ceedings authorized by law. And there is no law under which the facts may, in a common-law case, be tried by the judge in a District Court. As was pointed out in the case of Rogers v. United States, 141 U. S. 548, 35 L. Ed. 853, 12 S. Ct. 91, while there is statutory authority for the trial of causes by the judge upon the law and the facts in the circuit court (§ 649, Rev. St. [U. S. Comp. St. 1901, p. 525]), no such authority is given to the judge of the district court in the trial of a civil action. On the contrary, it is expressly declared by § 566, Rev. St. (U. S. Comp. St. 1901, p. 461), that all issues of fact, with the exception of equity and admiralty causes, shall be tried by a jury. In that case there had been a trial by the judge of the district court, a judgment, a bill of exceptions allowed, and a writ of error to the circuit court, where the judgment was affirmed. The case was thereupon taken to the supreme court, where, on looking into the record, the court discovered that the case had been tried by the District Judge upon a submission of the cause to him, sitting without a jury. It was thereupon held (as the ruling is condensed in the syllabus) that: (1) The circuit court could not properly consider any matter raised by the bill of exceptions, nor can this court do so, because the trial was not by a jury nor on an agreed statement of facts. (2) All that the circuit court could do was to affirm the judgment of the district court, and all that this court can do is to affirm the judgment of the circuit court, as the latter court had jurisdiction and this court has it.'" §§ 290-291. Review by United States Supreme Court-§ 290. Judgments of Circuit Courts of Appeals.-Though in some cases the judgment of the circuit court of appeals is final, it is not when the case is one arising under the constitution and laws of the United States, and an action under this .act will give jurisdiction,12 but when the constitutionality of an act of congress is first advanced at the trial, it does not give jurisdiction.13 Even when it has jurisdiction and the question presented is the sufficiency of the evidence to sustain a directed verdict for the defendant on the ground of contributory negligence, an examination of the record will only extend to a determination of whether plain error has been committed by the court below in the particulars complained of.14 In Chicago Junction R. Co. v. King, 222 U. S. 222, 56 L. Ed. 173, 32 S. Ct. 79, 80, the court said: "We do not think we are called upon to scrutinize the whole record for the purpose of discovering whether it may not be possible, by a minute analysis of the evidence, to draw therefrom inferenecs which may possibly conflict with the conclusion of the courts below as to the 12. Cases reviewable. Chicago Junction R. Co. v. King, 222 U. S. 222, 56 L. Ed. 173, 32 S. Ct. 79, affirming 94 C. C. A. 652, 169 Fed. 372. 13. Time of asserting federal question. Chicago Junction R. Co. V. King, 222 U. S. 222, 56 L. Ed. 173, 32 S. Ct. 79, affirming 94 C. C. A. 652, 169 Fed. 372. 14. Extent of consideration of record. Chicago Junction R. Co. v. King, 222 U. S. 222, 56 L. Ed. 173, 32 S. Ct. 79, affirming 94 C. C. A. 652, 169 Fed. 372. tendencies of the proof. We are of this opinion because, in this and cases like it, that is, in cases where the conditions are in all respects identical with those here presented, we think our whole duty will be performed by giving to the record such examination and consideration as may be necessary to enable us to determine whether plain error was committed by the court below in any of the particulars complained of. In the discharge of such duty in this case, in view of the full opinion of the circuit court of appeals, and in the light of the adequate examination which we have made of the record, as we find nothing giving rise to a clear conviction on our part that error has resulted from the action of the courts below, it follows that the judgment of the circuit court of appeals must be and it is affirmed." § 291. Judgments of Highest State Courts.-While the jurisdiction. of Federal courts extends "To all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority," 15 the appellate jurisdiction of the supreme court however, must be exercised "with such exceptions and under such regulations as the congress shall make." 16 Congress has regulated and limited the appellate jurisdiction of the supreme court over the state courts by § 709 of the Revised Statutes, 17 and jurisdiction in this respect extends only to the cases there enumerated, even though a wider jurisdiction might be permitted by the constitutional grant of power. The words of that section material here are those authorizing the supreme court to re-examine the judgments of the state courts "where any title, right, privilege, or immunity is claimed under the United States, and the decision is against the title, right, privi * * * * * * lege, or immunity specially set up or claimed statute." any * * * * * * under such statute of * * Jurisdiction so clearly warranted by the constitution and so explicitly conferred by the act of congress needs no justification. But it may not be out of place to say that in no