Skelly v. Jefferson Branch State Bank of Ohio.

It thus appears that while the rule is now clearly established in England, and it equally prevails in this country, that the principle upon which it rests, is one of decorum and respect, the superior tribunal should be left to alter its own decision-to correct its own errors, and no injustice is done to the party, for the very constitution of the tribunal admits of this being done.

If this court and the Supreme Court of the United States occupy a position analogous to that of the court of chancery, or the superior courts of law of England, and the House of Lords, then it might be very justly claimed that the same rule would apply to their decisions.

It has been supposed that the 25th section of the judiciary act of the United States does, as to certain classes of cases, of which the present would be one, make the highest court of the state subordinate to the Supreme Court of the United States, and establishes a like relation in reference to such cases, as exists between inferior and appellate courts. If so, as admitted by very respectable authority, and analogous conclusiveness of its decisions, as precedents, in the particular classes of cases, would result. Warfield v. Goodhue, 1 Comst. 62-71.

This court has, heretofore, acquiesced in the exercise of the revising power conferred upon the Supreme Court of the United States, by the 25th section of the judiciary act. Piqua Bank v. Knoup, 6 Ohio St. 342. The constitutionality of that section has been denied in some of the states-on several occasions of peculiar interest and importance, by the courts and other authorities of the State of Georgia, which are stated in an elaborate opinion recently delivered in the Supreme Court of that state *(Padelford v. [612 City of Savannah, 14 Ga.); and in a case in the court of appeals of Virginia, in which very able opinions were delivered by the judges of that court, all concurring in a refusal to enter the mandate of reversal emanating from the Supreme Court of the United States. Hunter v. Martin, 4 Munf. 1.

Upon the discussion of that question we are not disposed to enter. The ground of objection is not a want of power on the part of Congress to invest the courts of the United States with juris. diction in the classes of cases embraced in the section, but the mode in which the power is exercised. If that mode should, from resistance, fail, one much more objectionable and inconvenient to the cit-izens of the state might possibly be adopted. As a practical ques

Skelly v. Jefferson Branch State Bank of Ohio.

tion, as a question of policy, acquiescence is probably the wiser and better course. But the limited and qualified character of the appellate jurisdiction, conferred by the 25th section of the judiciary act, does not countenance the idea, which has been so plausibly advanced, that Congress had in view a uniformity of decisions upon questions arising under the constitution and laws of the United States, and that the Supreme Court was the common arbiter for the decision of such questions To place the arbiter in a proper position, care should have been taken that either party to a case in which a question arose, might call for its interposition. The object in view appears to have been the enforcement of the constitution and laws, rather than a uniformity of decisions. The provisions of the section look entirely to the extension, and not to the restriction, of the operation of the constitution and laws of the United States. The steps which are permitted all point in one direction. The jurisdiction of the Supreme Court can only be invoked when the decision of a case is in one way—that is, when it is against the validity of a provision of the constitution or laws, and not when it is in favor of the validity. If operation and effect be given to the pro613] vision, as applied to the particular case, however improper such application, however erroneous and unjust the construction given to the provision, yet, as its validity is not denied, but admitted, the Supreme Court has no power to interfere. This limited and one-sided right of appeal certainly goes far to destroy any analogy which might be supposed to exist, to the case of subordinate and superior tribunals. Comity, decorum, and respect are to be regarded, but justice and right are entitled to a higher consideration. The judgment of an inferior court is fettered by a decision of the court above, but the party affected by the error of that court is not without redress. He may apply to the superior tribunal to correct its own error, and the power to do this, it has been said, is inherent in every court of justice. Bright v. Hutton, 3 H. L. Cas. 341-388. This power the Supreme Court of the United States, in cases within its ordinary jurisdiction, has not infrequently exercised. But if, when the Supreme Court of the United States had once decided that a law of a state was unconstitutional, implicit obedience was due from the courts of the state, there is no possible mode by which an error, however clear and manifest, could be corrected; for the courts of the state, in obedience to such a decision, afterward deciding in favor of the party claiming the validity, and the effect

Skelly v. Jefferson Branch State Bank of Ohio.

and operation of the provision of the constitution, the other party would have no right, under section 25 of the judiciary act, to apply to the Supreme Court of the United States to alter its decision and correct its error.

There is this manifest distinction between a rule of law prescribed by legislative power, and what has been termed judge-made law. The legislature, of its own motion, may modify and correct any rule which has been prescribed, but a rule emanating from a judicial authority can only be changed when an opportunity to do so is afforded by litigating parties. A case must arise presenting again the same question, and if all opportunity to present the question were cut off, the judge-made law would find its *only parallel [614 in the famed laws of the Medes and Persians. This parallel would be the more perfect as to the decisions of the Supreme Court of the United States upon constitutional questions; for, as to them, the legislative power of Congress would be impotent to give relief. The principles which govern the decisions of courts of justice, do not permit any such conclusion.

