tion against the issuing of the proposed | MCMILLAN CONTRACTING COMPANY patent by the defendants. and Fidelity National Bank & Trust Company, Appts., The defendants moved to dismiss the bill on the ground that it asked the court V. (See S. C. Reporter's ed. 438–443.) jurisdiction Supreme to control the defendants in matters in- B. HAYWOOD HAGERMAN. (No. 168.) volving exercise of the judgment and discretion vested in them by law, and also on the ground that Lillie S. Harner was an indispensable party to this suit. This motion was granted by the supreme court of the District on both grounds, and that action was affirmed by the court of appeals. We think the motion was properly sustained on the second ground, and do not find it necessary to discuss the first. Lillie S. Harner is the person whom the administrative officers of the government have held to be entitled to a patent for this land. Clearly, the controversy between the plaintiff and those officers, involving the granting of a patent to her, cannot be settled without her presence in court. New Mexico v. Lane, 243 U. S. 52, 58, 61 L. ed. 588, 591, 37 Sup. Ct. Rep. 348; Litchfield v. Register (Litchfield v. Richards) 9 Wall. 575, 578, 19 L. ed. 681, 682. She is entitled to be heard. Inability to secure service on her because she lives in Arizona cannot dispense with the necessity of making her a party. Dismissal was asked also on the ground that no appeal lies in a case like this from the District court of appeals to this court, and that we thus have no jurisdietion. We think, however, that the bill disclosed a case in which the construction and application of the Act of May 14, 1880, was drawn in question by the plaintiff. By the sixth paragraph of $250 of the Judicial Code we are required to hear an appeal in such a case. We, therefore, cannot dismiss the appeal for want of jurisdiction, but can and do affirm the action of the District Court of Appeals in affirming the decree of the Supreme Court of the District in dismissing the bill for lack of an indispensable party. Decree affirmed. [438] MCMILLAN CONTRACTING COMPANY and Fidelity National Bank & Trust Company, Appts., Appeal Court. 1. When the jurisdiction of the Federal district court is invoked upon the sole ground that the cause is one in which a substantial Federal constitutional question arises, the Supreme Court of the United States has exclusive appellate jurisdiction thereof. For other cases, see Appeal and Error, III. Appeal d, 3, in Digest Sup. Ct. 1908.] jurisdiction of circuit court of appeals. 2. That in a suit in a Federal district court, the jurisdiction of which is invoked because a substantial Federal constitutional question is involved, questions of res judicata and as to whether or not assessments were in conformity to state laws are in Note. On direct review in Federal Supreme Court of judgments of district or circuit courts-see notes to Gwin v. United States, 46 L. ed. U. S. 741, and B. Altman & Co. v. United States, 56 L. ed. U. S. 894. On appellate jurisdiction of Federal Supreme Court over circuit courts of appeals-see notes to Bagley v. General Fire Extinguisher Co. 53 L. ed. U. S. 605, and Roman Catholic Church V. Pennsylvania R. Co. 59 L. ed. U. S. As to when Federal question is raised in time to sustain the appellate jurisdiction of the Federal Supreme Court over state courts-see notes to Chicago, I. & L. R. Co. v. McGuire, 49 L. ed. WALTER L. ABERNATHY and Carrie I. U. S. 413, and Rooker v. Fidelity Trust 378 V. Abernathy. (No. 167.) Co. 67 L. ed. U. S. 557. 263 U. S. V. States, 123 U. S. 307, 31 L. ed. 182, 8110, 116, 117, 58 L. ed. 528, 529, 530, Sup. Ct. Rep. 131; Prevost v. Gratz, 6 34 Sup. Ct. Rep. 233; Bowen v. Hickey, Wheat. 