other manner can a uniform construction of the statute laws of the United States be secured, so that they shall have the same meaning and effect in all the states of the Union.18 The jurisdiction. to review depends upon a federal right being claimed in the court below and a denial thereof to the plaintiff in error. The principles to be derived from the cases are these: Where a party to litigation in a state court insists, by way of objection to or requests for instructions, upon a construction of a statute of the United States which will lead, or, on possible findings of fact from the evidence may lead, to a judgment in his favor, and his claim in this respect, being duly set up, is denied by the highest court of the state, then the question thus raised may be reviewed. The plain rea 15. Judgments of highest state courts. Const. art. 3, § 2. 16. Const. art. 3, § 2. 17. Though this section was repealed by 297 of the Judiciary Act of March 3, 1911, it was re-enacted without change in § 237. 18. St. Louis, etc., R. Co. v. Taylor, 210 U. S. 281, 52 L. Ed. 1061, 28 S. Ct. 616. son is that, in all such cases, he has claimed in the state court a right or immunity under a law of the United States and it has been denied to him.19 Thus where the declaration in an action for personal injuries alleged that the defendant was engaged in interstate commerce and that the coupler used was not such as was required by the federal statute and upon the trial, special attention was called to its application to the case and upon dismissal, on the ground of contributory negligence, motion to reconsider was made upon the same grounds, this sufficiently presented a question made and overruled which would give plaintiff a right to a writ of error from the supreme court.2 20 However a railroad company did not specially set up or claim any right under the act of congress or dependent on its construction which was denied by the state courts, where a recovery was not sought upon the single ground of defective equipment under the federal safety appliance act; though the trial court, in one of its instructions, set forth the provisions of the act, and told the jury that if they found the railway company was engaged, and the cars by which plaintiff was injured were being used, in interstate traffic, and that they were not equipped with the automatic couplers required, such failure was negligence; and it was further charged that railroads were required to keep their appliances in safe and suitable order. being objected that the instructions assumed that if the automatic coupler was out of repair, the company failed to comply with the act of congress. The supreme court of the state held that there was no error, as congress must have intended that the couplers should be kept in proper repair for use, and moreover, as such was the law of the state, even if the act of congress had not specifically imposed this duty. By this ruling no right specifically set up or claimed under the act of congress by defendant below was decided against. There was no pretence that the act of congress provided that the automatic couplers need not be kept in order, and whether the cars in question were used in moving interstate traffic and whether the coupling appliances were defective or not, were facts left to the jury, and determined by their verdict.21 And also, where defendant, a railroad, made no application to have a cause removed, it was not denied any federal right subject to review on appeal, though it requested instructions that if plaintiff by his pleadings made a case of joint liability between the company and a citizen of the state, and thereby deprived the defendant of its right of removal, and to allow plaintiff to recover on proof not showing such joint liability would deprive defendant of its rights guaranteed by the Federal Constitution and laws.22 19. What constitutes claim of right. -St. Louis, etc., R. Co. v. Taylor, 210 U. S. 281, 52 L. Ed. 1061, 28 S. Ct. 616. 20. Schlemmer v. Buffalo, etc., R. Co., 205 U. S. 1, 51 L. Ed. 681, 27 S. Ct. 407. 21. Southern R. Co. v. Carson, 194 U. S. 136, 48 L. Ed. 907, 24 S. Ct. 609. 22. Southern R. Co. v. Carson, 194 U. S. 136, 48 L. Ed. 907, 24 S. Ct. 609. Objecting to an erroneous construction of the safety appliance act, which warranted on the evidence a judgment against it, and insisting upon a correct construction of the act, which would have warranted on the evidence a judgment in its favor, and the denial of such claims, are decisions of federal questions, as is also the contention of the constitutionality of the act, delegating the power to prescribe the height of drawbars used on cars in interstate commerce to the interstate commerce commission.23 Where in an action for injuries due to an employee being compelled to go between cars in order to affect a coupling, one of the cars not being equipped with an automatic coupler, the court held that the federal safety appliance act did not apply and a nonsuit was sustained on the ground of contributory negligence, this was a sufficient decision of a federal matter as to give jurisdiction of a case from a state supreme court to the United States Supreme Court. The fact that the suit was dismissed upon the ground of contributory negligence does not preclude the fact that the other question was involved and considered.24 In Schlemmer v. Buffalo, etc., R. Co., 205 U. S. 1, 51 L. Ed. 681, 27 S. Ct. 407, the court said: ter. * * * "We certainly do not mean to qualify or limit the rule that, for this court to entertain jurisdiction of a writ of error to a state court, it must appear affirmatively that the state court could not have reached its judgment without tacitly, if not expressly, deciding the federal matBut, on the other hand, if the question is duly raised and the judgment necessarily, or, by what appears, in fact involves such a decision, then this court will take jurisdiction, although the opinion below says nothing about it. And if it is evident that a ruling purporting to deal only with local law has for its premise or necessary concomitant a cognizable mistake, that may be suffi cient to warrant a review." * * * As every state may, subject to the restrictions of the federal constitution, determine the limit of the jurisdiction of its courts, the character of the controversy which shall be heard in them, and specifically how far it will, 23. What constitutes federal question. St. Louis, etc., R. Co. v. Taylor, 210 U. S. 281, 52 L. Ed. 1061, 28 S. Ct. 616. 24. Schlemmer v. Buffalo, etc., R. Co., 205 U. S. 1, 51 L. Ed. 681, 27 S. Ct. 407; Schlemmer v. Buffalo, etc., R. Co., 220 U. S. 590, 55 L. Ed. 596, 31 S. Ct. 561, affirming 222 Pa. 470, 71 Atl. 1053. "This court held that the shovel car was in course of transportation between points of different states, and therefore was being used in interstate commerce; that the shovel car was a car within contemplation of § 2 of the act of congress; that § 8 of that act had deprived the company of the defense of assumed risk on the part of an employee; that the ruling in the Pennsylvania court upon contributory v. Buffalo, etc., R. Co., 205 U. S. 1, was re having jurisdiction of the parties, entertain in its courts transitory actions where the cause of action has arisen outside its borders, the determination by the supreme court of the state that it had authority to try an action which arose in a territory created by congress, is not a federal question reviewable upon the appeal to the United States Supreme Court.25 An assignment of error for the refusal of permission to amend a petition so as to charge that cars were moved in interstate commerce, the statute of limitations having become operative, is a question of pleading and practice under the laws of the state, that is not subject to review as a federal question, 26 and where a petition did not state a cause of action under the safety-appliance act, but at most a right of recovery at common law, the ruling upon the sufficiency of the evidence did not involve a federal question.27 So, too, the failure of the court to rule that an employee's action for damages was barred by his disobeying a rule of the company which forbade him going between moving cars, on the ground that the jury might find that a practical necessity existed for the disobedience of this rule and that the course which he followed in the emergency was that of a reasonably prudent man, does not involve the construction of the act or any right or immunity from liability which is thereby conferred. 28 And also where the court instructed that if the federal safety appliance law applied it exacted a usual, that is, ordinary, degree of care in the appliances to which it related, an appeal will not lie from the Federal Supreme Court to a state court. Such contention is without merit and frivolous.29 And a proposition which is unsubstantial and frivolous cannot be made substantial by asserting another of the same character.30 § 292. Judgment on Appeal.-While there is always due a certain. respect and confidence to every expression of opinion by a superior court to a subordinate one, but it is of controlling authority only upon those declarations of essential import resting upon the facts and leading to the conclusion manifested by the judgment. Declarations of law bearing upon the issues and indicating the proper judgment thereon are binding. The facts and law of the instant case only are in the eye and thought of the court. But expressions of opinion as to how the law would be upon facts essentially different from those in issue are not controlling, in another case when 25. Held not federal question—Jurisdiction.-St. Louis, etc., R. Co. v. Taylor, 210 U. S. 281, 52 L. Ed. 1061, 28 S. Ct. 616. 26. Amendment of pleading.—Brinkmeier v. Missouri Pac. R. Co., 224 U. S. 268, 56 L. Ed. 758, 32 S. Ct. 412. But see Seaboard Air Line Railway v. Renn (U. S.), 36 S. Ct. 567, where such an amendment is held to be a federal question if it operates to prolong the limitation under the Employers' Liability Act. 27. Rulings on evidence.-Brinkmeier v. Missouri Pac. R. Co., 224 U. S. 268, 56 L. Ed. 758, 32 S. Ct. 412. 28. Minneapolis, etc., R. Co. v. Popplar, 237 U. S. 369, 59 L. Ed. 1000, 35 S. Ct. 609. 29. Frivolous contentions.-Erie R. Co. v. Solomon, 237 U. S. 427, 59 L. Ed. 1033, 35 S. Ct. 648. 30. Erie R. Co. v. Solomon, 237 U. S. 427, 59 L. Ed. 1033, 35 S. Ct. 648. |