Page:Harvard Law Review Volume 4.djvu/329

313 THE CASE OF GELPCKE v. DUBUQUE, 313 and they proceeded to lay down the important principle that where the law of the State was settled, at the time the bonds were issued, in favor of the legal validity of the bonds, they could not afterwards be held invalid, even by a court which should be of opinion that the former construction of the constitution was wrong. This proposition, first established in the present case, has since, against much opposition and criticism, been steadily followed in the Supreme Court. Indeed, within a few years after the deci- sion of the present case, which was at the December term, 1863, the Supreme Court declared that the question was no longer open to controversy before them. The case has now been argued as upon a rehearing. It comes up as if we were dealing with it just after it had been decided in the Supreme Court of the United States, at a time when, if suffi- cient reason should appear, the former decision might be re- versed. Is this proposition, then, in the case of Gelpcke v. Dubuque, a sound one and rightly applied? In order to deter- mine that question we must first take several matters clearly into account. There is a well-known difference in the way in which cases may be brought into the United States courts, (a) They may come there because the case involves a question under the Constitution, treaties, or laws of the United States. In such cases the United States Supreme Court is the ultimate tribunal of appeal, whether the case has come up from a State court or from an inferior court of the United States. It has no duty of following the laws of the States, for it is now administering the law of its own government. If, in such a case, there be a question of im- pairing the obligation of a contract, and the State court has held that there is no contract to be impaired, the Supreme Court may reexamine that question with entire freedom, although it involve the construction of the constitution or statutes of the State; it is not in any way bound to follow the decision of the State court. Such an unfettered power is necessary in order to the full exer- cise of the jurisdiction of the Supreme Court. In the case of the Ohio Company v. Debolt, 16 How., at p. 432, on error to the Su- preme Court of Ohio, Chief Justice Taney, speaking, probably, for a majority of the court, remarked: *'The duty imposed upon this court to enforce contracts. . . would be vain and nugatory if we were bound to follow those changes in judicial