A decision of an appellate court is conclusive upon the subordinate court, because it is the decision of the appellate court, and any modification of the appellate power which affects the right to have the question re-examined in the appellate court, to the same extent must affect the conclusiveness of the decision. If the appellate system be so anomalous as to give one party only a right of appeal, then, a court acting under such a system is bound to exercise some discretion in behalf of the party deprived of the benefit of an appeal. This discretion would be analogous to that often exercised by parties, or their legal advisers, when called on to abandon a claim, or prosecute an appeal, or a suit, in opposition to a decision of a court of last resort.

When the meaning of a legislature is expressed in clear and unambiguous terms, being conclusive evidence of the law, and not misunderstood, the duty of obedience follows; but surely the same effect can be claimed for no decision of a court expounding the meaning of a law; and it can not in that sense be regarded as a part of the law. It is only in the decision of cases, and through the control or influence such decisions have as precedents in other cases, that the courts can claim any power in relation to positive written law. They construe that law when necessary in a particular case; the power of deciding the case makes that construction the law of

Skelly v. Jefferson Branch State Bank of Ohio.

that case, but how far it shall be the law of another case, depends upon the weight and effect of the decision, as a precedent.

The decision of an appellate court is evidence of law, and, in the 615] inferior courts, in the nature of conclusive evidence. But as to the appellate court itself, and all others who may be called upon to act in reference to a subject-matter which it affects, this attribute of conclusiveness can not be maintained. It may be disregarded, or, in the ordinary language for such purpose, overruled by the appellate court; and it follows that others, at the peril of not being able to change the opinion of the appellate court, may treat the evidence as if it were not conclusive. From this limited effect of the decision upon the appellate court itself, it necessarily follows that the decision has no claim to regulate, as a matter of conscientious obligation, the action of others. They have a right to act, when they believe the decision to be erroneous, upon the supposition that it is so, and will be so considered when submitted to a re-examination in the appellate court. Whether such action will be discreet or advisable, will depend upon the nature and character of the decision, the circumstances under which it was made, and the circumstances which will attend its re-examination. But it can not be said that such action is disrespectful to the appellate court, or that it shows an improper disposition to disobey the laws of the land.

It is proper to notice another ground upon which the conclusiveness of the decision of the Supreme Court of the United States upon such questions as the one in the case under consideration, has been placed by high authority. It has been said that it is "a principle supposed to be universally recognized, that the judicial department. of every government, where such department exists, is the appropriate organ for construing the legislative acts of that government. Thus no court in the universe which professed to be governed by principle, would, it is presumed, undertake to say, that the courts of Great Britain, or of France, or of any other nation, had misunderstood their own statutes, and therefore erect itself into a tribunal which would correct such misunderstanding. We receive the con616] struction given by the courts of the nation as the true sense of the law, and feel ourselves no more at liberty to depart from the construction, than to depart from the words of the statute. On this principle, the construction given by this court to the constitution and laws of the United States is received by all as the true con

Skelly v. Jefferson Branch State Bank of Ohio.

struction; and on the same principle the construction given by the courts of the several states, to the legislative acts of those states, is received as true, unless they come in conflict with the constitution, laws, or treaties of the United States." Elmendorf v. Taylor, 10 Wheat. 152-159, Marshall, C. J.

The ground here assumed, though apparently different and more plausible, is really the same as the one before examined. No one has more clearly shown than the very distinguished person who made those remarks, when speaking on another occasion, and not in a judicial capacity, that courts are constituted to decide cases, and not abstract questions of law. 5 Wheaton, App. The judicial department of the government of the United States is no otherwise the organ to construe its constitution and statutes, than by the decision of cases, and we are thus brought back to the inquiry, how far the decision in one case is binding as a precedent for the decision. of another.

It may be very fairly questioned whether the decision of the court. of last resort in Great Britain, as to the meaning of one of the statutes of that country, would be necessarily conclusive in a court of this country, if a case should arise involving an inquiry into such meaning. The same consideration which has been discussed, might limit and qualify the weight of the decision as evidence of the law, and place the court in this country in a different position from that of one of the inferior courts of Great Britain. The party asserting a claim or making a defense, upon a law of Great Britain, must "show the law in the usual manner, by the production of the edict itself, by recorded applications of it in a legal form, and by the testimony of eminent professors of the law." The Snipe, Edwards' Adm. 381-412. All this would be proper and competent *evi- [617 dence to be weighed by the court. De Bode's case, 8 Q. B. 208-250. It might very well happen that testimony of learned professors of the law might outweigh a judicial decision, when such testimony showed the great probability that, if the question were again presented, a different decision would be made. For example, the decision as to the meaning of a statute in the case of Hutton v. Uphill, 2 H. L. Cas. 674, though followed and applied according to the principle upon which it appeared to have been decided, was unsatisfactory to the profession and the inferior courts, and it was clearly their opinion that an erroneous decision had been made. Accordingly, when the question was brought before the House of Lords in VOL. IX-32 497