We are of opinion that this appeal must be dismissed, because the jurisdiction of the circuit court was 'dependent entirely upon the opposite parties to the suit or controversy being citizens of different states,' and the decree of the circuit court of appeals was final. Act of March 3, 1891, 26 Stat. at L. 828, chap. 517, § 6, U.S.C.omp. Stat. 1901, p. 549.
The circuit courts have 'original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, . . . or in which there shall be a controversy between citizens of different states, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid, . . .' Act of March 3, 1887, 24 Stat. at L. 552, chap. 373; act of August 13, 1888, 25 Stat. at L. 433, chap. 866, U.S.C.omp. Stat. 1901, p. 508.
In the present case the circuit court had jurisdiction on the ground of diverse citizenship; but it is now contended that jurisdiction also rested on the ground that the suit was one arising under the Constitution of the United States.
The rule is firmly established that a suit does not so arise unless it really and substantially involves a dispute or controversy as to the effect or construction of the Constitution, upon the determination of which the result depends, and which appears on the record by a statement in legal and logical form, such as is required in good pleading. Defiance Water Co. v. Defiance, 191 U.S. 184, ante, 63, 24 Sup. Ct. Rep. 63, and cases cited.
The averments of this bill did not bring the case within that rule, for they put forward no existing controversy as to the effect or construction of the Constitution, on which the relief depended, and set up no right which might be defeated or sustained according to such construction.
By the laws of Ohio the office of dairy and food commissioner was created, and it was made the duty of that officer to attend to the enforcement of all the laws against fraud and adulteration or impurities in food, drink, or drugs; to appoint assistant commissioners; and to employ such experts, chemists, agents, inspectors, and counsel as he might deem necessary for the proper enforcement of the laws; and that it was also made his duty to inspect any articles made or offered for sale as articles of food or drink, and to prosecute, or cause to be prosecuted, any person or persons, firm or firms, corporation or corporations engaged in the manufacture or sale of any article of food or drink adulterated in violation of any laws of the state. 1 Bates' Anno. Stat. Ohio 1897, p. 262, title III., chap. 18.
By the act of 1884, as amended in 1890, and set out in the bill, it was provided, among other things, that food should be deemed adulterated 'if it is colored, coated, polished, or powdered, whereby damage or inferiority is concealed, or if by any means it is made to appear better or of greater value than it really is.' 2 Bates' Anno. Stat. Ohio 1897, p. 2229, title V., chap. A. The proviso excepted mixtures and compounds, recognized as ordinary articles of food, not injurious to health, and labeled as required.
It is not asserted that this police regulation is in contravention of the Constitution of the United States, but it is said that when the commissioner, in the discharge of his duty under the law, reached the conclusion that the coating of Ariosa with a glaze of sugar and eggs was calculated to conceal damage or inferiority, and to make the article appear better or of greater value than it really was, and that the article was not a compound or mixture, and proposed to prosecute, he thereby construed the act in a way, which, if his construction were correct, would render it unconstitutional.
But these were findings of fact which resulted in bringing the article within the prohibition, and excluded it from the proviso, and neither findings nor prosecutions would in themselves constitute a deprivation of property, or a denial of the equal protection of the law, by the state, or any direct interference with interstate commerce, and the constitutionality of the statute was conceded.
The suggested controversy was purely hypothetical, and based the supposed constitutional objections on the contingency that, on issues of fact, it might be judicially determined that Ariosa came within the statute, which complainants denied.
If the commissioner's conclusions were erroneous, the courts were open for the correction of the error, and the possibility that they might agree with the commissioner could not be laid hold of as tantamount to an actual controversy as to the effect of the Constitution on the determination of which the result of the present suit depended. Indeed, in the only case called to our attention by counsel involving the status of Ariosa, the court of common pleas of Lucas county, Ohio, held that it was not within the prohibition of the statute. White v. Ohio, 12 Ohio N. P. 659.
Reference to the Constitution to strengthen objections to a particular construction, or the pursuit of a certain course of conduct, is not sufficient to invoke jurisdiction. Whatever grounds of equity interposition may have existed here,-and we express no opinion on that subject,-the jurisdiction of the circuit court as a court of the United States depended alone on diverse citizenship. If the allegation of that fact had been omitted from the bill, the jurisdiction could not have been maintained.
Mr. Justice Day took no part in the disposition of the case.