Argument for Defendants in Error.

these lands in the suit or proceeding that is brought here by this writ. What the university claimed in that proceeding, what the court below denied, was the title to certain personal property formerly belonging to Mrs. Fiske and her father, and not at all the lands derived from the United States. The position of the plaintiffs in error seems to be that an appeal lies to this court whenever a state court has construed a federal statute contrary to the contention of either of the parties. But that is not the meaning of the law. A mere construction of an act of Congress by the state court does not give this court jurisdiction. One of the parties must have asserted some right, derived from such statute, and must have been deprived of that right by the decision of the state court.

"It is not every misconstruction of an act of Congress by a state court that will give this court appellate jurisdiction. It is where the party claims some title, right, privilege or exemption under an act of Congress, and the decision is against such right, title, privilege or exemption." Montgomery v. Hernandez, 12 Wheat. 129, 132. See also Menard v. Aspasia, 5 Pet. 505, 517; Bowman v. Chicago & Northwestern Railway Co., 115 U. S. 611.

II. Even if the judgment of the court below were binding as between Cornell University and the State of New York, (which is a stranger to these proceedings,) the title of the university to the lands and land contracts conveyed to it by Ezra Cornell, and which it does hold under the act of Congress, has been affirmed, not denied by the state court.

It must be remembered that the duty of the State of New York as trustee, to Cornell University, or to the United States as creator of the trust, was not in any sense before the court below. The sole question was one of title. Was Cornell University the owner of the lands and contracts conveyed to it by Ezra Cornell within the meaning of the charter of that corporation?

In order to give this court jurisdiction under Rev. Stat. § 709, the plaintiff in error must have claimed some right or title, etc., under the Constitution, or under a treaty or law of the United States, and such right or title, etc., must have been

Argument for Defendants in Error.

denied by the state court. No principle is better settled than that no appeal lies where the right or title claimed has been affirmed by the state court. Commonwealth Bank v. Griffith, 14 Pet. 56; Burke v. Gaines, 19 How. 388; Ryan v. Thomas, 4 Wall. 603. In the case at bar the Cornell University did not claim in the state court any right or title under any statute of the United States, and no such right or title was, in any manner, affected by the judgment; and furthermore, that an apparent title to property, derived from the United States through an act of Congress, having by chance come in question, the decision of the state court was in favor of that title.

III. Assuming, as before, (what is not the fact,) that the decision below was binding as between the Cornell University and the State of New York, and that the right of the university to the lands and contracts conveyed to it by Ezra Cornell was involved in the proceeding below, still the appeal would not lie, for the state court decided not against the title of the University, but against the title of the State of New York.

It has been settled by repeated decisions of this court that to sustain a writ of error to a state court the latter tribunal must have denied some "right, title, privilege or immunity" claimed by the plaintiff in error in his own right. It is not enough that the plaintiff in error claims that such title, etc., is given to another by the Federal Constitution, treaty or statute, even when the denial of that right to such other person has resulted in a judgment adverse to the plaintiff in error. Long v. Converse, 91 U. S. 105; Miller v. Lancaster Bank, 106 U. S. 542; Henderson v. Tennessee, 10 How. 311; Owings v. Norwood, 5 Cranch, 344.

IV. The decision of the Court of Appeals of the State of New York did not affirm the validity of any statute of the State of New York claimed by the plaintiffs in error to be in contravention of any law of Congress, nor was the validity of any such statute “drawn in question" in the court below.

V. The plaintiffs in error did not "draw in question" in the state courts the validity of any authority exercised by or under the State of New York, nor was there any decision in the state court in favor of an authority so exercised and questioned by them.

Argument for Defendants in Error.

The state courts, in deciding upon the title to this fund, did not pass upon the validity of any statute of the State of New York, for no such question was before them; and the validity of the contract between Ezra Cornell and the State was not "drawn in question" by the plaintiffs in error, for they admitted and asserted its validity, and its invalidity would have been fatal to the case they were seeking to make.

But the act of Congress and its effect upon the construction of the Cornell contract were drawn in question. The counsel for the university insisted that, by virtue of the Cornell contract, the university, as assignee of Ezra Cornell, was bound to pay the net proceeds of the lands located by him into the treasury of the State, and that such proceeds being part of the purchase price of the land scrip, would, under the act of Congress, belong, when paid in, to the fund created by that act, which the State had agreed to accept and hold.

