Argument for the United States.

213 U.S.

courts avoided or ignored the constitutional question; the exactness of both of these statements are obvious upon reference to the record.

II. A constitutional question does actually exist in this case. The question arising does not refer to the admitted right of Congress to regulate the mails, but to the uncertainty of some of the laws in this regard. The act in question is so framed that its administration contravenes constitutional rights. See Ex parte Jackson, 96 U. S. 727; Public Clearing House v. Coyne, 194 U. S. 507; United States v. Comerford, 25 Fed. Rep. 902; United States v. Morris, 14 Pet. 464; United States v. Wiltberger, 5 Wheat. 76.

The statute is uncertain, being expressed in abstract terms which depend for construction upon the ever varying personal standards of the court or jury in each particular case. Certain standards have been established by this court, but the examination of the reports show that the lower courts are so divided as to their meaning that the greatest uncertainty still exists, and no man may tell from reading the statute or from studying the varying decisions, what he may not do under it; a single instance illustrates this fact, viz.: the opinion in Hanson v. United States, 157 Fed. Rep. 749, follows Dunlop v. United States, 165 U. S. 486, and is directly opposed to Macfadden v. United States, 165 Fed. Rep. 51, 52, which is based on the case of Rosen v. United States 161 U. S. 29.

Criminal laws cannot be framed in uncertain terms. James v. Bowman, 190 U. S. 127; United States v. Brewer, 139 U. S. 288; 12 Myer, Fed. Dec. 86, § 346.

The Solicitor General for the United States:

This is not a case in which the constitutionality of a law of the United States is drawn in question, because this court has already declared that § 3893 is constitutional.

The mere allegation that an act is unconstitutional is not sufficient to draw in question the constitutionality of the act. The constitutional or other Federal claim must be real and sub

stantial in order to give jurisdiction to this court; the bare averment of a Federal question is not sufficient; there must be at least color of ground therefor. Millingar v. Hartupee, 6 Wall. 258; New Orleans v. New Orleans Water Works Co., 142 U. S. 79; Hamblin v. Western Land Co., 147 U. S. 531; Fort Smith Ry. v. Merriam, 156 U. S. 483; Clarke v. McDade, 165 U. S. 172; Wilson v. North Carolina, 169 U. S. 595; Lampasas v. Bell, 180 U. S. 276; Sawyer v. Piper, 189 U. S. 154; American R. R. Co. v. Castro, 204 U. S. 453.

The mere allegation of the petitioner that it is unconstitutional cannot make a case in which the constitutionality of a law of the United States is drawn in question within the meaning of § 5 of the judiciary act of March 3, 1891. In a number of previous cases arising under § 3893, the points raised in this case by the petitioner were passed upon by this court and decided in favor of the constitutionality of the act. Ex parte Jackson, 96 U. S. 727, 736; Rosen v. United States, 161 U. S. 29, 42; Dunlop v. United States, 165 U. S. 486; United States v. Chase, 135 U. S. 255, 261.

This court has also considered convictions obtained under the act, without indicating any doubt as to its constitutionality. Grimm v. United States, 156 U. S. 604; Swearingen v. United States, 161 U. S. 446; Andrews v. United States, 162 U. S. 420; Price v. United States, 165 U. S. 311.

When this court decides a question of law, it makes the law, and thereafter there cannot be said to be any question of law in regard to that proposition which it has already decided. Kansas v. Bradley, 26 Fed. Rep. 289; Newburyport Water Co. v. Newburyport, 193 U. S. 561; Lampasas v. Bell, 180 U. S. 276; New Orleans Water Works Co. v. Louisiana, 185 U. S. 336, 344; Spreckels Sugar Refining Co. v. McClain, 192 U. S. 397, discussed and distinguished from the present case.

MR. JUSTICE MOODY delivered the opinion of the court.

The petitioner, Bernarr Macfadden, was indicted in the Dis

trict Court of the United States for the District of New Jersey for mailing obscene literature, in violation of § 3893 of the Revised Statutes. He pleaded not guilty, and upon trial before a jury was found guilty.

Various questions of law arose in the course of the trial, which need not be stated.

