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validity of a state statute or state authority is attacked, on the ground of their being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of their validity; or where any title, right, privilege, or immunity is claimed under the Federal Constitution, treaty, or statutes, or commission held or authority exercised under the United States, and the decision is against the same: such final judgment or decree may be re-examined, and reversed or affirmed, in the Supreme Court upon writ of error, and the Supreme Court may award execution, or send back the case to the court from which it came. In the early history of the government many attempts were made, especially during the incumbency of Chief Justice Marshall, to modify or repeal this statute, but they all failed, and the statute exists to-day in almost the same form as it was originally written. This provision was necessary in order to maintain the national supremacy over state governments. A multitude of decisions have been made construing and applying it. In order that the court may sustain a writ of error under this provision it is essential that one of the questions mentioned in the statute must have been raised and presented to the state court, and must either have been decided by that court, or its decision must have been necessary to the judgment rendered. It must further appear that there was no other matter or issue in the case before the state court which was sufficiently broad to maintain the judgment. In exceptional cases, however, where the federal question 41 Murdock v. Memphis, 20 Wall. 590 (U. S.), 22 L. Ed. 429.

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is of such a controlling character that its correct decision is necessary to any final judgment in the case, then the Supreme Court may take jurisdiction.42 The language of the statute requires that the validity of a federal law or authority must be drawn in question, or that any right, title, privilege, or immunity claimed thereunder must be especially set up or claimed. A great number of cases attempted to be brought before the Supreme Court have been dismissed under this provision. The rule is, with some rare exceptions, that the federal question must be relied on by one of the parties, and any right, title, or privilege thereunder must be especially set up or claimed. As a general rule the federal question, right, title, or immunity must be urged in the trial court, or called to the attention of, or expressly, or by necessary implication, decided by the state court, in order to give jurisdiction on writ of error.43 Thus, where an application to remove a case from a state to a federal court is denied the question cannot be reviewed in the Supreme Court, where there is nothing to indicate that the question of the right of removal was brought to the attention of the highest state court, and that court could not have considered the question, even if presented, at that stage of the case.** The federal question cannot be first raised in the federal Supreme Court.45 No question of the citizen

42 Murdock v. Memphis, 20 Wall. 590 (U. S.), 22 L. Ed. 429.

43 Cincinnati, etc., R. Co. v. Slade, 216 U. S. 78, 30 Sup. Ct. 230, 54 L. Ed. 390.

44 Chesapeake, etc., R. Co. v. McDonald, 214 U. S. 191, 29 Sup. Ct. 546, 53 L. Ed. 963.

45 Mallers v. Commercial L. & T. Co., 216 U. S. 613, 30 Sup. Ct. 438, 54 L. Ed. 638.

ship or character of the parties, the amount in controversy, or any point other than those mentioned in the statute, is necessary to give jurisdiction.16 The jurisdiction of the Supreme Court will not be defeated by any evasion. If the state court ostensibly puts a decision on grounds other than those mentioned in the statute, but the decision really amounts to the denial of a right under the Federal Constitution or statute, a writ of error will lie. To hold otherwise would open an easy method of avoiding the jurisdiction of this court. Where a federal question has been repeatedly decided, so as to leave no room for real controversy, it is said to be foreclosed, and a similar question cannot be again brought before the Supreme Court.48 No valid action can be taken by the state court where the case is pending on writ of error in the Supreme Court.*

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50. Appellate jurisdiction over the district court. -Only a limited power of direct review now remains, which may be exercised either by appeal, writ of error, writ of prohibition, or writ of mandamus, in cases appropriate to such proceedings. Whenever the jurisdiction of the district court is in question, the case may in some instances be taken directly to the Supreme Court by appeal, if the case is an equitable one, or writ of error, if it is at law, and any others may be taken either to the court of appeals

46 Barrington v. Missouri, 205 U. S. 483, 27 Sup. Ct. 582, 51 L. Ed. 890. 47 Terre Haute, etc., R. Co. v. Indiana, 194 U. S. 579, 24 Sup. Ct. 767, 48 L. Ed. 1124.

48 Leonard v. Vicksburg, etc., R. Co., 198 U. S. 416, 25 Sup. Ct. 750, 49 L. Ed. 1108.

49 Northern P. R. Co. v. North Dakota, 216 U. S. 579, 30 Sup. Ct. 423, 54 L. Ed. 624.

or to the Supreme Court. If the case is decided on the question of jurisdiction it can only be reviewed in the Supreme Court. Thus, a suit in admiralty, to establish a lien upon a ship for services rendered to the vessel while in drydock, which is dismissed by the district court for want of jurisdiction, must be taken directly to the Supreme Court by appeal.50 It is the federal jurisdiction which is reviewable, and not the general authority of the court to try the merits. A suit was brought in the federal court of Massachusetts to enforce the Employers' Liability Law of that state. This did not present a question of federal, but of general jurisdiction.51 The kind of jurisdiction meant is that arising through the statutes relating to diverse citizenship, amount in dispute, or federal questions. Thus, in a case removed from the state court it was claimed that the latter had no jurisdiction, therefore, the federal court had none; but this was not a question of the jurisdiction of the federal court as such, and there was no right of direct appeal.52 A dismissal for want of jurisdiction in equity does not raise any question of federal jurisdiction. The same question arises in state

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51. Appellate jurisdiction on constitutional or treaty questions.-The Supreme Court has also the power of a direct review from the district court when

50 The Steamship Jefferson, 215 U. S. 130, 30 Sup. Ct. 54, 54 L. Ed. 1251, 17 Ann. Cas., p. 907.

1 Fore River Shipbuilding Co. v. Hagg, 219 U. S. 175, 31 Sup. Ct. 185, 55 L. Ed. 163.

52 Kansas N. W. R. Co. v. Zimmerman, 210 U. S. 336, 28 Sup. Ct. 730, 52 L. Ed. 1084.

53 Courtney v. Pradt, 196 U. S. 89, 25 Sup. Ct. 208, 49 L. Ed. 398.

a case involves the construction of the Constitution or a federal treaty. If the case involves only such a question, and no others arise, like those going to the merits, or the construction of a federal or state statute, an appeal lies to the Supreme Court alone, and one taken to the court of appeals should be dismissed. An Indian brought a suit to determine his rights under a land patent issued under an Indian treaty, and no other question was involved. The court of appeals was without jurisdiction.54

Review of questions of jurisdiction, Constitution, and treaties by the court of appeals. The Act of 1891 divided the appellate power in district court cases between the Supreme Court and the court of appeals. On jurisdictional, constitutional, and treaty ques-' tions standing alone it gives the Supreme Court the exclusive power of review, not only of such question, but of the whole case.55 Joined with other questions it gives the court of appeals such exclusive power.56 In MacFadden v. United States57 there was a question of federal jurisdiction joined with others. He took the case to the court of appeals, and thereby lost the right of review in the Supreme Court. He had two courses open to him, either to take the case to the Supreme Court on the question of jurisdiction, and have that question as well as the other decided, or to the court of appeals on the whole case, including jurisdiction. He could not do both. The

54 Terry v. Bird, 129 Fed. 592, 64 C. C. A. 160.

55 Spreckles Sugar Ref. Co. v. McClain, 192 U. S. 397, 24 Sup. Ct. 376, 48 L. Ed. 496.

58 Chappell v. United States, 160 U. S. 499, 16 Sup. Ct. 397, 40 L. Ed. 510. 57 213 U. S. 288, 29 Sup. Ct. 490, 53 L. Ed. 801.

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