one is double what it is on the other. When the ticket was sold it was known that Brown was an engineer, and the conclusion is unquestioned that he believed that he was insured while pursuing his employment or occupation. The company so thought, for it gave no instructions against insuring railroad employees, till after the disastrous accident happened.

. . As Brown was not insured as a passenger and traveler, but against all accidents, without regard to the capacity in which he was acting, the reasonable inference is that the ticket was intended to cover the risk and accident by which he met his death. If it be conceded that the meaning of the ticket is doubtful or ambiguous, still the question must be decided for the plaintiff, as the promisor would not fail to apprehend that the promisee labored under the impression that he was indemnified, and where such is the case, the construction must be most favorable to the insured."

Passenger elevator.

In Robb v. Merchants Casualty Co. (1918) 29 Manitoba L. R. 113, 44 D. L. R. 185, [1918] 3 West. Week. Rep. 322, reversing (1918) Manitoba, 41 D. L. R. 21, a passenger elevator in a large office building was held not to be a "public passenger conveyance" within the meaning of an accident policy insuring against injuries sustained by the beneficiary while riding as a passenger in "any public passenger conveyance provided for the exclusive use of passengers, and propelled by steam, compressed air, gasolene, cable, or electricity, or while riding as a passenger on board a steam or gasolene vessel licensed for the regular transportation of passengers, and such injuries shall be due directly to or in consequence of the wrecking of such car or vessel," etc. The court of appeals in reversing the court of King's bench said that it could not come to the conclusion that the words in the policy were intended to include a passenger elevator in a building such as the one in which the accident took place, and,

moreover, that the condition in the policy, that the injuries be due to the wrecking of the car or vessel, was fatal to the plaintiff unless explained away, the injury for which recovery was sought not having been caused by a wrecking of the elevator. In the lower court the ruling was that the elevator was a "public passenger conveyance" within the meaning of those words as used in the policy; and that the restriction with respect to wrecking of the "car" did not apply, since the word "car" as used therein was not as comprehensive as the term "public passenger conveyance," which, because of such comprehensiveness, included the passenger elevator in question.

Steam vessel.

In Etna L. Ins. Co. v. Frierson (1902) 51 C. C. A. 424, 114 Fed. 56, in holding that one who lost his life while aboard a specially chartered steam vessel was within the meaning of a policy insuring against injuries sustained "while riding as a passenger in any passenger conveyance using steam," the court said that while the vessel was not a "public conveyance" in the usual lines of travel as a common carrier of passengers, yet if the insurance company intended to limit the benefits of its contracts to passengers traveling in such conveyances, it should have so stipulated.

Wagon.

In Georgia L. Ins. Co. v. Easter (1914) 189 Ala. 472, L.R.A.1915C, 456, 66 So. 514, a picnic wagon hired by special contract for a particular occasion from a transfer company, to be controlled by the owner's employees, but to carry only those invited by the hirer, was held not to be a "public conveyance" within the meaning of an accident policy insuring against injuries sustained while "a passenger in or on a public conveyance provided by a common carrier for passenger service," although the company as to the other parts of its business was a common carrier. G. J. C.

Southern P. Terminal Co. v. Interstate Commerce Commission, 219 U. S. 498, 55 L. ed. 310, 31 Sup. Ct. Rep. 279; Railroad Commission v. Texas & P. R. Co. 229 U. S. 336, 57 L. ed. 1215, 33 Sup. Ct. Rep. 837; Texas & N. O. R. Co. v. Sabine Tram Co. 227 U. S. 111, 57 L. ed. 442, 33 Sup. Ct. Rep. 229; Bacon v. Illinois, 227 U. S. 504, 57 L. ed. 615, 33 Sup. Ct. Rep. 299; Illinois C. R. Co. v. De Fuentes, 236 U. S. 157, 59 L. ed.. 517, P.U.R.1915A, 840, 35 Sup. Ct. Rep. 275; Hammer v. Dagenhart, 247 U. S. 251, 62 L. ed. 1101, 3 A.L.R. 649, 38 Sup. Ct. Rep. 529, Ann. Cas. 1918E, 724; Merchants Exch. v. Missouri, 248 U. S. 365, 63 L. ed. 300, 39 Sup. Ct. Rep. 114; Southern P. Co. v. Arizona, 249 U. S. 472, 63 L. ed. 713, P.U.R. 1919D, 462, 39 Sup. Ct. Rep. 313; Patapsco Guano Co. v. Board of Agriculture, 171 U. S. 345, 43 L. ed. 191, 18 Sup. Ct. Rep. 862.

