in the dissent. Though the opinion declares that the district court had "power to adjudicate the issues presented," which Mr. Justice Clarke takes to mean that "it had authority to go forward and completely dispose of the controversy," the Supreme Court sets aside the district court's adjudication of the controversy without inquiring whether it was correct, and allows proceedings to be begun in the state court. The effect of the decision thus seems to be all that the minority desires, since, though the district court was held to have jurisdiction, it was forbidden to exercise it in any substantial degree.

In five cases it was disputed whether the controversy arose under a law of the United States, but in only one was the assertion of federal jurisdiction discountenanced. This was Emery & Co. v. American Refrigerator Transit Co.1 which held that a claim to enforce a liability founded solely on contract or tort does not arise under the Interstate Commerce Act, notwithstanding the act may be material in fixing the damages in case the alleged liability is established.

92

With this may be contrasted Louisville & N. R. Co. v. Rice, 92 which held that a claim of an interstate carrier for disinfecting cars arises under the Interstate Commerce Act, although the only defense relied on is one of estoppel based on the delay in making demand on the consignee who was merely an agent and had accounted to his principal before the claim was presented. Since the carrier's claim was based upon the provisions of a tariff, duly filed, published and approved as required by the statute, the result of the claim was said to depend necessarily upon the construction and effect of the act.

alternative threat of legal action to eject the company from the streets," there was an exercise of coercive power by reason of the fact that "the law would have been practically self-enforcing since the public would have refused to pay more than the new rates until the companies had established their rights at law." But if that is a ground for entertaining jurisdiction, it would seem to afford a reason why the federal court should adjudicate the constitutionality of the ordinance, since after the decree as modified by the Supreme Court, the public may still refuse to pay the old rate of fare.

" (1918) 246 U. S. 634.

92 (1918) 247 U. S. 201.

Although the Supreme Court had decided, before Boston Store v. American Graphophone Co." reached it, that suits to enforce price maintenance contracts on patented articles were actions on collateral contracts and not on reservations of the monopoly right granted by the patent, it nevertheless held in that case that, since the question had not been conclusively settled at the time the cause originated below, the district court had jurisdiction to pass on the case made by the bill and to determine whether the suit was one arising under the patent law. This of course was merely jurisdiction to determine whether there was jurisdiction, which must exist until the question is definitely settled.

In Cissna v. Tennessee" the boundary between two states was in dispute. Since the boundary had been originally fixed by treaties and by acts of Congress, it was held that the question whether it had since been changed by alterations in the course of

* (1918) 246 U. S. 8. See 86 Central Law Journal 147, 18 Columbia Law Review 352, 3 Southern Law Quarterly 147, and 27 Yale Law Journal 714.

Questions of restraint of trade and of fair competition were passed upon in four other important cases, in which, however, no disputed constitutional issues appeared.

United States v. United Shoe Machinery Co., (1918) 247 U. S. 32, gave the defendant a clean bill of health, over the dissent of Justices Day, Pitney and Clarke. Inasmuch as Justices McReynolds and Brandeis did not sit, both having been of counsel, the case was decided by a minority of the court. See 27 Yale Law Journal 1060, 1084.

In Chicago Board of Trade v. United States, (1918) 246 U. S. 231, a rule of the plaintiff in error to the effect that after a certain hour in the day, "grain to arrive" should not be sold or bought at a price other than the closing bid at that hour, was held not to impose unreasonable restraint of trade. See 31 Harvard Law Review 1154, and 27 Yale Law Journal 1094.

In Hitchman Coal and Coke Co. v. Mitchell, (1917) 245 U. S. 276, and Eagle Glass & Mfg. Co. v. Rowe, (1917) 245 U. S. 276, officials of a labor union were enjoined from seeking to unionize a nonunion mine by securing secret promises to join the union from employees who had agreed to notify their employer and relinquish their employment in case they altered their nonunion status. Justices Holmes, Brandeis and Clarke dissented. See W. W. Cook, "Privileges of Labor Unions in the Struggle for Life," 27 Yale Law Journal 779, and T. R. Powell, "Collective Bargaining before the Supreme Court," 33 Political Science Quarterly 396. See also 52 American Law Review 95, 6 California Law Review 302, 86 Central Law Journal 39, 18 Columbia Law Review 252, 3 Cornell Law Quarterly 317, 31 Harvard Law Review 648, 16 Michigan Law Review 250, 3 St. Louis Law Review 54, and 27 Yale Law Journal 578.

a stream or by long acquiescence was one arising under the treaty and the laws of the United States. And the question whether an Indian nonceremonial marriage was "contracted under the laws or tribal customs" was held in Carney v. Chapman95 to arise, 'although somewhat remotely," under the statute of Congress validating marriages contracted in accordance with those laws or customs. The Indian law and custom may be regarded as incorporated by reference in the federal statute, so that the meaning and application of the statute can be known only by understanding the scope of the provisions of the Indian law that it incorporates.

