court of appeals for the eighth circuit, and the latter court affirmed the decree of the circuit court. Weir v. Rountree, 173 Fed. Rep. 776.

This appeal was then prosecuted, but we are of opinion that it can not be maintained. Colorado Central Consolidated Mining Co. v. Turck, 150 U. S. 138; Bagley v. General Fire Extinguisher Co., 212 U. S. 477. If the allegations which set up diversity of citizenship were stricken from the bill, the federal court would have had no jurisdiction. Being relied on, the decree of the circuit court of appeals was final. Appeal dismissed.

c. Cases not made final.

UNION PACIFIC RAILWAY CO. v. HARRIS.

Reported in 158 U. S. 326.
(1895.)

THIS was an action brought in the circuit court of the United States for the district of Colorado by Robert E. Harris against the Union Pacific Railway Company to recover for personal injuries received by him while he was a passenger on defendant's train. Plaintiff recovered judgment in the circuit court and the defendant sued out a writ of error from the circuit court of appeals for the eighth circuit, by which the judgment was affirmed. 63 Fed. Rep. 800. A writ of error from this court was allowed and the cause having been docketed, motions to dismiss or affirm were submitted.

MR. CHIEF JUSTICE FULLER delivered the opinion of the court: The complainant alleged Harris to be "a citizen of the state of Colorado," and complained of "the Union Pacific Railway Company, defendant, which was heretofore and now is duly chartered and organized under and by virtue of the laws of the United States, and having its principal place of business in the city of Omaha and state of Nebraska, and is now and was at the time and times hereinafter stated, a citizen of the state of Nebraska.' The motion to dismiss is made upon the ground that the judgment of the circuit court of appeals was final, inasmuch as the jurisdiction was dependent upon the opposite parties being citizens of different states. As, however, the judgments of the circuit courts of appeals are final in this class of cases only

when 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," plaintiff in error insists that this judgment was not final, since the jurisdiction depended not solely on diverse citizenship, but also upon the fact that plaintiff in error was a federal corporation.

In Northern Pacific Railroad Company v. Amato, 144 U. S. 465, a suit was brought in the supreme court of New York against the railroad company to recover damages for personal injuries sustained by the plaintiff, and was removed by the defendant into the circuit court of the United States for the southern district of New York on the ground that it arose under an act of congress in that the defendant was a corporation created thereby, and a writ of error to the circuit court of appeals for the second circuit was sustained. In that case the citizenship of the plaintiff was not mentioned in the complaint or in the petition for removal and the petition stated that the action arose under an act of congress. It was accordingly held that the judgment of the circuit court of appeals was not made final by Section 6 of the Judiciary Act of March 3, 1891, c. 517, 26 Stat. 826. In the present case jurisdiction was invoked on the ground of diverse citizenship, and it is said that that was the sole ground, and that the reference to the authority under which the corporation was chartered and organized was merely incidental, and, further, that as the case did not involve the validity or construction of the charter of plaintiff in error, no federal question arose. It is not for us to inquire why writs of error to circuit courts of appeals in actions for damages for negligence of railroad corporations should be allowed simply because the corporations are chartered under the laws of the United States, in a statute whose object was to relieve an overburdened court, since such is the effect of the statute according to its plain language. Nevertheless, as plaintiff below appears to have really proceeded on the ground of diverse citizenship, we think there was color for the motion to dismiss although, as the other fact upon which jurisdiction could be predicated existed, we are obliged to overrule it. But this brings us to the motion to affirm, which, as we do not need further argument, we proceed to dispose of.

AZTEC MINING COMPANY v. RIPLEY.
Reported in 151 U. S. 79.

(1894.)

MR. CHIEF JUSTICE FULLER delivered the opinion of the court: Judgment was recovered in the district court for the third judicial district, within and for the county of Grant, in the territory of New Mexico, on May 26, 1891, by John W. Ripley against the Aztec Mining Company for the sum of $1,657.51 damages and costs, and affirmed on error by the supreme court of that territory, August 19, 1891. The mining company thereupon sued out a writ of error from the United States circuit court of appeals for the eighth circuit, which was dismissed for want of jurisdiction. Aztec Mining Co. v. Ripley, 10 U. S. App. 383. A writ of error was thereupon allowed from this court and comes before us upon a motion to dismiss or affirm.

By the fifteenth section of the Judiciary Act of March 3, 1891, 26 Stat. 826, c. 517, the circuit courts of appeals, in cases in which their judgments were made final by the act, were empowered to exercise appellate jurisdiction over the judgments, orders, or decrees of the supreme courts of the several territories; but as this case was not a case in admiralty, nor a case arising under the criminal, revenue, or patent laws of the United States, nor a case between aliens and citizens of the United States, or between citizens of different states, it did not belong to either of the classes defined by Section 6 of that act, as cases in which the judgments or decrees of the circuit courts of appeals should he final, and therefore the circuit court of appeals for the eighth circuit properly declined to take jurisdiction.

