stitutional or statutory provision was in conflict with the Federal Constitution, has the right to appeal from a decision against him directly to the Supreme Court. It was the purpose of Congress to give opportunity, to an unsuccessful litigant, to come to the highest tribunal of the Nation directly from the Federal Court of first instance in every case in which a claim is made that a State law is in contravention of the Constitution of the United States.1

487. Direct Appeals by Government in Criminal Cases. The Act of March 2, 1907,1 creates another class of cases in which under some circumstances an appeal may be taken directly to the Supreme Court. Allusion has already been made to this statute in connection with the discussion of the criminal jurisdiction and procedure of the United States Courts. Appeals by defendants in criminal cases have long been common. They are taken to the Circuit Court of Appeals, and by statute its decision, in such cases, is final, subject, of course, to the right of the Supreme Court to issue a writ of certiorari if it sees fit.

The Act of 1907 for the first time gave an appeal to the Government. It is only from certain classes of rulings of the lower Court that such an appeal may be taken. They are: a decision or judgment quashing, setting aside or sustaining a demurrer to any indictment or any count thereof where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment is founded; a decision arresting a judgment of conviction for insufficiency of the indictment where such decision is based upon the validity or construction of the statute upon which the indictment is founded; and a decision or judgment sustaining a special plea in bar when the defendant has not been put in jeopardy. It is provided that no writ of error shall be taken by or allowed to the United States in any case where there has been a verdict in favor of the defendant.

1Loeb vs. Columbia Township Trustees, 179 U. S. 472. 134 Stat. 1246.

The Act is constitutional The objection made to it was that it authorized the United States to bring the case directly to the Supreme Court, but did not allow the accused the same privilege. The Supreme Court said:—

"There is no merit in this suggestion. Except in cases affecting ambassadors and other public ministers and consuls and those in which a State shall be a party" *** "we can exercise appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as Congress shall make in the other cases to which by the Constitution the judicial power of the United States extends. What such exceptions and regulations should be it is for Congress, in its wisdom, to establish, having of course due regard to all the provisions of the Constitution. If a court of original jurisdiction errs in quashing, setting aside or dismissing an indictment for an alleged offense against the United States, upon the ground that the statute on which it is based is unconstitutional, or upon the ground that the statute does not embrace the case made by the indictment, there is no mode in which the error can be corrected and the provisions of the statute enforced, except the case be brought here by the United States for review. Hence that there might be no unnecessary delay in the administration of the criminal law, and that the courts of original jurisdiction may be instructed as to the validity and meaning of the particular criminal statute sought to be enforced-the above act of 1907 was passed. Surely such an exception or regulation is in the discretion of Congress to prescribe, and does not violate any constitutional right of the accused."2

488. A Direct Appeal Under the Act of 1907 is Limited to a Review of the Special Questions Enumerated in the Statute.-The Supreme Court has said that the Act plainly shows that jurisdiction is given only to review the special kinds of questions mentioned in it. The whole case may not be opened up above.1 Thus, for instance, where a demurrer was sustained on two grounds, one involving

'United States vs. Bitty, 208 U. S. 393.

1 United States vs. Keitel, 211 U. S. 398.

an appealable question, the other not, the Supreme Court considered only the first.2 On such appeals the Supreme Court must accept the construction which the lower Court places upon the indictment.3

489. Direct Appeals Under the So-Called Expedition Act. In order to facilitate the prompt and authoritative disposition of a class of cases of great public importance, Congress has provided that in any suit in equity, in which the United States is complainant, brought in any District Court under the Sherman Act or the Act to regulate interstate commerce, or any other Acts having a like purpose, the Attorney-General may file with the clerk of the Court a certificate that in his opinion the case is of general public importance. It is made the duty of the clerk thereupon to furnish a copy of that certificate to each of the circuit judges of the circuit. The case is to be given precedence over others and in every way expedited. It is to be assigned for hearing at the earliest day practicable, and before not less than three of the circuit judges of the circuit, if there be three or more, and if there be not more than two, then before them and such district judge as they may select. An appeal is given directly to the Supreme Court from any case under any of such Acts wherein the United States is complainant, whether the Attorney-General has made the certificate or not. Such appeal must be taken within sixty days from the entry of the decision.1

It will be perceived that it is the District Court which is the Court of first instance. If there are any such cases in which the United States is a complainant and they are not expedited, the case is heard before the District Court as ordinarily constituted. When the Attorney-General makes the certificate provided for in the Act, the Court is as a rule composed altogether of circuit judges, that is, of judges who now do not usually sit at nisi prius. It is only when it is

2 United States vs. Stevenson, 215 U. S. 190.

United States vs. Patten, 226 U. S. 535.

Act of Feb. 11, 1903-32 Stat. 823.

not practicable to organize a Court of three without having a district judge among them that such a judge may sit. It is before Courts constituted as this Act requires that all the more important anti-trust litigation of the last ten years has been conducted. The provision that such cases shall be heard ahead of others is intended, of course, to get a speedy decision in matters of much public interest and importance.

490. The Expedition Act is Not Repealed by the Judicial Code.-The Expedition Act was not incorporated in the Judicial Code. The claim was therefore made that it had been repealed by that enactment. The Supreme Court has decided that this contention could not be sustained.1

491. Appeals From Interlocutory Injunctions to Suspend State Statutes or Orders of Administrative Boards. By the Act approved March 4, 1913,1 section 266 of the Judicial Code is amended in such manner as to give a direct appeal to the Supreme Court from what is, at least nominally, a decision of a District Court in issuing an interlocutory injunction suspending the enforcement of a statute of a State, or of an order made by an administrative board or commission created by and acting thereunder. It is provided that no interlocutory injunction suspending or restraining the enforcement, operation or execution of any statute of a State by restraining the action of any officer of such State in its enforcement or execution, or in the enforcement or execution of an order made by an administrative board or commission acting under such statute, shall be granted by a Federal judge upon the ground of the unconstitutionality of such statute, unless the application therefor shall have been heard by not less than three judges, of whom at least one must be a justice of the Supreme Court or a circuit judge. When application is made for such an injunction, the judge to whom it is made calls two other judges to his aid. At least five days' notice of the hearing must be given to the Governor and the

Ex parte United States, 226 U. S. 420. 137 Stat. 1013.

Attorney-General of the State, as well as to such other persons as may be defendants in the suit. A temporary restraining order may be issued by the judge to whom the application is made.

The Court so constituted is really very much the same as the Circuit Court of Appeals, although nominally it is the District Court.

From any order either granting or denying the interlocutory injunction, an appeal may be taken directly to the Supreme Court.

To prevent unseemly conflicts between the States and the Federal Courts, the statute provides that if at any time before the hearing of an application for such an interlocutory injunction a suit be brought in a Court of the State having jurisdiction, accompanied by a stay, in such State Court, of proceedings under such statute or order, pending the determination of the suit by the State Court, all proceedings in the United States Court shall be stayed pending the final determination of the suit in the Courts of the State. In order to prevent an abuse of this provision, the statute declares that the stay may be vacated upon proof, made after hearing, and notice of ten days served upon the Attorney-General of the State, that the suit in the State Court is not being prosecuted with diligence and good faith.