Opinion
Appeal from the Circuit Court of the United States for the Northern Division of the District of Washington.
John W. Pratt and Pratt & Riddle, for appellant.
Frederick Bausman, for appellee.
Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.
GILBERT, Circuit Judge.
The jurisdiction of the circuit court in this case was invoked, not upon the ground of the diverse citizenship of the parties, but upon the ground that the case directly involved the construction of the fifth and fourteenth amendments of the constitution of the United States, in that, as alleged in the bill, the appellant, the city of Seattle, in a proceeding to appropriate a part of an unplatted tract of land for use as a public street, without compensation to the owner, and creating a lien upon the owner's other land abutting on such street, deprived the appellee of his property with due process of law. It is now moved to dismiss the appeal upon the ground that this court has no jurisdiction thereof.
By the fifth section of the judiciary act of March 3, 1891, it is provided that appeals or writs of error may be taken from the district or circuit courts directly to the supreme court in any case that 'involves
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the construction or application of the constitution of the United States. ' In the case of American Sugar Refining Co. v. City of New Orleans, 181 U.S. 277, 21 Sup.Ct. 646, 45 L.Ed. 859, it is held that, where it appears on the record from the plaintiff's own statement that the suit is one which does really and substantially involve a dispute or controversy as to a right which depends upon the construction or application of the jurisdiction of the circuit court is invoked upon that ground alone, the case falls strictly within the terms of section 5, and the appellate jurisdiction of the supreme court in respect thereto is exclusive. Upon the authority of that decision the appeal in the present case must be dismissed.