ILLINOIS CENT. R. CO. v. ADAMS, Revenue Agent of State of Mississippi, et al. (two cases); YAZOO & M. V. R. CO. v. SAME, 93 F. 852

SHELBY, Circuit Judge, after stating the case, delivered the opinion of the court. The appeals in these cases are taken from interlocutory decrees of the circuit court, each discharging a restraining order and refusing to grant an injunction. The act of February 18, 1895 (31 C. C. A. xlii., 90 Fed. xlii.), amending the seventh

section of the act to establish the circuit courts of appeals, provides: “That whore, upon a hearing in equity in a district court or a circuit court, an injunct ion shall bo granted, continued, refused or dissolved by an interlocutory order or decree or an application to dissolve an injunction shall tie refused in a case in which an appeal from a final decree may be taken under the provisions of this act to the circuit court of appeals, an appeal may bo taken from such interlocutory order or decree graining, continuing, refusing, dissolving or refusing to dissolve an injunction to the circuit court of appeals.” If «'ill be observed that the right of appeal is gran ted only in eases in which an appeal from a final decree could be taken to this court.

Unless, therefore, appeals would lie to this court from final decrees In these cases, appeals are not allowed from interlocutory orders or decrees in them. The appellate jurisdiction from the district courts and circuit courts is divided between the supreme court and the circuit courts of appeals. The cases in which appeals or writs of error may be taken direct to the supreme court are stated in

section 5 of the act of March 3,1891, establishing the circuit courts of appeals. Omitting instances not material here, the act states these cases: “In any ease that involves the construction or application of the constitution of the United States. * * * In any case in which the constitution or law of a state is claimed to be in contravention of the constitution of the United States.” 2d Stat. 826. If final decrees had been rendered in these cases, would this court have jurisdiction of appeals from them? This court has no appellate jurisdiction except that conferred on it by the statute.

Section (5 of the act confers on it appellate jurisdiction from the district and circuit courts “in all cases other than those provided for in the preceding

section of this act.” An inspection of the record shows that constitutional questions are involved in these cases. The arguments at the bar and printed briefs filed discussed at length the question whether or not these are suits against the state of Mississippi, within the prohibition of Lire eleventh amendment of the constitution of the United ¿States. On the part of the appellees, it is insisted that a proper “construction” and “application” of the eleventh amendment would defeat: these suits, because it is argued that they are, in effect, suits agaiust the shite of Mississippi.

On the part of the appellants, it 3s contended that the suits are not against the state of Mississippi, and not within the constitutional prohibition, but that they are suits against officers who are at tempting to enforce void laws. This question is submitted to the court as necessarily raised by the averments and prayers of the bills. It is not essential to a decision in these cases, however, to consider these contentions; for, by the averments of the bills, nothing is left to inference as to the complainants’ claims raising other constitutional questions.

The gravamen of each case is that the complainant is being deprived of contract rights secured by the constitution of the United States. The claim in each case is that the complainant is entitled by contract to be exempted from paying certain taxes, and that, pursuant to statutes of the state of Mississippi passed subsequent to the charters or contracts in question, the officers of the state are proceeding to assess and collect these taxes, —and that to do this would deprive the complainant of rights secured by the constitution of the United States. The complainants claim the protection of

article 1, § 10, of the constitution of the United States, providing that “no state * * * shall pass any law impairing the obligation of contracts. * * *” The court. that renders final decrees in these cases must, either directly or indirectly, decide these constitutional questions. By the record the cases involve the “construction or application of the constitution of the United States,” and also are cases in which the laws of a state “are claimed to be in contravention of the constitution of the United States.” The cases are not, therefore, within the appellate jurisdiction of this court. City of Macon v.

Georgia Packing Co., 9 C. C. A. 262, 60 Fed. 781; Town of Westerly v. Westerly Waterworks, 22 C. C. A. 278, 76 Fed. 467; Scott v. Donald, 165 U. S. 58, 72, 73, 17 Sup. Ct. 265; Carey v. Railway Co., 150 U. S. 170, 14 Sup. Ct. 63; City of Indianapolis v. Central Trust Co. of New York, 27 C. C. A. 580, 83 Fed. 529.

In one of these cases — the last one stated — the jurisdiction of the circuit court is dependent alone on the sufficiency of the bill in presenting these federal, constitutional questions; and, if the court arranges the parties in the other two cases according to their respective interests, they would, probably, also be dependent on the subject-matter of the suits for jurisdictional averments.

We express no opinion on the question of the jurisdiction of the circuit court, further than to say that the constitutional questions on which we base our conclusion as to the appellate jurisdiction of this court were necessarily considered in reaching a decision on the question of the jurisdiction of the circuit court. This much seems pertinent, if not necessary, in view of the fact that the interlocutory orders of the circuit court recite that, in its opinion, it was without jurisdiction of the cases. The appeals are dismissed.