Harris v. Rosenberger
Citation | 145 F. 449 |
Decision Date | 09 May 1906 |
Docket Number | 2,245. |
Parties | HARRIS v. ROSENBERGER. |
Court | United 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.
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:
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:
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