findings were alleged to be unsupported by the testimony and to have been made upon improper consideration of the facts, but also because the order affected and interfered with interstate commerce, in which the complainant was engaged and over which the Railroad Commission of Ohio had no authority because of the commerce clause of the federal constitution. It further was alleged that the owners of the property constituting the receivership estate would be deprived thereof without due process of law; that they would be denied the equal protection of the laws, and that their property would be taken without compensation. It thus appears that jurisdiction was invoked, not only because the present case is ancillary to the receivership suit, which depended upon diverse citizenship, but upon grounds which involve alleged infractions of the federal constitution and rights secured thereby. The case was therefore one which might have been taken to the circuit court of appeals, and the fact that it involved grounds which might have warranted a direct appeal to this court did not deprive the circuit court of appeals of jurisdiction. American Sugar Refining Co. v. New Orleans, 181 U. S. 277; Macfadden v. United States, 213 U. S. 288.

The question then is: Is this one of the cases made final in the circuit court of appeals by the act creating that court? The sixth section of that act provides that the judgment of the circuit court 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; also in all cases arising under the patent laws, under the revenue laws, and under the criminal laws, and in admiralty cases." In all other cases there is a right of review by this court if the matter in controversy exceeds one thousand dollars. It is averred in the bill and admitted in the answer that the amount in dispute exceeds in value the sum of $5,000. The case is therefore one not made final in the circuit court of appeals, and the appeals to this court was properly allowed. Spreckles Sugar Ref. Co. v. McClain, 192 U. S. 397; Macfadden v. United States, 213 U. S. 288, 294; Standard Paint Co. v. Trinidad Asphalt Manufacturing Company, 220 U. S. 446, 460.

Case No. 505 is dismissed and the petition for writ of certiorari is denied.

And as the

In Howard v. United States, 184 U. S., p. 681, it is said: "It results that although the petition shows a case of diverse citizenship, jurisdiction Jurisdiction was was not dependent entirely upon such citizenship. likewise invoked, and rightfully, upon federal grounds. case was one which could not have been brought here directly from the circuit court, the final judgment of the circuit court of appeals could be reviewed in this court upon writ of error sued out by the defendants." In Standard Paint Co. v. Trinidad Asphalt Co., 220 U. S. 446, involving trade mark and unfair competition, there was diversity of citizenship and jurisdictional amount, it was decided that an appeal lay from the circuit court of appeals on the question of unfair competition.

In Colombia v. Canca Company, 190 U. S. 524, a South American State sued a West Virginia company to set aside an award of an arbitration commission, and on appeal to the circuit court of appeals, thence to the supreme court, the supreme court held that such case was not one made final in the circuit court of appeals, since one of the parties was a foreign state, and Section 6 of the Act of 1891 did not apply.

Where a case arises only under the laws of the United States, although constitutional questions arise during the further proceedings, yet, on appeal to the circuit court of appeals, the judgment there is final. See Cary Mfg. Co. v. Acme Flexible Clasp Co., 187 U. S. 427.

But if a case arises under a law of the United States and the question of the constitutionality of such law is also raised by the plaintiff at the outset, if appealed to circuit court of appeals, an appeal will lie as of right, thence to the supreme court. See Spreckels Sugar Refining Co. v. McClain, 192 U. S. 397.

"Was the judgment of the circuit court subject to review only by this court, or was it permissible for the plaintiff to take it to the circuit court of appeals? If the case, as made by the plaintiff's statement, had involved no other question than the constitutional validity of the act of 1898, or the construction or application of the constitution of the United States, this court alone would have had jurisdiction to review the judgHuguley Mfg. Co. v. Galeton Cotton Mills, ment of the circuit court. But the case distinctly presented other questions 184 U. S. 290, 295. which involved simply the construction of the act; and those questions were disposed of by the circuit court at the same time it determined the question of the constitutionality of the act. If the case had depended entirely on the construction of the act of congress-its constitutionality not being drawn in question-it would not have been one of those described in the fifth section of the Act of 1891, and, consequently, could As, then, the case, not have come here directly from the circuit court. made by the plaintiff, involved a question other than those relating to the constitutionality of the act and to the application and construction of the constitution, the circuit court of appeals had jurisdiction to review the judgment of the circuit court, although if the plaintiff had elected

to bring it here directly, this court would have had jurisdiction to determine all the questions arising upon the record. The plaintiff was entitled to bring it here directly from the circuit court, or, at its election, to go to the circuit court of appeals for a review of the whole case. Of course, the plaintiff, having elected to go to the circuit court of appeals for a review of the judgment, could not thereafter, if unsuccessful in that court upon the merits, prosecute a writ of error directly from the circuit court to this court. Robinson v. Caldwell, 165 U. S. 359; Loeb v. Columbia Township Trustees, 179 U. S. 472; Ayers v. Polsdorfer, 187 U. S. 585.

