Supreme Court of United States.
*412 Mr. M. Hampton Todd and Mr. Edward H. Weil for the motion.
Mr. Samuel F. Phillips, Mr. Frederick D. McKenney, and Mr. Henry R. Edmunds opposing.
MR. CHIEF JUSTICE FULLER delivered the opinion of the court.
In Colorado Central Mining Co. v. Turck, 150 U.S. 138, we held that when the original jurisdiction of a Circuit Court of the United States is invoked upon the ground that the determination *413 of the suit depends upon some question of a Federal nature, it must appear, at the outset, from the pleadings, that the suit is one of that character, of which the Circuit Court could properly take cognizance at the time its jurisdiction is invoked; and that when the jurisdiction of a Circuit Court is invoked solely on the ground of diverse citizenship, the judgment of the Circuit Court of Appeals is final, although another ground for jurisdiction in the Circuit Court may be developed in the course of subsequent proceedings in the case. It was there said: "By the judiciary act of March 3, 1891, it is provided that the review by appeal, by writ of error, or otherwise, from existing Circuit Courts shall be had in this court, or in the Circuit Courts of Appeals thereby established, according to the provisions of the act regulating the same. The writ of error in this case was brought under section six of that statute, which provides that `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,' and also that `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.' 26 Stat. 826, 828, ยง 6, c. 517. If the judgment of the Circuit Court of Appeals for the Eighth Circuit was final, under the section in question, then this writ of error must be dismissed. And in order to maintain that the decision of the Circuit Court of Appeals was not final, it must appear that the jurisdiction of the Circuit Court was not dependent entirely upon the opposite parties being citizens of different States."
Applying these principles to the case at bar, it is apparent that this writ of error will not lie. The jurisdiction of the Circuit Court was invoked by the issue of summons September 15, 1892, followed by the filing of the statement of claim or declaration, September 22, 1892, and therefrom it appeared that the suit was one of which cognizance could be properly taken on the ground of diverse citizenship, and it did *414 not appear therefrom that jurisdiction was rested or could be asserted on any other ground.
By the fifth section of the act of March 3, 1891, appeals or writs of error from the District and Circuit Courts of the United States to this court were allowed, among other cases, "in any case 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," but it was not suggested in the summons and statement of claim that the validity or construction of any treaty made under the authority of the United States was drawn in question, and no such question was decided either by the Circuit Court or the Circuit Court of Appeals. It is unreasonable to contend that any question was raised directly touching the validity or construction of either of the treaties of Venezuela by plaintiff's statement of claim or by clear and necessary intendment therefrom, and, under the rule laid down in Turck's case, this writ of error must be dismissed. The jurisdiction of the Circuit Court depended entirely upon diverse citizenship when the suit was commenced, and to that point of time the inquiry must necessarily be referred. Had the case been brought to this court from the Circuit Court the writ of error could not have been entertained.
We do not think, indeed, that the validity or construction of either of the treaties was actually drawn in question, and the ground of the judgment really involved neither such validity nor construction.
The point was long ago settled in principle upon the record of a suit in a state court.
The twenty-fifth section of the judiciary act of September 24, 1789, c. 20, 1 Stat. 73, 85, provided that a writ of error would lie to a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, "where is drawn in question the validity of a treaty or statute of ... the United States, and the decision is against their validity, ... or where is drawn in question the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under the United *415 States, and the decision is against the title, right, privilege, or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute, or commission."
In Gill v. Oliver, 11 How. 529, 545, on error to the Court of Appeals of Maryland, it was held, where an award had been obtained under a treaty with Mexico and both parties claimed under the award, that the introduction of the treaty and the award merely as part of the history of the case did not in any way involve the validity of the treaty or its construction and that the writ of error could not be maintained. See Williams v. Oliver, 12 How. 111; Baltimore & Potomac Railroad v. Hopkins, 130 U.S. 210, 225.
Writ of error dismissed.
