peals has jurisdiction to determine the question of the jurisdiction of the court below, as well as all other questions. Rust v. Waterworks Co. (8th Circuit) 17 C. C. A. 16, 70 Fed. 129.

The circuit court of appeals has jurisdiction over questions touching the jurisdiction of the court below, unless the issue has been made in the court below, and certified to the supreme court, as directed by the second clause of section 5. This court, therefore, has jurisdiction on appeal from a decision on habeas corpus to pass on the jurisdiction of the circuit court, even though such jurisdiction is challenged on constitutional grounds. King v. McLean Asylum (1st Circuit) 12 C. C. A. 139, 64 Fed. 325.

Where the jurisdiction of the circuit court is in issue, and the jurisdiction is sustained, but there is a judgment for defendant on the merits, plaintiff must appeal to the circuit court of appeals, which may certify the question of jurisdiction if it arises in that court. If, in such case, there is a judgment for plaintiff on the merits, defendant may elect either to have the jurisdictional question certified directly to the supreme court, or to carry the whole case to the circuit court of appeals, which may certify the jurisdictional question. If the judgment is for plaintiff, but he nevertheless has grounds of complaint, he may take the case to the circuit court of appeals on the merits by cross appeal or writ of error, if defendant has taken the case there, or independently, if defendant has had the jurisdictional question certified to the supreme court; in which case the circuit court of appeals will suspend a decision on the merits until the jurisdictional question is determined. U. S. v. Jahn, 155 U. S. 109, 15 Sup. Ct. 39.

The fact that a writ of error has been sued out from the supreme court to review a judgment of the circuit court for want of jurisdiction does not prevent the circuit court of appeals from entertaining a writ of error to review an order, made after the judgment was entered, which denies a new trial claimed under a state statute, which gives a defeated party a right to a second trial in actions of ejectment. Shreve v. Cheesman (8th Circuit) 16 C. C. A. 413, 69 Fed. 785.

In Manufacturing Co. v. Barber (7th Circuit) 9 C. C. A. 79, 60 Fed. 465, on error to review a judgment dismissing an action on demurrer for want of jurisdiction, it was held, quoting McLish v. Roff, that the circuit court of appeals has no jurisdiction of an appeal or writ of error when the jurisdiction of the court below is the only question for review, but it must be taken direct to the supreme court. And see, to the same effect, Cabot v. McMaster (7th Circuit) 13 C. C. A. 39, 65 Fed. 533; The Alliance (9th Circuit) 17 C. C. A. 124, 70 Fed. 273; U. S. v. Sutton (9th Circuit) 2 C. C. A. 115, 47 Fed. 129, However, in Crabtree v. Madden (8th Circuit) 4 C. C. A. 408, 54 Fed. 426, the court, quoting the same case, say: "When a party against whom a final judgment has been rendered in a district or circuit court of the United States elects to take his writ of error to a circuit court of appeals upon the whole case, that court has jurisdiction to determine it, whether the question of the jurisdiction of the court below is the sole question, or but one of many questions in issue under the writ." But in this case it will be noticed that the question of jurisdiction was not the sole question in issue.

Where, in a suit for injunction, the power of the circuit court to determine the case was not denied, but it was contended by defendant that complainant had not made out a case properly cognizable in a court of equity, it was held that the jurisdiction of the circuit court was not in issue, within the meaning of this section. World's Columbian Exposition v. U. S. (7th Circuit) 6 C. C. A. 58, 56 Fed. 654.

It seems that the jurisdictional questions which may be taken to the supreme court by certificate are those involving initial questions of jurisdiction, and not those as to whether a court of law or of equity is the proper forum for working out rights properly within the federal jurisdiction. U. S. v. Swan (6th Circuit) 13 C. C. A. 77, 65 Fed. 647.

Where the whole case is taken to the circuit court of appeals, that court will, of its own motion, notice a defect of jurisdiction of the court below, and make disposition of the case accordingly. Robinson v. City of Wilmington (4th Circuit) 9 C. C. A. 84, 60 Fed. 469; Refining Co. v. Johnson (5th Circuit) 9 C. C. A. 110, 60 Fed. 503.

