Mayor of Macon v. Georgia Packing Co.

60 F. 781, 9 C.C.A. 262, 1893 U.S. App. LEXIS 2374

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 28, 1893
• Docket: No. 192
• Status: Published

Opinion

PARDEE, Circuit Judge

(after stating the facts). Prom the bill, the demurrer, the answer, the decree of the court, and the assignment of errors, each and all, it clearly appears that the case is one that involves the construction or application of the constitution of the United States. As the parties are all citizens of the same state and district, the jurisdiction of the court below rests entirely upon the case as one arising under the constitution of the United States.

The questions presented are: First, whether the business of the complainants is interstate commerce, within the meaning of the third paragraph of section 8, art. 1, of the constitution; and, second, do the ordinances complained of amount to a regulation of interstate commerce, and, as such, discriminate against complainants’ business?

The fifth section of the act entitled “An act to establish circuit courts of appeals, and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes,” approved March 3, 1891, provides “that appeals or writs of error may be taken from the district courts or from the existing circuit courts direct to the supreme court in the following oases: * * * In any case that involves the construction or application of the constitution of the United States.” The sixth section of said act provides “that the circuit courts of appeals established by this act shall exercise appellate jurisdiction to review by appeal or by writ of error final decrees in the district court and in existing circuit courts in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law.” The supreme court, in construing this section, says: “The appellate jurisdiction not vested in this court was thus vested in the court created bv the act, and the entire jurisdiction distributed.” McLish v. Roff, 141 U. S. 661-666, 12 Sup. Ct. 118; Lau Ow Bew v. U. S., 144 U. S. 47-56, 12 Sup. Ct. 517.

Tlie seventh section of said act provides “that where, upon a hearing in equity in a district court or in an existing circuit court, an injunction shall be granted or continued by an interlocutory order or decree in a cause 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 be taken from such interlocutory order or decree granting or continuing such injunction to the circuit court of appeals.”

As, under the sixth section, this court can have no jurisdiction over any final decree rendered in the cause in which this present appeal is taken, it follows that we have no appellate jurisdiction over any interlocutory decree rendered therein, granting or continuing an injunction.

The appeal is dismissed.