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which govern the progress of such cases to final judgment, and is not intended to prescribe the considerations which should govern this court in forming that judgment.

here for revision.

5. But the language of the Statute in making the jurisdiction of this court depend on the decision of certain questions by the State Court against the rights set up under federal law or authority, conveys the strongest implication that these questions alone are to be considered when the case is brought 6. This view is confirmed by the course of decision in this court for eighty years; by the policy of Congress as shown in numerous statutes conferring the jurisdiction of this class of cases in courts of original jurisdiction, viz. the district and circuit courts, whether originally or by removal from State Courts, when it intends the whole case to be tried; and by the manifest purpose which caused the passage of the law.

7. In construing the present statute as compared with the Act of 1789, we are of opinion that we are not so closely restricted to the face of the record In determining whether one of the questions mentioned in it has been decided in the State Court, and that we may, under this statute, look to the properly certified opinion of the State Court, when 8. And we hold the following proposition as governing our examination and our judgments and decrees in this class of cases, under the statute as now found in the recent revision of the Acts of Congress.

any has been delivered in the case.

(a) That it is essential to the jurisdiction of this court over the judgment or decree of the State Court, that it shall appear that one of the questions mentioned in the statute must have been raised and presented to the State Court; that it must have been decided by the State Court against the right claimed or asserted by plaintiff in error under the Constitution, treaties, laws or authority of the United States; or that such a decision was necessary to the judgment or decree rendered in the case. (b) These things appearing, this court has jurisdiction and must examine the judgment, so far as to enable it to decide whether this claim of right was correctly adjudicated by the State Court. (c) If it finds that it was rightly decided, the

judgment must be affirmed.

(d) If it was erroneously decided, then the court must further inquire whether there is any other matter or issue adjudged by the State Court; sufficiently broad to maintain the judgment, notwithstanding the error in the decision of the federal question. If this be found to be the case, the judgment must be affirmed, without examination into the soundness of the decision of such other matter

or issue.

(e) But if it be found that the issue raised by the question of federal law must control the whole case, or that there has been no decision by the State Court of any other matter which is sufficient of itself to maintain the judgment, then this court will reverse that judgment, and will either render such judgment here as the State Court should have rendered, or will remand the case to that court for further proceedings, as the circumstances of the case may require.

9. These principles, applied to the present case, show that we have jurisdiction of it, and that the judgment of the State Court must be affirmed.

[No. 4.]

through the agency of a trustee, "in case the same shall not be appropriated by the United States for that purpose."

The United States accepted the donation for this purpose, but finding it impolitic to construct a navy yard, soon afterwards confined the appropriation to a rope-walk, and held it for this subordinate purpose until August, 1854, when the government finally abandoned the entire project, and returned the property to the City by the Act of Congress of August 5, 1854.

The defendants in error answer, stating that the United States ceded the property back to the City by this Act of Congress and that, by virtue thereof, it became the absolute owner of the same, freed from all trusts in behalf of plaintiffs in error.

Against this admission of the answer that by this Act of Congress the United States ceded the property back to the City, the majority opinion of the Supreme Court of the State, to which complainants appealed upon dismissal of the bill, held that this Act constituted a gift to the City, and not a return, and by its decree held that the plaintiffs in error took no benefit under the said Act.

The dissenting opinion held that it was a relinquishment and return of the property, and that the original trust re-attached.

This raises the first question, and the one upon which the jurisdiction of the court rests. The other questions presented by the record, if they are open in this court under the Judiciary Act of 1867, are:

2. Was the property not appropriated to the purpose of a navy yard in the sense of a compromise deed?

3. If it was so appropriated, upon the subsequent abandonment by the United States, did it revest in the donors?

4. Were the defendants in error, by reason of their relation to the plaintiffs in error (tenants in common and trust under the compromise deed) precluded from accepting the property demand of these trusts?

The case was argued before this court, Jan. 21, 1873, chiefly on the question of jurisdiction; but the court, wishing to have it discussed still further, on March 10, 1873, made an order for re-argument on April 1, of the following propositions:

1. Does the 2d section of the Act of February 5, 1867, repeal all or any part of the 25th section of the Act of 1789, commonly called the Judiciary Act?

