Tenth Amendment. We must consider what, was recognized as early as Hopkirk v. Bell, this country has become in deciding what that 3 Cranch, 454, 2 L. Ed. 497, with regard to amendment has reserved. [4-6] The State as we have intimated founds its claim of exclusive authority upon an assertion of title to migratory birds, an assertion that is embodied in statute. No doubt it is true that as between a State and its inhabitants the State may regulate the killing and sale of such birds, but it does not follow that its authority is exclusive of paramount powers. To put the claim of the State upon title is to lean upon a slender reed. Wild birds are not in the possession of anyone; and possession is the beginning of ownership. The whole foundation of the State's rights is the presence within their jurisdiction of birds that yesterday had not arrived, tomorrow may be in another State and in a week a thousand miles away. If we are to be accurate we cannot put the case of the State upon higher ground than that the treaty deals with creatures that for the moment are within the state borders, that it must be carried out by officers of the United States within the same territory, and that but for the treaty the State would be free to regulate this subject itself. As most of the laws of the United States are carried out within the States and as many of them deal with matters which in the silence of such laws the State might regulate, such general grounds are not enough to support Missouri's claim. Valid treaties of course "are as binding within the territorial limits of the States as they are elsewhere throughout the dominion of the United States." Baldwin v. Franks, 120 U. S. 678, 683, 7 Sup. Ct. 656, 657, 32 L. Ed. 766. No doubt the great body of private relations usually fall within the control of the State, but a treaty may override its power. We do not have to invoke the later developments of constitutional law for this proposition; it *435 statutes *of limitation, and even earlier, as to confiscation, in Ware v. Hylton, 3 Dall. 199, 1 L. Ed. 568. It was assumed by Chief Justice Marshall with regard to the escheat of land to the State in Chirac v. Chirac, 2 Wheat. 259, 275, 4 L. Ed. 234; Hauenstein v. Lynham, 100 U. S. 483, 25 L. Ed. 628; DeGeofroy v. Riggs, 133 U. S. 258, 10 Sup. Ct. 295, 33 L. Ed. 642; Blythe v. Hinckley, 180 U. S. 333, 340, 21 Sup. Ct. 390, 45 L. Ed. 557. So as to a limited jurisdiction of foreign consuls within a State. Wildenhus' Case, 120 U. S. 1, 7 Sup. Ct. 385, 30 L. Ed. 565. See Ross v. McIntyre, 140 U. S. 453, 11 Sup. Ct. 897, 35 L. Ed. 581. Further illustration seems unnecessary, and it only remains to consider the application of established rules to the present case. Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject matter is only transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed. It is not sufficient to rely upon the States. The reliance is vain, and were it otherwise, the question is whether the United States is forbidden to act. We are of opinion that the treaty and statute must be upheld. Carey v. South Dakota, 250 U. S. 118, 39 Sup. Ct. 403, 63 L. Ed. 886. Decree affirmed. Mr. Justice VAN DEVANTER and Mr. Justice PITNEY dissent. (40 Sup.Ct.) (252 U. S. 436) (Submitted Jan. 26, 1920. Decided April 19, 1920.) No. 197. 1. MONOPOLIES 28-CAUSE OF ACTION IS STATUTORY, AND CAN ONLY BE BROUGHT IF COMPLAINT STATES SUBSTANTIAL CASE. Mr. Colin C. H. Fyffe, of Chicago, Ill., for plaintiff in error. Mr. Amos C. Miller, of Williamsport, Pa., for defendant in error. 437 *Mr. Justice DAY delivered the opinion of the Court. This suit was brought by the Blumenstock Bros. Advertising Agency against the Curtis Publishing Company in the District Court of the United States for the Northern DisAn action for damages under Sherman Anti-trict of Illinois to recover treble damages unTrust Act, § 7 (Comp. St. § 8829), giving a der section 7 of the Sherman Anti-Trust Act right of action for damages for injury from (26 Stat. 209 [Comp. St. § 8829]). The case anything forbidden by that act, is wholly statutory and to maintain here concerns the question of the jurisdica suit the complaint must state a substantial case arising thereunder. tion of the District Court. Judicial Code, § 238. The plaintiff is a corporation of the state of Missouri; the defendant a corporation of the state of Pennsylvania. fendant appeared specially in the District Court and moved to dismiss the complaint for want of jurisdiction; the grounds stated being: 2. COURTS 299—ALLEGATION THAT FEDERAL QUESTIONS ARISE NOT SUFFICIENT TO GIVE JURISDICTION. To give a federal court jurisdiction, it is not enough to allege that questions of a federal character arise in the case; but it must plainly appear that the averments attempting to bring the case within federal jurisdiction are real and substantial. 