498, 5 L. ed. 315; Magee v. Man- 53 Cal. App. 250, 200 Pac. 46, certiorari hattan L. Ins. Co. 92 U. S. 98, 23 L. denied in 257 U. S. 656, 66 L. ed. 420, ed. 700; Evans v. United States, 153 42 Sup. Ct. Rep. 168; Minnesota U. S. 600, 38 L. ed. 830, 14 Sup. Ct. Lane, 247 U. S. 243, 249, 250, 62 L. ed. Rep. 934, 9 Am. Crim. Rep. 668; Kemp- 1098, 1101, 38 Sup. Ct. Rep. 508. ner v. Churchill, 8 Wall. 369, 19 L. ed. 463; Thompson v. Bowie, 4 Wall. 472, 18 L. ed. 426; Hager v. Thomson, 1 Black, 91, 17 L. ed. 43; Johnson v. Waters, 111 U. S. 667, 28 L. ed. 556, 4 Sup. Ct. Rep. 619. Mrs. Harner did not comply with a single requirement of the only statute by which, if she had strictly complied with all its requirements, she could have any claim, not only against either of the parties to the case, but against the government in a strictly ex parte case. Lane v. Hoglund, 244 U. S. 174, 61 L. ed. 1066, 37 Sup. Ct. Rep. 558; Lane v. Watts, 234 U. S. 525, 58 L. ed. 1440, 34 Sup. Ct. Rep. 965. Brady has no adequate remedy at law. Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819, 18 Sup. Ct. Rep. 418; Third Nat. Bank v. Mylin, 76 Fed. 385; Woodward v. Woodward, 148 Mo. 241, 49 S. W. 1001; Watson v. Sutherland, 5 Wall. | 74, 18 L. ed. 580; Walla Walla v. Walla Walla Water Co. 172 U. S. 1, 43 L. ed. 341, 19 Sup. Ct. Rep. 77; Joyce, Inj. $ 353; Kilbourne v. St. John, 59 N. Y. 21, 17 Am. Rep. 291; Ayers v. Lawrence, 59 N. Y. 192. Solicitor General Beck and Special Assistant to the Attorney General H. L. Underwood filed a brief for appellees: The decision of the Secretary was made in the exercise of judgment and discretion in a matter within his jurisdiction, and is not reviewable by the courts. Catholic Bishop v. Gibbon, 158 U. S. 155, 166, 167, 39 L. ed. 931, 936, 15 Sup. Ct. Rep. 779; Cameron v. United States, 252 U. S. 450, 460, 462, 64 L. ed. 659, 662, 663, 40 Sup. Ct. Rep. 410; United States ex rel. Riverside Oil Co. v. Hitchcock, 190 U. S. 316, 47 L. ed. 1074, 23 Sup. Ct. Rep. 698; United States ex rel. Ness v. Fisher, 223 U. S. 683, 56 L. ed. 610, 32 Sup. Ct. Rep. 356; United States ex rel. Alaska Smokeless Coal Co. v. Lane, 250 U. S. 549, 63 L. ed. 1135, 40 Sup. Ct. Rep. 33; United States ex rel. Hall v. Payne, 254 U. S. 343, 65 L. ed. 295, 41 Sup. Ct. Rep. 131; Whitcomb v. White, 214 U. S. 15, 16, 53 L. ed. 889, 890, 29 Sup. Ct. Rep. 599; Ross v. Day, 232 U. S. Mrs. Harner is an indispensable party. Litchfield v. Register (Litchfield v. Richards), 9 Wall. 575, 578, 19 L. ed. 681, 682; New Mexico v. Lane, 243 U. S. 52, 58, 61 L. ed. 588, 591, 37 Sup. Ct. Rep. 348. Mr. Chief Justice Taft delivered the opinion of the court: This was a bill in equity in the supreme court of the District of Columbia, brought by Thomas N. Brady against the Secretary of the Interior and the Commissioner of the Land Office, seeking to enjoin them from issuing a patent to one Lillie S. Harner for a homestead. The bill avers that William Rattkamner, in 1913, made a homestead entry of certain public land in Arizona; that in October, 1915, Harry S. Harner filed a contest against the entry; that Rattkamner made no answer; that the register and receiver of local land office canceled the entry and awarded a preference right to Harner, December 27, 1918; that on January 1 the plaintiff herein, Brady, made a homestead entry of the land, and moved onto the land; that Harner made no entry under his preference right; that in Febmade a homestead entry of the land; that ruary, 1919, one Rudolph Larson illegally Brady, the plaintiff, filed a contest; that Lillie S. Harner, deserted wife of Harry