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In two other cases it was held that certain statutes could not constitutionally be applied as done in the cases before the court. 23 In one case a statute was pronounced unconstitutional in a dictum.24 And in one case a resolution of the House of Representatives was held void,25 and in another a joint resolution of both houses.25a

Only one statute was held void prior to the Civil War. Ten cases related to legislation growing out of the war. Ten cases have arisen in the present century. The decision has been unanimous in sixteen cases. The vote stood five to four against the statute in only four cases.26 One of the cases in which the court had held a statute unconstitutional was afterwards overruled.27 One at least of

Mark Cases (1879), 100 U. S. 82; United States v. Harris (1883), 106 U. S. 629; Civil Rights Cases (1883), 109 U. S. 3; Boyd v. United States (1886), 116 U. S. 616; Baldwin v. Franks (1887), 120 U. S. 678; Callan v. Wilson (1888), 127 U. S. 540; Monongahela Navigation Co. V. United States (1893), 148 U. S. 312; Pollock v. Farmers' Loan & Trust Co. (1895), 157 U. S. 429, 158 U. S. 601; Wong Wing v. United States (1896), 163 U. S. 228; Fairbanks v. United States (1901), 181 U. S. 283; James v. Bowman (1903), 190 U. S. 127; In re Heff (1905), 197 U. S. 488; Rassmussen v. United States (1905), 197 U. S. 516; Hodges v. United States (1906), 203 U. S. 1; Employers Liability Cases (1908), 207 U. S. 463; Adair v. United States (1908), 208 U. S. 161; Keller v. United States (1909), 213 U. S. 138; Muskrat v. United States (1911), 219 U. S. 346; Butts v. Merchants, etc., Transportation Co. (1913), 230 U. S. 126; United States v. Hvoslef (1915), 237 U.

To these may perhaps be added Counselman v. Hitchcock (1892), 142 U. S. 547, in which the court seemed to consider the statute in question unconstitutional, though possibly it was not necessary to decide the point. See also § 14, note 2, ante.

23-Collector v. Day (1870), 11 Wall. 113; United States v. Railroad Co. (1872), 17 Wall. 322.

24-Dred Scott v. Sanford (1857), 19 How. 393.

25-Kilburn v. Thompson (1880), 103 U. S. 168.

25a-Jones v. Meehan (1894), 175 U. S. 1. See also, Smith v. Stevens, 10 Wall. 371

26-Ex parte Garland, 4 Wall. 33; Pollock v. Farmers' Loan & Trust Co., 158 U. S. 601 (Income Tax Case); Fairbanks v. United States, 181 U. S. 283; Employers Liability Cases, 207 U. S. 463.

27-Hepburn v. Griswold, 8 Wall. 603, overruled in the Legal Tender Cases, 12 Wall. 457.

the statutes held unconstitutional has been re-enacted so as to meet the objection raised by the court,28 and in several of the cases the object of the statute could have been accomplished by slightly different legislation. One decision has led to an amendment to the Constitution.29 On the whole, when one considers the many thousands of acts that have been passed by Congress, this record of the court's action seems conservative enough.

28-Employers

Liability Cases,

207 U. S. 463. The re-enacted statute was upheld in the Second Employers Liability Cases, 223 U. S. 1.

29-Pollock v. Farmers' Loan & Trust Co., 158 U. S. 601. This decision led to the adoption of the Sixteenth Amendment.

CHAPTER III

PARTICULAR INSTANCES OF JURISDICTION

§ 20. In general.

§ 21. Cases involving a federal question.

§ 22. Cases affecting ambassadors, etc.

§ 23. Cases of admiralty and maritime jurisdiction.

§ 24. What waters are within admiralty jurisdiction.

§ 25. Legislation in admiralty and maritime matters.

§ 26. Exclusiveness of admiralty jurisdiction.

§ 27. Scope of admiralty jurisdiction.

§ 28. Controversies to which the United States is a party.

§ 29. Controversies between two or more states.

§ 30. Controversies between a state and citizens of another state.

§ 31. Controversies between citizens of different states.

§ 32. Who are citizens.

$33. Corporations as citizens.

§ 34. Corporation chartered by two or more states.

§ 35. Corporation chartered by the United States.

