by the Judiciary Act for removing to the Supreme Court of the United States the final judgment or decree in any suit, rendered in the highest court of law or equity of a State in which a decision could be had, in which is drawn in question the validity of a treaty, or statute of, or authority exercised under the United States, and the decision is against its validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of its validity; or where any title, right, privilege, or immunity is claimed under the Constitution or any treaty or statute of or commission held or authority exercised under the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed by either party under such Constitution, treaty, statute, commission, or authority.1 But to authorize the removal under that act, it must appear by the record, either expressly or by clear and necessary intendment, that some one of the enumerated questions did arise in the State court, and was there passed upon. It is not sufficient that it 1 Acts 1789 and 1867; R. S. 1878, title 13, ch. 11. "It is settled law, as established by well-considered decisions of this court, pronounced upon full argument, and after mature deliberation, notably in Cohens v. Virginia, 6 Wheat. 264; Osborn v. Bank of United States, 9 Wheat. 738; Mayor v. Cooper, 6 Wall. 247; Gold Water & Washing Co. v. Keyes, 96 U. S. 199; and Tennessee v. Davis, 100 U. S. 257; That while the eleventh amendment of the national Constitution excludes the judicial power of the United States from suits, in law or equity, commenced or prosecuted against one of the United States by citizens of another State, such power is extended by the Constitution to suits commenced or prosecuted by a State against an individual, in which the latter demands nothing from the former, but only seeks the protection of the Constitution and laws of the United States against the claim or demand of the State; "That a case in law or equity consists of the right of one party, as well as of the other, and may properly be said to arise under the Constitution, or a law of the United States, whenever its correct decision depends upon a construction of either; "That cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right, or privilege, or claim, or protection, or defence of the party, in whole or in part, by whom they are asserted; "That except in the cases of which this court is given by the Constitution original jurisdiction, the judicial power of the United States is to be exercised in its original or appellate form, or both, as the wisdom of Congress may direct; and lastly, "That it is not sufficient to exclude the judicial power of the United States from a particular case that it involves questions which do not at all depend on the Constitution or laws of the United States; but when a question to which the judicial power of the Union is extended by the Constitution forms an ingredient of the original cause, it is within the power of Congress to give the circuit courts jurisdiction of that cause, although other questions of fact or law may be involved in it." Harlan, J., in Railroad Co. v. Mississippi, 102 U. S. 135, 140. might have arisen or been applicable. And if the decision of the State court is in favor of the right, title, privilege, or exemption so claimed, the Judiciary Act does not authorize such removal. Neither does it where the validity of the State law is drawn in question, and the decision of the State court is against its validity.3 But the same reasons which require that the final decision upon all questions of national jurisdiction should be left to the national 1 Owings v. Norwood's Lessee, 5 Cranch, 344; Martin v. Hunter's Les see, 1 Wheat. 304; Inglee v. Coolidge, 2 Wheat. 363; Miller v. Nicholls, 4 Wheat. 311; Williams v. Norris, 12 Wheat. 117; Hickie v. Starke, 1 Pet. 94; Harris v. Dennie, 3 Pet. 292; Fisher's Lessee v. Cockerell, 5 Pet. 248; New Orleans v. De Armas, 9 Pet. 223, 234; Keene . Clarke, 10 Pet. 291; Crowell v. Randell, 10 Pet. 368; McKinny v. Carroll, 12 Pet. 66; Holmes v. Jennison, 14 Pet. 540; Scott v. Jones, 5 How. 343; Smith . Hunter, 7 How. 738; Williams v. Oliver, 12 How. 111; Calcote v. Stanton, 18 How. 243; Maxwell v. Newbold, 18 How. 511; Hoyt v. Shelden, 1 Black, 518; Farney v. Towle, 1 Black, 350; Day v. Gallup, 2 Wall. 97; Walker v. Villavaso, 6 Wall. 124; The Victory, 6 Wall. 382; Hamilton Co v. Mass., 6 Wall. 632; Gibson v. Chouteau, 8 Wall. 314; Worthy v. Commissioners, 9 Wall. 611; Messenger v. Mason, 10 Wall. 507; Insurance Co. v. Treasurer, 11 Wall. 204; McManus v. O'Sullivan, 91 U. S. 578; Bolling v. Lersner, 91 U. S. 594; Adams Co. v. Burlington, &c. R. R. Co., 112 U. S. 123; Chicago Life Ins. Co. v. Needles, 113 U. S. 574; Detroit Ry. Co. v. Guthard, 114 U. S. 133; Arrowsmith v. Harmon. ing, 118 U. S. 194; Germania Ins. Co. v. Wisconsin, 119 U. S. 473; Lehigh Water Co. v. Easton, 121 U. S. 388; New Or leans Water Works v. Louisiana Sugar Co., 125 U. S. 18. It is not sufficient that the presiding judge of the State court certifies that a right claimed under the national authority was brought in question. Railroad Co. v. Rock, 4 Wall 177; Parmelee v. Lawrence, 11 Wall. 36; Felix v. Schwarnweber, 125 U. S. 54. If the record does not show a federal question raised or necessarily involved, the opinon of the court will not be examined to see if one was in fact decided. Otis v. Oregon S. S. Co., 116 U. S. 548. But where an opinion is part of the record by law, it may be examined. New Orleans Water Works v. Louisiana Sugar Co., 125 U. S. 18; Kreiger v. Shelby R. R. Co., 125 U. S. 39; Gross v. U. S. Mortgage Co., 108 U. S. 477; and see Phila. Fire Ass. v. New York, 119 U. S. 110. The record should show that the right was claimed in the trial court. Brooks v. Missouri, 124 U. S. 394. It is a federal question whether a State court has given effect to the unreversed decision of a United States Circuit Court acting within its jurisdiction. Crescent City, &c. Co. v. Butcher's Union, &c. Co., 120 U. S. 141. So, whether a prisoner has been twice in jeopardy; Bohanan v. Nebraska, 118 U. S. 231; and whether one in a country with which we have an extradition treaty can be brought back for trial except under the treaty provisions. Ker v. Illinois, 119 U. S. 436. That a State court has held valid a divorce in a foreign country raises no such question. Roth v. Ehman, 107 U. S. 319. 2 Gordon v. Caldcleugh, 3 Cranch, 268; McDonogh v. Millaudon, 3 How. 693; Fulton . McAffee, 16 Pet. 149; Linton v. Stanton, 12 How. 423; Burke v. Gaines, 19 How. 388; Reddall v. Bryan, 24 How. 420; Roosevelt v. Meyer, 1 Wall. 512; Ryan v. Thomas, 4 Wall. 603. 3 Commonwealth Bank v. Griffith, 14 Pet. 56; Walker v. Taylor, 5 How 64. We take no notice here of the statutes for the removal of causes from the State to the federal courts for the purposes of origi nal trial, as they are not important to any discussion we shall have occasion to enter upon in this work. See Rev. Stat. of U. S. 1878, title 13, ch. 7; Cooley, Constitutional Principles, 122-128. Judge Dillon has published a convenient manual on this subject. courts will also hold the national courts bound to respect the decisions of the State courts upon all questions arising under the State constitutions and laws, where nothing is involved of national authority, or of right under the Constitution, laws, or treaties of the United States; and to accept the State decisions as correct, and to follow them whenever the same questions arise in the national courts. With the power to revise the decisions of the 1 In Beauregard v. New Orleans, 18 How. 497, 502, Mr. Justice Campbell says: "The constitution of this court requires it to follow the laws of the several States as rules of decision wherever they apply. And the habit of the court has been to defer to the decisions of their judicial tribunals upon questions arising out of the common law of the State, especially when applied to the title of lands." In Bank of Hamilton v. Dudley's Lessee, 2 Pet. 492, 524, it was urged that the exclusive power of State courts to construe legislative acts did not extend to the paramount law, so as to enable them to give efficacy to an act which was contrary to the State constitution; but Marshall, Ch. J., said: "We cannot admit this distinction. The judicial department of every government is the rightful expositor of its laws, and emphatically of its supreme law." Again, in Elmendorf v. Taylor, 10 Wheat. 152, 159, the same eminent judge says: "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 proposed to be governed by principle would, we presume, undertake to say that the courts of Great Britain or France, or of any other nation, had misunderstood their own statutes, and therefore erect itself into a tribunal which should correct such misunderstanding. We receive the construction given by the courts of the nation as the true sense of the law, and feel ourselves no more at liberty to depart from that 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 construction; 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 Consti tution, laws, or treaties of the United States." In Green v. Neal's Lessee, 6 Pet. 291, 298, it is said by McLean, J.: “The decision of the highest judicial tribunal of a State should be considered as final by this court, not because the State tribunal in such a case has any power to bind this court, but because, in the language of the court in Shelby v. Guy, 11 Wheat. 361, a fixed and received construction by a State in its own courts makes a part of the statute law." And see Jackson v. Chew, 12 Wheat. 153, 162, per Thompson, J.; also the following cases: Sims v. Irvine, 3 Dall. 425; McKeen v. Delancy, 5 Cranch, 22; Polk's Lessee v. Wendal, 9 Cranch, 87; Preston v. Browder, 1 Wheat. 115; Mutual Assurance Co. v. Watts, 1 Wheat. 279; Shipp v. Miller, 2 Wheat. 316; Thatcher v. Powell, 6 Wheat. 119; Bell v. Morrison, 1 Pet. 351; Waring v. Jackson, 1 Pet. 570; De Wolf v. Rabaud, 1 Pet 476; Fullerton v. Bank of United States, 1 Pet. 604; Gardner v. Collins, 2 Pet. 58; Beach v. Viles, 2 Pet. 675; Inglis v. Sailor's Snug Harbor, 3 Pet. 99; United States v. Morrison, 4 Pet. 124; Henderson v. Griffin, 5 Pet. 151; Hinde v. Vattier, 5 Pet. 398; Ross v. McLung, 6 Pet. 283; Marlatt v. Silk, 11 Pet. 1; Bank of United States v. Daniel, 12 Pet. 32; Clarke r. Smith. 13 Pet 195; Ross v. Duval, 13 Pet. 45; Wilcox v. Jackson, 13 Pet. 498; Harpending v. Reformed Church, 16 Pet 455; Martin v. Waddell, 16 Pet. 367; Amis v Smith, 16 Pet. 303, Porterfield v. Clark, 2 How. 76; Lane v. Vick, 3 How. 464; Foxcroft v. Mallett, 4 How. 353; Barry v. Mercein, 5 How. 103; Rowan v. Runnells, 5 How. 134; Van Rensselaer v. Kearney, 11 How. 297, Pease r. Peck, 18 How. 595; Fisher v Haldeman, 20 How. 186; Parker e. Kane, 22 How. 1; Suydam v. Williamson, 24 How. 427; Sumner v. Hicks, 2 Black, 532; Chicago v. Robbins, 2 Black, 418; Miles . Caldwell, 2 Wall. 35; Williams v. Kirkland, 13 Wall. 306; Walke State courts in the cases already pointed out, the due observance of this rule will prevent those collisions of judicial authority Harbor Com'rs, 17 Wall. 648; Supervisors e. United States, 18 Wall. 71; Fairfield . Gallatin, 100 U. S. 47; Wade v. Walnut, 105 U. S. 1; Post v. Supervisors, id. 667; Taylor . Ypsilanti, id. 60; Equator Co. v. Hall, 106 U. S. 86; Bendey v. Townsend, 109 U. S. 665; Norton v. Shelby Co., 118 U. S. 425; Stryker v. Goodnow, 123 U. S. 527; Williams v. Conger, 125 U.S. 397; Bucher v Cheshire R. R. Co., id. 555; German Sav. Bank. v. Franklin Co, 128 U. S. 526; Springer v. Foster, 2 Story C. C. 383; Neal r. Green, 1 McLean, 18; Paine v. Wright, 6 McLean, 395; Boyle v. Arledge, Hemp. 620; Griffing v. Gibb, McAll. 212; Bayerque v. Cohen, McAll. 113; Wick v. The Samuel Strong, Newb. 187; N. F. Screw Co. v. Bliven, 3 Blatch. 240; Bronson v. Wallace, 4 Blatch. 465; Van Bokelen v. Brooklyn City R. R. Co., 5 Blatch. 379; United States v. Mann, 1 Gall. 3; Society, &c. v. Wheeler, 2 Gall. 105; Coates v. Muse, Brock. 529; Meade v. Beale, Taney, 339; Loring . Marsh, 2 Cliff. 311; Parker v. Phetteplace, 2 Cliff. 70; King v. Wilson, 1 Dill. 555. The decision of the State court, that a State statute has been enacted in accordance with the State constitution, is binding on the federal courts. Railroad Co. v. Georgia, 98 U. S. 359. In Green v. Neal's Lessee, 6 Pet. 291, an important question was presented as to the proper course to be pursued by the Supreme Court of the United States, under somewhat embarrassing circumstances. That court had been called upon to put a construction upon a State statute of limitations, and had done so. Afterwards the same question had been before the Supreme Court of the State, and in repeated cases had been decided otherwise. The question now was whether the Supreme Court would follow its own decision, or reverse that, in order to put itself in harmony with the State decisions. The subject is considered at length by McLean, J., who justly concludes that "adherence by the federal to the exposition of the local law, as given by the courts of the State, will greatly tend to preserve harmony in the exercise of the judicial power in the State and federal tribunals. This rule is not only recom. mended by strong considerations of propriety, growing out of our system of jurisprudence, but it is sustained by principle and authority." The court, accordingly, reversed its rulings to make them conform to those of the State court. See also Suydam v. Williamson, 24 How. 427 ; Leffing well v. Warren, 2 Black, 599; Blossburg, &c. R. R. Co. v. Tioga R. R. Co., 5 Blatch. 