S. Harner, intervened in the same proceeding; that on the hearing the register and receiver recommended that Larson's entry be canceled and that Lillie S. Harner be allowed to enter; that this was appealed from to the Commissioner of the Land Office, who affirmed the action of the register and receiver, and that thereafter Brady filed a petition for a rehearing before the Secretary of the Interior, which was denied. The bill avers that the register and receiver, as well as the Commissioner of the Land Office and the Secretary of the Interior, violated the provisions of the Act of May 14, 1880, entitled, "An Act for the Relief of Settlers on Public Lands" (21 Stat. at L. 140, chap. 89, Comp. Stat. § 4536, 8 Fed. Stat. Anno. 2d ed. p. 597), and were without authority in deciding in favor of Lillie S. Harner and proposing to issue a patent to her. [437] The prayer is for an injune The statutory time in which an appeal must be taken and perfected is jurisdictional, and cannot be extended by the court. laghan v. O'Brien) 199 U. S. 89, 50 L. ed. 101, 25 Sup. Ct. Rep. 727; Brolan v. United States, 236 U. S. 216, 59 L. ed. 544, 35 Sup. Ct. Rep. 285; Manhattan L. Ins. Co. v. Cohen, 234 U. S. 123, 58 L. ed. 1245, 34 Sup. Ct. Rep. 874; Knop v. Monongahela River Consol. Coal & Coke Co. 211 U. S. 485, 53 L. ed. 294, 29 Sup. Ct. Rep. 188; American Sugared. 448, 9 Sup. Ct. Rep. 107; Conboy v. Ref. Co. v. United States, 211 U. S. 155, 53 L. ed. 129, 29 Sup: Ct. Rep. 89. Mr. Albert S. Marley filed a brief for appellee in No. 168: The sole and only ground of jurisdiction of the Federal trial court was that a Federal constitutional question was directly involved; and for that reason, the United States Supreme Court was and is the only court having appellate jurisdiction. Louisville & N. R. Co. v. Greene, 244 U. S. 527, 61 L. ed. 1297, 37 Sup. Ct. Rep. 683, Ann. Cas. 1917E, 97; Lemke v. Farmers' Grain Co. 258 U. S. 50, 66 L. ed. 458, 42 Sup. Ct. Rep. 244; Raton Waterworks Co. v. Raton, 249 U. S. 552, 63 L. ed. 768, 39 Sup. Ct. Rep. 384; Carolina Glass Co. v. South Carolina, 240 U. S. 318, 60 L. ed. 664, 36 Sup. Ct. Rep. 293; Union & Planters' Bank v. Memphis, 189 U. S. 71, 47 L. ed. 712, 23 Sup. Ct. Rep. 604; New York v. Consolidated Gas Co. 253 U. S. 219, 64 L. ed. 870, 40 Sup. Ct. Rep. 511; Vicksburg v. Vicksburg Waterworks Co. 202 U. S. 453, 50 L. ed. 1102, 26 Sup. Ct. Rep. 660, 6 Ann. Cas. 253; 443 Cans of Frozen Egg Product v. United States, 226 U. S. 172, 57 L. ed. 174, 33 Sup. Ct. Rep. 50; Siler v. Louisville & N. R. Co. 213 U. S. 192, 53 L. ed. 758, 29 Sup. Ct. Rep. 451; American Sugar Ref. Co. v. New Orleans, 181 U. S. 277, 45 L. ed. 859, 21 Sup. Ct. Rep. 646; Huguley Mfg. Co. v. Galeton Cotton Mills, 184 U. S. 290, 46 L. ed. 546, 22 Sup. Ct. Rep. 452; Sugarman v. United States. 249 U. S. 182, 63 L. ed. 550, 39 Sup. Ct. Rep. 191; Brolan v. United States, 236 U. S. 216, 59 L. ed. 544, 35 Sup. Ct. Rep. 285. Old Nick Williams Co. v. United States, 215 U. S. 541, 54 L. ed. 318, 30 Sup. Ct. Rep. 221; Credit Co. V. Arkansas C. R. Co. 128 U. S. 258, 32 L. First Nat. Bank, 203 U. S. 141, 51 L. ed. 128, 27 Sup. Ct. Rep. 50; 443 Cans 226 U. S. 172, 57 L. ed. 174, 33 Sup. Ct. of Frozen Egg Product v. United States, 609, 34 L. ed. 246, 10 Sup. Ct. Rep. 771; Rep. 50; Farrar v. Churchill, 135 U. S. Title Guaranty & S. Co. v. United States, 222 U. S. 401, 56 L. ed. 248, 32 Curry, 6 How. 106, 12 L. ed. 363: CamSup. Ct. Rep. 168; United States v. den Iron Works Co. v. Sater, 139 C. C. A. 157, 223 Fed. 611; Blaffer v. New Orleans Water Supply Co. 87 C. C. A. ber, Oil & Land Co. v. Howes, 82 C. C. 341, 160 Fed. 389; Kentucky Coal, TimA. 337, 153 