"It remains to inquire whether the judgment of the circuit court of appeals was so far final, within the meaning of the sixth section of the Act of 1891, that it could not be reviewed here as of right upon writ of error. Can the judgment of that court in this case be re-examined here in any way except upon writ of certiorari granted by this court? The government insists that it can not, because the case-to use the words of the sixth section of the Act of 1891-is one 'arising 營 * * under the

* * *

revenue laws.' So far as we now remember, this precise point has not heretofore arisen for our determination. Looking at the purpose and scope of the Act of 1891, we are of opinion that the position of the government on this point can not be sustained. It rests upon an interpretation of the act that is too technical and narrow. The meaning of the words 'arising under the revenue laws,' in the sixth section, is satisfied if they are held as embracing a case strictly arising under laws providing for internal revenues and which does not, by reason of any question in it, belong also to the class mentioned in the fifth section of that act. We do not think that the words quoted necessarily embrace a case carried to the circuit court of appeals, which, although arising under the revenue laws, and involving a construction of those laws, depends for a full determination of the rights of the parties upon the construction or application of the constitution, or upon the constitutionality of an act of congress. We lean to that interpretation of the act which enables the defeated party in such a case in the circuit court of appeals to have, as of right, upon writ of error to that court, a reexamination here of the judgment (the requisite amount being involved) if the correctness of the judgment depends in whole or in part upon the application or construction of the constitution, or upon the constitutionality of any act of congress drawn in question."

Federal question may be introduced into plaintiff's case by amendment of bill of complaint, for purposes of jurisdiction on appeal. Vicksburg v. Henson, 231 U. S. 259.

For discussion of the Sherman Act, and right of the United States to appeal in criminal prosecution thereunder to supreme court, see United States v. Winslow, 227 U. S. 202, holding that Act of March 2, 1907, 34 Stat. 1246, conferring right to appeal from district or circuit court was not repealed by Judicial Code.

For appellate jurisdiction of supreme court in trade mark matters, see Elgin Watch Co. v. Illinois Watch Co., 179 U. S. 665; Warner v. SearleHereth Co., 191 U. S. 195.

4. SUPREME COURT.

a. Appeal by party of right.

(a) From district court.

HORNER v. UNITED STATES, No. 2.

Reported in 143 U. S. 570.

(1892.)

MR. JUSTICE BLATCHFORD delivered the opinion of the court: On the 10th of August, 1891, a post office inspector of the United States made complaint on oath before John A. Shields, a United States commissioner for the southern district of New York, that, on the 29th of December, 1890, Edward H. Horner, of New York City, unlawfully deposited, and caused to be deposited in the post office of that city, in the state of New York, and in the southern district of New York, a certain circular, to be conveyed and delivered by mail, which, in the contents thereof, thereafter set forth in the complaint, concerned a lottery, and which was then and there addressed to Joseph Ehrman, 70 Dearborn Street, Chicago, Illinois, and was enclosed in an envelope, with postage thereon prepaid, and carried by mail, and that the circular contained, among other things, what is set forth in the margin, the further contents of the complaint being also set forth therewith.

On the same day the commissioner issued a warrant to the marshal, commanding him to arrest Horner and bring him before the commissioner. This was done, and Horner demanded an examination on the charge, which was had and completed; and the commissioner then certified that it appeared to him, from the testimony offered, that there was probable cause to believe Horner guilty of the offense charged in the warrant, and he committed Horner to the custody of the marshal, in default of $5,000 bail, to await the action of the grand jury. By consent, Horner was then discharged, on his own recognizance, until a day named, for the purpose of giving bail, and was subsequently discharged on bail, to await trial.

On the 17th of November, 1891, Horner was surrendered by his surety, and was committed by the commissioner, in default of $5,000 bail, to the custody of the marshal on the

warrant, to await the action of the grand jury. On the same day, on the petition of Horner, presented to the circuit court of the United States for the southern district of New York, an order was made by that court that writs of habeas corpus and certiorari issue to the marshal and the commissioner, returnable on that day. Returns were made to the writs, and on the same day, after counsel were heard, the court, held by Judge Wheeler, made an order dismissing the writ of habeas corpus and remanding Horner to the custody of the marshal. Horner thereupon took an appeal to this court, on November 17, 1891, and was discharged on bail to abide the further action of the circuit court on the mandate of this court. The complaint in this case is founded on Section 3894 of the Revised Statutes of the United States, as amended by the Act of September 19, 1890, c. 908 (26 Stat. 465), which reads as follows:

There are nine assignments of error in this case, six of which allege that the facts proved before the commissioner do not constitute a crime within Section 3894, as amended; two of them are based on the claim that that section is unconstitutional; and the remaining one contends that that section is in violation of a treaty between the United States and Austria, and is therefore void.

It is contended on the part of the United States that, as the appeal in this case was taken on November 17, 1891, after the act entitled "an act to established circuit courts of appeal, and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes, c. 517, passed March 3, 1891 (26 Stat. 826), went into effect, this court has no jurisdiction of this appeal, and that it ought to have been taken to the circuit court of appeals for the second circuit. But, as the constitutionality of Section 3894, as amended, is drawn in question, an appeal in this case lies directly to this court from the circuit court, under Section 5 of the Act of March 3, 1891, which gives such appeal "in any case in which the constitutionality of any law of the United States

** is drawn in question." This is in accordance with our decision in Nishimura Ekiu v. United States, 142 U. S. 651, 659, where it was said: "As this case involves the constitutionality of a law of the United States, it is within the appellate