They argued, therefore, that the ultimate title to the fund was not in the university, but in the State of New York. Upon this point the decision was against them. The state courts did not deny a title claimed by the university under any law of Congress, but affirmed a title which the university attempted to disclaim. It denied a title, which the plaintiffs in error asserted to be in the State of New York, a third person, not a party to the proceedings.

But these decisions do not come within the statute allowing an appeal to this court. The writ of error should, therefore, be dismissed for want of jurisdiction.

VI. The case is not appealable because there are other grounds aside from the construction of the act of Congress of which the plaintiffs in error complain, on which the Court of Appeals based its conclusion, and which would have led to the same result if the construction of the plaintiffs in error had been adopted by the court.

The state court was certainly at liberty to hold, upon general principles of law, that, assuming that the relation of trustee and cestui que trust existed between the State of New York and Cornell University, the latter could not question acts of its trustee which had been done for its benefit and at

Argument for Defendants in Error.

its special instance and request. And the Court of Appeals has, partially at least, placed its decision on this ground. Judge Peckham, in delivering the opinion of the court, said:

"It is exceedingly doubtful, to my mind, whether the university can be heard to claim the existence of this alleged debt under the facts of this case. The State has made and makes no claim upon the university for the property, or any portion of it. It was placed in its possession by virtue of the consent of the State, evidenced by the passage of an act authorizing and directing it. The university has claimed to be the owner of it, and no one has drawn its rightful title in question. Can it now, while enjoying, without hostile claim from any source, the full control of the property, as its absolute owner, set up, as a reason why it should be allowed to take other property, that, perhaps, hereafter, some one may make a claim that the property does not belong to the university, but that it is a trust fund, originating in the act of Congress? If the State or United States were to commence some proceeding, based on the counsel's argument, to reclaim possession of the property, there is nothing in the present attitude of the university which would necessarily estop, or in any way conclude it from denying that any such trust exists, or that any case had been made for taking this property out of its hands. So far as appears, it seems that this assumed indebtedness is entirely gratuitous on its part, and that there is no creditor who makes the claim, no one who questions its title. It is going a good ways, under such circumstances, to lay much weight on a liability which, up to this proceeding, was never admitted by the university, and is not now asserted by any one else. It would seem as if property, which was thus in the possession of the corporation, unclaimed by anyone else, was held by it within the meaning of its charter, and that the question with regard to the character of its holding was merely an abstract one, with which courts would not deal, at least so far as this proceeding is concerned."

Now, whether the Court of Appeals was right or wrong in this position, it is one based on general principles of law, and does not "draw in question " the construction of any act

Argument for Plaintiffs in Error.

of Congress. The decision is, that even if the act of Congress be so construed as to make the university a debtor to the State for the proceeds of the lands located by Ezra Cornell, it has been precluded, by its own conduct, from raising that question in these proceedings.

An appeal will not lie under section 709 of the Revised Statutes, if this court can see that the decision of the court below was, or may have been, placed upon some ground which did not involve the construction of the Federal Constitution, treaty or statute. Ocean Ins. Co. v. Polleys, 13 Pet. 157; Steines v. Franklin County, 14 Wall. 15; Kennebec Railroad v. Portland Railroad, 14 Wall. 23.

Mr. George F. Comstock argued for the defendants in error.

Mr. S. S. Gregory (with whom upon the brief were Mr. James S. Harlan, Mr. William M. Booth and Mr. John G. Sears) argued for defendants in error.

Mr. George F. Edmunds, for plaintiffs in error, in closing, after discussing the question of jurisdiction, said on the merits:

The act of Congress of 1862, 12 Stat. c. 130, 503, provided for aid to public instruction in the States a great fund in lands, if within the limits of the State, and, if not, in land scrip in other States, which the State owning the scrip could not locate in its own name, (this for obvious reasons,) but which it was provided should “be sold by said States, and the proceeds thereof applied to the uses and purposes prescribed in this act, and for no other use or purpose whatever." The act also provided that though the States should not locate their own scrip in other States, "their assignees may thus locate," etc. It was provided that the expenses of location, sale of scrip, etc., should be paid by the States, "so that the entire proceeds of the sale of said lands shall be applied, without any diminution whatever, to the purposes" of the act. These purposes were "the endowment, support and maintenance of at least one college, where the leading object shall be, without