CHAPTER VII.

CASES ARISING UNDER THE CONSTITUTION, TREATIES OR LAWS OF THE UNITED STATES.

171. Only Certain Classes of Suits May Be Brought in Federal Courts Under Paragraph 1, Section 24, Judicial Code. The analysis heretofore made of the very important first paragraph of section 24 of the Judicial Code has shown what a suit is; what kind of suits are of a civil nature; when a suit is at common law and when in equity, and what are the principles which determine whether the amount in controversy, exclusive of interest and costs, exceeds the sum or value of $3,000.

It also appeared that when the United States or one of its officers authorized to sue is the plaintiff, or when the litigation is between citizens of the same State claiming lands under grants from different States, the amount in controversy is immaterial. But even though a suit be of a civil nature at common law or in equity, and the amount in controversy exceed $3,000, yet this paragraph does not give the District Courts jurisdiction over it unless it (a) arises under the Constitution, treaties or laws of the United States, or (b) is between parties of diverse citizenship. For brevity the former class are customarily referred to as cases which raise a Federal question.

172. Cases Raising a Federal Question-History.— The paragraph provides that the District Court shall have original jurisdiction of all suits of a civil nature at common law or in equity, when the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000. and arises under the Constitution or laws of the United States. or treaties made or which shall be made under their authority. No similar provision is to be found in the original Judiciary Act. It first made its appearance in the amend

ment of 1875. Prior to that time such suits, unless the parties were of diverse citizenship or unless the controversy itself was one of a special class, jurisdiction over which had been conferred upon the Circuit Courts had to be brought before a State tribunal.

173. What Cases Raise a Federal Question?—The Supreme Court has said that "when it appears that some title, right, privilege or immunity on which the recovery depends will be defeated by one construction of the Constitution or a law of the United States, or sustained by the opposite construction," the case is one arising under the Constitution or laws of the United States within the mean ing of that term as used in the Act of 1875, otherwise not.1

174. Existence of Federal Question Must Appear From Plaintiff's Statement of His Own Case.-Where the only ground of jurisdiction is the existence of the Federal question, that there is such question must appear from the plaintiff's statement of his own case, in his declaration or bill. There may be many cases in which a plaintiff so setting up his claim does not state, and cannot state, that it arises under any Federal law. The case may actually turn upon a Federal question. In the end that may be the only thing decided, yet under the authorities it may not be a case arising under the Constitution or laws of the United State in such sense that the District Court will have jurisdiction over it.

For example-a defendant gives his promissory note to the plaintiff and does not pay it. When the plaintiff demands payment the defendant asserts that the note was given in furtherance of a combination to restrain interstate trade or to monopolize that trade in violation of the Sherman AntiTrust Act. He frankly tells the plaintiff he will not pay it and that he will, on the ground stated, defend any suit brought against him. The plaintiff cannot bring such a case

1 Starin vs. New York, 115 U. S. 248.

in the Federal Courts on the ground that a Federal question is involved. His statement of his own cause of action will show nothing more than that the defendant is indebted to him on the promissory note and has not paid him. No possible question under the Constitution, laws or treaties of the United States is raised.

175. Plaintiff Cannot Show Existence of Federal Question by Alleging What Defenses Will Be.-The plaintiff cannot give jurisdiction by alleging that the defendant sets up, or will set up, by way of defense, rights or pretensions which turn upon a Federal question. The Supreme Court says "where diversity of citizenship does not exist, a suit can only be maintained in the Circuit Court of the United States on the ground that it arises under the Constitution or laws of the United States, and it does not so arise unless it really and substantially involves a controversy as to the effect or construction of the Constitution or some law or treaty of the United States on the determination whereof the result depends. This must appear from plaintiff's statement of his own claim, and cannot be aided by allegations as to defenses which may be interposed."1

The construction of the statement is for the Courts. If they do not see that it raises a Federal question the fact that the defendant thinks that such question is raised is immaterial.2

176. Court Has Jurisdiction if Plaintiff in Good Faith Sets Up a Federal Question.-If there is a Federal question actually in the case, that is to say, if the plaintiff in good faith sets up one as the basis of his claim, then the Federal Court has jurisdiction. It is immaterial that other questions are also involved.1 It makes no difference that in the end the case is determined upon some other issue; precisely

1 Devine vs. Los Angeles, 202 U. S. 313.

"N. J. Central R. Co. vs. Mills, 113 U. S. 257.

1R. R. Co. vs. Mississippi, 102 U. S. 135.

as it makes no difference that the judgment or decree may be for less than the jurisdictional amount.2

177. Whoever in a State Court Unsuccessfully Relies Upon the Constitution, Treaties or Laws of the United States, May Carry the Question to the Supreme Court.-A plaintiff cannot give jurisdiction to a Federal Court by anticipating in his complaint the raising by the defendant of a Federal question. He can, however, usually secure an ultimate ruling upon it by a Court of the United States. After the case has been fought through to the highest State Court having jurisdiction of it, and the Federal question has been there decided adversely to his contention, he can carry the controversy to the Supreme Court by writ of error. With such proceedings we are not now concerned. We are considering the original jurisdiction of the District Court and that alone. The books are full of cases in which the existence of the Federal question is one of the matters of dispute.1 It will profit little to discuss their details. Sometimes a question so clearly arises under some Federal law or under some provision of the Constitution as to make it impossible seriously to question the jurisdiction of the Federal Court. Unless that be so, before assuming that a case raises a Federal question, it will be expedient to consider carefully the authorities and their bearing on its particular facts.

178. Federal Court May Have Jurisdiction Whether the Case Arises Under the Constitution, the Laws or the Treaties of the United States.-The clause of the first paragraph of section 24 of the Judicial Code now under consideration includes cases arising under

(a) The Constitution of the United States. (b) A law of the United States.

(c) A treaty of the United States.

2 City Railway Co. vs. Citizens R. R. Co., 166 U. S. 562.

1 City Railway Co. vs. Citizens R. R. Co., 166 U. S. 562.

In Cohens vs. Virginia, CHIEF JUSTICE MARSHALL declared that a case arises under the Constitution or a law of the United States whenever its correct decision depends on the construction of either.1 The same test will determine whether it arises under a treaty.

179. Cases Arising Under the Constitution.—One individual may, through official position or otherwise, be so placed that he can prevent another from exercising some constitutional right. The injured party may, if the amount in controversy is sufficient, sue the wrongdoer, in the District Court of the United States, on the ground that the case arises under the Constitution. For example, the right to vote for a member of the House of Representatives of the United States is one given by the Constitution. It is true that the Constitution, in giving the right, confines it to those persons who are qualified, by the laws of the State in which they live, to vote for the members of the most numerous branch of its legislature; nevertheless, the right to vote for a member of Congress is a right derived from the Constitution. An election officer who improperly prevents a person so entitled to vote from casting his ballot may be sued in the District Court of the United States.1

Perhaps the most numerous class of cases which are said to arise under the Constitution are those in which the plaintiff claims that the obligation of a valid contract with him is being impaired, or that he is being deprived of his life, liberty or property without due process of law, or is being denied the equal protection of the laws. The prohibition against such impairment or deprivation is directed solely at State action. It has no reference to what individuals may do, and, in order to show that a case of this class arises under the Constitution of the United States the plaintiff must allege that the defendant is acting under color of some State law. Such is the case where a railroad company sets up that some legislative Act or some proceeding of a