3. MONOPOLIES 28-ACTION FOR DAMAGES CAN ONLY BE MAINTAINED IF ARISING OUT OF INTERSTATE COMMERCE. The Sherman Anti-Trust Act (Comp. St. §§ 8820-8823, 8827-8830) derives its authority from the power of Congress to regulate interstate commerce, and an action for damages under section 7 (section 8829) is not maintainable, unless the dealings forming the subjectmatter of complaint were transactions of interstate commerce. 4. COMMERCE 16-TERM DEFINED. "Commerce" is not traffic alone, but is intercourse between nations and parts of nations in all its branches. The de (1) "That in each of the counts of plaintiff's original declaration, and in the additional count thereof, it appears that the plaintiff is a citizen and resident of the state of Missouri, and that this defendant is a citizen and resident of the state of Pennsylvania." (2) "That in none of said counts is a cause of action stated by plaintiff within the provisions of the act of Congress approved July 2, 1890, entitled 'An Act to protect trade and commerce against unlawful restraints and monopolies." " The court entered judgment dismissing the suit for want of jurisdiction over the defendant or the action. The record contains a certificate stating that the court found that it had no jurisdiction of the defendant and no jurisdiction to entertain the action. The certificate further states that the question involved is wheth [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Com-er the transaction set forth in the several merce.] counts of the declaration involves a question 5. COMMERCE 16-CONTRACTS FOR ADVER- of interstate commerce, and whether the TISING IN PERIODICALS NOT INTERSTATE Contracts for the insertion of advertising matter in periodicals circulating in interstate commerce do not so directly affect interstate commerce as to themselves constitute such commerce, so as to authorize an action under Sherman Anti-Trust Act, § 7 (Comp. St. § 8829), for damages resulting from defendant's attempt to monopolize the advertising business. averments in said several counts of the declaration state a cause of action within the provisions of the Act of July 2, 1890 (Comp. St. §§ 8820-8823, 8827-8830). #438 The declaration is voluminous, containing five counts *and an additional count. So far as it is necessary for our purpose, the cause of action of the plaintiff may be said to rest upon the allegations: That the plaintiff is engaged at Chicago in conducting an advertising agency. That when customers or principals desire to place advertisements in the magazines and periodicals of the trade they make plaintiff their agent, and plaintiff conSuit by the Blumenstock Bros. Advertising tracts with the defendant and other publishAgency against the Curtis Publishing Com-ers and distributors of magazines; that pany. The suit was dismissed for want of plaintiff had many customers with whom it jurisdiction, and plaintiff brings error. Af-placed advertisements in the periodicals published and distributed by the defendant and In Error to the District Court of the United States for the Northern District of Illinois. firmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *440 in other periodicals of other publishers, all of acquiring for itself and its publications, of which were distributed throughout the especially for "The Saturday Evening Post," United States and the several states there- a monopoly of the publication and distribu of; that the defendant was the owner and tion of advertising matter in this restricted publisher of three periodicals sold and dis- field of advertising throughout the United tributed throughout the United States, known States in violation of the Anti-Trust Act; as the Saturday Evening Post, the Ladies that the defendant refused without any reaHome Journal, and the Country Gentleman; sonable cause to accept proper and ordinary that the business of the defendant in pub- advertising matter or copy offered in the lishing, selling, and distributing said periodi-usual way to the defendant by the plaintiff cals was interstate commerce. The charac- and other advertising agencies unless the ter of each of the several publications is de- plaintiff, and other advertising agencies, scribed, and a large circulation is attributed would agree to allow the defendant to into each of them; and it is stated that in publishing and distributing said periodicals de crease its preponderance in said advertisfendant held itself out as desirous of taking, ing field by permitting it to control and limit receiving, printing, publishing, and distrib- and reduce, at the will of the defendant, the uting throughout the United States its pub- amount of advertising given by the plaintiff lications and advertisements to persons, and other advertising agencies to the owners firms, and corporations concerning their busi- and publishers of other magazines, journals, ness and occupation; that