Merritt v. Bowdoin College

Mr. Justice Harlan

delivered the opinion of the court.

The. object of the plea in abatement was to bring about a dismissal of the suit under the fifth section of the act of March 3,1875, c. 137, 18 Stat. 470. That section provides for the dismissal of a suit in a Circuit Court of the United States if it shall appear to the satisfaction of the court at any time that the parties to it “have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act.”

, By the act of March 3,1891, c. 517, 26 Stat. 826, appeals or writs of error may be taken from the District Courts or the Circuit Courts directly to this court in certain cases, among which are cases in which the “jurisdiction"of the court is in issue,” and cases that involve “ the construction or application of the Constitution of the United States.” The former appeal was dismissed upon the ground that a direct appeal to this court would not lie on an issue as to the jurisdiction of the Circuit Court unless the question of jurisdiction was certified during the term at which the final decree was rendered.

It is now sought to bring the case here by appeal directly from the Circuit Court upon the ground that it involves the “construction or application of the Constitution of the United States.” This position cannot be sustained. When it appears that parties have been improperly or collusively made -or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under the act of 1875, then the Circuit Court is, within the meaning of the act of 1891, without jurisdiction to proceed. But the plea in this ca.se raised no question as to the constitutionality of the. act of ■ 1.875, and called for no order or judgment that would require a construction or application of the Constitution, although an allowance of the plea may have involved the application of an act of Congress. The plea set out certain facts which, if found to be true, required the dismissal of the suit as one of which the court could not take cognizance under the statute regulating the jurisdiction of the Circuit Courts of the United States. While the issue involved the jurisdiction of the Circuit Court, it did, not involve or require, within the meaning .of the act of March 3,1891, either the construction or application of the Constitution.

For the reasons stated, the motion to dismiss the present appeal is sustained, and the appeal is

Dismissed.

The Chief Justice did not sit in this case nor participate in ' its decision.