Wright v. MacFarlane & Co.

MORROW, Circuit Judge, after the foregoing statement of facts, delivered the opinion of the court. The court below based its decree in favor of the complainants solely upon the ground that the territorial statute authorizing the treasurer of the territory to grant licenses for -the sale of malt liquors manufactured in Honolulu upon the payment of an annual license of $250 was a discrimination against dealers who were required by other sections of the statute to pay an annual license tax of $1,000 for the privilege of selling any spirituous liquors by the glass or bottle, spirituous liquors being defined by the statute as meaning “any wines, spirits, ale, cider, perry, beer, or other fermented or distilled liquors, and all liquor of an intoxicating nature”; that this discrimination- was repugnant to the Constitution of the United States, and that the statute was therefore void. The court thereupon entered its decree adjudging the statute in question to be wholly unconstitutional and void, as being in [773] conflict with the Constitution of the United States, and enjoining the appellant from in any form or manner, directly or indirectly, issuing or causing to be issued any license or licenses to any person, firm, copartnership, company, association, or corporation whatever under or by virtue of the statute so adjudged to be unconstitutional and void. There are 50 assignments of error upon which the appellant seeks to reverse this decree. Ten of these assignments relate to the ruling of the court upon the unconstitutionalhy of the territorial statute, and, while no motion to dismiss the appeal has been made, we cannot ignore the plain disclosure made upon the face of the record that this court has no jurisdiction to review this case upon appeal. The jurisdiction of the Circuit Court of Appeals is provided in sections 5 and 6 of the act of March 3, 1891, 26 Stat. 826, c. 517 [U. S. Comp. St. 1901, p. 549]. Section 5 of that act provides that appeals or writs of error may be taken from the District Courts or from the existing Circuit Courts direct to the Supreme Court of the United States in, among other cases, any case involving the construction or application of the Constitution of the United States, 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 into question, and in any case in which the Constitution or law of a state is claimed to be in contravention of a law of the United States. Section 6 of the act provides that the Circuit Courts of Appeals shall exercise appellate jurisdiction to review by appeal or by writ of error final decisions in the District Courts and existing Circuit Courts in all cases other than those provided for in the preceding section of the act, unless otherwise provided by law, and that the 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. In the case at bar the parties to the action are either citizens and residents of the territory of Hawaii, or corporations organized, existing, and doing business under the laws of that territory. The jurisdiction of the District Court of Hawaii, sitting as a Circuit Court, was therefore not invoked by reason of the diverse citizenship of the parties, since diversity did not exist, and was not a ground of jurisdiction in that court if it had existed; but jurisdiction was invoked upon the ground that the constitutional rights of the complainants were infringed by certain statutes of the territory, which were alleged to be repugnant to the Constitution of the United States, and therefore void. The question of the constitutionality of these laws was the only one presented in the pleadings, and the sole issue determined by the court. That the Circuit Court of Appeals has no jurisdiction1 to review a case coming before it upon constitutional questions solely has been repeatedly held in a number of the circuits. Hamilton v. Brown, 3 C. C. A. 639, 53 Fed. 753; Chicago, M. & St. P. Ry. Co. v. Evans, 7 C. C. A. 290, 58 Fed. 433; Mayor, etc., of City of Macon v. Georgia Packing Co., 9 C. C. A. 262, 60 Fed. 781; Hastings v. Ames, 15 C. C. A. 628, 68 Fed. 726; Barr v. City of Brunswick, 19 C. C. A. 71, 72 Fed. 689; Town of Westerly v. Westerly Water Works, 22 C. C. A. 278, 76 Fed. 467; Holt v. Indiana Mfg. Co., 25 C. C. A. 301, 80 Fed. [774] 1; City of Indianapolis v. Central Trust Co. of N. Y., 27 C. C. A. 580, 83 Fed. 529; Pauley Jail Building & Mfg. Co. v. Crawford, 28 C. C. A. 579, 84 Fed. 942; Wrightman v. Boone County, 31 C. C. A. 570, 88 Fed. 435; Illinois Cent. R. Co. v. Adams, 35 C. C. A. 635, 93 Fed. 852; Davis v. Burke, 38 C. C. A. 299, 97 Fed. 501; St. Clair County v. Interstate Sand & Car Tr. Co., 49 C. C. A. 169, 110 Fed. 785. . This question of jurisdiction has also been determined in a number of cases in the Supreme Court of the United States. In Penn Mutual Life Ins. Co. v. Austin, 168 U. S. 685, 695, 18 Sup. Ct. 223, 42 L. Ed. 626, the Circuit Court of the United States had original jurisdiction of the case by reason of the diverse citizenship of the parties to the action. It was contended by the appellee in the Supreme Court that, if the appellant desired to review the decision of the trial court, an appeal should have been prosecuted to the Circuit Court of Appeals. But it appeared from the complainants’ bill that they predicated their right to relief upon the averment that certain ordinances adopted by the municipal authorities of the city of Austin and an act of the Regislature of the state of Texas, referred to in their bill, impaired the obligations of a contract, which the bill alleged had been entered into with the complainants by the city of Austin, and that both the law of the state and the city ordinances were in contravention of the Constitution of the United States. It was accordingly held by the Supreme Court that these allegations plainly brought the case within the provision of the act of March 3, 1891, conferring upon the Supreme Court jurisdiction to review by direct appeal any final judgment rendered by a Circuit Court in any case in which the Constitution or law of a state is claimed to be in contravention of the Constitution of the United States. It will be observed that in this case the jurisdiction of the Circuit Court was invoked upon the ground of diverse citizenship of the parties to the action, but the bill disclosed a second ground of jurisdiction in the allegations claiming that the ordinances of the city and the law of the state were in contravention of the Constitution of the United States. These allegations presented a case in which the jurisdiction of the Circuit Court was not entirely dependent upon the opposite parties to the suit or controversy being citizens of different states, and therefore, under section 5 of the act of March 3, 1891, the Supreme Court had exclusive appellate jurisdiction. The American Sugar Refining Co. v. New Orleans, 181 U. S. 277, 281, 21 Sup. Ct. 646, 45 L. Ed. 859, was also a case where the jurisdiction of the Circuit Court rested on the diverse citizenship of the parties. The unconstitutionality of an ordinance of the city of New Orleans was one of the defenses. An appeal was taken to the Circuit Court of Appeals, where the writ was dismissed on the ground of want of jurisdiction. The Supreme Court was then petitioned for a writ of certiorari or mandamus to compel the Circuit Court of Appeals to try the cause. The writ of certiorari was issued, the court holding that under sections 5 and 6 of the act of March 3, 1891, the Circuit Courts of Appeals have power to review judgments of the Circuit Courts when the original jurisdiction attaches solely by reason of diverse citizenship, notwithstanding the fact that constitutional questions [775] may have arisen after the jurisdiction of the Circuit Court attached; and that in all such cases the judgments of the Circuit Courts of Appeals are made final, and no review would be made by the Supreme Court, unless the constitutional questions involved therein were certified to that court by the Courts of Appeals. It was declared that the intention of the act was to distribute the appellate jurisdiction, and not in general to permit two appeals; that, in accordance with this intention, where a case appeared from the pleadings to really and substantially involve a controversy as to a right depending upon the construction or application of the Constitution or some law or treaty of the United States, it fell strictly within the terms of section 5 of the Act,, and the appellate jurisdiction of the Supreme Court in respect to such case was exclusive. This ruling was followed and approved in Huguley Mfg. Co. v. Galeton Cotton Mills, 184 U. S. 290, 295, 22 Sup. Ct. 452, 46 L. Ed. 546. See also, Ex parte Lennon, 150 U. S. 393, 399. 