Fed. 163; Rutan v. Johnson, 64 C. C. A. 443, 130 Fed. 109; Logan v. Goodwin, 41 C. C. A. 573, 101 Fed. 654; Brewster v. Evans, 35 C. C. A. 500, 93 Fed. 628; Re Goodman, 42 C. C. A. 85, 101 Fed. 920; Noonan v. Chester Park Athletic Club Co. 35 C. C. A. 457, 93 Fed. 576; Green v. Lynn, 31 C. C. A. 248, 50 U. S. App. 380, 87 Fed. 839; Condon v. Central Loan & T. Co. 20 C. C. A. 110, 36 U. S. App. 579, 73 Fed. 907. Mr. Chief Justice Taft delivered the opinion of the court: These were two bills in equity in the United States district court, brought by citizens of Missouri, to enjoin citizens of the same state from proceeding to collect special assessments, of the necessary jurisdictional amount in each case, against complainants' lands in Kansas City for a public improvement, on the ground that the city charter and laws under which the assessments were levied were in conflict with the 14th Amendment of the Federal Constitution. This was the only basis for the jurisdiction of the district court. The bills also averred that the assessments did not comply with the laws under which they purported to be levied. The defendants, in their answers, in addition to a denial of the averments upon which the relief was asked, pleaded a former adjudication of the same causes of action in a Missouri state court. The district court held with the complainants that the charter and laws, as carried out in levying the assessments, violated the 14th Amendment, overruled the plea of res judicata, and granted the, 241 of the Judicial Code. Section injunction as prayed. Appeals were per- 238 provides for direct appeals from fected to the circuit court of appeals. The appellees moved to dismiss the appeals. They contended that the jurisdiction of the appeals was exclusively in this court. The circuit court of appeals agreed with them in this, but declined to dismiss the [440] appeals because of an Act of Congress approved September 14, 1922 (42 Stat. at L. 837, chap. 305, Comp. Stat. § 1215a, Fed. Stat. Anno. Supp. 1922, p. 231), amending § 238 by adding a new § 238a, in part as follows: "If an appeal or writ of error has been or shall be taken to, or issued out of, any circuit court of appeals in a case wherein such appeal or writ of error should have been taken to or issued out of the Supreme Court; . . such appeal or writ of error shall not for such reason be dismissed, but shall be transferred to the proper court, which shall thereupon be possessed of the same and shall proceed to the determination thereof, with the same force and effect as if such appeal or writ of error had been duly taken to, or issued out of, the court to which it is so transferred." An order was accordingly made, transferring the appeals to this court. The final decrees of the district court were entered of record July 7, 1921. The three months in which an appeal could have been taken from that court to this expired on the following October 7 (September 6, 1916, 39 Stat. at L. 727, chap. 448, § 6, Comp. Stat. § 1228a, Fed. Stat. Anno. Supp. 1918, p. 420). The appeals to the circuit court of appeals were allowed January 4, 1922. The appellants move to remand the appeals to the circuit court of appeals, with direction to consider them on their merits. The appellees insist that the new § 238a does not apply to the appeals, that they were improperly transferred, and should be remanded with instructions to dismiss. Two questions are thus presented for our decision: 1st. Did the circuit court of appeals have jurisdiction of the appeals? 