After the evidence was concluded the petitioner presented to the presiding judge many requests for instructions to the jury, which were refused, under exception. For the purposes of this case four only need to be referred to, and they summarily. The judge was requested to rule that the statute under which the indictment was returned was unconstitutional; (a) because it abridged the freedom of the press; (b) because it was uncertain and created no general rule of conduct, and therefore the indictment was without due process of law; (c) because it was an ex post facto law; (d) because it delegated legislative power to the court or jury.

There was a motion in arrest of judgment, which was overruled. Thereupon judgment was entered, and the petitioner sued out a writ of error to the Circuit Court of Appeals for the Third Circuit. That court affirmed the judgment.

After a denial of a petition for a writ of certiorari the petitioner made application to one of the justices of this court for a writ of error, directed to the Circuit Court of Appeals. The question of the right of the petitioner to such a writ of error has been referred to the full court, and, by direction of the court, briefs on the part of the United States and the petitioner have been filed and considered.

The object of the act of March 3, 1891, c. 517, 26 Stat. 826, was to distribute the appellate jurisdiction of the Supreme Court between it and the newly-created Circuit Courts of Appeal, and to abolish the appellate jurisdiction of the Circuit Courts. The first necessary step in this undertaking was to determine in what cases appeals (using the word in its broader sense) might be taken directly to this court. This was done in § 5, which is as follows:

"SEC. 5. 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 cases:

"In any case in which the jurisdiction of the court is in issue; in such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision.

"From the final sentences and decrees in prize causes.

"In cases of conviction of a capital or otherwise infamous crime.

"In any case that involves the construction or application of the Constitution of the United States.

"In any case in which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority, is drawn in question.

"In any case in which the constitution or law of a State is claimed to be in contravention of the Constitution of the United States."

Clause 3 of this section has been amended by the act of January 30, 1897, c. 69, 29 Stat. 492 by striking out the words "or otherwise infamous."

Assuming, without decision, that the constitutional questions were real and substantial, it is clear that a writ of error might have been sued out originally directly from this court under clause 5. Loeb v. Columbia Township Trustees, 179 U. S. 472. But this was not done, and by the appeal to the Circuit Court of Appeals the right of direct appeal here was lost. Robinson v. Caldwell, 165 U. S. 359.

Section 6 of the act provides that the Circuit Courts of Appeal shall exercise appellate jurisdiction "in all cases other than those provided for in the preceding section of this act," and the fact that there were in the case questions which would have warranted a direct appeal to this court does not deprive the Circuit Court of Appeals of its jurisdiction. American Sugar Co. v. New Orleans, 181 U. S. 277. In the case at bar the Circuit Court of Appeals has assumed jurisdiction and rendered judgment. May the petitioner have a writ of error directed to

that judgment? The answer to this question depends upon whether the judgment of the Circuit Court of Appeals was final. The act contemplated that certain judgments of the Circuit Court of Appeals might be reviewed on writ of error in this court, and that certain other judgments could not be so reviewed. The line of division is marked in § 6 of the act. It is to be observed that the line of division between cases appealable directly to this court and those appealable to the Circuit Court of Appeals, made by § 5 of the act, is based upon the nature of the case or of the questions of law raised. But the line of division between cases appealable from the Circuit Court of Appeals to this court and those not so appealable, drawn by § 6, is different, and is determined, not by the nature of the case or of the questions of law raised, but by the sources of jurisdiction of the trial court, namely, the Circuit Court or the District Court, whether the jurisdiction rests upon the character of the parties or the nature of the case. Huguley Mfg. Co. v. Galeton Cotton Mills, 184 U. S. 290, where it was said by the Chief Justice, citing cases, "The jurisdiction referred to is the jurisdiction of the Circuit Court as originally invoked." The difference in the test for determining whether a case is appealable from the trial court directly to this court, and the test for determining whether a case is appealable from the Circuit Court of Appeals to this court, is important, and a neglect to observe it leads to confusion.

The statute says that the judgment of the Circuit Court of Appeals "shall be final in all cases in which the jurisdiction. is dependent entirely upon the opposite parties to the suit or controversy, being aliens and citizens of the United States or citizens of different States; also in all cases arising under the patent laws, under the revenue laws, and under the criminal laws, and in admiralty cases." In all other cases there is a right of review by this court if the matter in controversy exceeds one thousand dollars.

As this is a case arising under the criminal laws, the judgment of the Circuit Court of Appeals rendered within its lawful juris