that the Legislature must be presumed to have known the judi cial construction which had been placed on the former statutes; and therefore the re-enactment in the Code of provisions substantially the same as those contained in a former statute, is a legislative adoption of their known judicial construction.* In Massachusetts it also has been held in regard to the revision of statutes, to be a well-settled rule that when any statute is revised or one act framed from another, some parts being omitted, the parts omitted are not to be revived by construction, but are to be considered as annulled; to hold otherwise would be to impute to the Legislature gross carelessness or ignorance, which is altogether inadmissible. So, in that State a very useful statute, passed in 1754, concerning donations and bequests to pious, and charitable, &c., was decided not to be in force, on the ground that the Legislature had in 1785 legislated on the same subject, and omitted to re-enact the provisions of the statute.† Another rule connected with the subject of the revision of statutes, may be appropriately stated here. In this country the State statutes have been frequently revised and altered upon the report of officers appointed for the purpose, revisors or commissioners; and in submitting their proposed revision or alteration to the Legislature, the legal advisers of the State have stated in the shape of reports or of notes their reason for the proposed change of phraseology or provision, and the meaning which they affixed to it; but it has been held that such reports or notes are not to be taken as an authoritative construction of the revised or amended law, as the revisors might have meant one thing and the Legislature another; and that the meaning of the statute is to be obtained and arrived at in the usual way. State Statutes how Construed in the United States Courts:One great object of the Federal Constitution, among others, was by the creation of a national judiciary to secure a tribunal free from all local influences to decide on controversies between the *Duramus v. Harrison & Whitman, 26 Ala. 326. And the separation in the revision into different parts of what was before a connected code, does not affect the construction. Smith v. Smith, 19 Wisc. 522. Ellis v. Paige et al. 1 Pick. 43; Bartlett et al. v. King, Exr. 12 Mass. R. 537; Nichols v. Squire, 5 Pick. 168. Forrest v. Forrest, 10 Barb. 46. States themselves, between citizens of different States, and between citizens and foreigners. Besides this, in order to secure the supremacy of the Constitution of the United States, an ap peal lies, in cases affecting the construction of the Federal Charter or of acts of Congress, from the highest State courts to the Supreme Court of the United States.* It necessarily results that statutes of the several States, come constantly under revision in the Supreme Court of the United States. The rules of construction which are there applied to them, become therefore a matter of the highest interest. (a) * Martin v. Hunter's Lessee, 1 Wheat. 304; Cohens v. Virginia, 6 Wheat. 413, where the appellate jurisdiction was sustained in an elaborate opinion by Marshall, C. J. (a) Construction of State Statutes by the U. S. Courts.-They are to receive the construction given to them by the highest court of the State. Bloodgood v. Gracey, 31 Ala. 575; Black v. Delaware &c. Canal, 22 N. J. 130; The Samuel Strong, 1 Newb. Adm. 187; Boyle v. Arlidge, 1 Hemps. 620; and the same is true of a clause in a State Constitution, State v. Macon Co. Court, 41 Mo. 453; Draper v. Emerson, 22 Wisc. 147; and it makes no difference that the transaction was before the decision giving a construction to the statute, nor that the parties have left the State. Ibid. But the Supreme Court of the U. S. has not followed this doctrine closely, in a series of recent cases upon the power of municipalities under State laws and Constitutions to issue bonds in aid of railroads. Thus, where the power of a city to lay taxes was limited by its charter to one per cent. of the assessed value of the property within it, and a judgment had been recovered against the city upon bonds issued under a former statute, and the State courts had held that the limitation in the charter applied to such a case, and that the city could not be compelled to lay a tax of more than one per cent. to pay such judgment, the Supreme Court refused to follow such decision and held that the limitation of the charter did not apply. Butz v. Muscatine, 8 Wall. 575. Where the decision of the United States Circuit Court in construing a State statute follows the construction given by the State courts at the time when it was rendered, the Supreme Court will not reverse such decision, because the State courts have in the mean time changed their construction. Morgan v. Curtenius, 20 How. 1. In respect to titles derived from the U. S., the courts of the U. S. follow their own rules of decision. Thus, although a State statute authorizes an action of ejectment upon an entry of land previous to the issue of a patent, the courts of the U. S. will not permit such suit in their jurisdiction, they holding that such title is equitable merely. Hooper v. Scheimer, 23 How. 235. The adoption of a statute originally passed in another State, carries with it the construction which obtained in the original jurisdiction at the time of such adoption. Tyler v. Tyler, 19 Ill. 151; Drennan v. People, 10 Mich. 169; Scruggs v. Blair, 44 Miss. 406; Galbraith v. Galbraith, 5 Kans. 402. But where such construction was based upon a reason not existing in the State which adopts the foreign statute, the rule may be otherwise. See Tyler v. Tyler, ubi supra. And when a constitutional provision against special and local legislation was borrowed, it was held that the construction, that special or local laws could not be enacted when general ones could be On this subject the general doctrine is, that in construing the statutes of the several States, so far as those statutes belong to the local law of the States, the Supreme Court of the United States looks to the decisions of the highest courts of the State; and where the construction is settled by such tribunal, the federal tribunal adopts it as its own.