7. Its Appellate Jurisdiction to Matter appearing on the Record. – The Judiciary Act of 1789 required, on error or appeal from a state court, that the error assigned appear on the face of the rec ity, treaty, or statute. Strader v. Baldwin, 9 How. 261; Ryan v. Thomas, 4 Wall. 603; post, 330, n. (a). But it was held in a case arising under the Legal Tender Acts that although the state court had decided in favor of the constitutionality of the acts, the Supreme Court of the United States had appellate jurisdiction, both by § 25 of the Judiciary Act of 1789 and by § 2 of the act of 1867 (ante, 300, n. 1), as the decision below was against a right claimed under the Constitution to have a note paid in coin. Trebilcock v. Wilson, 12 Wall. 687 (overruling Roosevelt v. Meyer, 1 Wall. 512). See The Banks v. The Mayor, 7 Wall. 16; Furman v. Nichol, 8 Wall. 44. Again, if the judgment of the state court would have been the same if the error alleged to appear on the record had not been committed, or, in other words, if certificate of the presiding judge of the State court, as to the existence of grounds upon which our interposition might be successfully invoked, while always regarded with respect, cannot confer jurisdic. tion upon this court to re-examine the judgment below. Powell v. Brunswick County, 150 U. S. 433, 439, and cases cited. 2. That the title, right, privilege, or immunity must be specially set up or claimed at the proper time and in the proper way. Miller v. Texas, 153 U. S. 535; Morrison v. Watson, 154 U. S. 111, 115, and cases cited. 3. That such claim cannot be recognized as properly made when made for the first time in a petition for rehearing after judgment. Loeber v. Schroeder, 149 U. S. 580, 585, and cases cited. 4. That the petition for the writ of error forms no part of the record upon which action is taken here. Butler v. Gage, 138 U. S. 52, and cases cited. 5. it does not appear by clear and necessary intendment that the question must have been raised and must have been decided in order to induce the judgment, the Supreme Court will not have jurisdiction. Williams v. Oliver, 12 How. 111; Gill v. Oliver, 11 How. 529; Millinger v. Hartupee, 6 Wall. 258, 262. Compare Minnesota v. Bachelder, 1 Wall. 109. Again, the fact that a state court has declared a contract void which the Supreme Court might think valid is not enough. In such a case it must be the constitution or some law of the state which impairs the obligation of the contract. Railroad Co. v. Rock, 4 Wall. 177; Knox v. Exchange Bank, 12 Wall. 379; Northern R. R. v. The People, ib. 384. In Bridge Proprietors v. Hoboken Co., 1 Wall. 116, and Furman v. Nichol, 8 Wall. 44, the Nor do the arguments of counsel, though the opinions of the State courts are now made so by rule. Gibson v. Chouteau, 8 Wall. 314; Parmelee v. Lawrence, 11 Wall. 36; Gross v. U. S. Mortgage Co., 108 U. S. 477, 484; United States v. Taylor, 147 U. S. 695, 700. 6. The right on which the party relies must have been called to the attention of the court, in some proper way, and the decision of the court must have been against the right claimed. Hoyt v. Sheldon, 1 Black, 518; Maxwell v. Newhold, 18 How. 511, 515. 7. Or, at all events, it must appear from the record, by clear and necessary intendment, that the Federal question was directly involved so that the State court could not have given judgment without deciding it; that is, a definite issue as to the possession of the right must be distinctly deducible from the record before the State court can be held to have dis ord, and immediately respect some questions affecting the validity or construction of the Constitution, treaties, statutes, or authorities of the Union. Under this act, it is not necessary that the In order to give the court jurisdiction, the statute, the validity of which is drawn in question, must be passed by a state, a member of the Union; it is not enough even that it is passed by a territory. Miners' Bank v. Iowa, 12 How. 1. Acts of other organized political bodies within the limits of the Union must be dealt with either under the power to put down insurrections, or by the penal laws of the state or territory in which they are acting. Scott v. Jones, 5 How. 343; post, 349. The court has no jurisdiction to determine whether a government organized in a state is the duly constituted government of the state or not. That is a question for the political power. Luther v. Borden, posed of such Federal question by its decision. Powell v. Brunswick County, 150 U. S. 400, 433." In order to obtain a review in the Supreme Court the judgment of the highest State court must have been against the plaintiff in error and have necessarily involved a Federal question duly claimed in the State court, and not merely have presented such a question with others in themselves sufficient to maintain the judgment. Brooks v. Missouri, 124 U. S. 394; Hale v. Akers, 132 U. S. 554; San Francisco v. Itsell, 133 U. S. 65; Cole v. Cunningham, id. 107; Hopkins v. McLure, id. 380; Beatty v. Benton, 135 U. S. 244; Johnson v. Risk, 137 U. S. 300; Butler v. Gage, 138' U. S. 52; Beaupré v. Noyes, id. 397; Missouri v. Andriano, id. 496; Davis v. Texas, 139 U. S. 651; Leeper v. Texas, id. 462; Williams v. Heard, 140 U. S. 529; New