Harris v. Rosenberger

Citation145 F. 449
Decision Date09 May 1906
Docket Number2,245.
PartiesHARRIS v. ROSENBERGER.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

(Syllabus by the Court.)

A suit although not one of diversity of citizenship, which according to the complainant's bill, depends not only upon the construction and application of the Constitution of the United States and the constitutional validity of an act of Congress, but also upon the proper construction and application of the Constitution of the United States and the constitutional validity of an act of Congress, but also upon the proper construction of the act of Congress, is one in respect of which the appellate jurisidiction of the Supreme Court is not exclusive, and an appeal from the final decree may be taken to the Circuit Circuit Court of Appeals. Spreckles Sugar Refining Co. v. McClain, 24 Sup.Ct. 376 192 U.S. 397, 407, 18 L.Ed. 496, followed.

Not every assertion of a right under some claimed construction or application of the Constitution, nor every claim that a pertinent act of Congress is violative of the Constitution, is efficient to establish a right to a direct appeal to the Supreme Court, under the statute distributing the appellate jurisdiction between that court and the Circuit Court of Appeals. The claim must be real and substantial, not merely colorable or without reasonable foundation.

Whether the question of the construction or application of the Constitution, or of the constitutional validity of an act of Congress, is real and substantial, or is merely colorable and without reasonable foundation, depends, inter alia, upon whether it is an open one in the Supreme Court, or has been solemnly and directly determined by that court. If it has been so determined, it no longer constitutes a ground for a direct appeal to that court, under the statute distributing the appellate jurisdiction between it and the Circuit Courts of Appeals.

The doctrine in respect of the latitude which is accorded to a merchant in commending or puffing his goods has no application to false representations of material facts which are in their nature calculated to deceive and are made with intent to deceive.

The provisions of sections 3929 and 4041, Rev. St. (U.S. Comp. St. 1901, pp. 2686, 2749), empowering the Postmaster General to issue so-called fraud orders as a means of stopping the use of the mails as an agency in conducting schemes or devices for obtaining money or property by means or false or fraudulent pretenses, representations, or promises, are not restricted to schemes or devices which are wanting in all the elements of a legitimate business, or in which it is intended to return nothing whatever or nothing at all equivalent in value for the money obtained, but embrace those whereby a business, otherwise legitimate, is systematically and designedly so conducted that, by means of false representations, its patrons are induced to part with their money in the belief that they are purchasing something different from, superior to, and worth more than, what is actually being sold, although that may approximate in commercial value the price asked and received.

A. S. Van valkenburg, U.S. Atty., for appellant.

J. C. Rosenberger, for appellee.

Before VANDEVANTER and HOOK, Circuit Judges, OOK, Circuit Judges, and LOCHREN, District judge.

VANDEVANTER Circuit Judge.

This is an appeal from an interlocutory decree enjoining the appellant, as Postmaster at Kansas City, Mo., from executing two fraud orders issued to him by the Postmaster General under sections 3929 and 4041 of the Revised Statutes, as amended by the act of September 19, 1890, c. 908, 26 Stat. 466 (U.S. Comp. St. 1901, p. 2686), and by section 4 of the act of March 2, 1895, c. 191, 28 Stat. 963 (U.S. Comp. St. 1901, p. 2749). One of the orders reads:

'It having been made to appear to the postmaster General, upon evidence satisfactory to him, that the Haydock Distilling Company and its officers and agents as such at Kansas City, Mo., are engaged in conducting a scheme or device for obtaining money through the mails by means of false and fraudulent pretenses, representations and promises, in violation of the act of Congress entitled 'An act to amend certain sections of the Revised Statutes relating to lotteries, and for other purposes' approved September 19, 1890: Now, therefore, by authority vested in him by said act and by the act of Congress entitled 'An act for the suppression of lottery traffic through international and interstate commerce and the postal service, subject to the jurisdiction and laws of the United States,' approved March 2, 1895, the Postmaster General hereby forbids you to pay any postal money order drawn to the order of said concern and parties, and you are hereby directed to inform the remitter of any such postal money order that payment thereof has been forbidden and that the amount thereof will be returned upon the presentation of the original order or a duplicate thereof applied for and obtained under the regulations of the department. And you are hereby instructed to return all letters, whether registered or not, and other mail matter which shall arrive at your office directed to the said concern and parties to the postmasters at the offices at which they were originally mailed, to be delivered to the senders thereof, with the word 'Fraudulent' plainly written or stamped upon the outside of such letters or matter. Provided, however, that where there is nothing to indicate who are the senders of letters not registered or other matter, you are directed in that case to send such letters and matter to the Dead Letter Office with the word 'Fraudulent' plainly written or stamped thereon, to be disposed of as other dead matter under the laws and regulations applicable thereto.'