14 Sup. Ct. 123, 37 L. Ed. 1120; Osborne v. Florida, 164 U. S. 650, 656, 17 Sup. Ct. 214, 41 L. Ed. 586. The decisions of the Supreme Court in these cases clearly establish the line of appellate jurisdiction between the Circuit Courts of Appeals and the Supreme Court of the United States where a constitutional question is involved, and determine that, where the jurisdiction of the Circuit Court is originally invoked upon the ground that the controversy is as to a right depending upon the construction or application of the Constitution or some law or treaty of the United States, then the appellate jurisdiction of the Supreme Court in respect to such case is exclusive, and the Circuit Courts of Appeals have no jurisdiction to hear and determine the appeal. It may be contended that, as this is an appeal from a decree awarding an injunction, this court properly has jurisdiction under section 7 of the act of March 3, 1891, as amended by Act June 6, 1900, 31 Stat. 660, c. 803 [U. S. Comp. St. 1901, p. 550]. That section provides “that where, upon a hearing in equity in a District Court or in a Circuit Court, or by a judge thereof in vacation, an injunction shall be granted or continued or a receiver appointed, by an interlocutory order or decree, in a cause in which an appeal from a final decree may be taken under the provisions of this act to the Circuit Court of Appeals, an appeal may be taken from such interlocutory order or decree granting or continuing such injunction or appointing such receiver, to the Circuit Court of Appeals.” But a careful reading of the sectiqn will disclose that the jurisdiction of this court to hear an appeal from a decree awarding an injunction is limited to causes in which the statute gives to this court jurisdiction of an appeal from a final decree. The case at bar is not of that character. The decree awarding an injunction was part of the final decree, and, such final decree being based solely upon a constitutional question, is not reviewable by this court. Even had the decree of injunction been merely interlocutory and preliminary, under the facts of this case it would not have been appealable to this court. Mayor, etc., of City of Macon v. Georgia Packing Co. et al., 9 C. C. A. 262, 60 Fed. 781; Illinois Cent. R. R. Co. v. Adams, 35 C. C. A. 635, 93 Fed. 852; Penn Mutual Life Ins. Co. v. Austin, 168 U. S. 685, 18 Sup. Ct. 223, 42 L. Ed. 626. [776] There remains to be considered the appellate jurisdiction of the Circuit Court of Appeals in a case coming from the District Court of Hawaii sitting as a Circuit Court. This jurisdiction is provided in the act of Congress entitled “An act to provide a government for the territory of Hawaii,” approved April 30, 1900 (31 Stat. 141, c. 339), section 86 (31 Stat. 158) of which provides “that there shall be established in said territory a District Court, to consist of one judge, who shall reside therein, and shall be called the district judge”; that “said court shall have, in addition to the ordinary jurisdiction of District Courts of the United States, jurisdiction of all cases cognizable in Circuit Courts of the United States, and shall proceed therein in the same manner as a Circuit Court.” The section also provides that “writs of error and appeals from said District Court shall be had and allowed to the Circuit Court of Appeals in the Ninth Judicial Circuit, in the same manner as writs of error and appeals are allowed from Circuit Courts to Circuit Courts of Appeals, as provided by law.” It is also provided that “the laws of the United States relating to appeals, writs of error, removal of causes, and other matters and proceedings as between the courts of the United States and the courts of the several states shall govern in such matters and proceedings as between the courts of the United States and the courts of the territory of Hawaii.” The fifth section of the same act provides that “the Constitution, and, except as herein otherwise provided, all the laws of the United States which are not locally inapplicable, shall have the same force and effect within the said territory as elsewhere in the United States.” It is clear that under this statute the jurisdiction of this court in a case appealed from the District Court of Hawaii sitting as a Circuit Court is the same jurisdiction that it has in a case coming from a federal Circuit Court, and does not extend to the review of a decree where the jurisdiction of the District Court sitting as a Circuit Court was invoked to determine whether a statute of the territory is in conflict with the Constitution of the United States. In such a case sections 5 and 6 of the judiciary act of March 3,1891, would be locally applicable to the appellate procedure, and, under sections 5 and 8.6 of the act of April 30, 1900, have the same force and effect as elsewhere in the United States. The appeal is therefore dismissed. Footnotes [¶] 1. Review of jurisdiction of circuit courts, see note to Excelsior Wooden Pipe Co. v. Pacific Bridge Co., 48 C. C. A. 351. See Courts, vol. 13, Cent. Dig. § 1099.