Pullman's Palace-Car Co. v. Central Transp. Co.

71 F. 809, 1896 U.S. App. LEXIS 2499

Opinion

DALLAS, Circuit Judge.

The Pullman’s Palace-Car Company has presented a petition for the allowance by this court of an appeal direct to the supreme court. The counsel of- the petitioner insist that it is entitled to take such appeal under section 5 of the act to establish circuit courts of appeals, etc., approved March 3, 1891, be-’ cause, as is claimed on its behalf, the case is one “that involves the construction or application of the constitution of the United States.” The counsel of the transportation company denies that any such question is involved, but admits that the alleged right of appeal, if such question existed, would be absolute, and not dependent upon the assent of this court. This view of the law is, in our opinion,, correct. The act gives a right of appeal direct to the supreme court in certain enumerated cases. It does not confer upon the circuit court authority to allow or to disallow such appeals, or to adjudge whether any particular case is one in which such appeal lies. We are aware that the practice has to some extent prevailed of obtaining the allocatur of the circuit court before taking the appeal, but there is nothing in the statute which requires it; and where, as here, the application is resisted, we think it should not be given. In our opinion, the appeal, if warranted by the statute, is of right; and whether or not it is in fact so warranted is not for this court, but for the supreme court, to determine. Upon this ground alone, a special allocatur is denied.