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MURDOCK v. CITY OF MEMPHIS.
tee to secure in a reissued patent inventions for combinations fewer in number than the whole described in the original patent, though the original patent contained no description whatever of any such inventions, in violation of the express provision of the patent act and of the decisions of this court.
Judgment reversed with costs, and the cause remanded with directions to issue a new venire.
Mr. Justice STRONG. I concur in the judgment, but not in all the positions taken in the opinion.
MURDOCK v. CITY OF MEMPHIS.
1. The second section of the act of July 5, 1867, 14 U. S. Statutes, 385, operates as a
repeal of the twenty-fifth section of the judiciary act of 1789 ; and the act of 1867, as it is now found in the Revised Statutes, is the sole law governing the removal of causes
from state courts to this court for review, and has been since its enactment in 1867. 2. Congress did not intend, by omitting in this statute the restrictive clause of the act of
1789, limiting the supreme court to the consideration of federal questions in cases so removed, to enact affirmatively that the court should consider all other questions in.
volved in the case that might be necessary to a final judgment or decree. 3. Nor does the language of the statute, that the judgment may be reëxamined and re
versed or affirmed on a writ of error . . . . in the same manner and under the same regulations, and the writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a court of the United States, require
the examination of any other than questions of federal law. 4. The phrase here used has reference to the manner of issuing the writ, its return, with
the record of the case, its effect in removing the case to this court, and the general rules of practice which govern the progress of such cases to final judgment, and is not intended to prescribe the considerations which should govern this court in forming
that judgment. 5. But the language of the statute, in making the jurisdiction of this court dependent
on the decision of certain questions by the state court against the right set up under federal law or authority, conveys the strongest implication that these questions alone
are to be considered when the case is brought here for revision. 6. This view is confirmed by the course of decisions in this court for eighty years, by
the policy of Congress, as shown in numerous statutes, conferring the jurisdiction of this class of cases in courts of original jurisdiction, viz., the district and circuit courts, whether originally or by removal from state courts, when it intends the whole
case to be tried, and by the manifest purpose which caused the passage of the law. 7. In construing the present statute as compared with the act of 1789, we are of opinion
that we are not so closely restricted to the face of the record in determining whether one of the questions mentioned in it has been decided in the state court, and that we may under this statute look to the properly certified opinion of the state courts when
any have been delivered in the case. 8. And we hold the following propositions as governing our examination and our judg
ments and decrees in this class of cases, under the statute as now found in the recent
revision of the acts of Congress:(1.) That it is essential to the jurisdiction of this court over the judgment or decree of
a state court that it shall appear that one of the questions mentioned in the statute must have been raised and presented to the state court; that it must have been decided by the state court against the right claimed or asserted by plaintiff in error, under the Constitution, treaties, laws, or authority of the United States ; or that such a de cision was necessary to the judgment or decree rendered in the case. 2.) These things appearing, this court has jurisdiction, and must examine the judgment VOL. II.
MURDOCK v. CITY OF MEMPHI8.
so far as to enable it to decide whether this claim of right was correctly adjudicated
by the state court. (3.) If it finds that it was rightly decided, the judgment must be affirmed. (4.) If it was erroneously decided, then the court must further inquire whether there is
any other matter or issue adjudged by the state court sufficiently broad to maintain the judgment, notwithstanding the error in the decision of the federal question. If this be found to be the case, the judgment must be affirmed, without examination into
the soundness of the decision of such other matter or issue. (5.) But if it be found that the issue raised by the question of federal law must control
the whole case, or that there has been no decision by the state court of any other matter which is sufficient of itself to maintain the judgment, then this court will reverse that judgment, and will either render such judgment here as the state court should have rendered, or will remand the case to that court for further proceedings, as the
circumstances of the case may require. 9. These principles applied to the present case show that we have jurisdiction of it, and
that the judgment of the state court must be affirmed.
MR. JUSTICE MILLER delivered the opinion of the court.
In the year 1867, Congress passed an act, approved February 5th, entitled an act to amend “ An act to establish the judicial courts of the United States, approved September twenty-fourth, seventeen hundred and eighty-nine." See 14 United States Statutes, 385. This act consisted of two sections, the first of which conferred upon the federal courts and upon the judges of those courts additional power in regard to writs of habeas corpus, and regulated appeals and other proceedings in that class of cases. The second section was a reproduction, with some changes, of the twenty-fifth section of the act of 1789, to which, by its title, the act of 1867 was an amendment, and it related to the appellate jurisdiction of this court over judgments and decrees of state courts.
The difference between the twenty-fifth section of the act of 1789 and the second section of the act of 1867 did not attract much attention, if any, for some time after the passage of the latter. Occasional allusions to its effect upon the principles long established by this court under the former began at length to make their appearance in the briefs and oral arguments of counsel, but were not found to be so important as to require any decision of this court on the subject.