The state under its police power was authorized to pass the act in question, and it should be sustained.

Turner v. Maryland, 107 U. S. 38, 27 L. ed. 370, 2 Sup. Ct. Rep. 44; Pittsburg & S. Coal Co. v. Louisiana, 156 U. S. 590, 39 L. ed. 544, 5 Inters. Com. Rep. 18, 15 Sup. Ct. Rep. 459; Savage v. Jones, 225 U. S. 501, 56 L. ed. 1182, 32 Sup. Ct. Rep. 715; Plumley v. Massachusetts, 155 U. S. 461, 39 L. ed. 223, 5 Inters. Com. Rep. 590, 15 Sup. Ct. Rep. 154; Minnesota Rate Cases

(Simpson v. Shepard) 230 U. S. 352, 57 L. ed. 1511, 48 L.R.A. (N.S.) 1151, 33 Sup. Ct. Rep. 729, Ann. Cas. 1916A, 18; New York L. Ins. Co. v. Deer Lodge County, 231 U. S. 495, 58 L. ed. 332, 34 Sup. Ct. Rep. 167; South Carolina ex rel. Phoenix Mut. L. Ins. Co. v. McMaster, 237 U. S. 63, 59 L. ed. 839, 35 Sup. Ct. Rep. 504; Engel v. O'Malley, 219 U. S. 128, 55 L. ed. 128, 31 Sup. Ct. Rep. 190; Hendrick v. Maryland, 235 U. S. 610, 59 L. ed. 385, 35 Sup. Ct. Rep. 140; Mutual Film Corp. v. Hodges, 236 U. S. 248, 59 L. ed. 561, 35 Sup. Ct. Rep. 393; Mutual Film Corp. v. Industrial Commission, 236 U. S. 230, 59 L. ed. 552, 35 Sup. Ct. Rep. 387, Ann. Cas. 1916C, 296; Sligh v. Kirkwood, 237 U. S. 52, 59 L. ed. 835, 35 Sup. Ct. Rep. 501; Tanner v. Little, 240 U. S. 369, 60 L. ed. 691, 36 Sup. Ct. Rep. 379; Pitney v. Washington, 240 U. S. 387, 60 L. ed. 703, 36 Sup. Ct. Rep. 385; Keokee Consol. Coke Co. v. Taylor, 234 U. S. 224, 58 L. ed. 1288, 34 Sup. Ct. Rep. 856; Central Lumber Co. v. South Dakota, 226 U. S. 157, 57 L. ed. 164, 33