Jurisdiction on the ground of diversity of citizenship was found to obtain in Sutton v. English. 96 There was no doubt that the formal parties had the requisite diversity of citizenship, the only dispute being whether the interests of the formal opponents were really adverse. The suit was, however, dismissed on the ground that it was essentially one to annul the probate of a will and so not within the equity jurisdiction of the federal courts.

In Chelentis v. Luckenbach S. S. Co." the contract of employment of a fireman on an ocean steamship was held to be maritime in nature, and the rights and liabilities flowing therefrom to be matters of maritime law, so that the common-law rules as to compensation for injuries do not apply. Justices Pitney, Brandeis and Clarke dissented, but presumably only on the ground of the nonapplicability of the common law to a situation concededly within the admiralty and maritime jurisdiction.

In Wells v. Roper 98 a bill for injunction against an assistant postmaster general was found to be one in substance against the United States, so that no jurisdiction obtained. The complainant had a contract with the government for delivering mail. The contract contained a provision for termination on thirty days' notice, which notice had been duly given; but the complainant contended he still had a right to continue. The court told

" (1918) 247 U. S. 102. * (1918) 246 U. S. 199. *7 (1918) 247 U. S. 372. ** (1918) 246 U. S. 335.

favor of the public and against the corporation 'which can claim nothing which is not clearly given.' "'s Mr. Justice Clarke was alone in his dissent in the Ohio Traction case, and only Mr. Justice Brandeis joined him in the Covington case.

VIII. IMMUNITIES OF PERSONS CHARGED WITH CRIME

In Burton v. New York Central R. Co. a lady who had been taken from a train by New York police authorities, in the erroneous belief that she was wanted for a crime in Indiana, sued the road for damages claiming that the arrest was illegal and that the road owed her a duty to protect her from illegal arrest. The federal Constitution was brought into the dispute by the plaintiff's claim that the extradition clause guaranteed an immunity from arrest for a crime in another state except after a demand from the executive of the state in which the crime was alleged to have been committed. The Supreme Court held, however, that the federal Constitution and the act of Congress passed to effectuate its provisions have nothing to do with arrest in advance of a requisition, and that whether such an arrest should be made was a matter which each state is at liberty to decide for itself. Since the only federal claim was based on the absence of a requisition, the victim of the unfortunate mistake was denied relief."

But in City of Mitchell v. Dakota Telephone Co., (1918) 246 U. S. 396, holding that a later franchise did not supersede or modify an earlier one, Mr Justice McKenna said that the conclusions reached "have the support of principles declared by this court that grants of rights and privileges by the state or of any of its municipalities are strictly construed 'and whatever is not unequivocally 'granted is withheld; nothing passes by mere implication" In the Mitchell case it was conceded that a franchise had expired unless it had been extended by a later one. Jurisdiction to determine the effect of the later ordinance on the former one was obtained under the claim raised under the obligation-of-contracts clause. The Supreme Court reversed the district court, holding that it incorrectly decided that the earlier franchise had been superseded and that it incorrectly failed to give effect to a prior judgment between the parties on this question.

(1917) 245 U. 8. 315. See 86 Central Law Journal 79 and 31 Harvard Law Review 650

*See Biddinger v. Commissioner of Police, (1917) 245 US 128 for a decision holding that a person arrested in an asylum state, who conceded that he was in the demanding state at the time the alleged crime was committed, is not entitled

Immunity from unreasonable searches and seizures and from compulsory self-incrimination was the basis of the prayer of the petitioner in Perleman v. United States" to restrain a federal district attorney from taking possession of certain papers impounded by a federal court in some civil proceedings. The papers had been voluntarily offered by the petitioner in a patent suit and were in the custody of the court as part of the record in that suit, when upon formal motion they were released for the use of the government in preparing criminal proceedings against Mr. Perleman for alleged perjury. In denying the prayer that the papers be not so used, Mr. Justice McKenna said that in all the cases when seizure of papers had been held to violate the constitutional provisions relied on, "there was force or threats or trespass upon property, some invasion of privacy or governmental extortion." Here the petitioner had voluntarily produced the papers for his own advantage and his objection to their use in criminal proceedings against him was predicated solely on his ownership. But the "criterion of immunity" was said to be "not the ownership of property, but the 'physical or moral compulsion' exerted."

Ruthenberg v. United States," which followed the Selective Draft Law cases in upholding the Selective Service Law and sustained the conviction of Mr. Ruthenberg for inducing, aiding, etc., a certain Mr. Schue to fail to register, rejected also several contentions addressed to the unconstitutionality of the proceedings in which conviction was obtained. The defendant was a Socialist and thought that he ought not to be tried by a jury composed exclusively of members of other parties and of property owners, but the constitutional issue thus raised was said to be settled “by previous adverse rulings upon similar contentions urged by negro defendants indicted and tried by juries composed of white men." Previous decisions, too, were relied on to to habeas corpus on the ground that the statute of limitations of the demanding state prevented his punishment as that defense can be asserted only at the trial ree 15 Columbia Law Review 70, 2 Minnesota Law Review 304, and 27 Yale Law Journal 4.22

** 1918) 247 US 7.

Note 70, supra.