2d. If not, should it have dismissed them instead of transferring them to this court? First. The circuit courts of appeals were created by the Act of March 3, 1891 (26 Stat. at L. 826, chap. 517). The division of the appellate business between the new courts and this court was originally provided for in §§ 5 and 6 of [441] that act. Their substance, with amendments not here material, is now embodied in §§ 128, 238, 239, 240, and the district court to this court in certified questions of jurisdiction of the district court, in prize cases, and in all cases in which Federal constitutional or treaty questions are involved. Section 128 gives the circuit courts of appeals appellate jurisdiction in all cases other than those in which direct appeals may be taken to this court under § 238, "unless otherwise provided by law." Except where, under § 239, a question may be certified to this court by a circuit court of appeals, or when, under § 240, this court may bring up a case from the circuit court of appeals by certiorari, the judgments of the circuit court of appeals in cases in which jurisdiction of the district court is dependent entirely on the diverse citizenship of the parties, in patent and copyright cases, in revenue cases, in criminal cases, and in admiralty cases, are made final by § 128. Certain other cases specified in the Act of January 28, 1915 (38 Stat. at L. 803, chap. 22, § 2, Comp. Stat. § 1120, 5 Fed. Stat. Anno. 2d ed. p. 607), amending § 128, and in the Act of September 6, 1916 (39 Stat. at L. 726, chap. 448, § 3, Comp. Stat. § 1120a, Fed. Stat. Anno. Supp. 1918, p. 420), are also made final in the circuit court of appeals. Judgments of the circuit court of appeals not thus made final, and in which more than $1,000 is involved, may be appealed to this court under § 241. The Act of 1891 was passed to relieve this court from a discouraging congestion of business. It was evidently intended that the circuit court of appeals should do a large part of the appellate business. The act was not happily drawn in defining the division of it between those courts and this court, and many difficulties have arisen. It suffices here to say that, under an unbroken line of authorities, when the plaintiff invokes the jurisdiction of the Federal district court on the sole ground that this case is one in which a substantial Federal constitution [442] or treaty question arises, this court has exclusive appellate jurisdiction thereof under § 238. American Sugar Ref. Co. v. New Orleans, 181 U. S. 277, 281, 45 L. ed. 859, 861, 21 Sup. Ct. Rep. 646; Huguley Mfg. Co. v. Galeton Cotton Mills, 184 U. S. 290, 295, 46 L. ed. 546, 548, 22 Sup. Ct. Rep. 452; Union & P. Bank v. Memphis, 189 U. S. 71, 73, 47 L. ed. 712, 713, 23 Sup. Ct. Rep. 604; Spreckels Sugar Ref. Co. v. McClain, 192 U. S. 397, 407, 48 L. ed. 496, 499, 24 Sup. Ct. Rep. 376; Carolina Glass Co. v. South Carolina, 240 U. S. 305, 318, 60 L. ed. 658, 664, 36 Sup. Ct. Rep. 293; Raton Waterworks Co. v., Raton, 249 U. S. 552, 553, 63 L. ed. 768, 770, 39 Sup. Ct. Rep. 384; Lemke v. Farmers' Grain Co. 258 U. S. 50, 52, 66 L. ed. 458, 461, 42 Sup. Ct. Rep. 244. It is said that there were two other questions involved in these present cases in the district court in addition to the Federal constitutional question,-one of conformity of the assessments to the city charter and state law and the other of res judicata. But they were not Federal questions upon which the jurisdiction of the Federal trial court could rest, and therefore could furnish no ground for appeal to the circuit court of appeals under § 128 or other provision of law. To avoid the exclusive appellate jurisdiction of this court over such an appeal in constitutional or treaty questions under § 238, there must be diversity of citizenship of the parties, or