional question, but extends to the determination of the whole case. Act of March 3, 1891, c. 517, section 5; 26 Stat. 827, 828; Horner v. United States, 143 U. S. 570; Chappell v. United States, 160 U. S. 499.

"From final judgments of the Circuit Court in all other civil suits an appeal or writ of error lies to the Circuit Court of Appeals; and the judgments rendered thereon by the Circuit Court of Appeals are final (unless this court by writ of certiorari or otherwise, orders the whole case to be brought up for its decision) in all cases in which the jurisdiction of the Circuit Court 'is dependent entirely upon the parties being aliens and citizens of the United States, or citizens of different States;' as well as in cases arising under the patent laws, or under the revenue laws. In all other civil actions (including those arising under the copyright laws of the United States), if the matter in controversy exceeds $1000, besides costs, there is, as of right, an appeal or writ of error to bring the case to this court. Act of March 3, 1891, c. 517, section 6.

"This plaintiff in error, having been defeated in the Circuit Court, did not bring the case directly to this court, as one involving the construction or application of the Constitution of the United States, or upon any other of the grounds specified in section 5 of the act of 1891. But it took the case, under section 6, to the Circuit Court of Appeals, and having been again defeated in that court, now claims, as of right, a review by this court of the judgment of the Circuit Court of Appeals.

"The judgment of the Circuit Court of Appeals being made final in all cases in which the jurisdiction of the Circuit Court is dependent entirely upon the parties being citizens of different States, but not final in cases arising under the copyright laws of the United States, where the matter in controversy exceeds $1000, the test of the appellate jurisdiction of this court over the case at bar is whether it was one arising under the copyright laws of the United States, or was one in which VOL. CXCI-34