sitting) did not unite in putting the de- | Error to state court — Federal question cision on that ground." We think this - validity of state authority. was an oversight. The opinion was that of the court, though delivered by one judge, and the conclusion was the conclusion of the court and necessarily had to be, else there would have been no decision or decree. And it was thoroughgoing. It is manifest from the excerpts we have made from the opinion that the judgment of the court was not limited

as to time or territory; nor did the pleadings so limit it. The complainant in that case (respondent here) alleged that it was the sole and exclusive owner of the trademark and had used it from 1835 to the present time, being virtually the successor of the first producer of the product.

Defendants (petitioners) contested the claim and asserted a right in themselves based on prior adoption and continuous use, and that right was adjudged to them.

Decree of the Circuit Court of Appeals reversed and that of the District Court affirmed.

[323] JOHN D. IRELAND, Plff. in Err.,

V.

ARTHUR WOODS, Police Commissioner of the City of New York.

(See S. C. Reporter's ed. 323-330.)

Error to state court — - Federal question

2. A dispute over the facts upon which exercised is not a dispute as to the validity an authority under a state statute was of such authority within the meaning of the Judicial Code, § 237, as Amended by the act of September 6, 1916 (39 Stat. at L. 726, chap. 448, Comp. Stat. 1916, § 1214), governing writs of error to state courts. [For other cases, see Appeal and Error, 1645Error to state court 1672, in Digest Sup. Ct. 1908.] Federal question

ity.

validity of state statute or author

3. Questions of law which may be raised upon the indictment, the deductions from the facts which may be charged against the action of the governor of a state in issuing an extradition warrant, do not impugn such action or the validity of the state statute the Judicial Code, § 237, as amended by which enjoined it, within the meaning of the Act of September 6, 1916 (39 Stat. at L. 726, chap. 448, Comp. Stat. 1916, § 1214), governing writs of error to state courts. [For other cases, see Appeal and Error, 16451672, in Digest Sup. Ct. 1908.]

Error to state court

ity.

- Federal question validity of state statute or author

4. The validity of a state statute is not drawn in question so as to support a writ of error from the Federal Supreme Court to der such statute are controverted, nor is a state court every time rights claimed unthe validity of an authority drawn in question every time an act done by such authority is disputed.

[For other cases, see Appeal and Error, 16451672, in Digest Sup. Ct. 1908.]

[No. 611.]

validity of Federal or state statute Argued March 6, 1918. Decided March 18, or authority.

1. Neither the validity of a Federal enactment or authority nor the validity of

a state statute or authority was drawn in question within the meaning of the Judicial Code, § 237, as amended by the Act of September 6, 1916 (39 Stat. at L. 726, chap. 448, Comp. Stat. 1916, § 1214), governing writs of error to state courts, in a habeas corpus proceeding to inquire into a deten tion under an extradition warrant in which whether there was justification for the extradition was the only inquiry and decision of the courts below.

[For other cases, see Appeal and Error, 16451672, 1724-1731, in Digest Sup. Ct. 1908.]

1918.

N ERROR to the Court of Appeals of

judgment which affirmed a judgment of the State of New York to review a the Appellate Division of the Supreme Court of such state, First Department, affirming an order of the Supreme Court in and for New York County, dismissing a writ of habeas corpus to inquire into a detention under an extradition warrant. Dismissed for want of jurisdiction.

See same case below, in court of appeals, 221 N. Y. 600, 117 N. E. 1081; in Note. On the general subject of writs | Supreme Court of the United States by of error from the United States Su- writ of error to those courts-see notes preme Court to state courts-see notes to Apex Transp. Co. v. Garbade, 62 to Martin v. Hunter, 4 L. ed. U. S. 97; L.R.A. 513. Hamblin v. Western Land Co. 37 L. ed. U. S. 267; Re Buchanan, 39 L. ed. U. S. 884; and Kipley v. Illinois, 42 L. ed. U. S. 998.

On what adjudications of state courts can be brought up for review in the 62 L. ed.

On how and when questions must be raised and decided in a state court in order to make a case for a writ of error from the Supreme Court of the United States-see note to Mutual L. Ins. Co. v. McGrew, 63 L.R.A. 33.

appellate division, 177 App. Div. 1, 163 N. Y. Supp. 991.

The facts are stated in the opinion.

Mr. George W. Wickersham argued the cause, and, with Messrs. Arthur C. Patterson and Henry Goldstein, filed a brief for plaintiff in error:

Philadelphia & R. Coal & I. Co. v. Gilbert, 245 U. S. 162, ante, 221, 38 Sup. Ct. Rep. 58.

The validity of the authority must be directly challenged; it is not enough that an erroneous exercise of it was claimed on the facts appearing, to raise a Federal question of this class.

South Carolina v. Seymour, 153 U. S. 353, 358-360, 38 L. ed. 742, 744, 745,

Lynch, 137 U. S. 280, 285, 34 L. ed.

The arrest of a person on a governor's warrant, pursuant to the request of the governor of a sister state, for the pur-14 Sup. Ct. Rep. 871; United States v. pose of extradition, is an exercise of authority under a state statute; and where, as here, there arises an inquiry whether or not, in the particular instance, that authority is being exercised in repugnance to the Constitution or laws of the United States, and the decision is in favor of its exercise, it may

be reviewed in this court on writ of

error.

New Mexico ex rel. McLean v. Denver & R. G. R. Co. 203 U. S. 38, 48. 51 L. ed. 78, 85, 27 Sup. Ct. Rep. 1: United States ex rel. Champion Lumber Co. v. Fisher, 227 U. S. 445, 451, 452, 57 L. ed. 591, 594, 33 Sup. Ct. Rep. 329: 227 U. S. 452, 455, 57 L. ed. 594, 595, United States ex rel. Foreman v. Mever, 33 Sup. Ct. Rep. 331.

700, 702, 11 Sup. Ct. Rep. 114; Snow r United States. 118 U. S. 346. 352, 353, 30 L. ed. 207, 209, 6 Sup. Ct. Rep. 1059; Abbott v. National Bank, 175 U. S. 409. 412, 413, 44 L. ed. 217-219, 20 Sup. 185 U. S. 38, 44-46, 46 L. ed. 795, 799. Ct. Rep. 153; Sweringen v. St. Louis, 800, 22 Sup. Ct. Rep. 569: Linford v. People ex rel. Corkran v. Hyatt, 172 Ellison, 155 U. S. 503, 508, 39 L. ed. N. Y. 188, 60 L.R.A. 774, 92 Am. St. 239, 241, 15 Sup. Ct. Rep. 179: MillinRep. 706, 64 N. E. 825; Robb v. Con-gar v. Hartupee, 6 Wall. 258, 261, 252, nolly, 111 U. S. 624, 28 L. ed. 542, 4 18 L. ed. 829, 830; Bethell v. Demaret, Sup. Ct. Rep. 544; Taylor v. Taintor, 16 10 Wall. 537, 510, 19 L. ed. 1007, 1008: Wall. 366, 370, 21 L. ed. 287, 290; Spear, Extradition, 2d ed. p. 504: 29 Alb. L. J. 206; Innes v. Tobin, 240 U. S. 127, 60 L. ed. 562, 36 Sup. Ct. Rep. 290. In the case at bar, an inspection of the record shows that the decisions of the state supreme court at both special term and in the appellate division were based upon (1) a construction of the New Jersey indictment.- -a pure question of law, and (2) the determination by the special term that, as a matter of law, while a brief presence of the accused within the demanding state during the period of continuance of the alleged crime, for a purpose disconnected from it, would not afford the necessary basis for a finding that he was a fugi tive from justice, a stay over night was not "brief." These questions were reviewable in the state court of appeals. Y. 430, 46 N. E. 875; Marden v. and are open to decision in this court. Biddinger v. Police Comr. 245 U. S. 128, ante, 193, 38 Sup. Ct. Rep. 41; Hyatt v. New York, 188 U. S. 691, 713, 47 L. ed. 657, 662, 23 Sup. Ct. Rep. 456, 12 Am. Crim. Rep. 311; Poel v. BrunswickBalke-Collender Co. 216 N. Y. 310, 110 N. E. 619; Re New York, 200 N. Y. 546,

93 N. E. 498.

Mr. Robert S. Johnstone argued the cause, and, with Messrs. Edward Swann, George F. Turner, and Don Carlos Buell, filed a brief for defendant in error:

The case is not properly here on writ of error, the judgment of the state court can only be reviewed by certiorari.

