291 Argument for Plaintiff in Error. Wagner v. Covington, 251 U. S. 95; American Steel & Wire Co. v. Speed, 192 U. S. 500; General Oil Co. v. Crain, 209 U. S. 211; and Bacon v. Illinois, 227 U. S. 505, relied upon by the court below, involved the constitutionality of state taxation, and are based upon facts dissimilar to the facts in the case at bar. In those cases, the articles of trade were always already inside the State of the purchaser when the contract of sale was made. The dissenting opinion below recognizes the similarity between this case and Swift & Co. v. United States, 196 U. S. 375. Decisions with regard to state taxation are inapplicable to the determination of questions arising under the Sherman Act. Stafford v. Wallace, 258 U. S. 495; Addyston Pipe Co. v. United States, 175 U. S. 211; Butler Bros. v, U. S. Rubber Co., 156 Fed. 1; Lemke v. Farmers Grain Co., 258 U. S. 50; Hump Hairpin Co. v. Emmerson, 258 U. S. 290. Films moving from New York to plaintiff through the hands of Omaha agents pursuant to contracts previously entered into, move in interstate commerce. Caldwell v. North Carolina, 187 U. S. 622. Films moving to plaintiff from points in other States within the Omaha zone, whether moving directly to plaintiff or through the hands of the Omaha agents, move in interstate commerce. Even that part of the films which were already in the State prior to the execution of the contracts between plaintiff and the defendants still remained in interstate commerce. Films are sent to Omaha for purposes of sale or lease. The local exchange is merely the solicitor of orders upon behalf of its New York principal. It does not have the power to enter into contract. Solicitation and delivery alone take place within the State. The subsequent movements from hand to hand throughout Argument for Plaintiff in Error. 263 U.S. the zone are controlled by the nonresident principal, who at no time surrenders ownership or control over the film. The films are not "at rest" upon arrival at Omaha. See Western Union Tel. Co. v: Foster, 247 U. S. 105; Western Oil Co. v. Lipscomb, 244 U. S. 346; Champlain Co. v. Brattleboro, 260 U. S. 366. To separate the shipment from New York to Omaha from the movement from Omaha to the Nebraska exhibitor, is to look solely to the matter of transportation. Mere transportation, however, does not constitute trade and therefore does not constitute commerce, as it must be understood in a discussion of the Sherman Act. Sales by branch agencies of packers to purchasers within the same State constitute interstate commerce under that act. Swift & Co. v. United States, 196 U. S. 375. See also, s. c. 122 Fed. 529; and Stafford v. Wallace, 258 U. S. 495. This case is stronger than the Swift Case, because here the contracts were with the New York principals rather than the local agents. The importance of the approval of these contracts in another State was emphasized in Hump Hairpin Co. v. Emmerson, 258 U. S. 290. If the industry be nation-wide in scope and the principals to the contract reside in different States, the application of the Sherman Act cannot be destroyed by the forms or technicalities of the original package doctrine. Even apart from prior contract, a distributing age: y is not a final destination but a mere facility. Each picture is an unique article and may itself be considered the original package. The dealings between the Omaha agencies and plaintiff in the same State are not purely local matters. Ramsay Co. v. Associated Bill Posters, 260 U. S. 501; Butler Bros. v. U. S. Rubber Co., 156 Fed. 1; United States v. Jellicoe Coal Co., 46 Fed. 432; Gibbs v. McNeely, 119 Fed. 120. It is unnecessary to establish that the films at Omaha 291 Argument for Defendants in Error. remained in interstate commerce, since the conspiracy complained of had a direct effect upon the interstate commerce of bringing films from New York to Omaha, by rendering it impossible in the future to bring films from New York for use by plaintiff in Nebraska, thus narrowing the market for the sale of films by foreign manufacturers within Nebraska. Montague & Co. v. Lowry, 193 U. S. 38; and other cases. It is immaterial whether the interstate commerce which is affected takes place prior or subsequent to the intrastate sale. Montague & Co. v. Lowry, supra; United States v. Reading Co., 226 U. S. 324; United Mine Workers v. Coronado Coal Co., 259 U. S. 344, 410; Knauer v. United States, 237 Fed. 8; Council of Defense v. International Magazine Co., 267 Fed. 390. Mr. William Marston Seabury and Mr. Arthur F. Mullen, with whom Mr. Charles B. Samuels, Mr. Elek John Ludvigh, Mr. S. F. Jacobs, Mr. Saul E. Rogers, Mr. Karl W. Kirchwey, Mr. Gabriel Hess, Mr. Siegfried F. Hartman, Mr. Oscar M. Bate, Mr. J. Robert Rubin, Mr. John