part was held to be one in which the right to recover turns on the construction and application of the National Banking Act, and therefore one arising under that act, even though not expressly authorized by it to be brought. It followed from this that under another statute the comptroller might be sued in the district where the bank is located.

In such cases as the foregoing it is often difficult to tell whether the issue is constitutional or merely one of statutory construction. When jurisdiction is entertained, the case is of course within the federal judicial power. But jurisdiction may be denied solely for want of statutory warrant for entertaining it. Sometimes the statutory limits are coterminous with the constitutional limits and sometimes not. Clearly questions whether the judgment below is a final one," whether the federal issue is raised in season," whether

"Ex parte Tiffany, 252 U. S. 32, 40 Sup. Ct. 239 (1920), held final an order of the district court denying an application to require a receiver to turn over property to a receiver appointed by a state court. United States v. Thompson, 251 U. S. 407, 40 Sup Ct. 289 (1920), held a ruling sustaining a motion to quash an indictment to be a "decision or judgment sustaining a special plea in bar" so as to authorize the government to take a direct writ of error from the district court to the Supreme Court under the Criminal Appeals Act. The case held also that the Pennsylvania rule that a grand jury may not, without leave of court, bring in a new bill on matters previously submitted to another grand jury, is not the common law, as rightly perceived, and therefore not the rule for federal courts. The federal rule is not statutory, but is the product of the federal court's superior conception of the common law. The Pennsylvania rule is not adopted as the rule for federal courts by section 722 of the Revised Statutes, for that applies only in the absence of a federal rule on the subject. Collins v. Miller, 252 U. S 364, 40 Sup. Ct. 347 (1920), held a decision of the district court not final because it disposed finally of only a part of the case. The Supreme Court raised of its own motion the question of the lack of finality. It remarked obiter that the construction of a treaty by the district court in a final decision is subject to direct review by the Supreme Court Oneida Navigation Corporation v. W. & S. Job & Co, 252 U. S. 521, 40 Sup. Ct. 357 (1920) held not final the dismissal by the district court of a petition to bring in another defendant alleged to be liable for a collision. Here again the Supreme Court raised the question of firality of its own motion. See 33 HARV, L. Rev. 1076 for a note on finality of decision for purposes of appeal.

*Godchaux Co. v. Estinople, 251 U. S. 179, 40 Sup. Ct. 116 (1920) held it too late to raise a federal question for the first time on a petition for a re

the suit involves the requisite amount to be brought in the federal courts," and whether the complaint goes to the validity of some authority exercised or only to some other right, title or interest under the federal Constitution or laws," are questions solely of statutory construction. No constitutional issue seems to be involved in decisions dismissing a bill because the question raised has become

tain the petition and pass on the objection. Mergenthaler Linotype Co. v. Davis, 251 U S. 256, 40 Sup. Ct. 133 (1920), affirms the same point, and also decides that the state decision was final. Hiawassee River Power Co. v. Carolina-Tennessee Power Co., 252 U. S. 341, 40 Sup. Ct. 331 (1920), holds the federal question presented too late when first raised on petition for writ of error filed in the federal Supreme Court. Objection was seasonably raised to introducing in evidence a charter, but its reception in evidence was held to violate no federal right.

"Chesbrough v. Northern Trust Co., 252 U. S. 83, 40 Sup. Ct. 237 (1920), retused to order the district court to dismiss for want of jurisdiction an action for tort in which the alleged damages exceeded the prescribed amount and there was nothing to show that such a recovery was impossible or that there was bad faith. Scott v. Frazier, 253 U. S. 243, 40 Sup Ct 503 (1920), ordered a bill dismissed for want of allegation that the amount in controversy equals that required by the statute. See 33 HARV. L. Rev. 477 for a note on good faith in alleging the amount in controversy.

"Mergenthaler Linotype Co. v. Davis, 251 U. S. 256, 40 Sup. Ct. 133 (1920), note 43, supra, held that the claim that a lease contract was an interstate-commerce contract and therefore not subject to state statutes does not challenge the validity of the statute so as to justify a writ of error from the state court, but at most asserts a right, title, or interest under the federal Constitution which might be the basis for a writ of certiorari. Jett Bros. Co. v City of Carrollton, 252 U. S. 1, 40 Sup Ct. 255 (1920), held that a complaint that petitioner's property was assessed at full value while other property was assessed at thirty or forty per cent of its value does not question the validity of a statute or an authority exercised under it as against the Constitution of the United States so as to warrant a writ of error. Mr. Justice Day says that "the mere objection to an exercise of authority under a statute whose validity is not attacked cannot be made the basis of a writ of error to this court." This case repeats that it is too late to raise the federal question on petition for a rehearing in the state court when that court does not give it consideration. For an extensive note on the considerations determining whether writ of error or certiorari is the proper device to bring a case from the state court to the United States Supreme Court, see 33 HARV. L. Rev. 102. The cases outlined in the present note and in the two preceding do not exhaust the list of those in which the Supreme Court considered similar issues during the past term, but are given merely to illustrate the blunders that occur in matters of practice.

Duluth, S. S. & A. Ry. Co.

