(dissenting). As this court’s own jurisdiction over this case is here involved, and I firmly believe it has no jurisdiction, I deem it in}- duty to record my dissent. In the court below the Morrisdale Coal Company -brought suit against the Pennsylvania Rail*946road. The railroad was an interstate carrier, and the plaintiff coal company required cars for interstate coal shipments. The Pennsylvania Railroad furnished coal cars to different coal regions, over its system, one of which was the Clearfield region, in which plaintiff’s mines were located. Plaintiff” alleges the railroad “failed and refused to assign to the Clearfield coal region for use therein the fair proportion of the entire number of coal cars of said railroad company to which said region was entitled.” That raised the question of the regulation of car division between different coal regions of the Pennsylvania Railroad system. The daily production capacity of the Clear-’ fieldl region was rated at 18,000 to 19,000 tons of coal, and the statement alleged the railroad failed to furnish on demand “the plaintiff’s due proportion or daily allotment of cars which were or should have been assigned to shippers in the said Clearfield coal region for the transportation of coal.” The plaintiff .therefore alleged that by the failure on the part of the defendant to give the plaintiff its proper allotment of cars during the period aforesaid, undue and unreasonable preferences and advantages were given to the other mines and collieries in the said Clearfield coal region, and to shippers in other coal regions, over the plaintiff, in that said mines and collieries were thereby accommodated! with car supply and facilities for the shipment of coal greater than those which should be properly allotted to them when compared with the facilities allotted to the plaintiff. The case proceeded to trial, and on November 17, 1909, a special verdict for the plaintiff was found, subject to the courtjs determination of the law. On November 29th the plaintiff moved for entry of judgment on this verdict. Pending this motion, which was never disposed of, the defendant moved the court on January 31, 1910, to dismiss the action for want of jurisdiction ; its motion being as follows:
“And now, this 31st day of January, 1910, the defendant moves the court to dismiss this action for want of jurisdiction to entertain the same.”
This motion to dismiss the court below in an opinion reported at 176 Fed. 748, and in which the question of jurisdiction alone was discussed, held the suit involved the proper car regulation and car distribution of the railroad, that this was an administrative question for the Interstate Commerce Commission, and the Circuit Court was without jurisdiction. Its opinion, which, as we have said, neither discussed nor disposed of the merits of the case or the plaintiff’s motion for judgment, concluded with the statement:
“The defendant’s motion to dismiss the suit for want of jurisdiction must he granted.”
Thereafter the defendant filed a praecipe as follows:
“Enter judgment in the above case in favor of the defendant and against the plaintiff in accordance with the opinion of the court filed.”
And in pursuance thereof judgment was entered as follows:
“And now, this teiith day of February, 1910, in accordance with principe - filed, judgment is hereby entered in the above-entitled case in favor of the defendant and against the plaintiff in accordance with the opinion of the court.”
*947On motion of plaintiff's counsel, the court allowed the plaintiff the only exception asked for, viz.:
‘•Exception to the action of the court in granting defendant’s motion to dismiss this suit for want of jurisdiction.”
It will thus be seen that the court heard, decided, and decreed no question save that of jurisdiction, and was in a position to certify that the only question in the case was one of jurisdiction. Under such facts to what court did a writ lie to review such jurisdictional judgment. If plain words can point out plain paths, section 5 of the act of March 3, 1891. makes the Supreme Court in stich case the sole reviewing tribunal, for it provides:
“That appeals or writs of error may be taken from the district court or from the existing Circuit Courts direct to the Supreme Court in the following cases; (1) In any caso In which the jurisdiction of the court is in issue; in such case the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision.”
Now the casein hand falls literally within this provision; the jurisdiction of the court below was in issue; it was challenged by a motion to dismiss for want of jurisdiction; that issue was decided; a judgment was entered dismissing the case for want of jurisdiction, and exception was taken to the judgment dismissing for want of jurisdiction. United States v. Jahn, 155 U. S. 112, 15 Sup. Ct. 39, 39 L. Ed. 87, was a case where, as here, jurisdiction was in issue, and the decision was against jurisdiction. The case went direct to the Supreme Court and was said by that court in speaking of its jurisdiction to review under section 5:
“If in such a case n final judgment were rendered because of want of jurisdiction, that judgment could be reviewed by this court upon a certificate of the circuit court, while if the jurisdiction were sustained and the merits adjudicated, although the question of jurisdiction might be brought up directly, tb<! Circuit Court of Appeals would undoubtedly have jurisdiction to review the case upon the merits.”
