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1874.

MURDOCK V. MAYOR, ETC., OF MEMPHIS.

under this Act of the United States, which was decided against them by the Supreme Court of Tennessee, and this claim gives jurisdiction of that question to this court.

But we need not consume many words to prove that neither by the deed of the Mayor and Aldermen of the City to the United States, which 638*] is an ordinary deed of bargain and sale for a valuable consideration, nor from anything found in the Act of 1854, 10 Stat. at L., 586, is there any such trust to be inferred. The Act, so far from recognizing or implying any such trust, cedes the property to the Mayor and Aldermen for the use of the City. We are, therefore, of opinion that this, the only federal question in the case, was rightly decided by the Supreme Court of Tennessee.

But conceding this to be true, the plaintiffs in error have argued that the court having jurisdiction of the case must not examine it upon all the questions which affect its merits; and they insist that the conveyance by which the City of Memphis received the title previous to the deed from the City to the government, and the circumstances attending the making of the former deed are such, that when the title reverted to the City, a trust was raised for the benefit of plaintiffs.

After what has been said in the previous part of this opinion, we need discuss this matter no further. The claim of right here set up is one to be determined by the general principles of equity jurisprudence, and is unaffected by anything found in the Constitution, laws or Whether detreaties of the United States. cided well or otherwise by the State Court, we have no authority to inquire. According to the principles we have laid down as applicable to this class of cases, the judgment of the Supreme Court of Tennessee must be affirmed.

The Chief Justice, not having been a member of the court when the case was argued, takes no part in its decision.

Mr. Justice Clifford, dissenting:

I dissent from so much of the opinion of the court as denies the jurisdiction of this court to determine the whole case, where it appears that the record presents a federal question and that the federal question was erroneously decided to the prejudice of the plaintiff in error; as in 639] that *state of the record it is, in my judgment, the duty of this court, under the recent Act of Congress, to decide the whole merits of the controversy, and to affirm or reverse the judgment of the State Court. Tested by the new law it would seem that it must be so, as this court cannot in that state of the record dismiss the writ of error, nor can the court reverse the judgment without deciding every question which the record presents.

Where the federal question is rightly decided the judgment of the State Court may be affirmed upon the ground that the jurisdiction does not attach to the other questions involved in the merits of the controversy, but where the federal question is erroneously decided the whole merits must be decided by this court, else the new law, which it is admitted repeals the 25th section of the Judiciary Act, is without meaning, operation or effect, except to repeal the prior law.

Sufficient proof of the fact that the new law

was not intended to be without meaning and
effective operation is found in the fact that the
provision in the old law which restricts the
right of the plaintiff in error or appellant to
assign for error any matter except such as re-
spects one of the federal questions enumerated
in the 25th section of the Judiciary Act, is
wholly omitted in the new law.
Mr. Justice Swayne concurs in this dissent.

Mr. Justice Bradley dissenting:

I feel obliged to dissent from the conclusion to which a majority of the court has come on the public question in this cause, but shall content myself with stating briefly the grounds of that dissent, without entering into any prolonged argument on the subject.

Meantime, however, it is proper to say that I deem it very doubtful whether the court has any jurisdiction at all over this particular case. The complainants claim the property in question under the terms, and what they regard as the true construction, of the trust deed of July, 1844, whereby the property was conveyed to the City of Memphis "for the location of the naval depot;" and to Wheatley, trustee for "the grantors, "in case the same shall [*640 not be appropriated by the United States for that purpose.'

