# McMillan Contracting Company v. Abernathy/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
263 U.S. 438
McMillan Contracting Company v. Abernathy
These were two bills in equity in the United States District Court, brought by citizens of Missouri to enjoin citizens of the same state from proceeding to collect special assessments, of the necessary jurisdictional amount in each case, against complainants' lands in Kansas City for a public improvement, on the ground that the city charter and laws under which the assessments were levied were in conflict with the Fourteenth Amendment of the federal Constitution. This was the only basis for the jurisdiction of the District Court. The bills also averred that the assessments did not comply with the laws under which they purported to be levied. The defendants in their answers, in addition to a denial of the averments upon which the relief was asked, pleaded a former adjudication of the same causes of action in a Missouri state court.
The District Court held with the complainants that the charter and laws as carried out in levying the assessments violated the Fourteenth Amendment, overruled the plea of res judicata and granted the injunction as prayed. Appeals were perfected to the Circuit Court of Appeals. The appellees moved to dismiss the appeals. They contended that the jurisdiction of the appeals was exclusively in this court. The Circuit Court of Appeals agreed with them in this, but declined to dismiss the appeals, because of an act of Congress approved September 14, 1922 (42 Stat. 837, c. 305), amending section 238 by adding a new section 238a (Comp. St. Ann. Supp. 1923, § 1215a), in part as follows:
'If an appeal or writ of error has been or shall be taken to, or issued out of, any Circuit Court of Appeals in a case wherein such appeal or writ of error should have been taken to or issued out of the Supreme Court, * * * such appeal or writ of error shall not for such reason be dismissed, but shall be transferred to the proper court, which shall thereupon be possessed of the same and shall proceed to the determination thereof, with the same force and effect as if such appeal or writ of error had been duly taken to, or issued out of, the court to which it is so transferred.'
An order was accordingly made transferring the appeals to this court. The final decrees of the District Court were entered of record July 7, 1921. The three months in which an appeal could have been taken from that court to this expired on the following October 7. 39 Stat. 727, c. 448, § 6 (Comp. St. § 1228a). The appeals to the Circuit Court of Appeals were allowed January 4, 1922.
The appellants move to remand the appeals to the Circuit Court of Appeals, with direction to consider them on their merits. The appellees insist that the new section 238a does not apply to the appeals, that they were improperly transferred, and should be remanded with instructions to dismiss.
Two questions are thus presented for our decision:
(1) Did the Circuit Court of Appeals have jurisdiction of the appeals?
(2) If not, should it have dismissed them, instead of transferring them to this court?
First. The Circuit Courts of Appeals were created by the act of March 3, 1891 (26 Stat. 826, c. 517). The division of the appellate business between the new courts and this court was originally provided for in sections 5 and 6 of that act. Their substance, with amendments not here material, is now embodied in sections 238, 128, 239, 240, and 241 of the Judicial Code (Comp. St. §§ 1215, 1120, 1216-1218). Section 238 provides for direct appeals from the District Court to this court in certified questions of jurisdiction of the District Court, in prize cases, and in all cases in which federal constitutional or treaty questions are involved. Section 128 gives the Circuit Courts of Appeals appellate jurisdiction in all cases other than those in which direct appeals may be taken to this court under section 238, 'unless otherwise provided by law.' Except where, under section 239, a question may be certified to this court by a Circuit Court of Appeals, or when, under section 240, this court may bring up a case from the Circuit Court of Appeals by certiorari, the judgments of the Circuit Court of Appeals in cases in which jurisdiction of the District Court is dependent entirely on the diverse citizenship of the parties, in patent and copyright cases, in revenue cases, in criminal cases, and in admiralty cases, are made final by section 128. Certain other cases specified in the act of January 28, 1915 (38 Stat. 803, § 2), amending section 128, and in the act of September 6, 1916 (39 Stat. 726, § 3 [Comp. St. § 1120a]), are also made final in the Circuit Court of Appeal. Judgments of the Circuit Court of Appeals not thus made final, and in which more than $1,000 is involved, may be appealed to this court under section 241.
The act of 1891 was passed to relieve this court from a discouraging congestion of business. It was evidently intended that the Circuit Court of Appeals should do a large part of the appellate business. The act was not happily drawn, in defining the division of it between those courts and this court, and many difficulties have arisen. It suffices here to say that under an unbroken line of authorities, when the plaintiff invokes the jurisdiction of the federal District Court on the sole ground that this case is one in which a substantial federal constitutional or treaty question arises, this court has exclusive appellate jurisdiction thereof under section 238. American Refining Co. v. New Orleans, 181 U.S. 277, 281, 21 Sup. Ct. 646, 45 L. Ed. 859; Huguley Mfg. Co. v. Galeton Cotton Mills, 184 U.S. 290, 295, 22 Sup. Ct. 452, 46 L. Ed. 546; Union & Planters' Bank v. Memphis, 189 U.S. 71, 73, 23 Sup. Ct. 604, 47 L. Ed. 712; Spreckels Sugar Refining Company v. McClain, 192 U.S. 397, 407, 24 Sup. Ct. 376, 48 L. Ed. 496; Carolina Glass Co. v. South Carolina, 240 U.S. 305, 318, 36 Sup. Ct. 293, 60 L. Ed. 658; Raton Water Works Co. v. Raton, 240 U.S. 552, 553, 39 Sup. Ct. 384, 63 L. Ed. 768; Lemke v. Farmers' Grain Company, 258 U.S. 50, 52, 42 Sup. Ct. 244, 66 L. Ed. 458.
It is said that there were two other questions involved in these present cases in the District Court in addition to the federal constitutional question-one of conformity of the assessments to the city charter and state law, and the other of res judicata. But they were not federal questions, upon which the jurisdiction of the federal trial court could rest, and therefore could furnish no ground for appeal to the Circuit Court of Appeals under section 128 or other provision of law. To avoid the exclusive appellate jurisdiction of this court over such an appeal in constitutional or treaty questions under section 238, there must be diversity of citizenship of the parties, or the other questions involved must be federal and adequate themselves to support the original jurisdiction. This was expressly ruled in Lemke v. Farmers' Grain Company, 258 U.S. 50, 53, 42 Sup. Ct. 244, 66 L. Ed. 458; s. c., sub nomine Farmers' Grain Co. v. Langer (C. C. A.) 273 Fed. 635, 19 A. L. R. 148; and obviously follows from the decisions in Lovell v. Newman, 227 U.S. 412, 33 Sup. Ct. 375, 57 L. Ed. 577; City of Pomona v. Sunset Telephone Co., 224 U.S. 330, 32 Sup. Ct. 477, 56 L. Ed. 788, and Spreckels Sugar Refining Company v. McClain, 192 U.S. 397, 407.
We conclude that the Circuit Court of Appeals had no jurisdiction of the appeals in these cases, and that they should have been dismissed, unless the act of September 14, 1922, required that court to transfer them.
Second. When the act of September 14, 1922, was passed, the three months allowed for appeals to this court in these cases had expired. Appellees urge that, even if the act in terms must be held to apply to these cases, it would be beyond the power of Congress thus to deprive the appellees of their property in the decrees which had vested when the three months had expired.
We do not find it necessary to consider this question, or the kindred one whether the act of 1922 ought to be construed to be prospective, and so not to include these appeals. We prefer to put our conclusion on a construction of the act which shall have general application, and of which all litigants may have early notice. The time allowed by law for appeals from the District Court to the Circuit Courts of Appeals is in general six months (section 11, Act of March 3, 1891, 27 Stat. 826, 829, c. 517 [Comp. St. § 1647]), or double that allowed for appeals to this court. We do not think the act of 1922 applies to any case in which the appeal to the Circuit Court of Appeals is taken after the period for appeals to this court has expired. Otherwise the act will enable one, who negligently has allowed his right of appeal to this court to go by, to take his appeal to the Circuit Court of Appeals, and by transfer get into this court, and thus lengthen the time for direct appeals to this court from three to six months. This result we cannot assume Congress intended.
As the appeals to the Circuit Court of Appeals were not taken within three months after the decrees appealed from were entered, that court had no power to order a transfer to this court.
The cases are therefore remanded to the Circuit Court of Appeals.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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