84

An industrial commission's award of damages for permanent facial disfigurement was sustained in New York Central Ry. Co. v. Bianc. The jurisdiction and procedure of the Federal Trade Commission was considered in Federal Trade Commission v. Gratz.85 The internal law of administration was involved in Burnap v. United States, which dealt with the removal of federal officers. In Houston v. Ormes a suit against the Secretary of the Treasury was held not to be a suit against the United States.8

88

While the federal government has no police power as such, it often uses its recognized powers for police purposes. Indeed, the term federal police power has now won recognition even from the Supreme Court. Several administrative exercises of this so-called federal police power were questioned in cases decided during the past term. In United States v. Standard Brewery, which held that the War Prohibition Act of 1918 applied only to intoxicating liquors, it was laid down that contrary rulings of the internal revenue department could not alter the terms of the statute and make conduct criminal which the statute does not. In Chicago, M. & St. P. Ry. Co. v. McCaull-Dinsmore Co. it was declared that the question whether a stipulation in an interstate bill of lading violates the federal statute against limiting liability for loss is a question of law

84

'250 U. S. 607, 40 Sup. Ct. 38 (1919), 19 Mich. L. Rev. 140.

250 U. S. 596, 40 Sup. Ct. 45 (1919), 19 MICH. L. REV 145.

253 U. S. 421, 40 Sup. Ct. 572 (1920), 19 MICH. L. REV. 23, note 39

252 U. S. 512, 40 Sup. Ct. 374 (1920), 19 MICH. L. Rev. 18.

252 U. S. 469, 40 Sup. Ct. 369 (1920), supra, p. 302.

"For a note on Ball Engineering Co. v. J. G. White Co., 250 U. S. 45, 39 Sup. Ct. 393 (1919), on the subject of suits against the United States under the Tucker Act, see 29 YALE L. J. 125. For other discussions of the liability of a government for the acts of its officers, see 19 COLUM. L. Rev. 407, 5 CORNELL L. Q. 78, 338, 33 HARV. L. Rev. 713, 735, 18 MICH. L. REV. 433, and George DeForest Lord, "Admiralty Claims Against the Government", 19 COLUM. L. REV. 465. For comment on the tort liability of municipal corporations see 20 COLUM. L. REV. 619, 620, 5 Cornell L. Q. 90, 18 MIch. L. Rev. 708, 29 YALE L. J. 117, 911. The contractual powers and liabilities of municipal corporations are treated in 20 COLUM. L. Rev. 336, 349, and 29 YALE L. J. 364. On another phase of the law of municipal corporations, see Richard W. Montague, "Law of Municipal Home Rule in Oregon", 8 CALIF. L. Rev. 151. 251 U. S. 210, 40 Sup. Ct. 139 (1920).

which the courts must decide for themselves, regardless of any determination by the Interstate Commerce Commission that the stipulation in question is reasonable.

The effect to be given to a reparation order of the Interstate Commerce Commission was considered in Spiller v. Atchison, T. & S. F. R. Co. The statute provided that the order of the commission that reparation is due the shipper should be prima facie evidence in actions brought by him against the carrier in courts. The carrier based his objections to such weight being accorded to the commission's findings on the ground that its procedure was unduly lax. Its reception of hearsay evidence was overlooked, not on the ground that it was entitled to accept such evidence, but for the reason that the carrier had failed to object to its reception on the ground of hearsay during the hearing before the commissioner. Yet the opinion hints that the commission has wide latitude in the matter of evidence, especially when its findings are made only prima facie evidence. It was explicitly declared that where the essential facts found by the commission are based on substantial evidence, and there has been no denial of the right to a fair hearing, its findings and order will not be rejected because improper evidence was admitted or the best possible available evidence was not produced or

because

a different conclusion might have been reached.

Two more important cases protected Chinamen from deportation orders of immigration officials. Both involved Chinamen who had previously been in the United States and were returning to the United States after a temporary visit to China. White v. Ching Fong involved an alien who was conceded by the administrative authorities to have been previously in this country, but who was ordered deported on the strength of an administrative finding that his original entry was unlawful. A writ of habeas corpus was awarded on the ground that under the statute a Chinese person already in the United States is entitled to a judicial determination of his right to remain and that this right is not lost by a temporary Visit to China. His situation upon his return is not that of one first

seeking to enter.

Kwock Jan Fat v. Whites had to do with a claim to citizenship. Here the petitioner while in this country and intending to visit China filed an application as provided by law for a "preinvestigation of his claimed status as an American citizen." The investigation resulted in an official determination that he was an American citizen. During his absence in China anonymous communications to the commissioner of immigration started a new investigation, and upon his return he was denied entry. Objections to the hearing accorded on this occasion included the facts that the examining inspector submitted to the commissioner as evidence statements reported to be made by unnamed persons, that a demand by the petitioner for the names was refused, and that the examining inspector failed to record in the testimony taken the fact that the three white persons of reputable character who testified to the petitioner's American citizenship were confronted with him and recognized him as the boy they had known in his youth. These allegations were admitted by demurrer. While the court indicated disapproval of the reception in evidence of unsworn statements by unnamed persons, it stated that in view of the declaration by the commissioner that this report did not influence his decision, it might not say that this "rendered the hearing so manifestly unfair as to require reversal, if there were nothing else objectionable in the record." But the failure to record the fact that there was mutual recognition between the petitioner and the three white witnesses was held enough to entitle the petitioner to a writ of habeas corpus. While the decision goes on the ground that the hearing did not fulfil the requirements of the statute, it is likely that the court would hold, if necessary, that a fair hearing on the question of citizenship is essential to due process of law. Having found the administrative hearing unfair, the Supreme Court ordered the district court to hear and determine the question of citizenship on its merits, after the practice approved in an earlier case. It would seem that under the Chin Fong case, just considered, the petitioner was also entitled to a judicial hearing

253 U. S. 454, 40 Sup. Ct. 566 (1920).

Chin How v. United States, 208 U. S. 8, 28 Sup. Ct. 201 (1908). For a discussion of this procedure see "Judicial Review of Administrative Action