When an appeal or writ of error is taken direct to the supreme court, where the jurisdiction of the court alone is in issue, a certificate from the court below of the question of jurisdiction to be decided is an absolute prerequisite for the exercise of jurisdiction by the supreme court. Maynard v. Hecht, 151 U. S. 324, 14 Sup. Ct. 353; Moran v. Hagerman, 151 U. S. 329, 14 Sup. Ct. 354. See, also, Carey v. Railroad Co., 150 U. S. 170, 14 Sup. Ct. 63; Colvin v. City of Jacksonville, 157 U. S. 368, 15 Sup. Ct. 634; Lutcher v. U. S., 157 U. S. 427, 15 Sup. Ct. 718; Ansbro v. U. S., 159 U. S. 695, 16 Sup. Ct. 187; Davis v. Geissler, 162 U. S. 290, 16 Sup. Ct. 796.

The word "certify" need not be formally used, but there must be a plain declaration that the single matter sent up is a question of jurisdiction, and this question must be clearly and fully stated. Shields v. Coleman, 157 U. S. 168, 15 Sup. Ct. 570. See, also, The Bayonne, 159 U. S. 687, 16 Sup. Ct. 185. Where the record shows that the only matter tried and decided in the circuit court was a demurrer to a plea of the jurisdiction, and the petition on which the writ of error was allowed asked only for the review of the judgment on the jurisdictional question, this amounts to a sufficient certification of the jurisdictional question. Improvement Co. v. Gibney, 160 U. S. 217, 16 Sup. Ct. 272. A certificate setting out the whole case, and propounding a question which would require an analysis of all the facts, held not to be in compliance with the rules applicable thereto. Graver v. Faurot, 162 U. S. 435, 16 Sup. Ct. 799. The certificate of the jurisdictional question must be granted during the term at which the judgment or decree was entered. Colvin v. City of Jacksonville, 158 U. S. 456, 15 Sup. Ct. 866; The Bayonne, 159 U. S. 687, 16 Sup. Ct. 185. In a suit where the jurisdiction of the circuit court depends on diverse citizenship, the only question that can be considered by the supreme court on writ of error to the circuit court is whether or not the circuit court had jurisdiction. McLish v. Roff, 141 U. S. 661, 12 Sup. Ct. 118; Schunk v. Moline, Milburn & Stoddart Co., 147 U. S. 500, 13 Sup. Ct. 416.

An appeal direct to the supreme court in a revenue case in which the question of jurisdiction is certified, though general in form, does not bring up anything more than the question of jurisdiction. Passavant v. U. S., 148 U. S. 214, 13 Sup. Ct. 572.

7 On conviction of an infamous crime, a writ of error cannot be taken to the circuit court of appeals. The appellate jurisdiction of the supreme court is exclusive. U. S. v. Sutton (9th Circuit) 2 C. C. A. 115, 47 Fed. 129; Stokes v. U. S. (5th Circuit) 9 C. C. A. 152, 60 Fed. 597.

This provision does not confer upon the United States the right to bring up a criminal case of any grade after judgment below in favor of defendant. U. S. v. Sanges, 144 U. S. 310, 12 Sup. Ct. 609.

A crime punishable by imprisonment in a state penitentiary is an "infamous crime," though the accused is not sentenced to hard labor. In re Claasen, 140 U. S. 200, 11 Sup. Ct. 735. The test is whether the crime is one for which the statute authorizes the court to award an infamous punishment, not whether the punishment actually awarded is an infamous one. Id.; Stokes v. U. S. (5th Circuit) 9 C. C. A. 152, 60 Fed. 597.

Adultery is an "infamous crime." U. S. v. Sutton (9th Circuit) 2 C. C. A. 115, 47 Fed. 129. The use of the mails for promoting a scheme to defraud (Rev. St. § 5480), being punishable by imprisonment in a state penitentiary not exceeding 18 months, is an "infamous crime." Stokes v. U. S. (5th Circuit) 9 C. C. A. 152, 60 Fed. 597.