387; Smith v. Shriver, 3 Wall. Jr. 219. It is, of course, immaterial that the court may still be of opinion that the State court has erred, or that the deci sions elsewhere are different. Bell v. Morrison, 1 Pet. 351. But where the Supreme Court had held that certain contracts for the price of slaves were not made void by the State constitution, and afterwards the State court held otherwise, the Supreme Court, regarding this decision wrong, declined to reverse their own ruling. Rowan v. Runnels, 5 How. 134. Compare this with Nesmith v. Sheldon, 7 How. 812, in which the court followed, without examination or question, the State decision that a State general banking law was in violation of the constitution of the State. The United States Circuit Court had held otherwise previous to the State decision. Falconer v. Campbell, 2 McLean, 195. Under like circumstances the State Supreme Court's ruling on a statute of limitations was followed, overruling the federal circuit decision which followed that of a lower State court. Moores v. Nat. Bank, 104 U. S. 625. But the State court's construction of its constitution after the controversy arose, and in a suit between different parties as to the same subject-matter, is not binding on the federal court. Carroll Co. v. Smith, 111 U. S. 556; Enfield v. Jordan, 119 U. S. 680. So, where after a ruling in the United States Circuit Court the State Supreme court for the first time decides against such ruling, its decision will not be followed of necessity in the federal Supreme Court. Burgess v. Seligman, 107 U. S. 20. See Gibson v. Lyon, 115 U. S. 439. This doctrine does not apply to questions not at all dependent upon local statutes or usages; as, for instance, to contracts and other instruments of a com which would otherwise be inevitable, and which, besides being unseemly, would be dangerous to the peace, harmony, and stability of the Union. Besides conferring specified powers upon the national government, the Constitution contains also certain restrictions upon the action of the States, a portion of them designed to prevent encroachments upon the national authority, and another portion to protect individual rights against possible abuse of State power. Of the first class are the following: No State shall enter into any treaty, alliance, or confederation, grant letters of marque or reprisal, coin money, emit bills of credit, or make anything but gold and silver coin a tender in payment of debts. No State shall, without the consent of Congress, lay any imposts or duties. upon imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any State on imports or exports shall be for the use of the treasury of the United States, and all such laws shall be subject to the revision and control of Congress. No State shall, without the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into mercial and general nature, like bills of exchange: Swift v. Tyson, 16 Pet. 1; Oates v. National Bank, 100 U. S 239; Railroad Co. v. National Bank, 102 U. S. 14; and insurance contracts. Robinson v. Commonwealth Ins. Co., 3 Sum. 220. And see Reimsdyke v. Kane, 1 Gall. 376; Austen v. Miller, 5 McLean, 153; Gloucester Ins. Co. v. Younger, 2 Curt. C. C. 322; Bragg v. Meyer, McAll. 408. Whether a lunatic's contract is void or voidable is a question of general jurisprudence. Edwards v. Davenport, 20 Fed. Rep. 756 And of course cases presenting questions of conflict with the Constitution of the United States cannot be within the doctrine. State Bank v. Knoop, 16 How. 369; Jefferson Branch Bank v. Skelley, 1 Black, 436. The federal court must decide for itself whether there exists a contract within the constitutional protection. Louisville & N. R. R. Co. v. Palmes, 109 U. S. 244; Louisville Gas Co. v. Citizens' Gas Co., 115 U. S. 683. So in determining the valid ity of municipal ordinances. Yick Wo v. Hopkins, 118 U. S. 356. And where a contract had been made under a settled construction of the State constitution by its highest court, the Supreme Court sustained it, notwithstanding the 1 To constitute a bill of credit within the meaning of the Constitution, it must be issued by a State, involve the faith of the State, and be designed to circulate as money on the credit of the State, in the ordinary uses of business. Briscoe v. Bank of Kentucky, 11 Pet. 257; Woodruff v. Trapnall, 10 How. 190. Treasury warrants designed so to circulate are bills of credit. Braggs v. Tuffts, 49 Ark. 554. The facts that a State owns the entire capital stock of a bank, elects the directors, makes its bills receivable for the public dues, and pledges its faith for their redemption, do not make the bills of such bank bills of credit" in the constitutional sense. Darrington v. State Bank of Alabama, 13 How. 12. See further, Craig v. Missouri, 4 Pet. 410; Byrne v. Missouri, 8 Pet. 40; Curran v. Arkansas, 15 How. 304; Moreau v Detchamendy, 41 Mo. 431; Bailey v. Milner, 35 Ga. 330; City National Bank v. Mahan, 21 La. Ann. 751. |