This deed was acknowledged

on the 19th of September, 1844, and (probably
at the same time) a deed dated 14th of Sep-
tember, 1844, was executed by the City to the
United States, conveying the land in fee with-
out any conditions or uses expressed. Opera-
tions for erecting and establishing a navy yard
on the premises were commenced and were
continued for several years, but were finally
abandoned, and on the 5th of August, 1854,
Congress, by an Act, ceded the property to the
City of Memphis for the use and benefit of the
City. The defendants, the City of Memphis,
claim both legal and beneficial title to the prop-
erty under this Act of Congress, and the Su-
preme Court of Tennessee sustained the claim
-or, at least, did not sustain the adverse claim
of the complainants. The claim of the com-
plainants was not based on this Act of Con-
gress, but on the original deed of 1844, which
limited the estate in the lands to their trus-
tee "in case the same shall not be appropriated
by the United States for that purpose," i.
the purpose of a navy yard. They claim that
by the true construction of this clause a right
to the land accrued to them, as well by an aban-
donment of the project of a navy yard as by
its never being adopted. The conduct of the
government in relation to the land, it is true,
is claimed by them to be such as calls into
operative effect the clause of the deed on which
The Act of
they rely. They construe that conduct as an
abandonment of the enterprise.
cession by Congress to the City of Memphis is
only one fact in a long chain of circumstances
which they educe to show such abandonment.

e.,

It seems to me, therefore, that their claim is based entirely on the deed of 1844; and that the subsequent action of the government, so far as it has any effect in the case, is merely matter of evidence on the question of fact of abandonment; and that the failure of the government, from the beginning, to take any steps for establishing a navy yard on the land would have been no more a mere fact in pais to be

445

proved in order to support the claim of the complainants, than were all the acts of the 641*] government which did, in fact, *take place. Proving that the government did not appropriate the land for a navy yard is a very different thing from setting up a claim to the land under an Act of Congress.

ing. The clause by its presence in the original Act meant something, and effected something. It had the effect of restricting the consideration of the court to a certain class of questions as a ground of reversal, which restriction would not have existed without it. The omission of the clause, according to a well settled rule of construction, must necessarily have the effect of removing the restriction which it affected in the old law.

I think, therefore, that in this case there was no title or right claimed by the appellants under any statute of or authority exercised under the United States; and, consequently, that In my judgment, therefore, if the court had there was no decision against any such title; jurisdiction of the case, it was bound to conand, therefore, that this court has no jurisdic-sider not only the federal question raised by the record, but the whole case. As the court, however, has decided otherwise, it is not proper that I should express any opinion on the merits.

tion.

Had

But supposing, as the majority of the court holds, that it has jurisdiction, I cannot concur in the conclusion that we can only decide the federal question raised by the record. If we have jurisdiction at all, in my judgment we have jurisdiction of the case, and not merely of a question in it. The Act of 1867 and the 25th section of the Judiciary Act both provide that a final judgment or decree in any suit in the highest court of a State where is drawn in question certain things relating to the Constitution or laws of the United States, or to rights or immunities claimed under the United States, and the decision is adverse to such Constitution, laws or rights, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error. the original Act stopped here there could have been no difficulty. This Act derives its authority and is intended to carry into effect, at least in part, that clause of the Constitution which declares that the judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States and treaties made under their authority-not to all questions, but to all cases. This word "cases," in the residue of the section, has frequently been held to mean suits, actions, embracing the whole cases, not mere questions in them; and that is undoubtedly the true construction. The Constitution, therefore, would have authorized a revision by the judiciary of the United States of all cases decided in State

Courts in which questions of United States law or federal rights are necessarily involved. Congress in carrying out tnat clause could have so ordained. And the law referred to, had it 642*] *stopped at the point to which I have quoted it above, would clearly have been understood as so ordaining. But the 25th section of the Judiciary Act went on to declare that in such cases no other error should be assigned or regarded as a ground of reversal than such as immediately respected the question referred to as the ground of jurisdiction. It having been early decided that Congress had power to regulate the exercise of the appellate jurisdiction of the Supreme Court, the court has always considered itself bound by this restriction, and as authorized to reverse judgments of State Courts only for errors in deciding the federal questions involved therein. Now, Congress, in the Act of 1867, when revising the 25th section of the Judiciary Act, whilst following the general frame and modes of expression of that section, omitted the clause above referred to, which restricted the court to a consideration of the federal questions. This omission cannot be regarded as having no mean

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STATE OF MARYLAND.