A justice of the supreme court may issue a supersedeas on allowing a writ of error to a circuit court in case of a conviction for an infamous crime. In re Claasen, 140 U. S. 200, 11 Sup. Ct. 735.

8 In a case involving the construction or application of the constitution of the United States, the circuit court of appeals has no jurisdiction, though other questions are also involved. Hamilton v. Brown (5th Circuit) 3 C. C. A. 639, 53 Fed. 753.

Where the ground of the decision of the circuit court has no reference to the construction or application of the constitution or to the validity of any acts of congress, the jurisdiction of the circuit court of appeals to review such decision on appeal is not defeated by the fact that the constitutionality

of certain acts of congress might have been challenged by the defeated party. World's Columbian Exposition v. U. S. (7th Circuit) 6 C. C. A. 58, 56 Fed. 654. The questions whether the business of dealing in western meats constitutes interstate commerce, and whether certain city ordinances discriminate against such commerce, involve the construction or application of the constitution, and cannot therefore be considered by the circuit court of appeals. Mayor, etc., of Macon v. Georgia Packing Co. (5th Circuit) 9 C. C. A. 262, 60 Fed. 781. The circuit courts of appeal have no jurisdiction of an appeal in which the only question involved is whether the proposed acts of the mayor and council of a city would deprive the appellant of his property without due process of law, in violation of the fourteenth amendment to the constitution of the United States. Barr v. City of New Brunswick (3d Circuit) 19 C. C. A. 71, 72 Fed. 689.

The direction of a verdict does not entitle the opposite party to take the case to the supreme court on the ground that he was deprived of the right of jury trial, and that the case therefore involved the construction or application of the constitution of the United States. C. A. Treat Manuf'g Co. v. Standard Steel & Iron Co., 157 U. S. 674, 15 Sup. Ct. 718.

An appeal from a decree adjudging that a state statute fixing railroad rates is unreasonable, and therefore in violation of the fourteenth amendment to the federal constitution, is within the jurisdiction of the supreme court, and therefore not within the jurisdiction of the circuit court of appeals. Hastings v. Ames (8th Circuit) 15 C. C. A. 628, 68 Fed. 726.

This provision does not confer upon the United States the right to bring up a criminal case of any grade after judgment below in favor of defendant. U. S. v. Sanges, 144 U. S. 310, 12 Sup. Ct. 609.

The circuit court of appeals has jurisdiction of an appeal from a decree in admiralty holding that the waters north of the boundary established by the treaty between the United States and Great Britain of June 15, 1846, in the straits of San Juan de Fuca, are not "foreign waters," within the meaning of Rev. St. § 4370, imposing a penalty against foreign tugs towing American vessels from one American port to another, except where the towing, in whole or in part, is on foreign waters, since neither the validity nor the construction of the treaty is drawn in question. The Pilot (9th Circuit) 3 C. C. A. 392, 53 Fed. 11.

A suit for a share of an award made under a treaty, based on a contract for a percentage of the award as counsel fees, does not involve the validity or construction of the treaty so as to confer appellate jurisdiction on the supreme court. Borgmeyer v. Idler, 195 U. S. 408, 16 Sup. Ct. 34.

10 In a case in which the constitution or a law of the state is claimed to be in contravention of the constitution of the United States, the circuit court of appeals has no jurisdiction, though other questions are also involved. Hamilton v. Brown (5th Circuit) 3 C. C. A. 639, 53 Fed. 753.

In Railway Co. v. Evans, in the Eighth circuit (7 C. C. A. 290, 58 Fed. 433), the court say that the act "evidently intended to vest the supreme court of the United States with exclusive jurisdiction to entertain appeals and writs of error for the review of cases which present constitutional questions, such as are enumerated in the fourth, fifth, and sixth subdivisions of the fifth section of the act; and the same remark may be made with reference to the cases mentioned in the second and third subdivisions of the same section. * It is only where the jurisdiction of the trial court is in issue, or is challenged, that a party has the right to prosecute an appeal or writ of error after final judgment, either to the supreme court or to the circuit court of appeals." But in this case the only question presented was whether a state statute contravened the constitution of the United States.