The other order is the same, save that it applies to Becker Bros. & Co., instead of the Haydock Distilling Company. These are mere trade-names adopted and used by the appellee. He and the appellant are both citizens of the state of Missouri, and the grounds upon which the jurisdiction of the Circuit Court was invoked and upon which relief therein is sought, as is shown by the bill, are that the statutes, under which the orders were issued by the Postmaster General, are violative of the Constitution of the United States, and that, even if valid, they do not, when rightly interpreted, comprehend or have application to the state of facts disclosed before the postmaster General when the orders were issued. The Circuit Court, in passing the interlocutory decree, sustained the appellee's contention in respect of the interpretation of the statutes but expressed no opinion in respect of their validity. 136 F. 1001.

The first question which claims our attention relates to the jurisdiction of this court. Section 7 of the act of March 3, 1891, c. 517, 26 Stat. 828 (U.S. Comp. St. 1901, p. 550), which gives a right of appeal from an interlocutory decree granting or continuing an injunction or appointing a receiver, restricts it to cases 'in which an appeal from a final decree may be taken under the provisions of this act to the Circuit Court of Appeals,' so the question resolves itself into this: Is the case one in which an appeal from a final decree may be taken under the act of 1891 to this court? The appellee insists that it falls within the exclusive appellate jurisdiction of the Supreme Court, because it involves the construction and application of the Constitution of the United States and draws in question the constitutionality of a law of the United States. We need not refer at length to the statutory provisions or the cases which are claimed to sustain this insistence (City of Owensboro v. Owensboro Water Works Co., 53 C.C.A. 146, 115 F. 318; Filhiol v. Maurice, 185 U.S. 108, 110, 22, Sup.Ct. 560, 46 L.Ed. 827; Union & Planters' Bank v. Memphis, 189 U.S. 71, 73, 23 Sup.Ct. 604, 47 L.Ed. 712), because further consideration and discussion of the subject are foreclosed by the recent decision of the Supreme Court in Spreckles Sugar Refining Co. v. McClain, 192 U.S. 397, 407, 24 Sup.Ct. 376, 48 L.Ed. 496. That was a case in which diversity of citizenship did not exist, and where it was sought to recover certain moneys exacted and paid under protest as war revenue taxes the right to their recovery being asserted upon the grounds that the act of Congress imposing them was violative of the Constitution, and that, even if valid, it did not, when rightly interpreted, authorize their collection. The contention was made that the judgement of the Circuit Court was not subject to review by the Circuit Court of Appeals, but only by the Supreme Court. It was ruled otherwise. We quote from the opinion:

'Was the judgement 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 judgment of the Circuit Court. Huguley Mfg. Co. v. Galeton Cotton Mills, 184 U.S. 290, 295, 22 Sup.Ct. 452, 46 L.Ed. 546. 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 fifth section of the act of 1891, and, consequently, could not have come here directly from the Circuit
...

To continue reading

Request your trial
28 cases
  • Jeffries v. Olesen, 15779.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • May 13, 1954
    ...be interested in putting the appliance to a trial use. Cf. Farley v. Heininger, supra, 105 F.2d at page 84; Harris v. Rosenberger, 8 Cir., 1906, 145 F. 449, 455, 13 L.R.A., N.S., 762, certiorari denied, 1906, 203 U. S. 591, 27 S.Ct. 778, 51 L.Ed. The case at bar, like Reilly v. Pinkus, supr......
  • United States v. Bloom, 343
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • September 11, 1956
    ...508, 40 L.Ed. 709; United States v. New South Farm & Home Co., 1916, 241 U.S. 64, 71, 36 S.Ct. 505, 60 L.Ed. 890; Harris v. Rosenberger, 8 Cir., 1906, 145 F. 449, 458, certiorari denied 203 U.S. 591, 27 S.Ct. 778, 51 L.Ed. 331; Sprinkle v. United States, 4 Cir., 1917, 244 F. 111; Rude v. Un......
  • People's United States Bank v. Gilson
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 29, 1908
    ......123;. [161 F. 291] . . . Wisconsin Central R.R. Co. v. Forsythe, 159 U.S. 46,. 61, 15 Sup.Ct. 1020, 40 L.Ed. 71; Rosenberger v. . . . Harris (C.C.) 136 F. 1001, 1003; Missouri Drug Co. v. Wyman (C.C.) 129 F. 623, 629; Harris v. Rosenberger, 145 F. 449, 76 ......
  • Levering Garrigues Co v. Morrin, 423
    • United States
    • United States Supreme Court
    • April 10, 1933
    ...v. Morales, 262 U.S. 170, 43 S.Ct. 526, 67 L.Ed. 928; State of Kansas v. Bradley (C.C.) 26 F. 289, 290; Harris v. Rosenberger (C.C.A.) 145 F. 449, 452, 13 L.R.A.(N.S.) 762. Passing, without inquiry, the first of these tests, a consideration of the decisions of this court rendered prior to t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT