dispose of the objection that the court refused to permit defendant's attorney, when examining the jury, to inquire whether they distinguished between socialists and anarchists. The provision of the Sixth Amendment that persons accused of crime should be tried by a jury of the state and district in which the crime was committed was held not to be violated by drawing the jury exclusively from one division of a judicial district. It was also held immaterial that the indictment was found "without a sworn charge previously made."

In Toledo Newspaper Co. v. United States, the constitutional guarantee of freedom of the press was held not to protect a newspaper owner from summary punishment for contempt of court on account of editorials concerning a pending trial which were found to possess the tendency to obstruct the administration of justice. Justices Day and Clarke did not sit, and Justices Holmes and Brandeis dissented, on the ground that the acts of the newspaper were not within the summary power vested by the statute. The words of the statute were thought by Mr. Justice Holmes to "point only to the present protection of the Court from actual interference, and not to postponed retribution for lack of respect to its dignity-not to moving to vindicate its independence after enduring the newspaper's attacks for nearly six months as the Court did in this case." The publication, he held, was neither in the presence of the court nor "so near thereto as to obstruct the administration of justice," and was therefore not within the contempts over which summary power was vested by the statute. It was also said that by "misbehaviour" the statute "means something more than adverse comment or disrespect." Mr. Justice Holmes recognized that the articles which Judge Killets resented and for which he held the paper in contempt, “no doubt contained innuendoes not flattering to his personality." But he remarked soothingly that "a judge of the United States is expected to be a man of ofdinary firmness of character," and that he could find in the publications nothing that could have a tendency to prevent "such a judge" from "performing his sworn duty," or "that would have affected a mind of reasonable fortitude.”

#7 (1918-247 U8 402

IX. JURISDICTION AND PROCEDURE OF COURTS

THE EXTENT OF FEDERAL JUDICIAL POWER

Many of the cases already considered have passed upon the question whether federal jurisdiction obtained, since many constitutional issues are raised by the parties through an assertion or denial of the presence of a question under the Constitution of the United States. Thus when the parties properly raise the jurisdictional issue, the court before deciding a federal question must determine whether there is a federal question to decide. It is often a shadowy line which marks the distinction between a dispute whether a constitutional question exists and one as to how an alleged constitutional question should be decided. The court in one sense necessarily decides a constitutional question when it determines that no constitutional question has been raed. The cases reserved for treatment in this section are those in which the jurisdictionary question is either the only or the most prominent one in dispute. Though in form the decision may depend on a disputed application of the Judicial Code and therefore seem to be one of statutory rather than of constitutional construction, the boundaries defined by the code are often coterminous with those delimited in the Constitution, so that in substance the latter is involved as well as the former.

Of the decisions determining whether the case at bar arose under the federal Constitution, all but two have been placed in the preceding sections. These two are Ketcham v. Burr" and Cincinnati v. Cincinnati & Hamilton Traction Co." In the former the court was unable to discover any federal question in a bill to set aside an adjudication of insanity and to restore papers of the petitioner used in the inquisition and kept in custody.

In the Cincinnati case the majority of the court found a federal question raised by allegations that a city was threatening to enforce an ordinance reciting that the complainant's franchise had expired, and declaring that the continued operation of the

** 1917 - 245 U. 8 310

* 1915-245 U. 8 446 See 31 Harvard Law Review 879

road would be deemed an acceptance of the ordinance. The city was enjoined from asserting in any proceedings the claim that the ordinance was accepted by continued operation, and from taking any other than judicial proceedings to interfere with the company prior to an adjudication of the validity of the ordinance. The federal district court that tried the case had gone further and "adjudicated in favor of the companies in respect of the grants, ordinances, and contracts relied on," and enjoined the city from any further proceedings whatever. But the Supreme Court accepted the declarations of counsel for the city that the only action contemplated under the ordinance was a judicial proceeding in the state courts in which of course its validity would be open to question, and therefore modified the injunction so that such a suit was not restrained.

The case evidently caused the court considerable difficulty, for it was twice reargued and the final decision was not handed down until two years after the original argument. The characteristically meager opinion of Mr. Justice McReynolds makes it difficult to find the principle or doctrine for which the case stands. The minority insisted, through Mr. Justice Clarke, that the court had to deal with "an utterly unsubstantial and purely paper attempt to carry into the federal courts a case which, because of its 'many difficult problems arising under local laws,' is peculiarly one for first decision in the state courts, with the right of revision in this court as provided by law." The ordinance itself was said to impair no rights until enforced, and as the only contemplated enforcement was not enjoined, the only conceivable present menace lay in the recital that continued operation would be deemed an acceptance of the ordinance. As to this, Mr. Justice Clarke said that any effort on the part of the city to declare that the company would waive its rights by continuing operations would be entirely ineffective, since, if it had any rights, it could not possibly waive them by continuing to exercise them. There must be some better reason for the decision than the majority opinion reveals," for only Mr. Justice Brandeis joined

"In the note in 31. Harvard Law Revier 879, the decision is supported on the ground that, since the ordinance "provided for a reduction of the rates with an

in the dissent. Though the opinion declares that the district court had "power to adjudicate the issues presented," which Mr. Justice Clarke takes to mean that "it had authority to go forward and completely dispose of the controversy," the Supreme Court sets aside the district court's adjudication of the controversy without inquiring whether it was correct, and allows proceedings to be begun in the state court. The effect of the decision thus seems to be all that the minority desires, since, though the district court was held to have jurisdiction, it was forbidden to exercise it in any substantial degree.

In five cases it was disputed whether the controversy arose under a law of the United States, but in only one was the assertion of federal jurisdiction discountenanced. This was Emery & Co. v. American Refrigerator Transit Co." which held that a claim to enforce a liability founded solely on contract or tort does not arise under the Interstate Commerce Act, notwithstanding the act may be material in fixing the damages in case the alleged liability is established.

With this may be contrasted Louisville & N. R. Co. v. Rice," which held that a claim of an interstate carrier for disinfecting cars arises under the Interstate Commerce Act, although the only defense relied on is one of estoppel based on the delay in making demand on the consignee who was merely an agent and had accounted to his principal before the claim was presented. Since the carrier's claim was based upon the provisions of a tariff, duly filed, published and approved as required by the statute, the result of the claim was said to depend necessarily upon the construction and effect of the act.

alternative threat of legal action to eject the company from the streets," there was an exercise of coercive power by reason of the fact that "the law would have been practically self-enforcing since the public would have refused to pay more than the new rates until the companies had established their rights at law " But if that is a ground for entertaining jurisdiction, it would seem to afford a reason why the federal court should adjudicate the constitutionality of the ordinance, since after the decree as modified by the Supreme Court, the public may still refuse to pay the old rate of fare

(1918 246 US 634.

(1918) 247 U8 201.

Although the Supreme Court had decided, before Boston Store v. American Graphophone Co." reached it, that suits to enforce price maintenance contracts on patented articles were actions on collateral contracts and not on reservations of the monopoly right granted by the patent, it nevertheless held in that case that, since the question had not been conclusively settled at the time the cause originated below, the district court had jurisdiction to pass on the case made by the bill and to determine whether the suit was one arising under the patent law. This of course was merely jurisdiction to determine whether there was jurisdiction, which must exist until the question is definitely settled.

In Cissna v. Tennessee" the boundary between two states was in dispute. Since the boundary had been originally fixed by treaties and by acts of Congress, it was held that the question whether it had since been changed by alterations in the course of

** (1918) 246 U. S. 8. See 86 Central Law Journal 147, 18 Columbia Law Review 352, 3 Southern Law Quarterly 147, and 27 Yale Law Journal 714.

Questions of restraint of trade and of fair competition were passed upon in four other important cases, in which, however, no disputed constitutional issues appeared.

United States v. United Shoe Machinery Co., (1918) 247 U. S. 32, gave the defendant a clean bill of health, over the dissent of Justices Day, Pitney and Clarke. Inasmuch as Justices McReynolds and Brandeis did not sit, both having been of counsel, the case was decided by a minority of the court. See 27 Yale Law Journal 1060, 10×4.

In Chicago Board of Trade v. United States, (1918) 246 U. S. 231, a rule of the plaintiff in error to the effect that after a certain hour in the day, "grain to arrive” should not be sold or bought at a price other than the closing bid at that hour, was held not to impose unreasonable restraint of trade. See 31 Harvard Law Review 1154, and 27 Yale Law Journal 1094.

In Hitchman Coal and Coke Co. v. Mitchell, (1917) 245 U. S. 276, and Eagle Glass & Mfg. Co. v. Rowe, (1917) 245 U. S 276, officials of a labor union were enjoined from seeking to unionize a nonunion mine by securing secret promises to join the union from employees who had agreed to notify their employer and relinquish their employment in case they altered their nonunion status. Justices Holmes, Brandeis and Clarke dissented. See W. W. Cook, "Privileges of Labor Unions in the Struggle for Life," 27 Yale Law Journal 779, and T. R. Powell, “Collective Bargaining before the Supreme Court," 33 Political Science Quarterly 306 ––– See aino 52 American Law Review 95, 6 California Law Review 302, 86 Central Lave Journal 39, 18 Columbia Law Review 252, 3 Cornell Law Quarterly 317, 31 Harvard Law Review 648, 16 Michigan Law Review 250, 3 St. Louis Law Revier 54 and 27 Yale Law Journal 578.