The mere fact that the validity of a state law under the constitution of the United States is drawn in question will not, of itself, deprive the circuit court of appeals of jurisdiction to decide other questions involved in the case; and, if it appears that the case may be disposed of upon grounds independent of the constitutional question, the court will take jurisdiction, and dispose of it accordingly. Where, therefore, on appeal from an interlocutory injunction, it appeared that, while the bill challenged the constitutionality of a state law, the further question was raised whether the case was one of equitable cognizance,

the court held that it would take jurisdiction, and, being of opinion that the case was not of equitable cognizance, would dissolve the injunction, and order the bill to be dismissed. Green v. Mills (4th Circuit) 16 C. C. A. 516, 69 Fed. 852.

11

SEC. 6. That the circuit courts of appeals established by this act shall exercise appellate jurisdiction to review by appeal or by writ of error final decision 12 in the district court 13 and the existing circuit courts,1 in all cases other than those provided for in the preceding section of this act,15 unless otherwise provided by law,16 and the judgments or decrees of the circuit courts of appeals shall be final 17 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; 18 also in all cases arising under the patent laws,19 under the revenue laws,20 and under the criminal laws, 21 and in admiralty cases, excepting that in every such subject within its appellate jurisdiction the circuit court of appeals at any time may certify to the supreme court of the United States any questions or propositions of law concerning which it desires the instruction of that court for its proper decision.2 22 And thereupon the supreme court may either give its instruction on the questions and propositions certified to it, which shall be binding upon the circuit court of appeals in such case, or it may require that the whole record and cause may be sent up to it for its consideration, and thereupon shall decide the whole matter in controversy in the same manner as if it had been brought there for review by writ of error or appeal. And excepting also that in any such case as is herein before made final 23 in the circuit court of appeals it shall be competent for the supreme court to require, by certiorari or otherwise, any such case to be certified to the supreme court for its review and determination, with the same power and authority in the case as if it had been carried by appeal or writ of error to the supreme court.24

In all cases not hereinbefore, in this section, made final, 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.2 But no such appeal shall be taken, or writ of error sued out, unless within one year after the entry of the order, judgment, or decree sought to be reviewed.

25

11 This section has not changed the existing practice by which a review in equity cases is had by an appeal, and in cases of law by a writ of error. Stevens v. Clark (7th Circuit) 10 C. C. A. 379, 62 Fed. 321. See, also, Muhlenberg Co. v. Dyer (6th Circuit) 13 C. C. A. 64, 65 Fed. 634; Nelson v. Huidekoper (5th Circuit) 13 C. C. A. 658, 66 Fed. 616; U. S. v. Morgan (8th Circuit) 12 C. C. A. 6, 64 Fed. 4.

12 The appellate jurisdiction of the circuit courts of appeals is restricted to the review of final judgments and decrees, with the single exception of interlocutory orders granting or continuing injunctions, as to which a right of appeal is given by section 7. Robinson v. Belt (8th Circuit) 5 C. C. A. 521, 56 Fed. 328.

The question whether a decree is final and appealable is not determined by the name which the court below gives it, but is to be decided by the appellate court on a consideration of the essence of what is done by the decree. Potter v. Beal (1st Circuit) 2 C. C. A. 60, 50 Fed. 860.

An order remanding a cause to a state court, from which it has been removed, is not a "final decision," within the meaning of this clause, Railway Co. v. Roberts, 141 U. S. 690, 12 Sup. Ct. 123; In re Coe (1st Circuit) 1 C. C.

A. 326, 49 Fed. 481; neither is an order denying a motion to remand, Patten v. Cilley (1st Circuit) 1 C. C. A. 522, 50 Fed. 337; Potter v. Beal (1st Circuit) 2 C. C. A. 60, 50 Fed. 860; nor an order of the district court refusing to dismiss, for want of prosecution, a suit brought by an assignee in bankruptcy. In re Briggs (2d Circuit) 9 C. C. A. 585, 61 Fed. 498; nor an order allowing the claim of a creditor in bankruptcy, Duff v. Carrier (3d Circuit) 5 C. C. A. 178, 55 Fed. 433; nor a decree sustaining the validity of a patent, directing a perpetual injunction against infringement, and referring the cause to a master to take an account, Dudley E. Jones Co. v. Munger Improved Cotton Mach. Manuf❜g Co. (5th Circuit) 2 U. S App. 188, 1 C. C. A. 668, and 50 Fed. 785.