in the course of periodicals and other publications aforesaid, the business the defendant dealt with the which were competing with the defendant in plaintiff and other advertising agencies; that the field of advertising mentioned and dethe defendant in the regular course of its scribed; that by reason of the illegal and business dealt with not only advertisers, but wrongful acts, done by the defendant in purwith advertising agencies such as the plain- suance of its attempt and scheme to create a tiff, and it is alleged that such dealings were monopoly for its own benefit in, and to motransactions of interstate commerce, and that the business of editing, publishing and distributing throughout the United States the advertising matter contained in said publications, pursuant to contracts made with its *439 nopolize the advertising business, plaintiff lost the business of its customers for whom it had been acting as agent in placing of advertisements with defendant's and other publications, and was prevented from making further contracts for the placing of advertising matter in publications of the defendant, and in consequence thereof, in any other publication of a like or similar character, to the damage of the plaintiff in the sum of $25,000. The declaration contains an alleged cause of action at common law, but, as neither the plaintiff nor the defendant reside in the district in which the suit was brought, it is conceded that such cause of action could not be maintained in that court against the defendant's objection. Section 51, Judicial Code (Comp St. § 1033). customers and advertising *agencies was interstate commerce; that such commerce is dependent for its operation and growth upon advertising facilities offered by magazines and periodicals such as those of the defendant, and that such publications constitute the chief method of presenting to the buying public the articles held out for sale; that the advertising facilities were necessary to dealers, merchants, and manufacturers in order to bring their products to the notice and attention of purchasers; that the defendant's periodicals, particularly "The Saturday Evening Post," have an important position [1] The Sherman Anti-Trust Act (section among such publications, and are largely 7) created a cause of action in favor of any read throughout the United States; that person to recover by suit in any District Court "The Saturday Evening Post" is the most of the United States, in the district in which necessary of such advertising mediums to the the defendant resides or is found, threefold customers of the plaintiff; that the defend- damages for injury to his business or propant's periodicals, together with certain other erty by reason of anything forbidden and demagazines, periodicals and publications own-clared unlawful in the act. In order to mained by persons other than the defendant, had, tain a suit under this act the complaint must to a certain extent, exclusive control of a certain field of advertising; that the magazines and other publications which control and do all the advertising business of the field in question are few in number; that for the advertising of goods and merchandise offered for sale in commerce there were no adequate facilities except those offered by the defendant and other publishers of similar magazines; that the defendant was desirous of using its preponderant position in this special field of advertising as a means state a substantial case arising thereunder. The action is wholly statutory, and can only be brought in a District Court of the United States, and it is essential to the jurisdiction of the court in such cases that a substantial cause of action within the statute be set up. [2] In some cases it is difficult to determine whether a ruling dismissing the complaint involves the merits of the cause of action attempted to be pleaded or only a question of the jurisdiction of the court. In any case alleged to come within the federal juris (40 Sup.Ct.) diction it is not enough to allege that ques- [ throughout the country would amount to intions of a federal character arise in the case, terstate commerce, but the circulation of it must plainly appear that the averments these periodicals did not depend upon or have attempting to bring the case within federal any direct relation to the advertising conjurisdiction are real and substantial. New- tracts which the plaintiff offered and the deburyport Water Co. v. City of Newburyport, fendant refused to receive except upon the 193 U. S. 562, 576, 24 Sup. Ct. 553, 48 L. Ed. terms stated in the declaration. The adver795. tising contracts did not involve any movement of goods or merchandise in interstate commerce, or any transmission of intelligence in such commerce. *441 *In cases where, as here, the controversy concerns a subject-matter limited by federal law, for which