York & N. E. R. Co. v. Woodruff, 153 7 How. 1; Texas v. White, 7 Wall. 700, 730, stated 323, n. 1. For other cases where the court has declined to entertain political questions, see 286, n. 1; The Protector, 12 Wall. 700 (as to the beginning and end of the rebellion). Whether the act of Feb. 5, 1867, ante, 300, n. 1, repeals by omission the requirement of the Judiciary Act of 1789 that the error shall appear on the face of the record was left unsettled in Stewart v. Kahn, 11 Wall. 493, 503; Trebilcock v. Wilson, 12 Wall. 687, 694; but it seems that the law has not been changed, Klinger v. Missouri, 13 Wall. 257, 262. Cases under the former act are Walker v. Villavaso, 6 Wall. 124; The Victory, ib. 382; Furman v. Nichol, 8 Wall. 44; Worthy t. Commissioners, 9 Wall. 611; Insurance Co. v. The Treasurer, 11 Wall. 204. See U. S. 689; Hagar v. California, 154 U. S. 639. See also Starin v. New York, 115 U. S. 248; Germania Ins. Co. v. Wisconsin, 119 U. S. 473; Kansas Pacific R. Co. v. Atchison R. Co., 112 U. S. 414; New Orleans Water-works Co. v. Louisiana Sugar Refining Co., 125 U. S. 18; DeSaussure v. Gaillard, 127 U. S. 216; Chappell v. Bradshaw, 128 U. S. 132; Miller v. Swann, 150 U. S. 132; Eustis v. Bolles, id. 361; Newport Light Co. v. Newport, 151 U. S. 527; Tennessee v. Union & P. Bank, 152 U. S. 454; New Orleans v. Benjamin, 153 U. S. 411; Reagan v. Farmers' L. & T. Co., 154 U. S. 362, 420; No. Pac. R. Co. v. Patterson, id. 130; Gray v. Coan, id. 589; St. Louis, &c. Ry. Co. v. Merriam, 156 U. S. 478. So the Supreme Court has no jurisdiction to review by writ of error a State judgment alleged to impair the obligation of a contract, when no constitutional objection was made in the State court. Morrison v. Watson, 154 record should state in terms the misconstruction of the authority of the Union, or that it was drawn in question; but it must show some act of Congress applicable to the case, to give to the Bridge Proprietors v. Hoboken Co., 1 Wall. 116; Nauer v. Thomas, 13 Allen, 572. If the court can see clearly from the whole record, that a certain provision of the Constitution was relied on by the party who brings the writ of error, also that the right thus claimed by him was denied, it has jurisdiction, although the act of Congress or part of the Constitution supposed to be infringed by the state law is not pointed out in express words, Bridge Proprietors v. Hoboken Co., 1 Wall. 116, 143; Furman v. Nichol, 8 Wall. 44, 56; and it is said that if there is no valid ground for the judgment except one which raises a question under the act, it will be presumed to be based upon that, and jurisdiction will be taken. Klinger v. Missouri, 13 Wall. 257. If it does not appear by necessary intendment from the record that a question within the act was raised and passed upon, there is no appellate jurisdiction, U. S. 111. Adverse judgments upon rights or titles claimed under authority exercised under the general government may thus be reviewed. Carson v. Dunham, 121 U. S. 421. Mining claims and infringements of letters patents and copyrights necessarily involve Federal laws and questions. Cons. W. G. M. Co. v. Champion M. Co., 62 Fed. Rep. 945; Walter A. Wood H. Co. v. Minneapolis E. H. Co., 61 id. 256; Haggin v. Lewis, 66 id. 199. When a Federal question is necessarily involved in the decisions of a State court, it need not appear affirmatively in its opinion or in the record that that question was raised and decided. Kaukauna W. P. Co. v. Green Bay & M. Canal Co., 142 U. S. 254. The judgment of the highest State court must have been final, not merely interlocutory. Farnsworth v. Montana, 129 U. S. 104; McCollum v. although the presiding judge certifies that it was so in fact. Railroad Co. v. Rock, 4 Wall. 177; Parmelee v. Lawrence, 11 Wall. 36. So the opinion cannot be resorted to for the purpose of showing that a question of federal cognizance was decided by the state court. Gibson v. Chouteau, 8 Wall. 314. So, on the other hand, if the record raises a question within the act, and it appears from the opinion only of the state court (although the same is required by a state law to be filed among the papers of a case) that there was a point in the case which was a ground of decision, but which was not within the act, the Supreme Court has jurisdiction. Rector v. Ashley, 6 Wall. 142. See further, Maguire v. Tyler, 8 Wall. 650. It may be added that writs of error to state courts are not allowed as of right. The practice is to submit the record to a judge of the Supreme Court, who exam Howard, 154 U. S. 577. Decisions by the State court relating to its own practice, as that amendments of the record must be made before the end of the term, will be followed by the U. S. Supreme Court, and are not a denial by a State of the equal protection of the law to individuals. Fielden v. Illinois, 143 U. S. 452. A point once decided by the U. S. Supreme Court is not a Federal question. Kansas v. Bradley, 26 Fed. Rep. 289. Under the U. S. Rev. Stats. 