J. Sullivan and Mr. Eugene N. Blazer were on the brief, for defendants in error. I. The judgment of the District Court was reviewable only under Jud. Code, § 238. United States v. Jahn, 155 U. S. 109; Boston & Maine R. R. v. Gokey, 210 U. S. 155; Wilson v. Republic Iron Co., 257 U. S. 92. In the case at bar, where the decision of the District Court denied its own jurisdiction, it is clear that even if the District Court, after deciding that it was without power to proceed, had assumed to determine other questions incidental to the merits of the controversy described in the complaint, this Court alone would have had jurisdiction to review the case, because when a court holds that it is without power to proceed it is unable thereafter to determine any other issue involved in the controversy. Argument for Defendants in Error. 263 U.S. True, the judgment of the District Court does not specify the grounds of dismissal, but its opinion, to which reference may be made for the purpose of ascertaining the grounds of the decision (Loeb v. Columbia Township Trustees, 179 U. S. 472), clearly states them. Where, as here, the cause is cognizable exclusively by a federal court, in which federal jurisdiction is invoked solely upon the ground that the cause is one arising under a federal statute, and dismissal results from the failure of the petition in a fundamental respect to state facts sufficient to constitute such a cause of action, that judgment of dismissal denies the existence of jurisdiction in the District Court as a federal tribunal and presents a strictly jurisdictional issue which is reviewable exclusively in this Court under Jud. Code, § 238. Blumenstock Bros. v. Curtis Pub. Co., 252 U. S. 436; The Steamship Jefferson, 215 U. S. 130; The Ira M. Hedges, 218 U. S. 264; Mitchell Coal Co. v. Pennsylvania R. R. Co., 230 U. S. 247; Weber v. Freed, 239 U. S. 325; The Pesaro, 255 U. S. 216; The Carlo Poma, 255 U. S. 219. Hart v. Keith Exchange, 262 U. S. 271, distinguished. II. This Court has no jurisdiction to review the judgment of the District Court except as prescribed in Jud. Code, § 238. Seney v. Swift & Co., 260 U. S. 146; Union & Planters Bank v. Memphis, 189 U. S. 71; Newburyport Water Co. v. Newburyport, 193 U. S. 561; Four Hundred and Forty-three Cans of Egg Product v. United States, 226 U. S. 172; Carolina Glass Co. v. South Carolina, 240 U. S. 305; City of New York v. Consolidated Gas Co., 253 U. S. 219; The Carlo Poma, 255 U. S. 219. The Act of September 14, 1922, amending Jud. Code, § 238, known as § 238a, has no application to the case at bar. It was passed too late to be of service to the plaintiff in error, and it clearly does not mean that, after the wrong court has gone to judgment on a case, it may then be shunted into another court for further consideration and review. 291 Argument for Defendants in Error. III. The facts stated in the complaint describe transactions which as a matter of law were local and not interstate and hence the allegations were insufficient in a jurisdictional respect to constitute a cause of action. The individual branch managers of the several corporate defendants were citizens of Nebraska, and they were not alleged to be engaged in interstate commerce. The corporate defendants are in most instances foreign corporations which are engaged generally in interstate commerce. But the transactions described in the petition did not relate to interstate commerce. They concerned local persons and local things only. It appears that, pursuant to the established custom of the trade, the defendants send a specified quantity of films to their several exchanges at Omaha, and after the films reach the exchanges they are unpacked and stored at the local offices of the defendants until they begin to rotate among the exhibitors of Nebraska, incidentally going into Iowa and South Dakota, but having their situs at the Omaha exchange, where they become and remain a part of the general property in Nebraska during their entire commercial life. When a Nebraska exhibitor wishes to rent a film from any of the defendants, he rents it from the Omaha exchange, and no interstate transaction or movement of the film is involved. The plaintiff asserted that the defendants controlled the distribution of the entire production of films in the United States, and that no films could be procured from any, other source that could be used in plaintiff's theatres, and that no films had ever been produced in the State of Nebraska. Notwithstanding this sweeping assertion, if the films of the defendants were at rest in their local exchanges when the plaintiff endeavored to rent them, interstate commerce would not be affected by a refusal of the defendants' agents in Omaha to deliver to the plaintiff in Nebraska. |