recovery can be had only in the federal courts, the jurisdiction attaches only when the suit presents a substantial claim under an act of Congress. This rule has been applied in bankruptcy cases (Grant v. Laird, 212 U. S. 445, 29 Sup. Ct. 332, 53 L. Ed. 591), in copyright cases (Globe Newspaper Co. v. Walker, 210 U. S. 356, 28 Sup. Ct. 726, 52 L. Ed. 1096), in patent cases (Healy v. Sea Gull Specialty Co., 237 U. S. 479, 35 Sup. Ct. 658, 59 L. Ed. 1056), in admiralty cases (The Jefferson, 215 U. S. 130, 30 Sup. Ct. 54, 54 L. Ed. 125, 17 Ann. Cas. 907). We come then to inquire whether the cause of action stated was a substantial one within section 7 of the Sherman Anti-Trust Act. It is not contended that any combination, conspiracy, or contract in restraint of trade is alleged such as would bring the case within the first section of the act. The second section is relied upon which in terms punishes persons who monopolize or attempt to monopolize, or combine with others to monopolize any part of trade or commerce among the several states or with foreign na tions. This case is wholly unlike International Text-book Co. v. Pigg, 217 U. S. 91, 30 Sup. Ct. 481, 54 L. Ed. 678, 27 L. R. A. (N. S.) 493, 18 Ann. Cas. 1103, wherein there was a continuous interstate traffic in text-books and apparatus for a course of study pursued by means of correspondence, and the movements in interstate commerce were held to bring the subject-matter within the domain of federal control, and to exempt it from the burden imposed by state legislation. This case is more nearly analogous to such cases as Ficklen v. Taxing District of Shelby County, 145 U. S. 1, 12 Sup. Ct. 810, 36 L. Ed. 601, wherein this court held that a broker engaged in negotiating sales between residents of Tennessee and nonresident merchants of goods situated in another state, was not engaged in interstate *443 commerce; and within that line of *cases in which we have held that policies of insurance are not articles of commerce, and that the making of such contracts is a mere incident of commercial intercourse. Paul v. Virginia, 8 Wall. 168, 19 L. Ed. 357; Hooper v. California, 155 U. S. 648, 15 Sup. Ct. 207, 39 L. Ed. 297; N. Y. Life Ins. Co. v. Deer Lodge County, 231 U. S. 495, 34 Sup. Ct. We held in Hopkins v. 167, 58 L. Ed. 332. United States, 171 U. S. 579, 19 Sup. Ct. 40, 43 L. Ed. 290, that the buying and selling of live stock in the stockyards of a city by members of the stock exchange was not interstate commerce, although most of the live stock was sent from other states. In Wildealings with the defendant, which *form the liams v. Fears, 179 U. S. 270, 21 Sup. Ct. 128, subject-matter of complaint, were not trans- 45 L. Ed. 186, we held that labor agents enactions of interstate commerce, the declara-gaged within the state of Georgia in hiring tion states no case within the terms of the persons to be employed outside the state were act. [3] The Anti-Trust Act, it is hardly necessary to say, derives its authority from the power of Congress to regulate commerce among the states. It declares unlawful combinations, conspiracies, and contracts and attempts to monopolize which concern such trade or commerce. It follows that if the 442 [4] Commerce, as defined in the often quoted definition of Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 1, 189 (6 L. Ed. 23) is not traffic alone; it is intercourse; "it describes the commercial intercourse between nations and parts of nations in all its branches, and is regulated by prescribing rules for carrying on that intercourse." not engaged in interstate commerce. In Ware & Leland v. Mobile Co., 209 U. S. 405, 28 Sup. Ct. 526, 52 L. Ed. 855, 14 Ann. Cas. 1031, we held that brokers taking orders and transmitting them to other states for the purchase and sale of grain or cotton upon speculation were not engaged in interstate commerce; that such contracts for sale or purchase did not necessarily result in any movement of commodities in interstate traffic, and the contracts were not, therefore, the subjects of interstate commerce. [5] In the present case, treating the allegations of the complaint as true, the subjectmatter dealt with was the making of con- In the recent case of United States Fidelity tracts for the insertion of advertising matter & Guaranty Co. v. Kentucky, 231 U. S. 394, in certain periodicals belonging to the defend- 34 Sup. Ct. 122, 58 L. Ed. 283, we held that ant. It may be conceded that the circula- a tax upon a corporation engaged in the busition and distribution of such publications ness of inquiring into and reporting upon the credit and standing of persons in the state, was not unconstitutional as a burden upon interstate commerce as applied to a nonresident engaged in selecting and distributing a list of guaranteed attorneys in the United States, and having a representative in the state. The