2. Is it the true intent and meaning of the

Argued Jan. 21, 1873, Re-Argued Apr. 2, 3, Act of 1867, above referred to, that when this

1873. Decided Jan. 11, 1875.

IN ERROR to the
N_ERROR_to the Supreme Court of the

The bill in this case was filed in the Chancery Court of Memphis, Tennessee, by the plaintiffs in error, to recover an undivided half of certain lands known as the Navy Yard grounds at Memphis. The said plaintiffs in error, in common with other part owners, deeded the said lands to their co-tenant, the City of Memphis, as they allege, in trust to convey the same as a donation to the United States Government for a navy yard; and provided further for a sale of this property, and a division of the proceeds between them in the above proportions,

court has jurisdiction of a case by reason of any questions therein mentioned, it shall proceed to decide all the questions presented by the record which are necessary to a final judgment or decree?

3. If this question be answered affirmatively, does the Constitution of the United States authorize Congress to confer such a jurisdiction on this court?

Messrs. J. B. Heiskell, H. Craft Gantt, W. I. Scott and D. K. McRae, for plaintiffs in

error:

Is the Act of 1789 repealed by that of 1867, known as the amendatory Judiciary Act?

1. Notwithstanding the repeal of statutes by implication is not favored, they are so repealed

as effectually se by express enactment, when this intent of the Legislature is apparent.

2. A statute which revises the subject-matter of a former statute, works a repeal.

Lewis v. Stout, 22 Wis. 234; Conley v. Supervisors, etc., 2 W. Va., 416.

3. This it will do although it be not repugnant, if the intent appear to prescribe the only rule in the case provided for.

Swann v. Buck, 40 Miss., 268; Sacramento v. Bird, 15 Cal., 294; California v. Conkling, 19 Cal., 501.

4. If a subsequent statute, revising the subject-matter of a former one, appear to be intended as a substitute, it will operate as a repeal by implication.

Stirman v. State, 21 Tex., 734; Farr v. Brackett, 30 Vt., 344; Giddings v. Cox, 31 Vt., 607; Wakefield v. Phelps, 37 N. H., 295.

5. In so far as subsequent statute is a literal transcript of a former one, it is a substitution, for it is not the intention of the Legislature to cumber the statute books with duplicates of the same subject-matter.

6. If there be material additions inconsistent with the former, or repugnant to its provisions, the additions stand, and that which is identical with the former is substituted for it.

7. If the latter statute on the same subjectmatter omits provisions of the former, the parts omitted are annulled.

Pingree v. Snell, 42 Me., 53; Gardner v. The Collector, 6 Wall., 502, 18 L. ed., 890.

1. Errors may be assigned or regarded as ground for revisal other than such as appears on the face of the record, and immediately respect the questions of validity, etc., because the restriction is removed.

2. The proceeding, upon revisal, is essentially changed.

Here, then, is an Act amendatory of a former, revising its provisions, enlarging some and annulling others, prescribing a new rule and furnishing a complete substitute.

This court may also look for the intent of Congress, to the cotemporaneous legislation; as the several Acts for the removal of causes from the State Courts to the National Tribunal. See, Acts, 1863, 1866, 1867.

All these have their origin in the apprehension of an obstruction of the regular administration of justice from local and state attach ments, prejudices, jealousies and interests; the idea of the National Legislature evidently being, that the appellate power of the supreme judicial power of the Nation, constituted by the people of the United States themselves, cannot be detrimental, but must be beneficial in fulfilling effectually the beneficient ends of the Constitution.

If the Act of 1789 be repealed, does the Act of 1867 authorize the Supreme Court of the United States to review all questions in the record, or is the jurisdiction confined to the federal questions?

In so far as the purpose of Congress and the meaning of the Act is concerned, there can scarcely be a doubt.

The language of the Act, taken literally, declares that "the judgment and decree may be re-examined and revised, or affirmed in the Supreme Court of the United States, upon a writ of error (and in proper cases upon an appeal) in the same manner and with the same regula

tions as if it had been passed in a court of the United States," and the writ shall have the same effect as if the judgment or decree had so passed.

In order to rightly ascertain the force of this position on the point now debated, we must not lose sight of the matter omitted.

What is the restriction expressly interposed in the statute revised?