709, the jurisdiction of the Supreme Court depends upon the question presented, and not upon the parties' citizenship. French . Hopkins, 124 U. S. 524; McKenna v. Simpson, 129 U. S. 506. The decision of a State court construing the laws of the Territory from which that State was formed will be followed by a Federal court, when there are no cogent Supreme Court appellate jurisdiction. It will be sufficient, if it be apparent that the case, in point of law, involved one of the questions on which the appellate jurisdiction is made to depend by the 25th section of the Judiciary Act of 1789, and that the state court must have virtually passed upon it. (c) But the (c) Craig v. State of Missouri, 4 Peters, 410. In Crowell v. Randell, 10 Peters, 368, the Supreme Court reviewed all the cases on the appellate jurisdiction of the court from the state courts; and it was decided, that to give the court appellate jurisdiction, two things must have occurred, and be apparent in the record, or by necessary inference from it: (1.) that some one of the questions stated in the 25th section of the Judiciary Act of 1789 did arise in the court below, and (2.) that a decision was actually inade thereon by the same court in the manner required by the section. If both of these do not appear on the record, the appellate jurisdiction fails. 12 Peters, 507; Ocean Ins. Co. v. Polleys, 13 Peters, 157; Coons v. Gallager, 15 Peters, 18, s. p. See also Conklin's Treatise (2d ed.), 26. ines whether the case upon the face of the record will justify the allowance of the writ. Twitchell v. Commonwealth, 7 Wall. 321; Gleason v. Florida, 9 Wall. 779. See, as to what is a cause or suit, ante, 297, n. (d). A petition for a writ of habeas corpus, duly presented, is one. Ex parte Milligan, 4 Wall. 2, 112. So is a proceeding instituted in a state court by submitting an agreed statement of facts without any compulsory process. Aldrich v. Etna Co., 8 Wall. 491. But when a district judge was authorized by act of reasons for disregarding it. Capital Bank Congress to adjudicate on certain claims, which were to be paid if the Secretary of the Treasury should, on a report of the evidence, deem it advisable, it was held that the judge acted as a commissioner, and no appeal lay. United States v. Ferreira, 13 How. 40; Ex parte Zellner, 9 Wall. 244, 247; United States v. Circuit Judges, 3 Wall. 673. See the similar decision as to the Court of Claims as formerly regulated, ante, 297, n. 1. As to what is a final judgment, see 316, n. 1. circuit court can revise the action of a State court of equity. Sharp v. Whiteside, 19 Fed. Rep. 156. A Federal Court cannot restrain a crimi nal prosecution by a State under an unconstitutional State statute, or a city ordinance which contravenes the United States Constitution. Minneapolis &c. Ry. Co. v. Milner, 57 Fed. Rep. 276; Yick Wo v. Crowley, 26 id. 207. Under the U. S. Rev. Stats. § 1979, criminal proceedings threatened under an unconstitutional State law, may be enjoined, if their avowed object is to obstruct the plaintiff in the pursuit of a lawful business under the Interstate Commerce Law. M. Schandler B. Co. v. Welch, 42 Fed. Rep. 561; Donald v. Scott, 67 id. 854. court has been so precise upon this point, that in Miller v. Nicholls, (d) notwithstanding it was believed that an act of Congress, giving the United States priority in cases of insolvency, had been disregarded, yet, as the fact of insolvency *did not appear upon record, the court decided that they * 327 could not take jurisdiction of the case. In the exercise of their appellate jurisdiction, the Supreme Court can only take notice of questions arising on matters of fact appearing upon the record; and in all cases where jurisdiction depends on the party, it is the party named in the record. (a) 8. Its Appellate Jurisdiction exists, though a State be a Party. (x) The appellate jurisdiction may exist, though a state be a party, and it extends to a final judgment in a state court, on a case arising under the authority of the Union. The appellate powers of the federal judiciary over the state tribunals was again, and very largely, discussed in the case of Cohens v. Virginia; (b) and the constitutional authority of the appellate jurisdiction of the Supreme Court was vindicated with great strength of argument and clearness of illustration. The question arose under an act of Congress instituting a lottery in the District of Columbia, and the defendant below was criminally prosecuted for selling tickets in that lottery, contrary to an act of the legislature of Virginia. Judgment was rendered against him, in the highest court of the state in which the cause was cognizable, though he claimed the protection of the act of Congress. A writ of error was brought upon that judgment into the Supreme Court of the United States, on the ground that the prosecution drew in question the validity of the statute in Virginia, as being repugnant to a law of the United States, and that the decision was in favor of the state law. It was made a great point in the case, whether the Supreme Court had any jurisdiction. The court decided, that its appellate jurisdiction was not excluded by the character of the parties, one of them being a state, and the other a citizen of the state. Jurisdiction was given to the courts of the Union in two classes of cases. * In * 328 (d) 4 Wheaton, 311. (a) Governor of Georgia v. Madrazo, 1 Peters, 110; Hickie v. Starke, ib. 98; Fisher v. Cockerell, 5 id. 248. (b) 6 Wheaton, 264. (x) See infra, 351, n. (x). |