But in several cases argued within the last two or three years the proposition has been urged upon the court that the latter act worked a total repeal of the twenty-fifth section of the former, and introduced a rule for the action of this court in the class of cases to which they both referred, of such extended operation and so variant from that which had governed it heretofore that the subject received the serious consideration of the court. It will at once be perceived that the question raised was entitled to the most careful examination, and to all the wisdoin and learning, and the exercise of the best judgment which the court could bring to bear upon its solution, when it is fairly stated.
The proposition is, that by a fair construction of the act of 1867 this court must, when it obtains jurisdiction of a case decided in a state court, by reason of one of the questions stated in the act, proceed to decide every other question which the case presents which may be found necessary to a final judgment on the whole merits. To this has been added the further suggestion, that in determining whether the question on which the jurisdiction of this court depends has been raised in any given case, we
MURVOCK v. City of MEMPHIS.
are not limited to the record which comes to us from the state court, the record proper of the case as understood at common law, — but we may resort to any such method of ascertaining what was really done in the state court as this court may think proper, even to ex parte affidavits.
When the case standing at the head of this opinion came on to be argued, it was insisted by counsel for defendants in error that none of the questions were involved in the case necessary to give jurisdiction to this court, either under the act of 1789 or of 1867; and that if they were, there were other questions exclusively of state court cognizance which were sufficient to dispose of the case, and that, therefore, the writ of error should be dismissed.
Counsel for plaintiffs in error, on the other hand, argued that not only was there a question in the case decided against them which authorized the writ of error from this court under either act, but that this court, having for this reason obtained jurisdiction of the case, should reëxamine all the questions found in the record, though some of them might be questions of general common law or equity, or raised by state statutes, unaffected by any principle of federal law, constitutional or otherwise.
When, after argument, the court came to consider the case in consultation, it was found that it could not be disposed of without ignoring or deciding some of these propositions, and it became apparent that the time had arrived when the court must decide upon the effect of the act of 1867 on the jurisdiction of this court as it had been supposed to be established by the twenty-fifth section of the act of 1789.
That we might have all the aid which could be had from discussion of counsel, the court ordered a reargument of the case on three distinct questions which it propounded, and invited argument, both oral and written, from any counsel interested in them. This reargument was had, and the court was fortunate in obtaining the assistance of very eminent and very able jurists. The importance of the proposition under discussion justified us in delaying a decision until the present term, giving the judges the benefit of ample time for its most mature examination.
With all the aid we have had from counsel, and with the fullest consideration we have been able to give the subject, we are free to confess that its difficulties are many and embarrassing, and in the results we are about to announce we have not been able to arrive at entire harmony of opinion.
The questions propounded by the court for discussion by counsel were these:
1. Does the second section of the act of February 5, 1867, repeal all or any part of the 25th section of the act of 1789, commonly called the judiciary act?
2. Is it the true intent and meaning of the act of 1867, above referred to, that when this court has jurisdiction of a case, by reason of any of the questions therein mentioned, it shall proceed to decide all the questions presented by the record which are necessary to a final judgment or decree?
3. If this question be answered affirmatively, does the Constitution of the United States authorize Congress to confer such a jurisdiction on this court ?
United's questionand which it shall pre
MURDOCK v. City of MEMPHIS.
1. The act of 1867 has no repealing clause nor any express words of repeal. If there is any repeal, therefore, it is one of implication. The differences between the two sections are of two classes, namely: the change or substitution of a few words or phrases in the latter for those used in the former, with very slight, if any, change of meaning; and the omission in the latter of two important provisions found in the former. It will be perceived by this statement that there is no repeal by positive new enactments inconsistent in terms with the old law. It is the words that are wholly omitted in the new statute which constitute the important feature in the questions thus propounded for discussion.
For the purpose of easy comparison and ready ascertainment of these changes the 25th section of the act of 1789, and the 2d section of the act of 1867 are here given verbatim in parallel columns :The 25th section of the act of 1789.
