236 U. S.

Argument for Plaintiff in Error.

Federal courts will interfere. Norwood v. Baker, 172 U. S. 269.

A refusal to consider a Federal question which is controlling in a case is equivalent to a decision against the Federal right involved therein, and gives the Supreme Court jurisdiction to review. Des Moines Nav. Co. v. Iowa Co., 123 U. S. 552.

The objection to a tax that it is taking property without due process of law and denies to the taxpayers the equal protection of the laws raises a question under the Constitution of the United States; and where the question was necessarily involved in the final decision of the case, the writ of error cannot be dismissed. Bell's Gap R. R. v. Pennsylvania, 134 U. S. 232.

The court will not grant the motion if consideration of the merits is required. Hecker v. Fowler, 1 Black, 95.

To say that there is no error in this judgment, and affirm it for that reason, would be to decide the whole legal merits of the case and this cannot be done on a motion to dismiss. See also Sparrow v. Strong, 3 Wall. 97; Minor v. Tillotson, 1 How. 288.

When the question of jurisdiction is so involved with the other questions decided in the case that the Supreme Court cannot eliminate it without the examination of a voluminous record and passing on the whole merits of the case, it will reserve the question of jurisdiction until the case is heard on the final agreement on the merits. Semple v. Hagar, 4 Wall. 431.

Where the record suggests many points which cannot be considered upon a motion to dismiss, the court will refuse the motion, but will allow it to be again brought to the notice of the court when the case shall be argued upon its merits. Day v. Washburn, 23 How. 309; Hecker v. Fowler, 1 Black, 95; Semple v. Hagar, 4 Wall. 431; Lynch v. De Bernal, 131 U. S. 94.

On motion merely to dismiss, the merits of the case

Opinion of the Court.

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cannot be considered. Bohanau v. Nebraska, 118 U. S. 231; Hill v. Chicago & Erie R. R., 129 U. S. 170; Chicago Co. v. Needles, 113 U. S. 574.

MR. CHIEF JUSTICE WHITE delivered the opinion of the

court.

Concerned now only with a motion to dismiss, we limit our statement to that which is essential to decide such issue. In 1912 the Olympia Mining & Milling Company, Limited, the plaintiff in error, brought this suit to enforce a trust agreement between Kerns, the defendant in error, and one Cunningham by which it was alleged Kerns had obliged himself in 1901 to transfer to Cunningham certain property then owned or to be acquired by him for a designated consideration, Cunningham to put the title to the property when transferred in the name of a corporation to be by him organized of which Kerns was to have a stated proportion of the stock. The bill was generally demurred to and state statutes creating terms of limitation of three, four and five years were expressly set out in the demurrer as barring all right to the relief sought. In reviewing the action of the trial court in sustaining the demurrer the court below held that the statutes of limitations were decisive. (24 Idaho, 481.) (24 Idaho, 481.) From the averments of the bill and facts disclosed in its previous records concerning the controversy, the time when the term of the statutes commenced to run was determined by the court to be August, 1904, because on that date Kerns made a sale of a portion of the property embraced by the trust agreement and at the same time had bound himself to sell it all,-obligations which were held to be a repudiation by him of the trust agreement and in fact constituted a disclaimer of all obligation under it. It was held that by a suit brought in 1905, by which Cunningham was bound, it was judicially admitted that at that time there was a

default in carrying out the trust agreement on the part of Cunningham or those holding with or under him and a knowledge on their part of the disclaimer of all obligation by Kerns, conclusions which caused the statutes to be operative since from the date of the starting point, 1904, to the date of the bringing of the present suit, in 1912, more than the statutory periods had elapsed.

Briefly stated, two propositions are relied upon, first, that causing the term of the statutes to commence to run from the year 1904 was a violation of the due process clause of the Fourteenth Amendment because at that date the corporation was not in existence and hence was without capacity to take and hold the property embraced by the trust agreement. Second, as the state statutes of limitations, generally speaking, did not run against minors or incapacitated persons, to cause the term to commence to run against the corporation before it came into existence and had capacity to take the property was a denial of the equal protection of the laws under the Fourteenth Amendment. But without in the remotest degree admitting that these propositions afford the slightest ground for converting such a purely state question as the operation of statutes of limitations upon real property situated in a State into Federal questions giving rise to jurisdiction of this court to review, there is obviously in any event no jurisdiction because in no manner and at no time were the alleged Federal questions, be they real or imaginary, presented or even remotely suggested to the court below. Appleby v. Buffalo, 221 U. S. 524, 529. In the argument this is admitted, but it is said the propositions ought now to be treated as adequate to confer jurisdiction because there was no opportunity to urge or suggest them in the courts below. Again, without conceding the merit of the suggestion if founded in fact, it is here plainly not so founded since the statutes of limitations which were upheld by the court below were in express terms stated in the

Counsel for Plaintiffs in Error.

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demurrer filed in the trial court and yet the record is silent as to any suggestion of assumed Federal right until after the decision below when the assignments of error were made for the purpose of a review by this court. Dismissed for want of jurisdiction.

BROLAN v. UNITED STATES.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA.

No. 645. Submitted January 5, 1915.-Decided February 23, 1915. In a case from the District Court, if the power to review attaches because of a constitutional question, that authority gives rise to the duty of determining all the questions involved, including those that otherwise are within the exclusive jurisdiction of the District Court, but if the constitutional question asserted as the basis for jurisdiction of this court is frivolous, this court has no power to review it or any of the other questions involved. The writ of error must be dismissed.

The absolute power expressly conferred upon Congress to regulate foreign commerce involves the existence of power to prohibit importations and to punish the act of knowingly concealing or moving merchandise which has been imported in successful violation of such prohibition. Keller v. United States, 213 U. S. 138, distinguished. The contention in this case that § 2 of the Act of February 9, 1909, c. 100, 35 Stat. 614, regulating the importation of opium, is unconstitutional as beyond the power of Congress, has been so foreclosed by prior decisions of this court that it is frivolous and affords no basis for jurisdiction of this court under § 238, Judicial Code.

THE facts, which involve the jurisdiction of this court under § 238, Judicial Code, are stated in the opinion.

Mr. Edward M. Cleary, Mr. John L. McNab, Mr. Bert Schlesinger, Mr. S. C. Wright and Mr. P. S. Ehrlich, for plaintiffs in error.

Mr. Assistant Attorney General Warren for the United States.

MR. CHIEF JUSTICE WHITE delivered the opinion of the court.

The indictment against the plaintiffs in error contained two counts: The first charged a conspiracy to wrongfully import opium into the United States in violation of the first portion of § 2 of the act of February 9, 1909, c. 100, 35 Stat. 614. The second charged a conspiracy to unlawfully receive, conceal and facilitate the transportation of opium which had been wrongfully imported into the United States with knowledge of such previous, illegal importation in violation of the latter part of the section referred to. The first count was quashed on the ground that the overt acts alleged occurred after the illegal importation or smuggling which was counted on. On the second count there was a conviction and sentence and this direct writ of error to the trial court is prosecuted to reverse the same. The right to a reversal rests upon two propositions: the one, that the clause of the section upon which the second count was based is repugnant to the Constitution of the United States because beyond the legislative power of Congress to enact and because moreover its provisions intrinsically constitute a usurpation of the powers reserved to the States by the Constitution; and the other, the insistence that various material errors were committed by the trial court during the progress of the case aside from the constitutionality of the statute.

Our jurisdiction to directly review depends upon the constitutional question since the other matters relied upon are as a general rule within the exclusive jurisdiction of the Circuit Court of Appeals of the Ninth Circuit, although if power to review attaches to the case because of the constitutional question, that authority gives rise to the