(See S. C., 20 Wall., 643-645.) Jurisdiction-federal question in State Courtother questions considered in same connection.

1. Where a federal question has been raised and has been decided against the plaintiff in error in a State Court, the jurisdiction of this court attaches and the case must be heard upon the merits, although the State Court also placed its decision on another ground, which did not present a federal question.

2. Both parties in this court are entitled to be heard on the soundness of the decision on the federal question, on its sufficiency to control the judgment in the whole case, and on the sufficiency of any other point decided, to affirm the judgment, even if the federal question was erroneously decided.

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The case is fully stated by the court. See report of the case on its merits, 21 Wall., 456, post, 678.

Messrs. A. K. Seyester, Atty-Gen. of Md., I. N. Steele, P. F. Thomas and S. T. Wallis, for defendant in error:

The fundamental and controlling rule is understood to be, that the grounds of jurisdiction must appear affirmatively and indisputably in the record, and that there is no jurisdiction, unless they so appear. In the opinion of the court, in Railroad Company v. Rock, 4 Wall., 180, 18 L. ed. 382, that rule is applied to cases like the present, by a citation from a previous case, Lawler v. Walker, 14 How., 149, in terms so precise as to supersede comment.

NOTE. Jurisdiction of U. S. Supreme Court where federal question arises, or where is drawn in question statute, treaty or Constitution of U. S.see notes, 2 L. ed. U. S. 654; 4 L. ed. U. S. 97; 6 L. ed. U. S. 571.

How and when questions must be raised and de

cided in a state court in order to make a case for a

writ of error from the U. S. Supreme Court-see note, 63 L. R. A. 33.

Whether an agent who has received money, for his principal, or an official or special collector who has received money for the State, under a law repugnant to the Constitution, but to which he was a willing and interested party, should, on grounds of public policy, be permitted to set up his own wrong or his participation in the wrong, as an excuse for appropriating the funds, is a question, it is respectfully submitted, which belongs to the State Courts, in cases properly before them.

The Company, then young and needy, required and sought the assistance of the Legislature, and the latter, in granting what was asked, deemed it due to the people of the State to reserve an annual bonus, in compensation for the privileges granted and the interests surrendered. If, however, the statutes should turn out to have been void from the beginning, and the Company is now entitled to repudiate the contract for that reason, it is at least in pari delicto with the State, wherever be the blame. Its pretensions, therefore, stand precisely on the ground which this court, in the cases last referred to, has placed beyond the pale of its jurisdiction and approval.

Walworth v. Kneeland, 15 How., 353; Udell v. Davidson, 7 How., 769.

Messrs. Reverdy Johnson, John H. B. Latrobe and Chas. J. M. Gwinn, for plaintiff

in error:

This is not the first time that this question of jurisdiction has arisen, by any means; and in the case of Crowell v. Randell, 10 Pet., 368, Judge Story, in delivering the opinion of the court, reviews all the cases up to 1836, in which it had been considered by it.

Since then, the same question as to jurisdiction has been before the Supreme Court in the following cases, and perhaps in others: Neilson v. Lagow, 12 How., 110; Williams v. Oliver, 12 How., 123; Suydam v. Williamson, 20 How., 427, 15 L. ed. 978; Railroad Company v. Rock, 4 Wall., 177, 18 L. ed. 382; Maguire v. Tyler, 8 Wall., 650, 19 L. ed. 320; Railroad Company v. McClure, 10 Wall.. 511, 19 L. ed. 997; Ins. Co. v. Treasurer, 11 Wall., 204, 20 L. ed., 112, and in Klinger v. Missouri, 13 Wall., 257, 20 L. ed. 635.

In all these cases it seems to have been uniformly held that, unless a federal question was raised and properly entered into, or was "blended with" the decision of the state tribunal, the Supreme Court could have no jurisdiction.

To oust the jurisdiction, however, the ground on which the State Court has based, or might base its decision, must be an "independent one.' By this, we understand, independent of any federal question.

Treasury of one fifth of the gross revenue from passengers on the Washington branch road, "grows out of, and is connected with. the general question, and is so blended with it as not to be separated." Williams v. Oliver, 12 How., 124.

"The Act of 1832, ch. 175, gives me the right to one fifth of your fares," says the State. The Company's answer is conclusive: "That Act, being unconstitutional, can confer no right. But for the Act, the whole fare would belong to us. You can claim no part of it unless you first produce the Act."

Mr. Justice Miller delivered the opinion of the court:

This is a writ of error to the Court of Appeals of the State of Maryland, and a motion was made to dismiss the writ for want of jurisdiction. The motion has been held under advisement, under circumstances fully set forth in the opinion of this court in the preceding case of Murdock v. Memphis, ante, 429, because it was supposed to involve, and does involve, some if not all the questions presented in that case.

The suit was brought in the Superior Court of Baltimore City, as an action of assumpsit by the State of Maryland against the Railroad Company, to recover one fifth of the gross receipts of the defendant for the transportation of passengers upon the Washington branch road from January, 1860, to January, 1870.

By the Act of the State of Maryland of 1832, under which the branch road was built, one fifth of the entire receipts from passengers was to go to the State. The defendants set up as a defense to the action, that this was a tax on passengers for the privilege of passing through the State of Maryland, and is, therefore, void, under the Constitution of the United States, within the principle of the case of Crandall v. Nevada, 6 Wall., 35, 18 L. ed. 745.

The Superior Court sustained this view of the subject, and gave judgment for the defendant. On an appeal to the Court *of Ap- [*644 peals, that court reversed the judgment and ordered a new trial, at which the judgment was rendered for the plaintiff, and, on a second appeal, this was affirmed.

There is no question at all that the defendant asserted throughout the entire case, a right and an immunity under the Constitution of the United States; that the law of the Maryland Legislature was in conflict with that Constitution, and that this claim of right was decided against the defendant. An examination of the opinion of the Court of Appeals, which is found in the record, leaves no doubt that all the members of that court were of opinion that the Act of the Maryland Legislature was not in conflict with the Federal Constitution, and so decided in this case. It is, therefore, clearly within the 2d section of the Act of 1867.

In the case of The Insurance Company v. The Treasurer, supra, the court says: "It ought to appear from the record, and not from any opinion of the court, that a federal question was raised." Of course, the converse of this But that court, in its opinion, placed its judgis true; the assertion of the court's opinion ment, also by a majority (two judges dissentthat it was independent of any constitutional ing), on the ground that the Railroad Comquestion, is not sufficient to take from the Su-pany, having acted as the agent of the State to preme Court its jurisdiction, should it appear collect the money from the passengers, cannot on the record that a constitutional question was involved in the decision.

The question of the constitutionality of the Acts requiring the payment into the State

in this case avail itself of the illegality of its act in demanding and receiving it. And this, also, is a proposition which was made in the case at its first trial, and insisted on through.

out. And it is now urged upon us as a reason for dismissing the writ, that this second ground is of itself sufficient to control the case, and the writ should, therefore, be dismissed.

Some of the decisions of this court under the Act of 1789 would undoubtedly justify this view if it were very clear that this second proposition was sufficient, and that it involved no consideration of federal law.

But, as we have already seen, that Act contained restrictive language not in this, and in construing the statute as it now stands, we have ruled in the case of Murdock v. Memphis [ante, 429], just referred to, that where the federal question has been raised, and has been decided against the plaintiff in error, the jurisdiction has attached, and it must be heard on the merits. To what this examination on the merits shall extend, we have in that opinion considered. But until we have determined that the State Court decided erroneously the federal question which it did decide, we can go no further into the re-examination.

The counsel of both parties in this court are entitled to be heard when the record shows the existence of a decision which gives us jurisdiction, on the soundness of that decision, on its sufficiency to control the judgment in the whole case, and on the sufficiency of any other point decided, to affirm the judgment even if the federal question was erroneously decided.

For these reasons the motion to dismiss the case is overruled.

brought, as well as others, accepted several months later.

Matthews sets up the defense that, at the time of this acceptance, war had been declared and existed between that part of the United States in which he resided and that in which his other partners resided, by virtue of which the partnership had been dissolved before these acceptances were made, and that the contracts, as to him, were, therefore, void.

This was the only question in the case, and it was heard and decided in the Court of Appeals, and the decision was against the plaintiff in error.

That court discusses the question, at what stage of the civil war the rule against commercial intercourse with the enemy took effect, so as to dissolve the contract of partnership. The plaintiff in error contended that the Proclamations of blockade of the 15th and 19th April, by the President, had that effect, and that, by reason of those Proclamations, the act of acceptance was void, as to him. The Court of Appeals held that the war had no such effect until it was recognized by the Act of Congress of July 13, 1861, and held drafts accepted after that date, void, and the ones before, valid.

Conceding in its opinion that, under the decision in the Prize cases, 2 Black, 635, 17 L. ed., 459, the war existed for some purposes prior to that Act, it was still held that it did not become, until so recognized by Congress, of such a character as to suspend commercial intercourse and, therefore, had no effect upon

646*] *EDWARD MATTHEWS, Piff. in Err., the contract sued on in this case.

v.

NELSON MCSTEA.

(See S. C., 20 Wall., 646-649.)

Jurisdiction over state judgment.

Where the only question made and decided in a State Court against plaintiff in error was the sufficiency of the acts of the President to inaugurate a war which would render invalid the contract in suit, this court has jurisdiction of the case.

[No. 108.] Submitted Feb. 28, 1873. Decided Jan. 11, 1875. N ERROR to the Court of Common Pleas

INfor the City and County of N. Y.

The case is stated by the court.

See also,

S. C. on merits, 91 U. S. 7, 23 L. ed. 188. Messrs. John Sherwood and W. M. Evarts, for plaintiff in error.

Mr. Aug. F. Smith, for defendant in error.

Mr. Justice Miller delivered the opinion of the court:

This is a motion to dismiss a writ of error to the Court of Common Pleas of the City and County of New York. It was tried on a statement of facts, in the Court of Appeals of that State, signed by counsel, the substance of which is, that the plaintiff in error, then and still residing in New York, was, at the outbreak of the late civil war, a member of a partnership of which Brander and Chambliss, residing in

We are of opinion that the only question made and decided in this case against plaintiff in error, was the sufficiency of the acts of the President to inaugurate a war which would render invalid this contract, and that this is one of the questions embraced by the Act of February 5, 1867.

The motion to dismiss is, therefore, overruled.

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Dismissed Oct. 30, 1874. Judgment of Oct. 30, 1874, rescinded and annulled, and case re-instated Dec. 10, 1874. Submitted Dec. 17, 1874. Decided Jan. 11, 1875.

IN ERROR to the District Court of the United States for the Middle District of Alabama.

New Orleans, were the other members. On the
23d April, 1861, the firm accepted, at New Or-
leans, a draft drawn on them by Walker,
Cheatham & Co., for $8,050.06, payable twelve
months after date on which the suit was 'plaintiff in error.

The case is fully stated by the court.
Messrs. P. Phillips and Charles Case, for

No counsel appeared for defendants in error. Mr. Chief Justice Waite delivered the opinion of the court:

of the counsel for the plaintiff in error shall
contain "in the order here stated:"
I. A statement of the case, etc.

which, in cases brought up by writ of error,
"II. An assignment of the errors relied upon
shall set out separately and specifically each
section 8, "without such an assignment of er-
error asserted and intended to be urged;" and

This was an action by the receiver of an insolvent national bank, to recover the amount due upon a bill of exchange indorsed to the bank and held as part of its assets at the time of its insolvency. The declaration contained an averment in substance that the Comptrollerrors counsel will not be heard, except at the request of the court; and errors not assigned rule will be according to this disregarded, though the court at its option may notice a plain error not assigned."

of the Currency, having become satisfied, as specified in the Banking Act, that the bank had refused to pay its notes, did appoint the plaintiff a receiver, as provided by the 50th section of the Act, and that he had qualified under his appointment and entered upon the performance of his duty. The defendants demurred to the declaration, and in effect assigned for cause that it was not specifically averred that each and all of the several things had been done which were provided for in sections 46 and 47 in order to furnish the evidence to satisfy the Comptroller that the bank had refused to pay

its notes and was in default.

We think such averments were not necessary. The debtors of a bank, when sued by a receiver, cannot inquire into the legality of his appointment. It is sufficient for the purposes of such a suit that he has been appointed and is receiver in fact. As to debtors, the action of the Comptroller in making the appointment is conclusive until set aside on the applica tion of the bank. The bank. may move in that behalf, but the debtor cannot. Section 50 makes express provision for a contest by the bank.

The court below erred in sustaining the demurrer, and for that reason the judgment is reversed and the cause remanded, with instruc tions to overrule the demurrer to the declaration and proceed accordingly.

There is no such assignment of errors in this case as is required by the rule, and we do not see in the record any error that ought to be noticed without an assignment.

PETER MONGER, Appt.,

บ.

THOMAS SHIRLEY.

Power of court to equity to annul judgments—

judgment on forged note, without actual service of process—confiscation proceedings.

A court of equity has power to annul judgments and decrees and all titles acquired under them, for not where the rights of bona fide purchasers have

not intervened.

Where a judgment was obtained, without actual civil war, when the defendant was within the lines service of process, on a forged note, in a time of of the enemy, it will be set aside, together with a sale made thereunder.

Confiscation proceedings in behalf of the United States cannot be used to pass a title to one who paid nothing for it, but who obtained the whole purchase money to be paid to him on a pretended lien. Even if the Marshal's deed did pass the title to him, he must be held to have taken it in trust for the real owner.

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652*] *GEORGE TREAT and J. M. Dicker- APPEAL from the Circuit Court of the Unit

son, Plffs. in Err.,

บ.

SAMUEL JEMISON.

(See S. C., 20 Wall., 652.)

Judgment affirmed, where no assignment of

errors.

A judgment of the circuit court affirmed, where

there was no such assignment of errors as is re-
quired by the Rule, and there is not in the record
any error that ought to be noticed without an as-
signment.
[No. 721.]
Submitted Dec. 21, 1874.
1875.

I

nessee.

States for the Eastern District of Ten

The case is fully stated by the court. Messrs. Felix A. Reeve and Horace Maynard, for appellant:

Each and all of the proceedings were, in every particular, in strict conformity with the laws of Tennessee, and no attempt was made to annul or reverse the same in any state tribunal.

The defendant was regularly in court in the mode prescribed by statute, and could have made there the same defense that he afterwards set up in equity.

A court of equity has no jurisdiction to reDecided Jan. 11, lieve a plaintiff against a judgment at law, when the case at equity proceeds upon a ground equally available at law.

N ERROR to the Circuit Court of the United
States for the District of California.
The case is stated by the court.
Mr. Nathaniel Bennett, for plaintiffs in

error.

Messrs. W. W. Foote and Houghton & Reynolds, for defendant in error.

Mr. Chief Justice Waite delivered the opinion of the court:

The judgment of the circuit court is affirmed.
Rule 21 of this court provides that the brief

Harrison v. Nettleship, 2 My. & K., 423; The Marine Ins. Co. of Alexandria v. Hodgson, 7 Cranch, 332; Truly v. Wanzer, 5 How., 141; Creath's Admr. v. Sims, 5 How., 192; Walker v. Robbins, 14 How., 584; Hendrickson v. Hinckley, 17 How., 445, 15 L. ed., 124.

Equity jurisdiction will never be called into activity to remedy the consequences of laches or neglect, or the want of reasonable diligence. Creath v. Sims, 5 How., 204. Mr. John Baxter, for appellee:

In this case there was no actual service of

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