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Vol. II.)

MURDOCK v. CITY OF MEMPHIS.

(No. 3.

a

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 stature 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 iheir being repugbeing 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 Con. tution, 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 au'hority 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 auaffirmed 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 the of the supreme court of the United States, in judgment or decree complained of, or by a justhe same manner and under the same regn- 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 reguas 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 passed in a court of the United the same, except that the supreme court, in- States, and the proceeding after reversal shall stead of remunding the cause for a final decisio:a, be the same, except that the supreme court may, as before provided, moy, at their discretion, is the at their discretion, proceed to a final decision of cause shall have been once remanded before, pro- the same, and award erecution 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 as aforesaid than such as appears on the force of the record and immediately respects the before mentioned 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

Vol. II.)

MURDOCK v. CITY OF MEMPHIS.

(No. 3.

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 uniform. 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 omission 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 reëxam-. ining 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

Vol. II.)

MURDOCK v. CITY OF MEMPHIS.

(No. 3.

consenting to the change. No doubt there were those who, believing that the Constitution gave no right to the federal judiciary to go beyond the line marked by the omitted clause, thought its presence or absence immaterial; and in a revision of the statute it was wise to leave it out, because its presence implied that such a power was within the competency of Congress to bestow. There were also, no doubt, those who believed that the section standing without that clause did not confer the power which it prohibited, and that it was, therefore, better omitted. It may also have been within the thought of a few that all that is now claimed would follow the repeal of the clause. But if Congress, or the framers of the bill, had a clear purpose to enact affirmatively that the court should consider the class of errors which that clause forbids, nothing hindered that they should say so in positive terms; and in reversing the policy of the

s government from its foundation in one of the most important subjects on which that body could act, it is reasonably to be expected that Congress would use plain, unmistakable language in giving expression to such intention.

There is, therefore, no sufficient reason for holding that Congress, by repealing or omitting this restrictive clause, intended to enact affirmatively the thing which that clause had prohibited.

We are thus brought to the examination of the section as it was passed by the Congress of 1867, and as it now stands, as part of the Revised Statutes of the United States.

Before we proceed to any criticism of the language of the section, it may be as well to revert for a moment to the constitutional provisions which are supposed to, and which do, bear upon the subject. The second section of the third article already adverted to declares that “ the judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made or which shall be made, under their authority.”

Waiving for the present the question whether the power thus conferred extends to all questions, in all cases, where only one of the questions involved arises under the Constitution or laws of the United States, we find that this judicial power is by the Constitution vested in one supreme court and in such inferior courts as Congress may establish. Of these courts the Constitution defines the jurisdiction of none but the supreme court. Of that court it is said, after giving it a very limited original jurisdiction, that “in all other cases before mentioned, the supreme court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as the Congress may prescribe."

This latter clause has been the subject of construction in this court many times, and the uniform and established doctrine is, that Congress having by the act of 1789 defined and regulated this jurisdiction in certain classes of cases, this affirmative expression of the will of that body is to be taken as excepting all other cases to which the judicial power of the United States extends, than those enumerated. Wiscart v. Dauchy, 3 Dallas, 321 ; Durousseau v. United States, 6 Cranch, 307 ; The Lucy, 6 Wallace, 318; Ex parte McArdle, 7 Wallace, 506.

It is also to be remembered that the exercise of judicial power over cases arising under the Constitution, laws, and treaties of the United

Vol. II.)

MURDOCK v. CITY OF MEMPHIS,

(No. 3.

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States may be original as well as appellate, and may be conferred by Congress on other courts than the supreme court, as it has done in several classes of cases which will be hereafter referred to. We are under no necessity, then, of supposing that Congress, in the section we are considering, intended to confer on the supreme court the whole power which, by the Constitution, it was competent for Congress to confer in the class of cases embraced in that section.

Omitting for the moment that part of the section which characterizes the questions necessary to the jurisdiction conferred, the enactment is, that a final judgment or decree in any suit in the highest court of a state in which a decision in the suit can be had (when one of these questions is decided) may be reëxamined, and reversed or affirmed, in the supreme court of the United States, upon 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 passed or rendered in a court of the United States.

