Page:United States Reports, Volume 209.djvu/169

 ' 209 U.S. Opinion of the Oourt. "It is most true that this court will not take'jurisdiction if it should not; but it is equally true that it must take juris- 'diction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the cnnfmes of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever diffia/lties, a case may be attended, we must decide it, if it be brought before ns. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is to exercise our best judgment, and conscientiously perform our duty." Coming to a consideration of the case, we find that the com- pl*innts in the suit commenced in the Circuit Court were 'stockholders in the Northern Paci/ic 11allway Company, and the rea)n for commencing it and making the railroad com- pany one of the parties defendant is sufficiently set forth in the bill. Davis &c. Co. v. Los Anje/e,, 189 U.S. 20, 220; Equity Rule 94, Supreme Court. It is primarily asserted on the part of the petitioner that jurisdiction did not exist in the Circuit Court because there was not the requisite diversity of citizenship, and there was no question arising under the Constitution or laws of the Uni- ted States to otherwise give juriiction to that court. There is no claim made here of jurisdiction on the ground of diver- sity of citizenship, and the claim, if made, would be unfounded in fact. If no other ground exists, then the order of the Cir- cuit Court, assuming to punish petitioner for contempt, was an unlawful order, made by a court without jurisdiction. In such case this court, upon proper application, will disc. harg e the person from imprisonment. Ez parte Yarbroh, 110 U.S. 651; Ex parte Fik, 113 U.S. 713; In re A!lers, 123 U.S. 443, 485. But an examination of the record before us shows that there are Federal questions in this case. It is insisted by the petitioner that there is no Federal ques-

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