Sup. Ct. Rep. 66; Otis v. Parker, 187 U. S. 606, 47 L. ed. 323, 23 Sup. Ct. Rep. 168; Rast v. Van Deman & L. Co. 240 U. S. 342, 60 L. ed. 679, L.R.A. 1917A, 421, 36 Sup. Ct. Rep. 370, Ann. Cas. 1917B, 455; Brazee v. Michigan, 241 U. S. 340, 60 L. ed. 1034, 36 Sup. Ct. Rep. 561, Ann. Cas. 1917C, 522; Hutchinson Ice Cream Co. v. Iowa, 242 U. S. 153, 61 L. ed. 217, 37 Sup. Ct. Rep. 28, Ann. Cas. 1917B, 643; Price v. Illinois, 238 U. S. 446, 59 L. ed. 1400, 35 Sup. Ct. Rep. 892; Pure Oil Co. v. Minnesota, 248 U. S. 158, 63 L. ed. 180, 39 Sup. Ct. Rep. 35; Standard Oil Co. v. Graves, 249 U. S. 389, 63 L. ed. 662, 39 Sup. Ct. Rep. 320; Missouri P. R. Co. v. McGrew Coal Co. 244 U. S. 199, 61 L. ed. 1082, 37 Sup. Ct. Rep. 518; Valley S. S. Co. v. Wattawa, 244 U. S. 202, 61 L. ed. 1084, 37 Sup. Ct. Rep. 523, 14 N. C. C. A. 725; Hall v. GeigerJones Co. 242 U. S. 539, 61 L. ed. 480, L.R.A.1917F, 514, 37 Sup. Ct. Rep. 217, Ann. Cas. 1917C, 643; Caldwell v. Sioux Falls Stock Yards Co. 242 U. S. 559, 61 L. ed. 493, 37 Sup. Ct. Rep. 224; Merrick v. N. W. Halsey & Co. 242 U. S. 568, 61 L. ed. 498, 37 Sup. Ct. Rep. 227; Mackay Teleg. & Cable Co. v. Little Rock, 250 U. S. 94, 63 L. ed. 863, 39 Sup. Ct. Rep. 428; Postal Teleg.-Cable Co. v. Richmond, 249 U. S. 252, 63 L. ed. 590, 39 Sup. Ct. Rep. 265; American Mfg. Co. v. St. Louis, 250 U. S. 459, 63 L. ed. 1084, 39 Sup. Ct. Rep. 522; Wagner v. Covington, 251 U. S. 95, 64 L. ed. 157, 40 Sup. Ct. Rep. 82; Munn v. Illinois, 94 U. S. 135, 24 L. ed. 77; W. W. Cargill Co. v. Minnesota, 180 U. S. 452, 45 L. ed. 619, 21 Sup. Ct. Rep. 423; House v. Mayes, 219 U. S. 270, 55 L. ed. 213, 31 Sup. Ct. Rep. 234.

Carland, Circuit Judge, delivered the opinion of the court:

Appellant commenced this action for the purpose of having chapter 138, Laws North Dakota of 1919, adjudged to be null and void, as imposing a direct burden upon interstate commerce, and as being in conflict with the United States Grain Standards Act (39 Stat. at L. 482, chap. 313, Comp. Stat. §§ 8747187474k, Fed. Stat. Anno. Supp. 1918, p. 7), and for the further purpose of having appellees, their agents, servants, and employees, perpetually enjoined from enforcing the same. The case was heard on

pleadings and proofs, and as a result thereof the action was dismissed on the merits. Appellant appealed.

Counsel for appellees have moved to dismiss the appeal for want of jurisdiction. The parties are all citizens of North Dakota, and the jurisdiction of the district court was invoked upon the ground that the suit arose under the Constitution and a law of the United States. If the jurisdiction of the district court to entertain the suit had been based alone upon the ground that it was one arising under the Constitution of the United States, then the jurisdiction of the Supreme Court to review the case on appeal would have been exclusive. Judicial Code, §§ 128-238 (Comp. Stat. §§ 1120-1215, 5 Fed. Stat. Anno. 2d ed. p. 607); Raton Waterworks Co. v. Raton, 249 U. S. 552, 63 L. ed. 768, 39 Sup. Ct. Rep. 384; American Sugar Ref. Co. v. New Orleans, 181 U. S. 277, 281, 45 L. ed. 859, 860, 21 Sup. Ct. Rep. 646; Huguley Mfg. Co. v. Galeton Cotton Mills, 184 U. S. 290, 295, 46 L. ed. 546, 548, 22 Sup. Ct. Rep. 452; Union & Planters' Bank v. Memphis, 189 U. S. 71, 73, 47 L. ed. 712, 713, 23 Sup. Ct. Rep. 604; Vicksburg v. v. Vicksburg Waterworks Co. 202 U. S. 453, 50 L. ed. 1102, 26 Sup. Ct. Rep. 660, 6 Ann. Cas. 253; Carolina Glass Co. v. South Carolina, 240 U. S. 305, 318, 60 L. ed. 658, 663, 36 Sup. Ct. Rep. 293. The jurisdiction of the district court, however, as above stated, was based upon two grounds: (a) The construction or application of the Constitution of the United States; (b) a suit arising under a law of the United States. Grain Standards Act, supra. In such a case the jurisdiction of the Supreme Court to hear an circuit court of appeal from the judgment below is not exclusive, and the appeal in this case was properly taken to this court. Spreckles Sugar Ref. Co. v. McClain, 192 U. S. 397, 48 L. ed. 496, 24 Sup. Ct. Rep. 376. The Spreckles Case was one arising un