contention in that case, which this court denied, was that the service rendered through the representatives in Kentucky, and other representatives of the same kind acting as agents of merchants engaged in interstate commerce, to furnish them with information through the mails, or by telegraph, or telephone, as a result of which merchandise might be transported in interstate *444 commerce, or withheld from such transportation, according to the character of the information reported, was so connected with interstate commerce as to preclude the state of Kentucky from imposing a privilege tax upon such business. Applying the principles of these cases, it is abundantly established that there is no ground for claiming that the transactions which are the basis of the present suit, concerning advertising in journals to be subsequently distributed in interstate commerce, are contracts which directly affect such commerce. Their incidental relation thereto cannot lay the groundwork for such contentions as are undertaken to be here maintained under section 7 of the Sherman Anti-Trust Act. The court was right in dismissing the suit. Affirmed. (252 U. S. 376) CALDWELL v. PARKER, Sheriff. (Argued March 4 and 5, 1920. Decided April 1. WAR 19, 1920.) No. 636. 31-INTENTION TO DEPRIVE STATE COURTS OF JURISDICTION OF OFFENSES BY SOLDIERS MUST BE CLEAR. Conceding the power of Congress to provide that, as the mere result of a declaration of war, state authority over offenses committed by persons in the military service shall be completely destroyed, the known hostility of the American people to interference by the military with the regular administration of justice in the civil courts requires that such intention should not be ascribed to Congress, in the absence of clear and direct language to that effect. 2. WAR 32-JURISDICTION OF MILITARY COURTS OVER OFFENSES OF SOLDIERS IN TIME OF WAR NOT EXCLUSIVE. Articles of War of 1916, art. 92 (Comp. St. § 2308a), providing for punishment of murder or rape as a court-martial may direct, but prohibiting trial by court-martial in time of peace, article 93, providing for the punishment of various other offenses as a court-martial may direct, and article 74, requiring military authorities to deliver accused persons to the civil authorities, except in time of war, do not give military courts exclusive jurisdiction in time of war of offenses committed in violation of state laws by persons in the military service, and a state court has jurisdiction of such offenses. Appeal from the District Court of the United States for the Northern District of Alabama. Petition by Edgar C. Caldwell, for a writ of habeas corpus, directed to W. E. Parker, Sheriff of Calhoun County, Ala. From a judgment denying a discharge of the petitioner from custody, he appeals. Affirmed. Messrs. Henry E. Davis, of Washington, D. C., and Charles D. Kline, of Anniston, Ala., for appellant. Messrs. Neil P. Sterne, of Anniston, Ala., and J. Q. Smith, of Birmingham, Ala., for appellee. ⚫380 *Mr. Chief Justice WHITE delivered the opinion of the Court. Pending the existence of a state of war with Germany the appellant, a soldier in the army of the United States serving in a camp in Alabama, was tried and convicted for the murder of a civilian at a place within the jurisdiction of the state and not within the confines of any camp or place subject to the control of the civil or military authorities of the United States. The conviction was reviewed and affirmed by the Supreme Court of Alabama and was re-examined and reaffirmed on rehearing. The case is here to reverse the action of the court below in refusing on writ of habeas corpus a discharge which was prayed on the ground that, under the circumstances stated, the sentence was void because the state court had no jurisdiction whatever over the subject of the commission of the crime, since under the Constitution and laws of the United States that power was exclusively vested in a court-martial. As there was no demand by the military authorities for the surrender of the accused, what would have been the effect of such a demand, if made, is not before us. The contention of a total absence of jurisdiction in the state court is supported in argument, not only by the appellant, but also by the United States in a brief which it has filed as amicus curiæ. These arguments, while differing in forms of expression, rest upon the broad assumption that Congress in re-enacting the Articles of War in 1916 (Comp. St. § 2308a), by an exercise of constitutional authority, vested in the military courts during a state of war exclusive jurisdiction to try and punish persons in the military service for offenses *381 committed by them which were violative of the law of the several states. In other words, the proposition is that under the act of 1916, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |