The Victory (73 U.S. 382)/Opinion of the Court

The question which we are asked to decide-viz., whether such a case as this is one of admiralty cognizance, and is therefore exclusively within the jurisdiction of the courts of the United States, and whether the statute of Missouri, which authorized the proceeding, is for that reason void,-is an interesting one, and if it had been raised and decided in the court from which the record comes, we would be bound to decide it here. But we do not think it is a fair inference, from that record, that the question was presented to the court or was decided by it.

It has been repeatedly held by this court, that before it can entertain jurisdiction to revise the judgment of a State court, the point which we are called upon to review must have been raised, and must have been decided adversely to the plaintiff in error. This is so well established that it would be a useless labor to cite authorities to sustain it.

It is true we have said this need not appear by express averment, but if the record shows by necessary intendment that the point was decided, it is sufficient, and the cases of Craig v. The State of Missouri, and The Bridge Proprietors v. The Hoboken Company, are cited to sustain the proposition. It is one which does not need support. It is fully conceded.

But we are of opinion that it must appear that the point mentioned in the Judiciary Act was actually decided in the State court, that it received the consideration of the court, and it is not sufficient, that now, on fuller examination, with the aid of counsel here, we can see that it was a point which ought to have been raised, and which might have been decided. In the case of The Bridge Proprietors v. The Hoboken Company, cited by counsel for plaintiff, the court recites with approbation the following language from the previous case of Crowell v. Randell: 'It is not sufficient to show that the question might have arisen or been applicable to the case, unless it is further shown by the record that it did arise, and was applied by the State court to the case.'

It is insisted that inasmuch as the authority of the State court rests solely on the State statute, the validity f that statute was necessarily a point in its judgment, but it would contradict the experience of all who are familiar with courts to assume that every time a court acts under a statute, the validity of the statute or the jurisdiction of the court, receives its consideration. This is rarely so, unless the question is raised by one of the parties and called to the attention of the court.

The presumption from this record is entirely the other way. The defendant in his pleading admits impliedly the jurisdiction of the court, the validity of the statute, and the existence of the lien. He only denies that the full amount claimed is due, and no other question is raised or suggested by the bill of exceptions. Nor does it appear that any other question was raised in the Supreme Court of the State than that which was considered by the inferior court. There was, therefore, no occasion for the court to consider the question raised here by counsel.

WRIT OF ERROR DISMISSED.