That restriction was placed in the former Act for an object. It was so placed because it was considered necessary for that object. Not Ex abundanti cautela, but for the reason that, without such express restriction, there could be no such implication from the previous clause of the enactment; but the plain and manifest interpretation would defeat the object.

Hence, in the former Act the prohibition was inserted in positive terms.

Now, in the revising Act it is wholly omitted and annulled, and the conclusion is inevitable that the object no longer exists.

But it not only had an object but a meaning. It is a restriction of the jurisdiction of the court, within defined and located lines, in language positively mandatory, and by force of it has this court almost universally declared itself restrained to the record and the questions which were allowed to be presented.

As early as the case of Durousseau v. U. S., 6 Cranch, 307, Ch. J. Marshall used this language: "Had the Judicial Act created the Supreme Court, without defining or limiting its jurisdiction, it must have been considered as possessing all the jurisdiction which the Constitution assigned to it. And in omitting to exercise the right of excepting from its constitutional power, would have necessarily left those powers undiminished. The appellate powers of this court are not given by the Judicial Act; they are given by the Constitution. But they are limited and regulated by the Judicial Act."

And in Gelston v. Hoyt, 3 Wheat., 326, Justice Story puts the want of power to examine other than the federal question, that "The Act of Congress has expressly precluded us from a consideration of such a question."

It is evident that, in the former case, Ch. J. Marshall had reference to the express limitation contained in the last clause of the 25th section of the Act of 1789.

For in Osborne v. The Bank, 9 Wheat., 819, he holds, as the opinion of the court that, under the Constitution, extending the judicial power to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made or which shall be made under their authority, the judicial department receives jurisdiction to the full extent of the Constitution, laws, etc. And this, although several questions may arise in it, which depend on the general principles of law, not on any Act of Congress, and that it is the duty of the court to examine the whole case and all questions arising in it, or otherwise a clause in the Constitution relating to a subject of vital importance, and expressed in the most comprehensive terms, would be construed to mean almost nothing.

It is true, this case was upon a writ of error to the Circuit Court of the United States. But the question was upon the extent of the judicial power under the Constitution.

The two Acts, construed together, enforce

Messrs. W. T. Otto, J. M. Carlisle, J. D. McPherson and Estes & Jackson, for defendants in error:

the conclusion that the intent of the amendatory | dent unqualified, intended to commit it to its Act is to open all questions to a re-examination, liberal interpretation. when the jurisdiction is once received. For the limitation in the first Act was deemed essential, in order to introduce the restriction, and it is a necessary inference that when Congress, by omitting, annulled the limitation, it had in view the removal of the restriction, not doubting that it had the power to do so, and that by this means it accomplished it.

The phraseology of the Acts leads to this construction.

It is not that the judgment or decree may be examined, but re-examined, and there can be no re-examination of a matter that has not heretofore been examined; and this right to re-examine, that is, to examine over again the judgment or decree, would have involved as full and complete examination as had before been given, if it were not that this re-examination was confined and made partial by the limitation imposed.

Again; there is much force to aid this construction in the authority given to this court by the Act of 1867, in its discretion to proceed to final decision and award execution, or remand the same (that is, the cause) to an inferior court. By "inferior court" is here meant, either the highest court of the State from which the appeal had come, or to which the writ of error had been directed, and thus by Act of Congress, designated that, as in relation to such case-an inferior and subordinate tribunal, subject to the mandate of the appellate court-and so set at rest any remaining impression to the contrary, thus clearly impressing the court with the full and adequate capacity and authority to re-examine the judgment and decree.

If this latter be the true meaning, which is the most likely, it necessitates the conclusion that this court, as of last resort, must have passed upon the whole case.

Suppose in a case where, besides a decision against a title claimed under an Act of Congress, there were general principles involved, which were also decided, and upon a writ of error the case should go to the highest court of the State, and the judgment be affirmed, but a writ of error, operating as a supersedeas, should then be taken from this court, no mandate would go down from the appellate State Court to the inferior court. If, then, this court, examining only the federal question, should remand the cause for a venire de novo, how could the inferior court be put in possession of the decision of the appellate court of the State, and its mandate upon those general questions which this court has left unnoticed?

The conclusion is irresistible, that Congress, by allowing this power to this court, had in contemplation that it should dispose of the whole case.

Finally, upon this point: the writ in which are the assignments of error, cannot have the same effect as if the judgment or decree had been rendered or passed in a Court of the United States, unless all the errors were passed upon; and as there is no longer any prohibition of errors that may be assigned or regarded, but the express prohibition heretofore existing is annulled, it follows that this statute must have effect according to its language, and it must be considered that the Legislature, in removing the express qualification, leaving the antece

Upon the questions proposed for re-argument, we maintain the following propositions: 1. That the 2d section of the Act of 1867 does not repeal the whole, but only (and by implication) a part of the 25th section of the Act of 1789. It leaves unrepealed the final clause of the 25th section, which limits the grounds of reversal to such as respect federal questions involved.

2. If the said final clause of the 25th section. be repealed, then the Act of 1867 does not prohibit this court to decide all questions presented by the record, which are necessary to a final judgment or decree.

3. But the Constitution does not authorize Congress to confer upon this court jurisdiction to decide all questions presented in this record, unless the decision of the same be necessary to give effect to some federal right, which has been denied by a State Court, and upon the denial of which only, the jurisdiction of this court attached.

I. The scheme of the Act of 1789 is this:

1. The Supreme Court may review all cases in State Courts in which a right or exemption has been claimed under the Constitution or laws of the United States, and has been denied. 2. The Supreme Court can reverse only when such a claim has been wrongfully denied.

3. In case of such reversal, the Supreme Court can consider every question presented by the record, necessary to final judgment or decree on the merits.

While the Constitution, in general terms, gives jurisdiction of all cases arising under the Constitution, laws and treaties of the United States, the Act of Congress of 1789 does not define the jurisdiction in the words of the Constitution, or in any equivalent terms.

It undertakes to accomplish the object by enumeration of the classes of cases which may come up for decision, and by confining the decisions of the court thereon within the proper sphere of federal jurisdiction. And the provisions of the Act always work out this result, viz.: that the judgment of the State Court must be affirmed, unless this court shall find that a right was properly claimed under the Constitution and laws of the United States, and being so properly claimed, was wrongfully denied.

All the cases included in the 25th section may be resolved into several classes of rights denied. There are three classes of enumerated cases; the first and third include rights granted by the Constitution and laws of the United States; the second includes rights to immunity from the operation of state laws repugnant to the Constitution and laws of the United States. When the claim to a right of either class is denied, the jurisdiction of this court attaches under the Act of 1789; but if the denial of such claim be proper, if there be no error therein, this court cannot reverse, and so must affirm, the decision of the State Court, whatever may be its opinion on other questions presented by the record. And this is as it should be: for what reason has the federal judiciary to interfere with the judiciary of the States, so

long as that judiciary does not deny to any party any right guarantied or given under the Constitution and laws of the United States? When this court determines that there is error in the judgment of the State Court denying the claim set up, then and not until then, it may reverse the judgment of the State Court, and open the cause to such judgment as the court itself shall pronounce to give effect to the whole. And this is as it should be. A right guarantied by the federal authority having been denied and disregarded by the State Court, if the federal judiciary should not take the cause in its own hands to enforce that right, the laws of the United States would be a dead letter. And while, in proceeding to enforce such rights, this court must necessarily decide questions of state law, it avoids any unnecessary interference with the state jurisdiction, by taking, as far as possible, the state law to be declared by the State Courts.

II. In cases coming up under the Act of 1867, if error be found in the decision denying a federal right claimed, the course of the court would be the same as under the Act of 1789. It is only in cases where the decision of the State Court on the federal question shall be found to be correct, that a question arises as to the course to be pursued. Under the Act of 1789, the course would be to affirm. What shall it be under the Act of 1867 ?

jurisdiction; the second concerns only the ex ercise of the jurisdiction.

Whether the last clause of the 25th section stand or fall, the class of cases coming within the jurisdiction of this court under the 2d section of the Act of Feb. 5, 1867, remains the same. No motion to dismiss for want of jurisdiction is ever founded on that clause.

The court must take jurisdiction and re-examine the decisions of a State Court, to a certain point, before the second clause of the section comes into operation.

Such being the office of the clause, is it repealed simply by not being repeated in the Act of 1867 (for there are no express words of repeal in that Act)? The repeal, then, if effected, must be by implication only. The doctrine of text books is strong against repeal by implication. Dwarris, on Statutes and Constitution, says: "The leaning of the courts is so strong against repealing the positive provisions of a former statute by construction, as almost to establish the doctrine of no repeal by implication.

See, further, the Am. Notes, No. 4, to Potter's Dwarris, ed. 1871, p. 154.

The decisions of this court support the positions above taken. Mr. Justice Story, delivering the opinion of this court in Wood v. U. S., 16 Pet., 342, 362, said:

"There must be a positive repugnancy beIf, in a suit in equity for an account between the provisions of the new law and those tween two citizens of the same State, the de- of the old; and even then the old law is refendant should set up that he was entitled un- pealed by implication only pro tanto to the exder the Constitution of the United States to tent of the repugnancy." trial by jury, and the court should overrule the objection and proceed to a decree for the complainants, and on the case being brought here by writ of error, this court should concur with the State Court in the decision of the federal question, must this court, or can this court, proceed to examine every question raised in the record?

Such, on the first impression, might seem to be the duty of the court, if the construction of the Act of 1867 be not controlled by reference to the Constitution, and if the decision of the court be freed from the restraint imposed by the second clause of the 25th section of the Act of 1789. In the jurisdiction to re-examine, and to affirm or reverse cases brought up under the Act of 1967, and in cases of reversal proceed to final decision and award execution, it is difficult to see in the Act itself anything to prevent this court from deciding every question at issue between the parties which it is necessary to decide to dispose of the case upon the merits. But if this court pursue this course, it determines a controversy between two citizens of the same State in a matter depending solely upon questions of state law, and in so doing, we submit, manifestly encroaches upon the exclusive province of the judiciary of the State. III. Let us now consider whether the last clause of the 25th section of the Art of 1789 is repealed by the Act of 1867.

The 25th section contains two distinct members.

The first gives this court jurisdiction of certain cases.

The second forbids this court to reverse the decisions of the State Courts, except in certain

cases.

The first clause concerns only the grant of

That there is no repugnancy between the second clause of the 25th section and the 2d section of the Act of 1867 is manifest when we consider that the latter section is a transcript from the former section in all that relates to this subject; the only material difference being that, whereas, in case of reversal, the Act of 1789 required that the cause should be once remanded before this court could proceed to a final decision, the Act of 1867 authorizing the court on the first hearing to proceed to a final decision. This change, although in the highest degree important, does not affect the question as to the jurisdiction to reverse. It concerns a subsequent stage of the case. And as the second clause of the 25th section has stood with the first clause of the same section, so it may stand equally with the 2d section of the Act of 1867. It covers entirely different ground. The court may take jurisdiction of cases under the Act of 1867, as it has heretofore done under the Act of 1789, and in case of reversal, may pursue the more speedy course prescribed by the latter Act; but in determining for what causes it may reverse, it finds nothing whatever in the Act of 1867, nor elsewhere than in the Act of 1789.

But again, says Dwarris: "In every Act professing to repeal or interfere with the provisions of a former law, it is a question of construction whether it operates as a total or partial or temporary repeal." Dwarris, Stat., Potter's ed., 1871, p. 158.

And Mr. Justice Story, in the case above cited, argues not only from a comparison of the two statutes supposed to be in conflict, but from the object and character of the system of laws of which those two form a part, against the intention of Congress to repeal the earlier

statute. A similar argument may be urged with great force against the repeal suggested here.

If Congress intends now to pass this limit, to extend the judicial power of the United States over a class of cases which has never yet been subject to federal authority, this court surely has a right to look for something more certain than the mere omission of a part of an Act, in a later Act, which does not purport to cover the whole subject of the former, but leaves the court to discover by inference and construction, what part of the former Act is covered, and so suspended and repealed. If ever clear and unambiguous language is required in legislation, it would seem to be in defining the jurisdiction of the courts; and it seems monstrous that the tribunals appointed to construe the law should first have to discover by construction whether they have the power to construe them.