The last paragraph of the section provides that "in all cases not herein before 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, when the matter in controversy shall exceed one thousand dollars besides costs;" and as this case was not made final by that section, a writ of error would lie were it not that under Section 15 that court had no jurisdiction to review the judgment.

As, however, in any case made final, the section made it competent for this court to require, by certiorari or otherwise, such case to be certified for its review and determination with the

same power and authority in the case as if it had been brought up by appeal or writ of error; and as the paragraph quoted gave the appeal or writ of error as of right in cases not made final, we are of opinion that it may be properly held that it was the intention of congress that jurisdiction might be entertained by this court to pass upon the jurisdiction of that court when involving the question of the finality of its judgment under Section 6. We have already held that an appeal or writ of error lies to this court from or to the decrees or judgments of the supreme court of the territories, except in cases susceptible of being taken to the circuit courts of appeals, and cases where the matter in dispute exclusive of costs does not exceed the sum of five thousand dollars. Shute v. Keyser, 149 U. S. 649.

Tested by that rule this case could not have been brought to this court, and as we are clear that the circuit court of appeals for the eighth circuit rightly decided that it had no jurisdiction, it could not be brought to that. Judgment affirmed.

For this appeal the constitutional question must appear in the complaint and be adequate to sustain jurisdiction in trial court if averments of diversity of citizenship should be disregarded. Roman Catholic Church v. Penn. R. R. Co., 237 U. S. 575; (S. C. 207 Fed. 897) (Roman Catholic Church v. Penn. R. R. Co., 207 Fed. 897).

In Merriam Co. v. Syndicate Pub. Co., 237 U. S. 618; (S. C. 207 Fed. 515) (Merriam Co. v. Syndicate Pub. Co,, 207 Fed. 515), averments of unfair trade give no jurisdiction to supreme court on appeal from circuit court of appeals, where jurisdiction is based solely on diversity of citizenship, although averments of federal question are made, but the latter is frivolous or foreclosed by former adjudication of supreme court.

OHIO RAILROAD COMMISSION v. WORTHINGTON. Reported in 225 U. S. 101. (1912.)

MR. JUSTICE DAY delivered the opinion of the court: The case originated in a bill filed in the United States circuit court for the northern district of Ohio, eastern division, against the railroad commission of Ohio and other parties to enjoin the enforcement of an order of the commission fixing and establishing a rate of seventy cents a ton on what is called "lake-cargo coal," transported from the Number Eight Coal Field in eastern Ohio to the ports of Huron and Cleveland, Ohio, on Lake Erie,

for carriage thence by lake vessels. A permanent injunction was granted in the circuit court against the enforcement of the rate, on the ground that it was a regulation of interstate commerce. An appeal was taken to the circuit court of appeals for the sixth circuit, and that court affirmed the decree of the circuit court. (187 Fed. Rep. 965.) From the decree of the circuit court of appeals an appeal was taken to this court. An appeal was also prayed and allowed from the circuit court directly to this court, being case No. 505 on the docket of this term, which is submitted with the present case. A petition for a writ of certiorari to the decree of the circuit court of appeals has also been filed and submitted upon briefs.

The first question to be dealt with is one of jurisdiction. The question of the jurisdiction of the circuit court of appeals was raised and decided in that court, which held that it had jurisdiction of the case, also intimating that there were grounds of jurisdiction which might have warranted a direct appeal to this court, and that court allowed the present appeal to this court.

The argument that the jurisdiction of the circuit court of appeals is final is based upon the contention that, as Worthington, the complainant in the present case, was appointed receiver of The Wheeling & Lake Erie Railroad Company in a suit in equity in the circuit court of the United States for the northern district of Ohio, eastern division, wherein jurisdiction depended upon diversity of citizenship, and since the jurisdiction to entertain an appeal in an ancillary proceeding is that of the original case, therefore, under the Circuit Court of Appeals Act, the decree of the court of appeals is final. It is undoubtedly true that in cases of intervention in foreclosure suits, where jurisdiction depends upon diverse citizenship, jurisdiction of the intervening petition is determined by that of the original case. It is equally true that petitions in original proceedings to enforce rights and to protect the exercise of the jurisdiction of the court take their jurisdiction from that of the original case. St. Louis, K. C. & C. R. R. Co. v. Wabash R. R. Co., 217 U. S. 247, and the many previous cases in this court therein cited.

An examination of the bill in this case, which was filed under the authority of the circuit court, shows, that the order of the commission was attacked, not only upon the ground that its