as to the allowance of appeals or writs of error, and the conditions of such allowance, as now by law belong to the justices or judges in respect of the existing courts of the United States respectively. That the Circuit Court of Appeals shall have the powers specified in section seven hundred and sixteen of the Revised Statutes of the United States.' 997

"That the Circuit Court of Appeals, in cases in which the judgments of the Circuit Courts of Appeal are made final by this act, shall have the same appellate jurisdiction, by writ of error or appeal, to review the judgments, orders, and decrees of the Supreme Courts of the several Territories, as by this act they may have to review the judgments, orders, and decrees of the District Court and Circuit Courts; and for that purpose the several Territories shall, by orders of the Supreme Court, to be made from time to time, be assigned to particular Circuits." 8

"Writs of error and appeals from the " District Court of Hawaii are "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."

The act creating a Court of Appeals for the Indian Territory provides that "writs of error and appeals from the final decision of said appellate court shall be allowed and may be taken to the Circuit Court of Appeals for the Eighth Judicial

6 26 St. at L. 827, § 11.

decisions of those courts in capital

7 26 St. at L. 827, § 12; supra, §§361- cases of conviction of a capital crime. 368. Folsom v. U. S., 160 U. S. 121.

8 26 St. at L. 829, § 15. The District Court of Alaska is considered as the Supreme Court of a Territory under this statute. Coquitlam v. U. S., 163 U. S. 346. The Circuit Court of Appeals cannot review the decisions of the Supreme Courts of the territories in suits not arising under the patent laws, revenue laws, criminal laws or in admiralty cases, at least when the parties on both sides are citizens of the same Territory. Aztec Min. Co. v. Ripley, 151 U. S. 79. Cf. Badaracco v. Cerf (C. C. A.), 53 Fed. R. 169. They have no jurisdiction over the

9 28 St. at L. 397, § 11; Ansley v. Ainsworth, 180 U. S. 253. Cf. 30 St. at L. 591; and supra, § 497. The Circuit Court of Appeals from the Eighth Circuit has no longer jurisdiction to review immediately the decisions of the United States Court of the Indian Territory. Scott v. Hamner (C. C. A.), 72 Fed. R. 789. It has been held that it may review the decisions of the Court of Appeals of the Indian Territory in criminal cases, Harless v. U. S. (C. C. A.), 88 Fed. R. 97; except in capital cases. Brown v. U. S., 171 U. S. 631.

Circuit in the same manner and under the same regulations as appeals are taken from the Circuit Courts of the United States." 10

11

"(a) The Supreme Court of the United States, the Circuit Court of Appeals of the United States, and the Supreme Courts of the Territories, in vacation and chambers and during their respective terms, as now or as they may be hereafter held, are hereby invested with appellate jurisdiction of controversies arising in bankruptcy proceedings from the courts of bankruptcy from which they have appellate jurisdiction in other cases. The Supreme Court of the United States shall exercise a like jurisdiction from courts of bankruptcy not within any organized circuit of the United States and from the Supreme Court of the District of Columbia. (b) The several Circuit Courts of Appeal shall have jurisdiction in equity, either interlocutory or final, to superintend and revise in matter of law the proceedings of the several inferior courts of bankruptcy within their jurisdiction. Such power shall be exercised on due notice and petition by any party aggrieved." "1 "(a) That appeals, as in equity cases, may be taken in bankruptcy proceedings from the courts of bankruptcy to the Circuit Court of Appeals of the United States, and to the Supreme Court of the Territories, in the following cases, to wit: (1) from a judgment adjudging or refusing to adjudge the defendant a bankrupt; (2) from a judgment granting or denying a discharge; and (3) from a judgment allowing or rejecting a debt or claim of five hundred dollars or over. Such an appeal shall be taken within ten days after the judgment appealed from has been rendered, and may be heard and determined by the appellate court in term or vacation, as the case may be." 12 The Circuit Courts of Appeals have jurisdiction of appeals from and writs of error to judgments of the Circuit and District Courts in suits upon claims against the United States; " of appeals from orders and judgments of the Circuit and District 15 Courts and of the district judges 16 upon applications for the writ of

10 31 St. at L. 158.

14

14 King v. McLean Asylum of Mass.

11 30 St. at L 544, 553, § 24. See Gen. Hospital (C. C. A.), 64 Fed. R. 139. supra, § 494.

12 Ibid., § 25. See supra, § 494.

13 Ogden v. U. S., 148 U. S. 390; U. S. v. Coudert (C. C. A.), 73 Fed. R. 505; supra, § 36.

15 U. S. v. Fowkes (C. C. A.), 53 Fed. R. 13; Carter v. Roberts, 177 U. S. 496. 16 Webb v. York (C. C. A.) 74 Fed. R. 753.

habeas corpus where the discharge from imprisonment was not sought because of an alleged violation of a right secured by the Constitution or a treaty;" of appeals from orders of the Circuit Courts upon appeals to them from decisions of the board of general appraisers; 18 of writs of error to judgments in actions against collectors to recover duties; 19 of appeals from orders of district judges directing the deportation of immigrants; 20 it seems of appeals from orders of District Courts granting warrants for the removal of prisoners to other districts; and of appeals from orders of the Circuit Courts enforcing orders of the Interstate Commerce Commission."

Where the jurisdiction of the court below is questioned and sustained, the Circuit Court of Appeals can review the same although there is no other assignment of error; 23 but where the court of first instance dismisses the case for want of jurisdiction it seems that the Circuit Court of Appeals cannot review the decision.24 Where the jurisdiction of the Circuit Courts attaches solely by reason of a diversity of citizenship and a constitutional or a treaty question subsequently arises in the case by the defendant's pleading or otherwise, the Circuit Court of Appeals has jurisdiction and must review all the questions decided in the same, and its decision will be final upon the constitutional question as well as upon the other points in the case unless it certifies that or other questions to the Supreme Court, or the Supreme Court reviews it by a certiorari; 25 but the decision of the Circuit Court in such case can be reviewed immediately by the Supreme Court, which may pass upon all material questions therein.26 Where the

17 Davis v. Burke (C. C. A.), 97 Fed. R. 501. See supra, §§ 368, 477.

18 Passavant v. U. S., 148 U. S. 214, 217; U. S. v. Hopewell (C. C. A.), 51 Fed. R. 798, 799; Louisville Pub. Warehouse Co. v. Collector (C. C. A.), 49 Fed. R. 561.

19 Hubbard v. Soby, 146 U. S. 56. 20 U. S. v. Gee Lee (C. C. A.), 50 Fed. R. 271.

23 U. S. v. Jahn, 155 U. S. 109, 114, 115. quoted supra, § 498; Reliable Incubator Co. v. Stahl (C. C. A.), 105 Fed. R. 663.

24 U. S. v. Jahn, 155 U. S. 109, 114, 115; Evans-Snider-Buel Co. v. McCaskill (C. C. A.), 101 Fed. R. 658; Dudley v. Board of Com'rs of Lake County (C. C. A.), 103 Fed. R. 209. 25 Am. Sugar Refining Co. v. New

21 U. S. v. Fowkes (C. C. A.), 53 Fed. Orleans, 181 U. S. 277. R. 13, 14.

22 Interstate Com. Com'n v. Atchison, T. & S. F. R. Co., 149 U. S. 264.

26 Ibid.; Loeb v. Columbia T'p Trustees, 179 U. S. 472.

plaintiff by a proper pleading shows that the jurisdiction is given to the Circuit Court both by reason of diverse citizenship and also because there is a controversy arising under the Constitution of the United States, it seems that the decision can be reviewed by either the Supreme Court or the Circuit Court of Appeals; but the decision of the latter court is not final; and if the unsuccessful party elects to go there he may have it reviewed by the Supreme Court.27