§ 36. Change of citizenship.

§ 37. Controversies involving conflicting land grants.

§ 38. Controversies between a state, etc., and foreign states, etc.

§ 20. In general. By the constitutional provision the federal judicial power is extended to nine distinct classes of cases, as follows:

(1) All cases, in law and equity, arising under the Constitution, laws, and treaties of the United States. (2) All cases affecting ambassadors, other public ministers and consuls.

(3) All cases of admiralty and maritime jurisdiction. (4) Controversies to which the United States shall be a party.

(5) Controversies between two or more states.

(6) Controversies between a state and citizens of another state.

(7) Controversies between citizens of different states.

(8) Controversies between citizens of the same state claiming lands under grants of different states, and

(9) Controversies between a state, or the citizens thereof, and foreign states, citizens or subjects. We shall consider each case separately.

§ 21. Cases involving a federal question. The judicial power 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."

In the language of Chief Justice Marshall a case may be said "to arise under the Constitution or a law of the United States whenever its correct decision depends on the construction of either," or when "the title or right set up by the party may be defeated by one construction of the Constitution or law of the United States, or sustained by the opposite construction."2 It is such as grows out of the Constitution, etc., and may consist in whole or in part of the right, claim, privilege, protection, or defense of the party asserting it, and this in either civil or criminal suits.3

1-Cohens v. Virginia, 6 Wheat. 264, 379.

2-Osborn v. Bank of the United States, 9 Wheat. 738, 822.

3-Tennessee v. Davis, 100 U. S. 257. See, also, Shoshone Mining Co. v. Rutter, 177 U. S. 505; Macon Grocery Co. v. Atlantic Coast Line R. Co., 215 U. S. 501.

"A suit arises under the Constitution and laws of the United States only when the plaintiff's statement of his own cause of action shows that it is based upon those laws or that Constitution. It is not enough that the plaintiff alleges some anticipated defense to his cause of action and asserts that the defense is

invalidated by some provision of the Constitution of the United States. Although such allegations show that very likely, in the course of the litigation, a question under the Constitution would arise, they do not show that the suit, that is, the plaintiff's original cause of action, arises under the Constitution." Per Moody, J., in Louisville, etc., R. Co. v. Motley, 211 U. S. 149. See, also, GoldWashing, etc., Co. v. Keyes, 96 U. S. 199, 203.

Where a corporation derives all its rights from an act of Congress, a suit brought against it on account of its action, arises under the Constitution or laws of the United

Cases included in this clause are said to involve a "federal question," and the jurisdiction of the federal courts depends solely upon this fact and is wholly independent of the citizenship or character of the parties.

Incidental jurisdiction. It may be noted that when a federal court acquires jurisdiction of a case because a federal question is involved, its jurisdiction extends also to the determination of all questions presented of whatever character, and irrespective of the disposition that may be made of the federal question.3"

§ 22. Cases affecting ambassadors, etc. Cases affecting ambassadors, other public ministers and consuls are suits brought by or against ambassadors, etc., or in which they are personally interested as parties or privies in the result of the litigation. A prosecution by the government for an assault upon a foreign minister is not a case affecting him within this clause.*

The jurisdiction of cases under this clause grows out of the character of the parties and the subject matter in dispute is immaterial.

§ 23. Cases of admiralty and maritime jurisdiction. The judicial power is extended "to all cases of admiralty and maritime jurisdiction." This is a distinct grant of jurisdiction and does not come within the grant of jurisdiction over all cases in law and equity arising under the Constitution, laws and treaties of the United States. "A case in admiralty," said Chief Justice Marshall, "does not, in fact, arise under the Constitution or laws of the

States. Pacific Railroad Removal Cases, 115 U. S. 1; Matter of Dunn, 212 U. S. 374.

3a-Osborn v. United States Bank, 9 Wheat. 738; Louisville, etc., R. Co. v. Finn, 235 U. S. 601

4-United States v. Ortega, 11 Wheat. 467.

See also, In re Baiz, 135 U. S. 403; Osborn v. United States Bank, 9 Wheat. 738; Ohio Tax Cases, 232 U. S. 576; Louisville, etc., R. Co. v. Finn, 235 U. S. 601.

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