claim, then the statutory mode of getting to the Supreme Court is by writ of certiorari which is a matter not of right but merely of grace. That the latter class of cases may include the former or some of them seems to appear from Citizens National Bank v. Durr1o in which a claim to immunity from state taxation was, under a writ of certiorari, given the same sort of consideration that would have been given to an issue whether the statute as applied was constitutional. This is to say that the constitutional immunity claimed may in effect be an immunity from a statute which as applied would be invalid under the Constitution. If this is correct, it follows that decisions on writs of certiorari do not involve the negative pregnant that the same substantial issue could not by proper pleading be raised by writ of error. Cases which seem in apparent conflict may doubtless be explained by differences in the method of stating the constitutional objections in the pleadings. Dahnke-Walker Co. v. Bondurant20 holds, over the dissent of Mr. Justice Brandeis, that a claim that a state statute is invalid as applied to a given transaction is one that may be made by writ of error after the state statute has been applied to the transaction by the state court, although the only issue between the parties is as to the character of the transaction, i. e., whether it is interstate or intrastate. This is decided also in Eureka Pipe Line Co. v. Hallanan21 in which Mr. Justice Clarke adds his dissent to that of Mr. Justice Brandeis. As Mr. Justice Holmes here puts it, the Supreme Court must look at what the state court "has done, not at its mode of reaching the result." To this must of course be added that the Supreme Court must look also at the claim of the party seeking its review. The idea of Mr. Justice Brandeis is that the validity of a statute is not drawn in question by a claim that it cannot constitutionally be applied to a given state of facts where it is clearly recognized that the statute itself is constitutionally applicable to other states of fact and therefore the issue relates only to the constitutional characteristics of the state of facts in question.22

(1921), 21 MICH. L. REV. 195.

See 35

19 257 U. S. 99, 42 Sup. Ct. 15 (1921), 21 MICH. L. REV. 301, 304. 20 257 U. S. 282, 42 Sup. Ct. 106 (1921), 21 MICH, L. Rev. 192. HARV, L. REV. 618 and 70 U. PA. L. REV. 227. 21 257 U. S. 265, 42 Sup. Ct. 101 22 For other illustrations of the difference between review by writ of error and by certiorari see Yazoo & M. V. R. Co. v. Clarksdale, 257 U. S. 10, 42 Sup. Ct. 27 (1921), and Schaff v. J. C. Famechon Co., 258 U S. 42 Sup. Ct. 189 (1922).

Other questions of practice relating to writs of error from state courts are whether the state court in question was the highest in which a decision in the suit could be had,23 and whether the constitutional issue was duly raised and adjudicated below.24

C. Admiralty and Maritime Jurisdiction.

The principle that the admiralty jurisdiction does not extend to suits in substance against the United States in its governmental capacity where the United States has not consented to be made liable was applied in The Western Maid (United States v. Thompson) 25 which issued writs of prohibition to district courts against proceeding with libels based on injuries caused by two ships chartered to the government on a bare-boat basis and used respectively as a naval dispatch boat and as an army transport and one ship owned by the United States and allocated to the War Department for service as an army transport and used for carrying grain to be distributed for European relief under the direction of Mr. Hoover. The libels were not filed until after the latter ship had been delivered to the Shipping Board and the two former returned to their private owners. It was assumed that each might have been libelled for maritime torts committed after such redeliveries. In the case of the two private ships the government filed a suggestion of interest, and in all three cases it moved to have the libels dismissed for want of jurisdiction. A federal statute authorizing the government to assume the defense in suits like these was held not to be a consent to the abandonment of any defense that would otherwise be good. The government ship carrying grain for European relief was held not to be a merchant. vessel but to be "engaged in a public service that was one of the con

23 Prudential Insurance Co. v. Cheek, 259 U. S. -, 42 Sup. Ct. 517 (1922), 21 MICH. L. REV. 325.

24 Citizens National Bank v. Durr, 257 U. S. 99, 42 Sup. Ct. 15 (1921), 21 MICH. L. REV. 301, 304; Chicago, R. I. & P. R. Co. v. Perry, 259 U. S. -, 42 Sup. Ct. 524 (1922), 21 MICH. L. REV. 326.

