The defendant in error, complainant below, brought suit in the circuit court of the United States for the district of Idaho against the Empire State-Idaho Mining & Developing Company and the Federal Mining & Smelting Company, appellants herein. The bill, filed July 27, 1904, alleged diversity [205 U.S. 225, 226] of citizenship as the ground of jurisdiction, and averred that the Empire State-Idaho Mining & Developing Company, the Federal Mining & Smelting Company, and complainant are the owners and possessors, as tenants in common, of the Skookum mine and mining claim and the ores therein contained, situated in Yreka mining district, Shoshone county, Idaho. The complainant was alleged to be the owner of an undivided one-eighth interest in the fee thereof, and the Empire State-Idaho Mining & Developing Company the owner of the undivided seven eighths of said mine and claim.
There are other allegations, not necessary to be here set out, and then, in the eighth paragraph of the bill, it is alleged:
The bill avers the extraction of a large amount of ore in which the complainant alleges he is entitled to an interest, and that the defendants the Empire State-Idaho Mining & Developing Company and the Federal Mining & Smelting Company deny the title of the complainant to the mining and ore bodies. It further avers that the defendants are appropriating the ores mined to their own use, and, after other allegations not necessary to be set out, prays for an injunction restraining the defendants from extracting ore from the Skookum mine pending the suit, and for an accounting for the ores extracted from the mines and claim since May 17, 1902
By the amended answer the defendants, among other defenses, set up that the ores which they are extracting belong to a vein or lode not having its apex within the Skookum mining claim, but belonging to a vein having its apex within the lode mining claim lying to the north of the Skookum claim and a part of the San Carlos claim, owned by the defendants, and deny that the defendants are mining any ores in which the complainant has any right, and avers that the claim thereto is without merit; and, coming to answer the eighth paragraph of the bill, setting up the decree upon which the plaintiff relied for his title, the defendants set up paragraphs 6 and 7:
The complainant below filed exceptions to this amended answer, in which he averred that, in the former decree, the title to the ore bodies in question was quieted, and that the issues made in that case were within the jurisdiction and power of the court to determine, and that the question of the right and title to one eighth of the Skookum mine and mining claim and ores therein contained had been determined in the former suit in favor of the complainant, and the said question had become res judicata in a court having jurisdiction of the parties and the subject- matter. [205 U.S. 225, 231] Upon hearing the exceptions to the amended answer, they were sustained and the answer held insufficient. Thereupon the defendants, averring that the court was in error and that the said amended answer constituted a defense, declined to plead further, and elected to stand upon the amended answer. The complainant thereupon moved the court for a final decree for one eighth of the amounts stated in paragraph 9 of the answer to have been mined as therein stated. A final decree was rendered accordingly, and thereupon a direct appeal was taken to this court.
Messrs. George Turner and F. T. Post for appellants.
Mr. Myron A. Folsom for appellee.
Statement by Mr. Justice Day:
Mr. Justice Day delivered the opinion of the court:
In the brief and argument of the learned counsel for the appellants it is said: 'The sole question in the case is whether, on the facts set up and pleaded in the answer, there was jurisdiction in the United States circuit court in the former suit to render the judgment quieting in the complainant, Hanley, title to one eighth of all the ore bodies found within the boundaries of the Skookum mining claim. The lower court thought the answer failed to show want of jurisdiction, and sustained complainant's exceptions.'
A preliminary question for examination in this court, although not made in argument by counsel, is whether this court has jurisdiction of this case by direct appeal from the judgment rendered in the circuit court of Idaho. It is apparent from the statement preceding this opinion that the extent and effect of the adjudication in the first case, wherein the complainant alleges title was decreed to him, was the real controversy between the parties. The complainant contended [205 U.S. 225, 232] that the court in the former case had adjudicated title to all of the ore bodies found within the boundaries of the Skookum claim.' The defendants contended that the ore bodies in controversy belonged to another mine, the San Carlos, the property of the defendants, by reason of the fact that they are of a vein which has its apex in the San Carlos mining claim, and not in the Skookum; and that the decree in the former suit was without jurisdiction in so far as it undertook to quiet title for such ore bodies, because the pleadings in that suit made no case for such decree.
If this case can come here by direct appeal it must be because it is within 5 of the court of appeals act 1891, providing for direct appeals in certain cases from the circuit court to this court. 26 Stat. at L. 827, chap. 517, 5, U. S. Comp. Stat. 1901, p. 488. It cannot be brought directly here as a case in which the jurisdiction of the court is in issue; for the jurisdiction challenged is not that of the court rendering the decree from which this appeal is taken, but is that of the court rendering the former decree, which is set up in the complaint as the basis of the title sued upon. Re Lennon, 150 U.S. 393 , 37 L. ed. 1120, 14 Sup. Ct. Rep. 123.
