Opinion of the Court.

It is further argued that the omission of the word final in this particular provision, and the repeated use of that word in other sections of the act, in reference to a different class of cases, show the intent of the act to be that the review of the question of jurisdiction should not await the final determination of the case in the court below.

We think that upon sound principles of construction such is not the meaning of the act of Congress under consideration. It is manifest that the words in sec. 5, "appeals or writs of error," must be understood within the meaning of those terms as used in all prior acts of Congress relating to the appellate powers of this court, and in the long standing rules of practice and procedure in the Federal courts. Taken in that sense, those terms mean the proceedings by which a cause, in which there has been a final judgment, is removed from a court below to an appellate court for review, reversal or affirmance. It is true that the Judiciary Act of 1789 limited the appellate jurisdiction of this court to final judgments and decrees, in the cases specified. This, however, in respect to writs of error was only declaratory of a well settled and ancient rule of English practice. At common law no writ of error could be brought except on a final judgment. Bac. Ab. Error, A. 2. "If the writ of error be returnable before judgment is given, it may be quashed on motion." 2 Tidd's Practice, 1162. In respect to appeals there is a difference in the practice of the English chancery courts, in which appeals may be taken from an interlocutory order of the Chancellor to the House of Lords, and the practice of the United States chancery courts, where the right of appeal is by statute restricted to final decrees, so that a case cannot be brought to this court in fragments.

From the very foundation of our judicial system the object and policy of the acts of Congress in relation to appeals and writs of error, (with the single exception of a provision in the act of 1875 in relation to cases of removal, which was repealed by the act of 1887,) have been to save the expense and delays of repeated appeals in the same suit, and to have the whole case and every matter in controversy in it decided in a single

Opinion of the Court.

appeal. Forgay v. Conrad, 6 How. 201, 204. The construction contended for would render the act under consideration inconsistent with this long established object and policy. More than this, it would defeat the very object for which that act was passed.

It is a matter of public history, and is manifest on the face of that act, that its primary object was to facilitate the prompt disposition of cases in the Supreme Court, and to relieve it of the enormous overburden of suits and cases resulting from the rapid growth of the country and the steady increase of its litigations. That act, in substance, creates a new and distinct Circuit Court of Appeals, in each circuit, to be composed of three judges, namely, the circuit justice when present, and two circuit judges, and also, in the absence of any one of those three, a district judge selected by assignment for the purpose of completing the court.

It then provides for the distribution of the entire appellate jurisdiction of our national judicial system, between the Supreme Court of the United States and the Circuit Court of Appeals, therein established, by designating the classes of cases in respect of which each of those two courts shall respectively have final jurisdiction. But as to the mode and manner in which these revisory powers may be invoked, there is, we think, no provision in the act which can be construed into so radical a change in all the existing statutes and settled rules of practice and procedure of Federal courts as to extend the jurisdiction of the Supreme Court to the review of jurisdictional cases in advance of the final judgments upon them.

But there is an additional reason why the omission of the word final, in the 5th section of the act should not be held to imply that the purpose of the act is to extend the right of appeal to any question of jurisdiction, in advance of the final judgment, at any time it may arise in the progress of the cause in the court below. Such implication, if tenable, cannot be restricted to questions of jurisdiction alone. It applies equally to cases that involve the construction or application of the Constitution of the United States; and to cases in which the constitutionality of any law of the United States, or the

Opinion of the Court.

validity or construction of any treaty made under its authority, is drawn in question; and to those in which the constitution or law of a State is claimed to be in contravention of the Constitution of the United States. Under such a construction all these most important classes of cases could be directly taken by writ of error or appeal, as the case may be, to this court, independently of any final judgment upon them. The effect of such a construction, if sanctioned, would subject this court to the needless delays and labor of several successive appeals in the same case, which, with all the matters in controversy in it, by awaiting the final judgment, could be promptly decided in one appeal.

