RAILROAD COMMISSION OF LOUISIANA et al. v. MORGAN'S L. & T. R. & S. S. CO., 195 F. 66

MAXEY, District Judge (after stating the facts as above). The motion to dismiss the appeal is based on the ground that the case should have gone directly to the Supreme Court. -The parties plaintiff and defendant are citizens of the state of Louisiana. Diversity of citizenship, therefore, does not exist. The jurisdiction of the Circuit Court was invoked solely on the ground that the suit was one arising under the Constitution of the United States, in that it involved the construction and application of the commerce clause of the Constitution.

Article 1, § 8. It is well settled that, under the fifth

section of the act of March 3, 1891 (26 Stat. 827, 828), appeals in suits of this character should go direct to the Supreme Court. In Union & Planters’ Bank v. Memphis, 189 U. S. 73, 23 Sup. Ct. 605, 47 L. Ed. 712, it was said by the Chief Justice, as the organ of the court, that: “Diversity of citizenship did not exist, and the jurisdiction of the Circuit Court rested solely on the ground that the cause of action arose under the Constitution of the United States. The appeal lay directly to this court under

section 5 of the Judiciary Act of March 3, 1891, and not to the Circuit Court of Appeals. American Sugar Refining Company v. New Orleans, 181 U. S. 277 [21 Sup. Ct. 646, 45 L. Ed. 859].’’ See, also, City of Paducah v. East Tennessee Telephone Company, 182 Fed. 625, 106 C. C. A. 333. The motion to dismiss the appeal should be granted; and it is so ordered.