The 2d section of act of 1867. That a final judgment or decree in any suit, That a final judgment or decree in any suit in the highest court of law or equity of a state in in the highest court of a state in which a dewhich a decision in the suit could be had, where cision in the suit could be had, where is drawn is drawn in question the validity of a treaty, or in question the validity of a treaty, or statute statute of, or an authority exercised under the of, or an authority exercised under, the United United States, and the decision is against their States, and the decision is against their validvalidity; or where is drawn in question the ity; or where is drawn in question the validity validity of a statute of, or an authority exer- of a statute of, or an authority exercised under, cised under any state, on the ground of their any state, on the ground of their being repug. being repugnant to the Constitution, treaties, nant to the Constitution, treaties, or laws of the or laws of the United States, and the decision United States, and the decision is in favor of is in favor of such validity; or where is drawn in such their validity; or where any title, right, question the validity of any clause of the Consti- privilege, or immunity is claimed under the Contution, or statute, or commission held under stitution, or any treaty or statute of, or comthe United States, and the decision is against mission held, or authority exercised, under the the title, right, privilege, or exemption specially United States, and the decision is against the set up or claimed by either party under such title, right, privilege, or immunity specially set clause, Constitution, treaty, statute, or com- up or claimed by either party under such Conmission, may be reëxamined and reversed or stitution, treary, statute, commission, or artaffirmed in the supreme court of the United thority, may be reëxamined and reversed or States on a writ of error, the citation being affirmed in the supreme court of the United signed by the chief justice, or judge, or chan- States, upon a writ of error, the citation being cellor of the court rendering or passing the judg. signed by the chief justice, or judge, or chanment or decree complained of, or by a justice cellor of the court rendering or passing tho of the supreme court of the United States, in judgment or decree complained of, or by a justhe same manner and under the same regu- tice of the supreme court of the United States, lations, and the writ shall have the same effect in the same manner, and under the same regu. as if the judgment or decree complained of had lations, and the writ shall have the same effect been rendered or passed in a circuit court, and as if the judgment or decree complained of had the proceedings upon the reversal shall also be been rendered or pussed in a court of the United the same, except that the supreme court, in- States, and the proceeding after reversal shall stead of remanding the cuuse for a final decisio:1, be the same, except that the supreme court may, as before provided, may, at their discretion, if the at their discretion, proceed to a final decision of cause shall have been once remanded before, pro- the same, and award execution or remand the same ceed to a final decision of the same' and award to an inferior court. execution. But no other error shall be assigned or regarded as ground of reversal in any such case us aforesaid than such as appears on the face of the record and immediately respects the beforementioned questions of validity or construction of said Constitution, treaties, statutes, commissions, or authorities in dispute.
A careful comparison of these two sections can leave no doubt that it was the intention of Congress, by the latter statute, to revise the entire matter to which they both had reference, to make such changes in the law as it stood as they thought best, and to substitute their will in that regard
MURDOCK v. City of MEMPHIS.
entirely for the old law upon the subject. We are of opinion that it was their intention to make a new law so far as the present law differed from the former, and that the new law, embracing all that was intended to be preserved of the old, omitting what was not so intended, became complete in itself and repealed all other law on the subject embraced within it. The authorities on this subject are clear and uniforin. United States v. Tynen, 11 Wall. 88; Henderson Tobacco, Ib. 652; Bartlett v. King, 12 Mass. 557; Cincinnati v. Cody, 10 Pick. 36 ; Sedgwick on Statutes, 126.
The result of this reasoning is that the 25th section of the act of 1789 is technically repealed, and that the second section of the act of 1867 has taken its place. What of the statute of 1789 is embraced in that of 1867 is of course the law now, and has been ever since it was first made so. What is changed or modified is the law as thus changed or modified. That which is omitted ceased to have any effeet from the day that the substituted statute was approved.
This view is strongly supported by the consideration that the revision of the laws of Congress passed at the last session, based upon the idea that no change in the existing law should be made, has incorporated with the Revised Statutes nothing but the second section of the act of 1867. Whatever might have been our abstract views of the effect of the act of 1867, we are, as to all the future cases, bound by the law as found in the Revised Statutes by the express language of Congress on that subject; and it would be labor lost to consider any other view of the question.
2. The affirmative of the second question propounded above is founded upon the effect of the omnission or repeal of the last sentence of the 25th section of the act of 1789. That clause, in express terms, limited the power of the supreme court in reversing the judgment of a state court to errors apparent on the face of the record, and which respected questions that for the sake of brevity, though not with strict verbal accuracy, we shall call federal questions, namely, those in regard to the validity or construction of the Constitution, treaties, statutes, commissions, or authority of the federal government.
The argument may be thus stated : 1. That the Constitution declares that the judicial power of the United States shall extend to cases of a character which include the questions described in the section, and that by the word case, is to be understood all of the case in which such a question arises. 2. That by the fair construction of the act of 1789 in regard to removing those cases to this court, the power and the duty of reëxamining the whole case would have been devolved on the court, but for the restriction of the clause omitted in the act of 1867; and that the same language is used in the latter act regulating the removal, but omitting the restrictive clause. And, 3. That by reënacting the statute in the same terms as to the removal of cases from the state courts, without the restrictive clause, Congress is to be understood as conferring the power which that clause prohibited.
We will consider the last proposition first.
What were the precise motives which induced the omission of this clause it is impossible to ascertain with any degree of satisfaction. In a legislative body like Congress, it is reasonable to suppose that among those who considered this matter at all, there were varying reasons for