Murdock v. City of Memphis

Decision Date01 October 1874
Citation20 Wall. 590,87 U.S. 590,22 L.Ed. 429
PartiesMURDOCK v. CITY OF MEMPHIS
CourtU.S. Supreme Court

ERROR to the Supreme Court of Tennessee; the case being thus:

The Constitution of the United States after vesting the judicial power of the United States 'in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish,' ordains as follows:

'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 under their authority,' &c.

On the 24th of September, 1789, at the first Congress of the United States, after the adoption of the Constitution, Congress passed the 'act to establish the judicial courts of the United States;'1 the great act commonly called the Judiciary Act. The twenty-fifth section of it gave to this court whatever power was given in the act at all to re-examine, reverse, or affirm the final judgments or decrees in suits in the highest courts of law or equity of the States.

On the 5th of Feb., 1867, after the late rebellion had been suppressed,—and just before the adoption of the fourteenth amendment to the Constitution, which declares that 'no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States'—but while more or less disorganization of things remained in the Southern States, Congress passed an act entitled 'An act to amend an act to establish the judicial courts of the United States.'2 This act was in two sections. The first section gives to the courts of the United States, and the several judges thereof, within their respective jurisdictions, in addition to the authority already conferred by law, power to grant writs of habeas corpus in all cases where any person may be restrained of liberty in violation of the Constitution, or of any treaty or law of the United States.

The second—the one alone much concerning this case,—was on the same subject as the twenty-fifth section of the old act.

The twenty-fifth section of the old act and the second section of the new one are here juxtaposited verbatim in columns.

Page 592-Continued

THE TWENTY-FIFTH SECTION OF THE ACT OF 1789.

That a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of such their validity, or where is drawn in question the construction of any clause of the Constitution, or of a treaty or statute of, or commission held under the United States, and the decision is against the title, right, privilege, or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute, or commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error, the citation being signed by the chief justice, or judge, or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States, 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 Circuit Court, and the proceeding upon the reversal shall also be the same, except that the Supreme Court, instead of remanding the cause for a final decision, as before provided, may at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same and award execution. But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid than such as appears on the face of the record and immediately respects the before-mentioned questions of validity or construction of the said Constitution, treaties, statutes, commissions, or authorities in dispute.

THE SECOND SECTION OF THE ACT OF 1867.

That a final judgment or decree in any suit in the highest court of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of or an authority exercised under the United States, and the decision is against their validity, or where is drawn in question the validity of a statute of or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of such their 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, may be re-examined and reversed or affirmed in the Supreme Court of the United States, upon a writ of error, the citation being signed by the chief justice, or judge, or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States, 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; and the proceeding upon the reversal shall also be the same, except that the Supreme Court may, at their discretion, proceed to a final decision of the same, and award execution or remand the same to an inferior court.

The published proceedings of the two houses of Congress show that the bill, which subsequently became a law, was reported by a committee which had been instructed 'to inquire and report what legislation was necessary to enable the courts of the United States to enforce the freedom of the wives and children of soldiers of the United States, under the joint resolution of Congress of March 3d, 1865, and the liberty of all persons under the operation of the constitutional amendment abolishing slavery.' The bill, so far as the point now under consideration is concerned, was not the subject of special comment. The effect of it was declared by the member of the House of Representatives who reported it from the committee, to be 'to enlarge the privilege of the writ of habeas corpus.'3 In the Senate an inquiry was made 'whether the second section was drawn on the same principle as the twenty-fifth section of the Judiciary Act of 1789.' The reply was, 'It is a little broader than the Judiciary Act. It is of a similar character.'4

Thus, apparently it happened that the fact that Congress had passed the act of 1867, was hardly noted for some time within the precincts of this bar—where the venerable Judiciary Act of 1789 was in some sort regarded as only less sacred than the Constitution, and most unlikely to be wished to be altered—and that the less studious observers considered that the new section was but a careless transcript of the old one. However, the more careful readers were early awakened by possibilities of meanings in the second section of the new act which would have far-reaching effects. Mr. Phillips in his work on Practice,5 in this court, early observed that the new act 'in some of its provisions and omissions seems to have been intended to work a change in the exercise of the jurisdiction of the court.' So in the case of Stewart v. Kahn,6 the difference between the two acts was enforced by Mr. S. M. Johnson, counsel, on one side of the case who claimed for it vast effects.

A careful reading of the act shows, indeed, to every one certain verbal changes. Thus:

1st. By the old act, this court could not proceed to final judgment and award execution, except in cases where the cause 'had been once remanded before.'

By the new act, this limitation is omitted, and the court is authorized in all cases at their discretion, to render judgment and award execution.

2d. By the old law the jurisdiction is vested in cases where is drawn in question the construction of any clause of the Constitution, or treaty, or statute, or commission.

In the new, we have the use of these other words, 'or where any right, title, privilege, or immunity is claimed,' under the Constitution, &c.

3d. By the old law it was required that what is called 'the Federal question' must 'appear on the face of the record.'

In the new, the words making this requisition are omitted.

4th. By the old law, 'no other error could be assigned or regarded as ground of reversal, than such as immediately related to the validity or construction of the Constitution, treaties, statutes, commissions, or authorities in dispute.'

In the new, the words putting this limitation on the jurisdiction disappear, and makes an argument plausible that Congress or the draughtsman of the act had meant to say that if a Federal question once existed in the case, and this court so got jurisdiction of the case, then it was bound to go on and decide every question in it, though these questions were questions of local law, and such as, in numberless cases, the court had decided that, under the old section and in consequence of the now omitted language at the close of it, could not be passed on here.

Referring to this last change, its operation seemed so important and its bearing on the twenty-fifth section so direct in a matter oftener discussed and decided by this court than any question ever submitted to it; that it was difficult for some persons to conclude that the legislator who drew the bill, and the legislature that adopted it, did not comprehend that the bill was effecting a...

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