AppealjurisdictionUnited States

appeals.

der both the Constitution and the laws of the United States. It arose under the Constitution, because the plaintiff's cause of action as stated in its complaint was based upon the proposition that the law under which the defendant proceeded to collect the taxes in controversy in that case was contrary to the Constitution. It also arose under a law of the United States, because the plaintiff pleaded that, if the statute was not unconstitutional, still it did not authorize the collection of the taxes in question. The Supreme Court in reference to this matter said: "But the case distinctly presented other questions 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 5th section of the Act of 1891, and, consequently, could not have come here directly from the circuit court. As, then, the case, 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.'

Some confusion has existed in some of the decided cases owing to a failure to appreciate what the Supreme Court meant in the Spreckles Case by the words "other questions." It will be observed in that case that the "other questions" besides the constitutional question

was the construction of a law of the United States which was also a ground of jurisdiction in the lower court. So that it is not true that merely because a case involves other questions than a constitutional question that the case may be brought to this court on appeal or writ of error. In what we now say upon the question of jurisdiction we put to one side all cases where the jurisdiction of the lower court is based upon a diversity of citizenship, and confine our remarks to those cases where the jurisdiction of the court below is based upon what is generally termed a Federal question. What is meant by "other questions" in the Spreckles Case is well illustrated by the case of Raton Waterworks Co. v. Raton, 249 U. S. 552, 63 L. ed. 768, 39 Sup. Ct. Rep. 384. On the face of the opinion in that case the question decided was one which the Supreme Court had decided several times before. The facts as they appeared in the certificate of this court, when taken together with the decision of the Supreme Court, illustrate what is meant by the words "other questions." In the Raton Case the waterworks company commenced an action against the city of Raton for the purpose of enjoining the city from constructing a system of waterworks of its own before the expiration of the franchise granted by the city to the waterworks company, on the ground that the ordinance providing for the construction of the city system, having been passed in pursuance of authority granted by the legislature of New Mexico, was a law which impaired the obligation of the contract between the city and the waterworks company. Walla Walla v. Walla Walla Water Co. 172 U. S. 1, 43 L. ed. 341, 19 Sup. Ct. Rep. 77. This and other constitutional questions were the sole grounds of jurisdiction upon which the action was based. The contract or franchise made between the city and the waterworks company contained a provision to the effect that, if the waterworks com

pany should fail at any time for a certain period to furnish good and potable water to the city, the city should have the right to terminate the contract. The city pleaded this provision as a defense to the action of the waterworks company. On the trial much evidence was taken upon this defense. The trial court. sustained the defense made by the city and rendered judgment against the waterworks company; the constitutional question serving no purpose except as a ground of jurisdiction.

The Supreme Court in the case of Vicksburg v. Vicksburg Waterworks Co. 202 U. S. 453, 50 L. ed. 1102, 26 Sup. Ct. Rep. 660, 6 Ann. Cas. 253, had decided that where complainant's bill disclosed an intention by a municipality to deprive complainant, a water supply company, of rights under an existing contract by subsequent legislation, and the city could not show any inherent want of legal validity in the contract, or any such disregard of its obligations by complainant as would absolve the city therefrom, the case was one arising under the Constitution of the United States, and that a direct appeal would lie to the Supreme Court. The facts in the Raton Case brought it within the rule stated in the Vicksburg Case. An appeal was taken to this court, and, there being doubt about our jurisdiction, the question was certified to the Supreme Court. It thus appears that, while there was another question in the Raton Case besides the constitutional one, still the Supreme Court decided that the jurisdiction of the Supreme Court to review the judgment was exclusive, thus showing, it seems to us, that the "other questions" mentioned in the Spreckles Case mean questions based upon some jurisdictional ground. We are unable to find that the Spreckles Case has been modified in any way by the Supreme Court, and it was cited with approval in Pomona v. Sunset Teleph. & Teleg. Co. 224 U. S. 330,