If the case is properly here, it must be because it is one which involves the construction or application of the Constitution of the United States. It has been repeatedly held that it is only when the Constitution of the United States is directly and necessarily drawn in question that such an appeal can be taken, and the case must be one in which the construction or application of the Constitution of the United States is involved as controlling. We think this case is not of that character. It is evident that the real issue as to the former judgment was whether it was res judicata between the parties, or, as contended by the appellants, rendered without jurisdiction. The court, in deciding against the appellants, decided that the court had jurisdiction, and that the former decree was conclusive. This decision does not necessarily and directly involve the construction or application of the Constitution of the United States. [205 U.S. 225, 233] In World's Columbian Exposition v. United States, 6 C. C. A. 71, 18 U. S. App. 159, 56 Fed. 657, Mr. Chief Justice Fuller, speaking for the court, said: 'Cases in which the construction or application of the Constitution is involved, or the constitutionality of any law of the United States is drawn in question, are cases which present an issue upon such construction or application or constitutionality, the decision of which is controlling; otherwise every case arising under the laws of the United States might be said to involve the construction or application of the Constitution, or the validity of such law.'
Re Lennon, supra, was a proceeding in habeas corpus to discharge a party held upon an order for imprisonment for failing to pay a fine imposed for contempt. The petitioner alleged that the circuit court had no jurisdiction of the case in which the order of injunction had been issued, for violation of which the petitioner was alleged to be guilty of contempt; and that it had no jurisdiction either of the subject-matter or of the person of the petitioner. The application being denied and direct appeal being taken to this court, it was held that it would not lie under 5, act of March 3, 1891, because the jurisdiction of the circuit court of the petition for habeas corpus was not in issue, nor was the construction or application of the Constitution involved. Of the latter phase of the case Mr. Chief Justice Fuller, speaking for the court, said:
In Carey v. Houston & T. C. R. Co. 150 U.S. 170 , 37 L. ed. 1041, 14 Sup. Ct. Rep. 63, in which a bill in equity had been filed in order to impeach and set aside a decree of foreclosure on the ground of fraud and want of jurisdiction in the foreclosure suit, it was held that no case for appeal directly to this court was made as one that involved the construction or application of the Constitution of the United States. In that case Mr. Chief Justice Fuller, delivering the opinion of the court, said:
The cases cited were followed and the principles deducible [205 U.S. 225, 235] therefrom applied in Cosmopolitan Min. Co. v. Walsh, 193 U.S. 460 , 48 L. ed. 749, 24 Sup. Ct. Rep. 489. In that case it was contended, in a replication to an answer setting up certain former judgments rendered against the complainant as a bar to the suit brought by it to recover possesion of the real property sold under the judgments, that they were awarded without due process of law, in violation of the 14th Amendment. And this was upon the theory that the service of process in the state courts upon the corporation's agent in the suits where the judgments were rendered was unauthorized by the laws of the state or the general principles of law. It was held that the case was not one directly involving the construction or application of the Federal Constitution within the meaning of 5 of the act of March 3, 1891, and the writ of error was dismissed.
We think the principles involved in these cases decisive against jurisdiction in this court of this appeal. It is true that it is averred in the sixth paragraph of the amended answer above set forth that, in the action to determine title to the ore bodies, the mining company had the right, under the laws and Constitution of the United States, to a trial by jury, of which it was deprived; and that so much of the decree as undertook to quiet title to the ore bodies was rendered without jurisdiction, because the same constituted and was in fact an attempt to deprive the defendant of its property without due process of law, in violation of the Federal Constitution. But these averments of conclusions as to constitutional rights do not change the real character of the controversy and make it a case in which the controlling rule of decision involves the construction or application of the Constitution of the United States.
The thing relied upon in this case was the controlling effect as res judicata of a decree rendered between the parties in another suit. And the real issue was as to the jurisdiction of the court to render the decree. The determination of that question did not involve the construction or application of [205 U.S. 225, 236] the Constitution of the United States. The circuit court held that the court rendering the first decree had jurisdiction to determine the ownership of the ore bodies underneath the surface of the Skookum claim. The court thus really decided a question of res judicata between the parties upon general principles of law. And it does not convert the decision into one involving the construction and application of the Constitution of the United States to aver, argumentatively, that to give such effect to a former adjudication under the circumstances amounts to depriving a party of due process of law.
We are of opinion, therefore, that the case does not come within the 5th section of the circuit court of appeals act as one directly appealable to this court.
The appeal is dismissed for want of jurisdiction in this court.