Page:United States Statutes at Large Volume 1.djvu/208

 clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error, the citation being signed by the chief justice, or judge or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States, in the same manner and under the same regulations, and the writ shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a circuit court, and the proceeding upon the reversal

shall also be the same, except that the Supreme Court, instead of remanding the cause for a final decision as before provided, may at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution.

But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before or any statute of the United States is drawn in question, in any suit in a State court, the decision must be against the title or right set up by the party under such clause in the constitution or statute; otherwise the Supreme Court has no appellate jurisdiction in the case.It is not sufficient that the construction of the statute was drawn in question, and that the decision was against the title.It must appear that the title set up depended on the statute. Williams v. Norris, 12Wheat. 117; 6Cond. Rep. 462.

If the construction or validity of a treaty of the United States is drawn in question in the State courts, and the decision is against its validity, or against the title set up by either party under the treaty, the Supreme Court has jurisdiction to ascertain that title, and to determine its legal meaning; and is not confined to the abstract construction of the treaty itself.Ibid.

The 2d article of the constitution of the United States enables the Supreme Court to receive jurisdiction to the full extent of the constitution, laws and treaties of the United States, when any question respecting them shall assume such form that the judicial power is capable of acting upon it.That power is capable of acting only when the subject is submitted to it by a party who asserts his right in the form prescribed by law.It then becomes a case. Osborn v. The Bank of the United States, 6 Wheat.9 Wheat. [sic] 738; 5Cond. Rep. 741.

The Supreme Court has no jurisdiction under the 25th section of the act of 1789, unless the judgment or decree of the State court be a final judgment or decree.A judgment reversing that of an inferior court, and awarding a scire facias de novo, is not a final judgment. Houston v. Moore, 3Wheat. 433; 4Cond. Rep. 286.

The Supreme Court has no appellate jurisdiction under the 25th section of the judiciary act, unless the right, title, privilege, or exemption under a statute or commission of the United States be specially set up by the party claiming it in the State court, and the decision be against the same.Montgomery v. Hernandez, 12Wheat. 129; 6Cond. Rep. 475.

It is no objection to the exercise of the appellate jurisdiction under this section, that one party is a State, and the other a citizen of that State. Cohens v. The State of Virginia, 6Wheat. 264; 5Cond. Rep. 90.

In order to brings a case for a writ of error or an appeal to the Supreme Court from the highest court of a State within the 25th section of the judiciary act, it must appear on the face of the record: 1.That some of the questions stated in that section did arise in the State court. 2.That the question was decided in the State court as required in the section.

It is not necessary that the question shall appear in the record to have been raised, and the decision made in direct and positive terms, ipsissimis verbis; but it is sufficient if it appears by clear and necessary intendment that the question must have been raised, and must have been decided, in order to induce the judgment.It is not sufficient to show that a question might have arisen and been applicable to the case, unless it is further shown, on the record, that it did arise and was applied by the State Court to the case. Crowell v. Randall, 10Peters, 368. See also Williams v. Norris, 12Wheat. 117; 6Cond. Rep. 462. Jackson v. Lamphire, 3Peters, 280. Menard v. Aspasia, 5Peters, 505. Fisher v. Cockrell, 5Peters, 248. Gelston v. Hoyt, 3Wheat. 246; 4Cond. Rep. 244. Gordon v. Caldcleugh et al., 3Cranch, 268; 1Cond. Rep. 524. Owings v. Norwood’s Lessee, 5Cranch, 344; 2Cond. Rep. 275. Buel et al. v. Van Ness, 8Wheat. 312; 5Cond. Rep. 445. Miller v. Nicholls, 4Wheat. 311; 4Cond. Rep. 465. Matthews v. Zane et al., 7Wheat. 164; 5Cond. Rep. 265. Gibbons v. Ogden, 6Wheat. 448; 5Cond. Rep. 134.

Under the 25th section of the judiciary act of 1789, three things are necessary to give the Supreme Court jurisdiction of a case brought up by writ of error or appeal: 1.The validity of a statute of the United States, or of authority exercised under a State, must be drawn in question. 2.It must be drawn in question on the ground that it is repugnant to the constitution, treaties and laws of the United States. 3.The decision of the State court must be in favour of its validity. The Commonwealth Bank of Kentucky v. Griffith et al., 14Peters, 4656 [sic]. See also Pollard’s heirs v. Kibbe, 14Peters, 353. M‘Cluny v. Silliman, 6Wheat. 598; 5Cond. Rep. 197. Weston et al. v. The City Council of Charleston, 2Peters, 449. Hickie v. Starke et al., 1Peters, 94. Sutterlee v. Matthewson, 2Peters, 380. Wilson et al. v. The Blackbird Creek Marsh Association, 2Peters, 245. Harris v. Dennie, 3Peters, 292. M‘Bride v. Hoey, 11Peters, 167. Winn’s heirs v. Jackson et al., 12Wheat. 135; 6Cond. Rep. 479. City of New Orleans v. De Armas, 9Peters, 224. Davis v. Packard, 6Peters, 41.