There was no decision by the New York court of appeals upon the alleged Federal question presented; and this because the court of appeals was precluded by the Constitution of the state of New York from reviewing or deciding that question.

People ex rel. Stephenson v. Bingham, 205 N. Y. 168, 98 N. E. 381; Kennedy v. Mineola, II. & F. Traction Co. 178 N. Y. 512, 71 N. E. 102; People ex rel. Manhattan R. Co. v. Barker, 152

Dorthy, 160 N. Y. 39, 46′ L.R.A. 694. 54 N. E. 726; Reed v. McCord, 160 N. Y. 330, 54 N. E. 737; McGuire v. Bell Teleph. Co. 167 N. Y. 211, 52 L.R.A. 437, 60 N. E. 433; People ex rel. Sandv. Feitner, 173 N. Y. 647, 66 N. E. 626. N. E. 775; People v. Mingey, 190 N. Y. People v. Maggiore, 189 N. Y. 514, SL 61, 82 N. E. 728; People v. Thompson. 198 N. Y. 399, 91 N. E. 838: Kissam v. United States Printing Co. 199 N. Y. 76, 92 N. E. 214; People v. Bright, 203 N. Y. 73, 96 N. E. 362. Ann. Cas. 1913A. 771; People v. Lambrix, 204 N. Y. 263, 97 N. E. 524: People ex rel. Stephenson v. Bingham, 205 N. Y. 168, 98 N. E. 384; People v. Sheffield-Farms-Slawson

People V. Sheffield-Farms-SlawsonDecker Co. 206 N. Y. 79, 99 N. E. 181; People v. Griswold, 213 N. Y. 96, L.R.A. 1915D, 538, 106 N. E. 929.

Decker Co. 206 N. Y. 79, 99 N. E. 181; | sessions held by three justices without People v. Cummins, 209 N. Y. 296, 103 a jury. N. E. 169; People ex rel. Hayes v. Waldo, 212 N. Y. 162, 105 N. E. 961; People v. Griswold, 213 N. Y. 96, L.R.A. 1915D, 538, 106 N. E. 929; Middleton v. Whitridge, 213 N. Y. 505, 108 N. E. 192, Ann. Cas. 1916C, 856; Porter v. Municipal Gas Co. 220 N. Y. 152, 115 N. E.jury. 457; Cardozo, Jurisdiction Ct. App. §§ 54 et seq.

Special proceedings tried before a referee or before the court without a

People ex rel. Manhattan R. Co. v. Barker, 152 N. Y. 417, 430, 46 N. E. 875; People ex rel. Broadway Improv. Co. v. Barker, 155 N. Y. 322, 49 Ñ. E. 884.

Proceedings tried and determined before administrative officers, reviewed at the appellate division by certiorari.

Proceedings to review the decisions of administrative officers in which, by law, the supreme court may, upon evidence taken before it, in proceedings instituted by certiorari, examine and decide the facts de novo.

The question whether an appeal lies to the court of appeals from a judgment or order is a very different question from that of the power of the court of appeals, upon an appeal properly before it, to review and decide a particular question (vide People v. Bresler, People ex rel. Stephenson v. Bing218 N. Y. 570, 113 N. E. 536). An ap- ham, 205 N. Y. 168, 98 N. E. 384; People peal may lie to the court of appeals ex rel. Hayes v. Waldo, 212 N. Y. 162, from a final judgment or order, not-105 N. E. 961; People ex rel. Loughran withstanding that the affirmance by the v. Railroad Comrs. 158 N. Y. 421, 53 appellate division was unanimous. But N. E. 163. upon such appeal the court of appeals has no jurisdiction to review or decide the question whether there was any evidence to support a finding of fact or a nondirected verdict (vide Middleton v. Whitridge, 213 N. Y. 505, 108 N. E. 192, Ann. Cas. 1916C, 856) because, notwithstanding that that is a question of law, it is the one question of law which, when the judgment or final order was unanimously affirmed by the appellate division, the court of appeals is, by the mandate of the Constitution (Ň. Y. Const. art. 6, § 9) prohibited from reviewing (People ex rel. Stephenson v. Bingham, 205 N. Y. 168, 98 N. E. 384). The rule has been applied in: Civil actions tried before a jury. Reed v. McCord, 160 N. Y. 330, 54 N. E. 737; McGuire v. Bell Teleph. Co. 167 N. Y. 211, 52 L.R.A. 437, 60 N. E. 433; Porter v. Municipal Gas Co. 220 N. Y. 152, 115 N. E. 457.