The extract quoted above covers exactly the case in hand. The court below entered judgment for the want of jurisdiction, and therefore the writ lay direct to the Supreme Court. Had the Circuit-Court sustained jurisdiction and passed on the merits, the defendant would have had alternative remedies, hut that state of facts never arose, hence the writ lay to the Supreme Court and that court alone. The authority of United States v. Jahn has not been questioned or qualified in any subsequent case. It is true, as stated by Judge Sanborn in St. Louis Co. v. American Co., 125 Fed. 199, 60 C. C. A. 83, there are expressions in some later opinions of the Supreme Court that the jurisdiction by section 5, supra, is “the jurisdiction of the Circuit and District Courts as such (Mexican Central Ry. Co. v. Echman, 187 U. S. 432, 23 Sup. Ct. 212, 47 L. Ed. 215), and that 'appeals or writs of error may be taken directly from the circuit court to this court in cases in which the jurisdiction of those courts is in issue — that is, their jurisdiction as federal courts — the question *948alone of jurisdiction being certified to this court’ (Blythe v. Hinckley, 173 U. S. 501, 19 Sup. Ct. 497, 43 L. Ed. 783),” but as he well says:
“ * * * These statements have never been crystallized Into a settled proposition of law, and they have never formed the basis of any decision.' * * * That section does not limit the question of which it treats to those which condition the jurisdiction of the federal courts as such as distinguished from those which condition the jurisdiction of all courts. It is broad and general in its terms. It contains no exception, and, as the congress made no exception, the legal presumption is that it intended to make none, and it is not the province of the courts to enact one. * * * Where the complainants failed in the Circuit Court and the Supreme Court refused to review their failure, they failed not for .want of jurisdiction in the trial court, but for want of equity, for want of facts constituting causes of action, for want of merits in their cases. * * * our conclusion is that the Supreme Court has jurisdiction under section 5 of the act creating the Circuit Courts of Appeals to review by writs of error or appeals taken directly to that court from the United States Circuit Court every question which involves the jurisdiction of the latter court, whether that question is peculiar to the federal courts as such or common to all courts. * * * The result is that this writ of error was sued out to review a judgment of a Circuit Court which sustained an objection to its jurisdiction and dismissed the action on that ground, that the Supreme Court had jurisdiction to review that judgment by writ of error direct to the Circuit Court, and therefore this court has no such jurisdiction.”
This decision was cited and followed in the Eighth Circuit and a writ of error dismissed in Davis v. Cleveland Co., 156 Fed. 775, 84 C. C. A. 453, the court saying the Supreme Court alone had power to review the case. The latter case was then taken to the Supreme Court, which court refused to dismiss the writ and decided the case as reported in 217 U. S. 172, 30 Sup. Ct. 463 (54 L. Ed. 708, 27 L. R. A. [N. S.] 823). In its opinion that court approved the decision of the lower court, saying:
“For these propositions the court cited Board of Trade v. Hammond Elevator Co., 198 U. S. 428 [25 Sup. Ct. 740, 49 L. Ed. 1111]; United States v. Jahn, 155 U. S. 109 [15 Sup. Ct. 39, 39 L. Ed. 87]; St. Louis Cotton Compress Co. v. American Cotton Co., 125 Fed. 195 [60 C. C. A. 80]; and, as we have seen, dismissed the case on the ground that this court alone had the power to review the decision of the circuit court. We concur in the views of the Circuit Court of Appeals, for which also may be cited Kendall v. American Automatic Loom. Co., 198 U. S. 477 [25 Sup. Ct. 768, 49 L. Ed. 1133].”
In view, therefore, of the Supreme Court exercising jurisdiction in the Davis and Kendall Cases which involved questions common to all courts, and of its citing in support of its action St. Louis Co. v. American Co., we are warranted in regarding the holding in the latter case that section 5 “does not limit the questions of which it treats to those which condition the jurisdiction of the federal courts as such as distinguished from those which condition the jurisdiction of all courts” as a construction approved by the Supreme Court.
In the light of these decisions, it is clear the Supreme Court and that court alone could review the judgment in this case, and that the motion in the Circuit Court of Appeals to dismiss for want of jurisdiction should prevail. Its refusal to dismiss is justified by the majority opinion on the ground that the plaintiff brought the case here for review on the merits as well as th'e jurisdictional question. The answer to that contention is simply that the case is not before *949this court on the merits, and this for the simple reason that the court below did not pass on the merits, and there is therefore nothing to review hut its judgment against the plaintiff for want of jurisdiction. The error of the assumption that the case is before this court for review of the merits is shown 'by the fact that this court does not dispose of the merits or discuss them in its opinion, hut affirms the judgment of the court below, and holds it rightly decided the case, on the question of want of jurisdiction. It seems to me the plain dutj of the Court of Appeals to dismiss this case for want of jurisdiction, and, because it has assumed a jurisdiction the law vests in the Supreme Court alone, I am constrained to record this my dissent.