It is also insisted that sec. 14 of the act in question, repealing sec. 691 of the Revised Statutes and sec. 3 of the act of February 16, 1875, gives a wider scope to the revisory powers of this court, and makes a final judgment unnecessary to the exercise of these powers in the cases specified in said fifth section. We think that that repeal applies, in both sections mentioned, only to the provisions which limit the appellate power of the Supreme Court to cases involving the amounts there respectively specified, namely, $2000 in one and $5000 in the other. If it was the purpose of the act to repeal that part of those sections which refers to final judgments, such intention would have been indicated in express and explicit terms, inasmuch as there were, when the act was passed, other sections and other statutes containing the same limitation of appeals to final judgments.

It is further argued, in support of the contention of the plaintiff in error, that if it should be held that a writ of error would not lie upon a question of jurisdiction until after final judgment, such ruling would lead to confusion and absurd consequences; that the question of jurisdiction would be certified to this court, while the case on its merits would be certified to the Circuit Court of Appeals; that the case would be before two separate appellate courts at one and the same time; and that the Supreme Court might dismiss the suit upon the question of jurisdiction while the Circuit Court of Appeals might properly affirm the judgment of the lower court upon the

Statement of the Case.

merits. The fallacy which underlies this argument is the assumption that the act of 1891 contemplates several separate appeals in the same case and at the same time to two appellate courts. No such provision can be found in the act, either in express terms or by implication. The true purpose of the act, as gathered from its context, is that the writ of error, or the appeal, may be taken only after final judgment, except in the cases specified in section 7 of the act. When that judg ment is rendered, the party against whom it is rendered must elect whether he will take his writ of error or appeal to the Supreme Court upon the question of jurisdiction alone, or to the Circuit Court of Appeals upon the whole case; if the latter, then the Circuit Court of Appeals may, if it deem proper, certify the question of jurisdiction to this court. The writ of error is

Dismissed.

FERRY v. KING COUNTY.

ERROR TO THE SUPREME COURT OF THE STATE OF WASHINGTON.

No. 1377. Submitted November 23, 1891. - Decided December 7, 1891.

In an action against the county treasurer of a county in the State of Washington and the sureties on his officiai bond to recover moneys received by him officially, rulings of the state court that his settlements with the county commissioners were not conclusive, that that body acted ministerially in settling with him and could not absolve him from the duty to account and pay over, and that the denial by the trial court of an order to furnish a bill of particulars would not be disturbed in the absence of anything indicating that the defendants had been prejudiced thereby, do not deny the validity of the territorial code enacted under the authority of Congress, and confer no jurisdiction in error upon this court. The validity of a statute is not drawn in question every time that rights claimed under it are controverted; nor is the validity of an authority every time an act done by such authority is disputed.

THE case was stated by the court as follows:

This was an action brought by the county of King in the District Court of the Third Judicial District of the Territory

Statement of the Case.

of Washington, against George D. Hill and his sureties upon his official bond as county treasurer of said county, to recover certain moneys received by him during his official term of two years, commencing the first Monday in January, 1881, which it is alleged he had failed to account for or to pay over to his successor in office.

The complaint set up Hill's election; the execution and approval of the bond, which was set forth in haec verba; the taking of the oath and entry upon the office and continuance therein for the full term; the receipt of moneys as treasurer; and the failure to account for and pay over a large sum, which was specified. It was further averred that in the accounts by the treasurer and auditor, and settlements had with the board of county commissioners, the treasurer was charged with a certain amount for which he accounted, when by mistake and error there was overlooked a certain sum, which was named, which should have been charged him, and was not; and that also in the book accounts kept and settlements had the treasurer received certain credits, which were enumerated, some of which credits were by mistake and error larger than they should have been, and the excess of each of these credits was specifically given.

Motions to quash the summons, demurrers to the complaint and motions to make the complaint more definite, were made and filed by the defendants and overruled. The defendants then answered, denying the default of the treasurer, and pleading in addition affirmative defences, alleging various settlements at times prescribed by law between the treasurer and the board of county commissioners, and insisting upon such settlements and the accounts and credits as settled and allowed, as just and true and a complete defence to the action.

Plaintiff replied to the affirmative defences, denying a full or any settlement with the board of county commissioners, and again averring mistake and error, through which the treasurer received credits on account of the particular funds mentioned, to which he was not actually entitled.

Motions were then made to strike out part of the reply, and to make it more definite and certain, and demurrers were also filed thereto, all of which were overruled.