the other questions involved must be Federal, and adequate themselves to support the original jurisdiction. This was expressly ruled in Lemke v. Farmers' Grain Co. 258 U. S. 50, 53, 66 L. ed. 458, 461, 42 Sup. Ct. Rep. 244, s. c. sub nom. Farmers' Grain Co. v. Langer, 19 A.L.R. 148, 273 Fed. 635; and obviously follows from the decisions in Lowell v. Newman, 227 U. S. 412, 57 L. ed. 577, 33 Sup. Ct. Rep. 375; Pomona v. Sunset Teleph. & Teleg. Co. 224 U. S. 330, 56 L. ed. 788, 32 Sup. Ct. Rep. 477; and Spreckels Sugar Ref. Co. v. McClain, 192 U. S. 397, 407, 48 L. ed. 496, 499, 24 Sup. Ct. Rep. 376. We conclude that the circuit court of appeals had no jurisdiction of the appeals in these cases, and that they should have been dismissed, unless the Act of September 14, 1922, required that court to trans fer them. Second. When the Act of September 14, 1922, was passed, the three months allowed for appeals to this court in these cases had expired. Appellees urge that even if [443] the act in terms must be held to apply to these cases, it would be beyond the power of Congress thus to deprive the appellees of their property in the decrees which had vested when the three months had expired. We do not find it necessary to consider this question or the kindred one, whether the Act of 1922 ought to be construed to be prospective, and so not to include these appeals. We prefer to put our conclusion on a construction of the act which shall have general application, and of which all litigants may have early notice. The time allowed by law for appeals from the district court to the circuit courts of appeals is, in general, six months (§ 11, Act of March 3, 1891, 27 Stat at L. 826, 829, chap. 517), or double that allowed for appeals to this court. We do not think the Act of 1922 applies to any case in which the appeal to the circuit court of appeals is taken after the period for appeals to this court has expired. Otherwise the act will enable one who negligently has allowed his right of appeal to this court to go by, to take his appeal to the circuit court of appeals, and, by transfer, get into this court, and thus lengthen the time for direct appeals to this court from three to six months. This result we cannot assume Congress intended. As the appeals to the circuit court of appeals were not taken within three months after the decrees appealed from were entered, that court had no power to order a transfer to this court. The cases are, therefore, remanded to the Circuit Court of Appeals. 1. Where a case is fully heard in a Note. The effect of the amendment to Judicial Code, § 237, by the Act of February 17, 1922 (42 Stat. at L. 366, chap. 54, Comp. Stat. § 1214, Fed. Stat." Anno. Supp. 1922, p. 223), is settled by the Supreme Court in the above case of TIDAL OIL Co. v. FLANAGAN and the companion case of Fleming v. Fleming, That section, as amended, post, 547. reads as follows: "In any suit involving claimed that a change in the rule of law the validity of a contract wherein it is or construction of statutes by the highest court of a state applicable to such contract would be repugnant to the Constitution of the United States, the Supreme Court shall, upon writ of error, re-examine, reverse, or affirm the final judgment of the highest court of a state in which a decision in the suit could be had, if said claim is made in said court at any time before said final judgment is entered and if the decision is against the claim so made." One of the errors assigned in these cases was that the reversal by the state court of its previous decisions had impaired the obligation of contracts, in violation of § 10, article 1, of the Fed |