Criminal actions tried before a jury. People v. Maggiore, 189 N. Y. 514, 81 N. E. 775; People v. Mingey, 190 N. Y. 61, 82 N. E. 728; People v. Thompson, 198 N. Y. 399, 91 N. E. 838; People v. Lambrix, 204 N. Y. 263, 97 N. E. 524; People v. Cummins, 209 N. Y. 296, 103 N. E. 169.

Civil actions tried before the court or before a referee without a jury.

Marden v. Dorthy, 160 N. Y. 39, 46, 46 L.R.A. 694, 54 N. E. 726; Kissam v. United States Printing Co. 199 N. Y. 76, 92 N. E. 214.

Criminal actions tried before a court without a jury, for example, misdemeanor prosecutions before courts of special'

People ex rel. Manhattan R. Co. v. Barker, 152 N. Y. 430, 46 N. E. 875: People ex rel. Sands v. Feitner, 173 N. Y. 647, 66 N. E. 626.

It makes no difference that, in the general finding, fact and law were commingled. The general finding is treated the same as a general verdict, which commingles fact and law.

People ex rel. Manhattan R. Co. v. Barker, 152 N. Y. 435, 46 N. E. 875; Consolidated Electric Storage Co. v. Atlantic Trust Co. 161 N. Y. 610, 56 N. E. 145; Fayerweather v. Ritch, 195 U. S. 276, 302, 49 N. E. 193, 211, 25 Sup. Ct. Rep. 58.

This court will recognize the limitations imposed upon the jurisdiction of the New York court of appeals, and if that court, giving effect to the local law, did not pass upon the asserted Federal right, and hence did not deny it, its judgment will not be reviewed here.

Missouri P. R. Co. v. Taber, 244 U. S. 200, 202, 61 L. ed. 1082, 1084, 37 Sup. Ct. Rep. 522.

If there is a local nonn-Federal ground broad enough to sustain the judgment, and not put forth as a mere subterfuge, this court notwithstanding that there was a Federal question presented, will decline jurisdiction. Where the judg ment of the state court does not necessarily depend on the decision of a Fed

eral question, this court will not review
it.

Enterprise Irrig. Dist. v. Farmers
Mut. Canal Co. 243 U. S. 157, 164, 61
L. ed. 644, 648, 37 Sup. Ct. Rep. 18.
It must appear that a Federal ques-
tion necessarily was involved in the de-
cision before this court can take juris-
diction or undertake to reverse the judg-
ment of a tribunal over which it has
no general power.

Western U. Teleg. Co. v. Wilson, 213
U. S. 52, 53, 53 L. ed. 693, 694, 29 Sup.
Ct. Rep. 403; De Saussure v. Gaillard,
127 U. S. 216, 32 L. ed. 125, 8 Sup. Ct.
Rep. 1053; Johnson v. Risk, 137 U. S.
300, 34 L. ed. 683, 11 Sup. Ct. Rep. 111;
Leathe v. Thomas, 207 U. S. 93, 99, 52
L. ed. 118, 120, 28 Sup. . Rep. 30.

It makes no difference that the court
of appeals wrote no opinion setting
forth the grounds upon which it rested
its judgment.

Johnson v. Risk, 137 U. S. 300, 34 L. ed. 683, 11 Sup. Ct. Rep. 111; Bachtel v. Wilson, 204 U. S. 36, 51 L. ed. 357, 27 Sup. Ct. Rep. 243; Adams v. Russell, 229 U. S. 353, 360, 57 L. ed. 1224, 1227, 33 Sup. Ct. Rep. 846; Cuyahoga River Power Co. v. Northern Realty Co. 244 U. S. 300, 304, 61 L. ed. 1153, 1157, 37 Sup. Ct. Rep. 643.

