
    No. 47
    STATE, ex rel v. SWIFT & CO. et al
    United States Supreme Court,
    No. 67,
    decided Nov. 13, 1922
    APPEAL AND ERROR — (1) Direct action in Supreme Court in jurisdictional cases — (2) Removal of causes— —Jurisdiction of District Court dependent upon allegations — (3) Conflicting positions not maintainable — Successive appeals — Jurisdiction final — (4) Certiorari .
    Appeal from U. S. Circuit Court of Appeals, Sixth Circuit
    Attorneys — Allen J. Seney and .S. Northrup of Toledo, for appellant; Harold W. Frazer, Toledo, for appellees.
   McREYNOLDS, J.

Epitomized Opinion

Allen J. Seney, prosecuting attorney of Lucas County, Ohio, instituted action against Swift & Co. and the Northern Refrigerator- Co., in the Lucas Common Pleas. He charges they were violating the Valentine Anti Trust Law. 6390-6420 GO. and the Smith Cold Storage Law, 107 OL. 594, in respect to cold pork, and asked for a restraining order, for a receiver and an injunction against further unlawful acts.

Swift & Co. asked for removal of the cause to the U. S. District Court on these grounds (1) that it involves the Constitution and laws of the United States, (2) that the company cannot, in Ohio Courts, enforce its equal civil rights as a citizen of the U. S. and (3) that the parties are citizens of different states.

After Swift & Co. filed the record and an answer in. the district court, the relator’s motion to remand to the sítate court, was overruled, and he refused to litigate the merits. Evidence was then introduced that the pork was in interstate transportation and never had been intended for sale in Ohio. A final judgment then dismissed the complaint. The relator appealed to the Circuit Court, relying upon the question of jurisdiction and his appeal was sustained. Thereupon this appeal was taken by relator. The U. S. Supreme Court decided:

(1) After final judgment in the district court, other def'i.ses being waived, the cause might have been taken to this court by direct appeal upon jurisdictional question only. Other matters were involved which should have been reviewed.

(2) The district court’s jurisdiction depended upon the substantial grounds for removal alleged in the petition. Without traversing the facts alleged therein, the relator has always maintained that none of such grounds was good. The Circuit Court adopted his views as to (1) and (2) above, and, as generally at least, suitors cannot maintain in this court, a position which conflicts with that taken below, the only point now open is (3) that the claim of diverse citizenship lacks sub-stantiality. This contention the court below rejected, upon full consideration.

(3) Except in eases where a writ of error from a final decision of a district court can he taken directly to the supreme court on jurisdictional questions, it must ■be taken to the circuit court. Otherwise the appellant can secure two reviews of his question. Hence this court holds that, whenever the suitor might have come to the Supreme Court, directly from the district court, upon the sole question which he chose to eontrovent in the circuit court, the Supreme Court cannot entertain appeal therefrom.

(4) Writs of certiorari, applied for pending appeals, are granted only under special circumstances, adequately specified in former opinions.  