This was an action by the United States against the principal and sureties on a bond, given conformably to the act of August 13, 1894, chap. 280, 28 Stat. at. L. 278, U.S.C.omp. Stat. 1901, p. 2523, as amended February 24, 1905, chap. 778, 33 Stat. at L. 811, U.S.C.omp. Stat. Supp. 1909, p. 948, for the performance of a contract for the construction of a public building, and containing the required additional condition relating to the payment of claims for labor and materials. As stated in the declaration, the right of action arose out of the fact that, although the building had been satisfactorily completed, and full payment therefor had been made to the contractor, the latter had failed to make payment to designated subcontractors who had furnished labor and materials used in the construction of the building. The action was brought in the circuit court of the district whereof the defendants were inhabitants, which, as appeared on the face of the declaration, was not the district in which the contract was to be performed. The subcontractors intervened and asked to have their claims adjudicated and judgment rendered thereon. The principal in the bond did not appear, but the sureties appeared specially, and interposed pleas to the jurisdiction, upon the ground that, under the statute, conformably to which the bond was given, power to entertain the action was vested exclusively in the circuit court of the district wherein the contract was to be performed. The pleas were sustained and the action dismissed for want of jurisdiction, whereupon this direct writ of error was sued out and the jurisdictional question duly certified.
Before coming to that question it is necessary to consider a motion to dismiss, wherein the position is taken that the jurisdiction of the circuit court was not in issue in the sense of the 5th section of the act of March 3, 1891, chap. 517, 26 Stat. at L. 826, U.S.C.omp. Stat. 1901, p. 549. The position evidently rests upon a misconception of the true import of the clause, 'In any case in which the jurisdiction of the court is in issue,' in that section, as interpreted by repeated decisions of this court, which, with one accord, hold that the jurisdiction of a circuit or district court is in issue in the sense intended whenever the power of the court to hear and determine the cause, as defined or limited by the Constitution or statutes of the United States, is in controversy. The cases of Louisville Trust Co. v. Knott, 191 U.S. 225, 48 L. ed. 159, 24 Sup. Ct. Rep. 119; United States v. Larkin, 208 U.S. 333, 52 L. ed. 517, 28 Sup. Ct. Rep. 417; and Fore River Shipbuilding Co. v. Hagg, 219 U.S. 175, 55 L. ed. 163, 31 Sup. Ct. Rep. 185, cited in support of the motion, do not conflict, but fully accord, with this holding. In the first case, as this court was careful to state, the power of the circuit court under the Federal law was not in controversy, but only its authority, in the exercise of that power, to proceed in harmony with recognized rules of law applicable alike to all courts, whether Federal or state, possessing concurrent jurisdiction. In the second case, neither the interpretation nor the operation of any statute defining or limiting the power of the district court was in issue, but only the place of seizure of jewels sought to be forfeited as fraudulently imported, which was a subsidiary matter, not amounting to a jurisdictional question in the sense of the statute. In the third case, the issue related, as was expressly said, to the applicability of a rule of law which was general in its nature, and quite as controlling in other courts as in those of Federal creation. And so it was that in those cases the jurisdiction of the courts below was held not to have been in issue in the sense intended. On the other hand, in Davidson Bros. Marble Co. v. United States, 213 U.S. 10, 53 L. ed. 675, 29 Sup. Ct. Rep. 324, a case closely in point here, the application of the same guiding principle operated to sustain our jurisdiction. There, as here, the objection to the jurisdiction of the circuit court was that the action was brought in one district, when, under the Federal statutes, rightly interpreted, it should have been brought in another. The objection was overruled, the case came here upon a direct writ of error, and the ruling was reviewed and reversed; it being said in the opinion: 'A party who is sued in the wrong district, and does not waive the objection, may of right appear specially and object to the jurisdiction of the court, and, the decision being against his objection, may of right bring the question directly to this court.'