Before this court can pronounce a judgment of a state court to be in conflict with the Federal Constitution, it must be made to appear that its decision was one necessarily in conflict therewith, and not that possibly, or even probably, it was.

Bachtel v. Wilson, 204 U. S. 36, 40, 51 L. ed. 357, 360, 27 Sup. Ct. Rep. 243; Adams v. Russell, 229 U. S. 353, 360, 57 L. ed. 1224, 1227, 33 Sup. Ct. Rep.

846.

To give this court jurisdiction of a writ of error to a state court it must appear affirmatively not only that a Federal question was presented for decision, but that its decision was necessary to the determination of the cause, and that it was actually decided, or that the judgment as rendered could not have been rendered without deciding it.

Adams v. Russell, 229 U. S. 353, 360, 361, 57 L. ed. 1227, 1228, 33 Sup. Ct. Rep. 846.

Mr. Justice McKenna delivered the opinion of the court:

A case in interstate rendition. Upon requisition of the governor of the state of New Jersey, representing that Ireland, plaintiff in error, was charged in that state with the crime of conspiracy taken refuge in New York, the governor and with having fled therefrom and of the state of New York issued his warrant requiring Ireland to be arrested and delivered to the agent of the state of New Jersey, to be taken back to the latter state. By virtue of the warrant, defendant in error, Woods, police commissioner of the city of New York, arrested Ireland.

After his arrest Ireland filed a petition in habeas corpus in the supreme court of New York county, state of New York, for his discharge from the custody of Woods, alleging that the arrest was illegal and that he was restrained of his liberty in violation of the provisions of subdivision 2 of § 2, art. 4, of the Constitution of the United States and of § 5278 of the Revised Statutes of the United States (Comp. Stat. 1916, § 10,126). The basis of the charge was that he [325] was not within the limits of the state of New Jersey at the times the alleged crimes were said to have been committed, nor was there any evidence, either before the governor of New Jersey when that offcer issued his demand upon the governor of New York, or before the latter when he issued his warrant, that he (Ireland) was within the limits of New Jersey at such times; and therefore it did not appear that he was a fugitive from the justice of New Jersey. And it was charged that it appeared on the face of the indictment that no crime under the laws of New Jersey was alleged or was committed.

Woods duly made return to the petition, to which were annexed the requisition of the governor of New Jersey and the warrant of the governor of New York.

Ireland traversed the return under oath, and denied that he had committed the crimes charged against him, or any crime; denied that he was within the state at the times that the indictment charged the crimes were committed, which he alleged to be the 1st of January, 9th of June, and 12th of July, 1913, or in the state at the time of the Messrs. Robert S. Johnstone, Robert finding of the indictment; alleged that D. Petty, Don Carlos Buell, and Edward | he examined a sworn copy of the requisiSwann filed a separate brief for defendant in error.

tion of the governor of New Jersey, and that it did not contain any evidence or

proof that he, Ireland, was in that state | ticipation in the conspiracy; that, alon any day in any of the months set forth though his stay was short on each occain the indictment; and he further denied sion, there was an abundance of opporthat he was a fugitive from the justice tunity not only to confer with his alof the state. leged confederates, [327] but to hand to them the letters of credit and bogus checks which, it was alleged, were used to accomplish the overt acts.

A motion to dismiss is made, the grounds of it being: (1) The judgment of the court of appeals is reviewable, if It is stated in the opinion of the ap- at all, only by certiorari. (2) It is not pellate division, Judge Shearn speaking reviewable at all because, under the for the court, that the requisition [326] limitation of the jurisdiction of the was honored upon the production of the court of appeals, it had no power to renecessary papers, and that it was not view or decide the question whether claimed there was no sufficient showing there was any evidence to show that Irebefore the governor to warrant the ex-land was a fugitive from justice, and ercise of his jurisdiction; the case depending entirely on the testimony that he, Ireland, was only three times in New Jersey, none of which times was charged in the indictment.