Where the sole ground of Federal jurisdiction is that there is a controversy arising under the Constitution of the United States, the Supreme Court has exclusive jurisdiction to review the same, and it cannot be reviewed by the Circuit Court of Appeals. The taking of a prior appeal to the Circuit Court of Appeals, which has jurisdiction of the same,29 or, it seems, the prior argument in the Circuit Court of Appeals of an appeal taken subsequently to an appeal to the Supreme Court, waives the latter.30 Judgments of the Circuit and District Courts can be reviewed by the Circuit Courts of Appeals irrespective of the value of the matter in dispute." Upon appeals in admiralty the Circuit Courts of Appeals may review questions of both fact and law.32

The Circuit Courts of Appeals have no power to issue writs of mandamus to compel the District and Circuit Courts to dismiss suits for want of jurisdiction; 3 nor to issue writs of certiorari as original process to review final judgments of the Dis

27 Am. Sugar Refining Co. v. New Orleans, 181 U. S. 277, 281, 282. 28 Am. Sugar Refining Co. v. New Orleans, 181 U. S. 277, 281.

29 Carter v. Roberts, 177 U. S. 496. 30 Robinson v. Caldwell, 165 U. S. 359. Where one party took a writ of error from the Supreme Court upon the question of jurisdiction and the other from the Circuit Court of Appeals upon the other questions, the Circuit Court of Appeals postponed the argument of the latter until after the former was decided. No. Pac. R. Co. v. Glaspell (C. C. A.), 49 Fed. R. 482. See Pullman's P. C. Co. v. Central Transp. Co., 171 U. S. 138; U. S. v. Jahn, 155 U. S. 109, 114.

31 No. Pac. R. Co. v. Amato, 144 U. S. 465; s. c. in C. C. A., 49 Fed. R. 881. The Paquete Habana, 175 U. S. 677, 686. Held contra as to District Courts in No. Am. Trading & Transp. Co. v. Smith (C. C. A.), 93 Fed. R. 7.

32 The Havilah (C. C. A.), 48 Fed. R. 684. The Philadelphian (C. C. A.), 60 Fed. R. 423. The findings of a commissioner as to value, when the evidence is conflicting and the witnesses have appeared before him, will rarely be disturbed. The George L. Garlick (C. C. A.), 107 Fed. R. 542.

33 U. S. v. Swan (C. C. A.), 65 Fed. R. 647; U. S. v. Severens (C. C. A.), 71 Fed. R. 768; supra, § 363.

34

trict or Circuit Courts; nor to issue the writ of habeas corpus for service outside of the circuit, even, it has been held, to review a decision of a court of a Territory within its circuit.35

§ 502. Writs of error from and appeals to the Circuit Courts. The Act of June 10, 1890, provides: "That if the owner, importer, consignee, or agent of any imported merchandise, or the collector, or the Secretary of the Treasury, shall be dissatisfied with the decision of the Board of General Appraisers, as provided for in section fourteen of this act, as to the construction of the law and the facts respecting the classification of such merchandise and the rate of duty imposed thereon under such classification, they or either of them may, within thirty days next after such decision, and not afterwards, apply to the Circuit Court of the United States within the district in which the matter arises, for a review of the questions of law and fact involved in such decision.

"Such application shall be made by filing in the office of the clerk of said Circuit Court a concise statement of the errors of law and fact complained of, and a copy of such statement shall be served on the collector, or on the importer, owner, consignee, or agent, as the case may be.

"Thereupon the court shall order the board of appraisers to return to said Circuit Court the record and the evidence taken by them, together with a certified statement of the facts involved in the case, and their decision thereon; and all the evidence taken by and before said appraisers shall be competent evidence before said Circuit Court.

"And within twenty days after the aforesaid return is made the court may, upon the application of the Secretary of the Treasury, the collector of the port, or the importer, owner, consignee, or agent, as the case may be, refer it to one of said general appraisers, as an officer of the court, to take and return to the court such further evidence as may be offered by the Secretary of the Treasury, collector, importer, owner, consignee, or agent, within sixty days thereafter, in such order and under such rules as the court may prescribe; and such further evidence, with the aforesaid returns, shall constitute the record

34 Travis County v. King I. Br. & Mfg. Co. (C. C. A.), 92 Fed. R. 690; supra, § 365.

35 In re Boles (C. C. A.), 48 Fed. R. 75; supra, § 366.