The limited duty of federal courts to follow the law of the state is considered in 22 COLUM. L. REV. 77 and 35 HARV. L. REV. 341. The power of a federal court to enjoin parties from prosecuting a subsequently instituted suit in a state court is discussed in 7 CORNELL L. Q. 370.

25 257 U. S. 419, 42 Sup. Ct. 159 (1922). See 10 CALIF. L. REV. 265; 22 COLUM. L. REV. 589; 5 ILL. L. Q. 54; 17 ILL. L. REV. 57; 20 MICH. L. REV. 533; 8 VA. L. REG. N. S. 143; 8 VA. L. REV. 606; and 31 YALE L. J. 879. More generally, see J. Whitla Stinson, "The Requisitioned and the Government

stituents of our activity in the war and its sequel." For the majority Mr. Justice Holmes declared that "the only question really open to debate is whether a liability attached to the ships which although dormant while the United States was in possession became enforceable as soon as the vessels came into hands that could be sued." He then proceeded as follows:

"In deciding this question we must realize that however ancient may be the traditions of maritime law, however diverse the sources from which it has been drawn, it derives its whole and only power in this country from having been accepted and adopted by the United States. There is no mystic over-law to which even the United States must bow. When a case is said to be governed by foreign law or by general maritime law that is only a short way of saying that for this purpose the sovereign power takes up a rule suggested from without and makes it part of its own rules *** Also we must realize that the authority that makes the law is itself superior to it, and that if it consents to apply to itself the rules that it applies to others the consent is free and may be withheld. The sovereign does not create justice in an ethical sense, to be sure, and there may be cases in which it would not dare to deny that justice for fear of war or revolution. Sovereignty is a question of power, and no human power is unlimited *** But from the necessary point of view of the sovereign and its organs whatever is enforced by it as law is enforced as the expression of its will ***

The United States has not consented to be sued for torts, and therefore it cannot be said that in a legal sense the United States has been guilty of a tort. For a tort is a tort in a legal sense only because the law has made it so. If then we imagine the sovereign power announcing the system of its laws in a single voice it is hard to conceive of it as declaring that while it does not recognize the possibility of its acts being a legal wrong and while its immunity from such an imputation of course extends to its property, at least when employed in carrying on the operations of the government * * * yet if that property passes into other hands, perhaps of an innocent purchaser, it may be seized upon a claim that had no existence before. It may be said that the persons who actually did the act complained of may or might be sued and that the ship for this purpose is regarded as a person. But that is a fiction not a fact and as a fiction is the creation of the law. It would be a strange thing if the law created

a fiction to accomplish the result supposed. It is totally immaterial that in dealing with private wrongs the fiction, however originated, is in force✶✶✶ The personality of a public vessel is merged in that of the sovereign."

To Mr. Justice McKenna this was a departure from previous authority-"a change based on finesse of reasoning or attracted by the possible accomplishment of a theoretical correctness." His dissenting doctrine is that in the admiralty jurisprudence of the country personality is assigned to ships and that "they are considered in pledge to indemnify any damage inflicted through them." To the contention that "a vessel has not independent guilt" and that "there must be fault in its owner or operator, his fault becoming its fault," he interposes the reply that this "puts out of view her independent character as bail," to which he adds the further answer: "But if the contention were conceded it would not determine these cases. I reject absolutely that because the government is exempt from suit that it cannot be accused of fault. Accountability for wrong is one thing, the wrong is another." His chief reliance is on a former decision allowing a claim against the government when the government was the moving party in the proceeding. He insists that the fact that the government was the moving party was not the basis of recovery, but merely the removal of an impediment to the recovery of claims already created against the vessel by the collision. To this Mr. Justice Holmes replied that "legal obligations that exist but cannot be enforced are ghosts that are seen in the law but are elusive to the grasp." What the court in the previous case called an "unen forceable lien," he says, was more accurately merely an ethical claim, "recognized in the interest of justice when the sovereign came into court." Justices Day and Clarke joined in the dissent of Mr. Justice McKenna, and Mr. Justice McReynolds did not sit.20