A decree, rendered at the suit of a stockholder, removing the liquidators of a corporation because they had interests adverse thereto, and appointing receivers having the powers and duties of liquidators in addition to the usual functions of receivers, is not a final decree as to the dispiaced liquidators, from which they can appeal either in their official or individual capacities. Dufour v. Lang (5th Circuit) 4 C. C. A. 663, 54 Fed. 913.

A decree by the circuit court, allowing a certain sum to complainant's solicitors for services rendered and to be rendered, and directing payment of the same out of the funds in the receiver's hands, in a suit by a stockholder against a corporation, in which a receiver has been appointed and an injunction granted, is pro tanto a final decree, from which an appeal will lie to the circuit court of appeals. Jacksonville, T. & K. W. Ry. Co. v. American Const. Co. (5th Circuit) 6 C. C. A. 249, 57 Fed. 66.

An order of the United States court for the Indian Territory, overruling a demurrer to an interplea, whereby a third person claims certain goods seized in attachment, is not a final judgment. Robinson v. Belt (8th Circuit) 5 C. C. A. 521, 56 Fed. 328.

A decree for specific performance, concluding all the rights of the parties, is a final decree, notwithstanding that a conveyance which it directs to be made is to be afterwards presented to the judges for their approval of its form and terms. Long v. Maxwell (4th Circuit) 8 C. C. A. 410, 59 Fed. 948.

In Brush Electric Co. v. Electric Imp. Co. (9th Circuit) 2 C. C. A. 373, 51 Fed. 557, an order overruling a motion by the owner of a patent to dismiss, as to him, a suit by a licensee for infringement, as brought without his authority, was held to be a final decision, as the motion presented questions of law and fact not presented in the bill of complaint. In New Orleans v. Peake (5th Circuit) 2 C. C. A. 627, 52 Fed. 74, a creditor of the drainage fund held in trust by the city of New Orleans caused a receiver of the fund to be appointed, to whom, by order of court, a regular notarial transfer of its assets was made. Thereafter the receiver sold the property, and the court confirmed the sale. It was held that the decree of confirmation was a final decree, since it finally disposed of the possession and ownership of the property.

In Central Trust Co. v. Marietta & N. G. Ry. Co. (5th Circuit) 2 U. S. App. 1, 1 C. C. A. 116, and 48 Fed. 850, wherein it is held that, in railroad foreclosure proceedings, a decree sustaining an intervener's title to certain rolling stock in possession of the receiver is a final decree, the court, through Pardee, J., said: "The decision below * was a final decision upon the matter, distinct from the general subject of litigation. Central Trust Co. v. Grant Locomotive Works, 135 U. S. 207, 10 Sup. Ct. 736. As a final decision, it comes directly within the jurisdiction given to the circuit courts of appeal. While, perhaps, the court may, for its own protection, hereafter be compelled to insist that causes pending in the circuit and district courts shall not be brought to this court for review piecemeal, we are not inclined to enforce such a rule in this case, even if we have authority so to do."

In Grant v. Railroad Co. (5th Circuit) 2 U. S. App. 182, 1 C. C. A. 681, and 50 Fed. 795, an original bill was filed to foreclose a railroad mortgage. An auxiliary and dependent bill was afterwards, by leave of court, filed by certain bondholders against the complainant in the original bill, the defendant railroad company, and others, charging that certain bonds secured by the mortgage were invalid and not entitled to benefit thereunder. A decree was entered dismissing the auxiliary bill, with costs, but retaining the cause, and referring it to a master to ascertain the priority and validity of liens, and marshal conflicting claims to the bonds. The court held that this decree was