In the American editor's note, 5, to the passage of Dwarris cited above, he cites authorities to show that "The more natural if not necessary inference is, that the Legislation intended the new law to be auxiliary to and in aid of the purpose of the old law." We submit that this intention on the part of Congress in the present case is quite apparent.

IV. The power of Congress in respect to the jurisdiction of this court, conferred by the Constitution, is confined to the appellate jurisdiction only. After enumerating the cases of original jurisdiction, the Constitution, art. III., sec. 2, provides: "In all the cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as Congress shall make."

The power here given is to regulate the exercise of jurisdiction, not to confer it. For the limit of that jurisdiction, we are referred to the previous definition of the federal jurisdiction in the Constitution itself.

It is no longer, if it ever was, an open question whether cases in which a federal question arises merely collaterally, are within the grant of federal judicial power. That was affirmed in the Act of 1789-which is a contemporaneous construction of the Constitution (Cohens v. Virginia, 6 Wheat., 264), and has always been followed by this court. The Constitution, so construed, does not mean that such a case is a suit founded upon a federal law, but that when, in a suit founded upon a private contract between individuals, the construction of a federal law is drawn in question, then a case arises, and the federal jurisdiction attaches.

But in construing the Constitution in the light of the Act of 1789, we must take the whole Act into consideration, and especially the whole of the 25th section. And by that we find that, while in terms a section in its first clause, it purports to give jurisdiction of any case in which a claim of federal right has been denied; yet, the whole section taken together, gives jurisdiction to decide the whole case only when a claim of federal right has been wrongfully denied. The Act of 1789 is, therefore, no authority for the position, that when a federal question arises within the terms of the 1st clause of the Act of 1789, the court may proceed to decide the whole case; for this court has not exercised such jurisdiction upon such a

|

case merely. It does not exercise jurisdiction of the whole case, until it shall have found that a claim of federal right has been not merely denied, but also wrongfully denied.

In considering the question whether this court had acquired jurisdiction to determine cases decided in the State Court, where no federal right was denied, we suggest that the circumstance just mentioned demands some consideration. If the determination of such cases be within the judicial power of the United States, it follows that from the organization of the government to the present time, Congress has omitted to provide for the exercise of the judicial power of the United States in a vast class of cases arising under the Constitution, laws and treaties of the United States. Such an omission, said this court in Martin v. Hunter's Lessee, 1 Wheat., 304, is not to be imputed to Congress.

Said the court in that case: "Let this (the third) article be carefully weighed and considered. The language of the article throughout is manifestly designed to be mandatory upon the Legislature. P. 326. The judicial power must, therefore, be vested in some court by Congress; and to suppose it was not an obligation binding upon them, but might, at their pleasure, be omitted or declined, is to suppose that under the sanction of the Constitution, they might defeat the Constitution itself. A construction which would lead to such a result cannot be sound, P. 327.

The judicial power shall extend to all cases enumerated in the Constitution. There are two classes of cases enumerated in the Constitution between which a distinction seems to be drawn. The first class includes cases arising under the Constitution, laws and treaties of the United States; cases affecting ambassadors, other public ministers and consuls, and cases of admiralty and maritime jurisdiction.

In this class the expression is, "And that the judicial power shall extend to all cases;" but in the subsequent part of the clause, which embraces all the other cases of national cognizance, and forms the second class, the word "all" is dropped, seemingly, or ex industria.

The vital importance of all the cases enumerated in the first class to the national sovereignty, might warrant such a distinction. Pp. 333, 334.

This opinion is an elaborate commentary on the Act of 1789, and we regard the passages from which the above extracts are taken as authority for these propositions, viz.: that the whole judicial power of the United States, in respect to cases arising under the Constitution. laws and treaties of the United States, had, been in an appellate form vested in the Supreme Court of the United States; and every case so arising had been provided for in that Act; and that the jurisdiction of the court, in respect of those cases, was limited only by the Constitution itself. This being so, we do not see how Congress can, by any supposed power of regulation, enlarge the jurisdiction of this court, either to consider any new class of cases arising under the Constitution, laws and treaties of the United States, or confer on this court jurisdiction to pronounce judgments or decrees which heretofore it could not pronounce. If, however, this be so, it appears to us that the 2d clause of the 25th section of the

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