The established distinction that a contract for original construction of a vessel is non-maritime while one for repairs is maritime

26 Federal jurisdiction in admiralty over vessels in which a foreign government claims an interest is considered in 35 HARV. L. REV. 330, 337; 20 MICH. L. REV. 771; and 70 U. PA. L. REV. 322-all notes on the district court decision following the mandate handed down in The Pesaro, 255 U. S. 216, 41 Sup. Ct. 309 (1921), 20 MICH. L. REV. 477, note 36. In 3 LOYOLA L. J. 48 is a note in Ex parte Muir, 254 U. S. 522, 41 Sup. Ct. 185 (1921), 20 MICH. L. REV. 477, note 36; in 35 HARV. L. REV. 613, a note on state proceedings in

raised the issue in The Jack-O-Lantern [New Bedford Dry Dock
Co. v. Purdy]" whether a contract to do the wood-work in altering
a car float, without motive power or steering gear, to transform it
into an amusement boat that could steam and steer itself was one
for repairs or for original construction. In holding it to be one for
repairs and so maritime in character, Mr. Justice McReynolds said
that the court would not essay to announce a rigid distinction between
repairs and new construction, but that it rejected the possibility of
differentiating the two by the ultimate use to which the vessel is to
be devoted, and took the view that reasonable doubts should be re-
solved in favor of the admiralty jurisdiction. He quoted as "sound
and helpful” the view of a district court that if the old hull is kept
intact the operation is a rebuilding of the old vessel and not the con-
struction of a new one.28

“The general doctrine that in contract matters admiralty juris-
diction depends upon the nature of the transaction and in tort mat-
ters upon the locality" finds illustration in Grant Smith-Porter Co.
v. Rohde in which a carpenter at work on an uncompleted ship was
allowed a libel in admiralty because the embryo vessel lay in naviga-
ble water at the time of his injury. The case applied a state work-
men's compensation law under which the parties had voluntarily con-
tracted. A state statute granting an action for wrongful death was
applied in Western Fuel Co. v. Garcia in a libel brought for death
of a stevedore at work in the hold of a vessel discharging cargo at a
wharf in navigable waters. An injury suffered by a longshoreman
on a dock was held outside the admiralty jurisdiction ex delicto in
State Industrial Commission v. Nordenholt Corporation so that a
state compensation law was applicable notwithstanding the fact that
its underlying theory was that it became part of the contract of em-
ployment which in this case was a maritime contract. There was no

27 258 U. S. 42 Sup. Ct. 243 (1922). Other disputes as to whether a
contract is for the construction or repair of a ship are noted in 10 CALIF. I..
REV. 55 and 8 Va. L. Rev. 54.

28 The question whether a hydroplane is within the admiralty jurisdic-
tion is considered in 10 CALIF. L. REV. 232; 22 COLUM. L. REV. 273; 7 COR-
NELL L. Q. 179; 20 MICH. L. REV. 664; 6 MINN. L. REV. 312; 70 U. Pa. L.
REV. 308; and 31 YALE L. J. 437.

29 257 U. S. 469, 42 Sup. Ct. 157 (1922), 21 MICH. L. REV. 74. See 17
ILL. L. REV. 318 and 7 MINN. L. REV. 49, 54.

30 257 U. S. 233, 42 Sup. Ct. 8g (1921), 21 MICH. L. REV. 74.

81 259 U. S. -

42 Sup. Ct. 473 (1922), 21 MICH. L. REV. 75.