* And the same princi ple has been declared to hold good in regard to State Constitutions. So, in an early case in the Supreme Court of the Unit ed States, turning on the Pennsylvania acts respecting the registry of deeds, C. J. Marshall said, "Were this act of 1715 now for the first time to be construed, the opinion of this court. would certainly be, that the deed was not regularly proved. But in construing the statutes of a State on which land titles depend, infinite mischief would ensue should this court observe a different rule from that which has been long established in the State;" * * "the court yields the construction which would be put on the words of the act, to that which the courts of the State have put on it, and on which many titles may probably depend." "The laws imposing a tax on lands, and regulating its collection, in perhaps almost all the States," says Mr. Justice M'Lean, speaking for the Supreme Court of the United States, "are peculiar in their provisions, having been framed under the influence of a local policy. And this policy has to some extent influenced the construction of those laws. There can be no class of laws more strictly local in their character, and which more directly concern real property, than these. * M'Keen v. Delancey's Lessee, 5 Cr. 22; Polk's Lessee v. Wendell et al. 9 Cr. 87; Gardner v. Collins et al. 2 Pet. 58; Shelby v. Guy, 11 Wheat. 361; Green v. Lessee of Neal, 6 Pet. 291; Nesmith v. Sheldon, 8 How. 812. Webster v. Cooper, 14 How. 488. M'Keen v. Delancey's Lessee, 5 Cranch, 22, 32, 33. It has been said, that the Supreme Court adopts the local law of real property as ascertained by the decisions of the State courts, whether those decisions are upon the construction of the statutes of the State, or form a part of the unwritten law of the State. Jackson v. Chew, 12 Wheat. 153; Also see Shelby v. Guy, 11 Wheat. 361, as to the adoption of State law generally; and Swift v. Tyson, 16 Peters, pp. 1 and 18. made applicable, was also borrowed, but not the decisions defining the cases in which general laws could be made applicable. Hess v. Pegg, 7 Nev. 23. Where there is no proof of the construction of a borrowed statute in the State in which it was originally enacted, it would be construed as such a statute would be in the jurisdiction of its adoption. Smith v. Bartram, 11 Ohio, N. S. 690. Construction of State statutes by the courts of the U. S. is not binding upon State courts. Deans v. McLendon, 30 Miss. 343; Levy v. Mentz, 23 La. Ann. 261. . STATE STATUTES, HOW CONSTRUED IN U. S. COURTS. 369 They not only constitute a rule of property, but their construction by the courts of the States should be followed by the courts of the United States, with equal, if not greater strictness than the construction of any other class of laws.” * The rule of adoption of State construction by the Federal judiciary has been said to grow out of the constitution of the Federal tribunal. The jurisdiction of the Supreme Court, over cases where citizens of another State than the one in which the suit arises are concerned, rests upon the ground that the Federal courts, in applying the law, will be more free from undue influence. But the law to be applied is the local law, and that law is to be administered as it is, not reviewed or altered. And the tribunals of each State are rightly considered best to understand what is the law of the State. This course is pursued, it has been again said, "not on the ground of authority, but of policy. It would be injurious to the citizens of a State to have two rules of property. Such a course by the courts of the Union would produce unfortunate conflicts, and encourage litigation." But the rule is not without exceptions. It does not apply to decisions on charters granted by the British crown, under which certain rights are claimed by the State on the one hand and by private individuals on the other; and in regard to these, the Supreme Court reserves its absolute independence of judg ment. So, again, it has been said by the Supreme Court of the United States, that the rule of that court recognizing the decisions of the highest courts of the States made in regard to State statutes, as containing an authoritative exposition of their true meaning, does not relate to private statutes, relating to particular persons, or to statutes giving special jurisdiction to a State court for the alienation of private estates, "for the reason that whatever a State court may do in such a case, its decision is no part of the local law." But I may be permitted to ¶ doubt whether the same reasons of comity, policy, and practical * Games et al. v. Stiles, 14 Peters, 322, 328. Wood, arguendo, in Martin v. Waddell, 16 Peters, 367, 390; Elmendorf v. Taylor, 10 Wheaton, 152; Bell v. Morrison, 1 Peters, 359; Green v. Neal, 6 Peters, 301. 543. Woolsey v. Dodge, 6 M'Lean, 142. 370 STATE STATUTES, HOW CONSTRUED IN U. S. COURTS. expediency which recommend the rule as to public statutes, should not make it operate with equal effect on private statutes; every statute affecting the tenure of real property in a State, whether public or private, is certainly in some sense a part of the local law. So, too, where the Supreme Court of the United States have first decided upon State laws, the Federal tribunal does not feel bound to surrender their convictions on account of a contrary decision of a State court.* So, again, when the decisions of a State court are conflicting, the Supreme Court of the United States does not consider itself bound to follow the last case, contrary to their own convictions, and especially, they have said, where after a long course of decisions some new light springs up, or an excited public opinion has brought out new doctrines subversive of former safe precedent. In Michigan, the original manuscript of the statute of limitations left out the saving clause "beyond seas;" but the published law contained the exception, and had been so received and construed by the people and the courts for a long series of years, and a subsequent Legislature sanctioned the law as published; nevertheless, the Supreme Court of Michigan decided that the printed statutes did not form a part of the laws of that State, but that the original roll must be received as the exact record of the legislative will. But the Supreme Court of the United States disregarded the decision of the Michigan tribunal, and decided that the printed statute might control the case.t In a case before the Supreme Court of the United States, it was contended that the decisions of the local tribunals on questions of general commercial law were to be treated as having the binding force of statutory enactments. But the court rejected the proposition. Having, in the previous pages, endeavored to give a general *Rowan v. Runnells, 5 Howard, 139. Pease v. Peck, 18 Howard, 595. Swift v. Tyson, 16 Peters, pp. 1 and 18. As to harmony between the decisions of tribunals of co-ordinate jurisdiction in regard to the construction of statutes, I may notice that in Merville v. Townsend, 5 Paige, 80, Mr. Chancellor Walworth said "that where the Supreme Court had given a judicial construction to a provision of a recent statute, that decision, if not clearly wrong, should be followed by the Court of Chancery, so that dif ferent rules of construction might not prevail in the courts of law and equity in relation to the same statutory provisions." |