It is strenuously maintained that as the office of a writ of error at the common law, and as it is used in relation to the inferior courts of the United States when issued from this court, is to remove the whole case to this court for revision upon its merits, or at least upon all the errors found in the record of the case so removed, and as this statute enacts that these cases shall be reëxamined in the same manner, and under the same regulations, and the writ shall have the same effect as in those cases, therefore all the errors found in a record so removed from a state court must be reviewed so far as they are essential to a correct final judgment on the whole case.

The proposition as thus stated has great force, and is entitled to our most careful consideration. If the invariable effect of a writ of error to a circuit court of the United States is to require of this court to examine and pass upon all the errors of the inferior court, and if reëxamination of the judgment of the court in the same manner and under the same regulations means that in the reëxamination everything is to be considered which could be considered in a writ to the circuit conrt, and nothing else, then the inference which is drawn from these premises would seem to be correct.

But let us consider this.

There are two principal methods known to English jurisprudence, and to the jurisprudence of the federal courts, by which cases may be removed from an inferior to an appellate court for review. These are the writ of error and the appeal. There may be, and there are, other exceptional modes, such as the writ of certiorari at common law, and a certificate of division of opinion under the acts of Congress. The appeal, which is the only mode by which a decree in chancery or in admiralty can be brought from an inferior federal court to this court, does bring up the whole case for reëxamination on all the merits, whether of law or fact, and for consideration on these, as though no decree had ever been rendered. The writ of error is used to bring up for review all other cases, and when thus brought here the cases are not open for reëxamination on their whole merits, but every controverted question of fact is excluded from consideration, and only such errors as this court can see that the inferior court

Vol. II.)

MURDOCK v. City Of MemPAIS.

(No. 3.

rective power.

committed, and not all of these, can be the subject of this court's cor

Now, one of the first things apparent on the face of this statute is that decrees in chancery, and in admiralty also, if a state court shall entertain jurisdiction of a case essentially of admiralty cognizance, are to be removed into this court from the state courts by this writ of error as well as judgments at law. And such has been the unquestioned practice under the act of 1789 from its passage until now. But this writ cannot bring a decree in chancery or admiralty from the circuit court to this court for review. It has no such effect, and we dismiss every day cases brought here by writ of error to a circuit court, because they can only be brought here by appeal, and the writ of error does not extend to them. The San Pedro, 2 Wheat. 132; McCollom v. Eager, 2 How. 61; Minor v. Tillot8on, Ib. 392.

Unless, therefore, we have been wholly wrong for eighty years under the act of 1789, and unless we are prepared to exclude chancery cases decided in the state courts from the effect of this writ, it cannot, literally, have the same effect as in cases from a court of the United States; and if we could hold that the writ would have the same effect in removing the case, which is probably all that is meant, still the case when removed cannot literally be examined in the same manner, if by manner is meant the principle on which the judgment of the court must rest. For chancery cases, when brought here from the circuit courts, are brought for a trial de novo on all the evidence and pleadings in the case.

It is, therefore, too obvious to need comment, that this statute was designed to bring equity suits to this court from the state courts by writ of error, as well as law cases, and that it was not intended that they should be reëxamined in the same manner as if brought here from a court of the United States, in the sense of the proposition we are considering.

But passing from this consideration, what has been the manner in which this court reëxamines the judgments of the circuit courts on writs of error, as touching the errors into which it will look for reversal? For it is this manner which is supposed to require an examination of all errors, whether of federal law or otherwise under this statute. It requires but slight examination of the reports of the decisions or familiarity with the practice of this court, to know that it does not examine into or decide all the errors, or matter assigned for error, of the most of the cases before them. Many of these are found to be immaterial, the case being reversed or affirmed on some important point which requires of itself a judgment without regard to other matters. There are errors also which may be sufficiently manifest of which the appellate court has no jurisdiction, as in regard to a motion for a new trial, or to quash an indictment, or for a continuance, or amendment of pleadings, or some other matter which, however important to the merits of the case, is within the exclusive discretion of the inferior court.

Nor does it seem to us that the phrase “ in the same manner and under the same regulations, and the writ shall have the same effect,” is intended to furnish the rule by which the court shall be guided in the considerations which should enter into the judgment that it shall render. That the writ of error shall have the same effect as if directed to a circuit

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