Opinion of Bradley, J., dissenting. take place. Proving that the government did not appropriate the land for a navy yard is a very different thing from setting up a claim to the land under an act of Congress. I think, therefore, that in this case there was no title or right claimed by the appellants under any statute of, or authority exercised under, the United States; and consequently that there was no decision against any such title; and, therefore, that this court has no jurisdiction. error. But supposing, as the majority of the court holds, that it has jurisdiction, I cannot concur in the conclusion that we can only decide the Federal question raised by the record. If we have jurisdiction at all, in my judgment we have jurisdiction of the case, and not merely of a question in it. The act of 1867, and the twenty-fifth section of the Judiciary Act both provide that a final judgment or decree in any suit in the highest court of a State, where is drawn in question certain things relating to the Constitution or laws of the United States, or to rights or immunities claimed under the United States, and the decision is adverse to such Constitution, laws, or rights, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of Had the original act stopped here there could have been no difficulty. This act derives its authority and is intended to carry into effect, at least in part, that clause of the Constitution which 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 under their authority-not to all questions, but to all cases. This word "cases," in the residue of the section, has frequently been held to mean suits, actions, embracing the whole cases, not mere questions in them; and that is undoubtedly the true construction. The Constitution, therefore, would have authorized a revision by the judiciary of the United States of all cases decided in State courts in which questions of United States law or Federal rights are necessarily involved. Congress in carrying out that clause could have so ordained. And the law referred to, had it Opinion of Bradley, J., dissenting. stopped at the point to which I have quoted it above, would clearly have been understood as so ordaining. But the twenty-fifth section of the Judiciary Act went on to declare that in such cases no other error should be assigned or regarded as a ground of reversal than such as immediately respected the question referred to as the ground of jurisdiction. It having been early decided that Congress had power to regulate the exercise of the appellate jurisdiction of the Supreme Court, the court has always considered itself bound by this restriction, and as authorized to reverse judgments of State courts only for errors in deciding the Federal questions involved therein. Now, Congress, in the act of 1867, when revising the twenty-fifth section of the Judiciary Act, whilst following the general frame and modes of expression of that section, omitted the clause above referred to, which restricted the court to a consideration of the Federal questions. This omission cannot be regarded as having no meaning. The clause by its presence in the original act meant something, and effected something. It had the effect of restricting the consideration of the court to a certain class of questions as a ground of reversal, which restriction would not have existed without it. The omission of the clause, according to a wellsettled rule of construction, must necessarily have the effect of removing the restriction which it effected in the old law. In my judgment, therefore, if the court had jurisdiction. of the case, it was bound to consider not only the Federal question raised by the record, but the whole case. As the court, however, has decided otherwise, it is not proper that I should express any opinion on the merits. The case having been reargued, as well as argued originally, before the appointment of the CHIEF JUSTICE, he took no part in the judgment. Statement of the case. THE RAILROAD COMPANY v. MARYLAND. [ON MOTION.] Where, on error to the supreme court of a State, the record shows a decision of the State court on a Federal question properly presented, and of which this court could take jurisdiction, and shows also the decision of a local question, the writ of error will not be dismissed on motion in advance of the hearing. The parties are entitled to be heard on the soundness of the decision below on the Federal question, on the sufficiency of that question to control the judgment in the whole case, and on the sufficiency of any other point decided to affirm the judgment even if the Federal question was erroneously decided. ON motion to dismiss a writ of error to the Court of Appeals of Maryland. The case was thus: The State of Maryland sued the Baltimore and Ohio Railroad Company in the Supreme Court of Baltimore, in assumpsit, to recover one-fifth of the gross receipts of the company, from January, 1860, to January, 1870, for the transportation of passengers upon what is known as "the Washington Branch Road," a road running from Baltimore in Maryland under a charter from Maryland, to the boundary between that State and the District of Columbia; the line of way being continued by a charter from Congress to the City of Washington, By the act of the State of Maryland of 1832, under which the brauch road was built, one-fifth of the entire receipts from passengers was to go to the State. The defendant set up, as a defence to the action, that this was a tax on passengers for the privilege of passing through the State of Maryland, and was, therefore, void under the Constitution of the United States, within the principle of the case of Crandall v. Nevada.* The Superior Court sustained this view of the subject and gave judgment for the defendant. On appeal to the Court * 6 Wallace, 85. Statement of the case. of Appeals, that court reversed the judgment and ordered a new trial, at which the judgment was rendered for the plaintiff, and on a second appeal this was affirmed. The defendant now brought the case here as within the second section of the act of February 5th, 1867, quoted supra, pp. 592, 593, right-hand column. There was no question that the defendant asserted throughout the entire case a right and an immunity under the Constitution of the United States; that the law of the Maryland legislature was in conflict with that Constitution, and that this claim of right was decided against the defendant. The opinion of the Court of Appeals, which was in the record, showed that all the members of that court were of opinion that the act of the Maryland legislature was not in conflict with the Federal Constitution, and so decided in this case. The case was, therefore, clearly within the second section of the act of 1867. But that court in its opinion placed its judgment also, by a majority (two judges dissenting), on the ground that the railroad company having acted as the agent of the State to collect the money from the passengers, could not in this action avail itself of the illegality of their act in demanding and receiving it. And this also was a proposition which was made in the case at its first trial and insisted on throughout. Mr. A. K. Seyester, Attorney-General of Maryland, now moved to dismiss the writ of error, urging that this, the second. ground, just abovementioned as one on which the Court of Appeals placed its judgment, was of itself sufficient to control the case, and citing Rector v. Ashley,* Gibson v. Chouteau,† and Klinger v. Missouri, and other cases, decided while the twenty-fifth section of the Judiciary Act was in force, to show that where there were other questions in the record on which the judgment of the State court might have rested, independently of the Federal question, this court could not reverse. * 6 Wallace, 147. + 8 Id. 314. 13 Id. 263. Opinion of the court. Messrs. A. K. Seyester, I. N. Steele, P. F. Thomas, and S. T. Wallis, in support of the motion, again urged upon this court that the second ground taken by the Court of Appeals as above said, was of itself sufficient to control the case. Messrs. Reverdy Johnson, J. H. B. Latrobe, and C. J. M. Gwin, contra. Mr. Justice MILLER delivered the opinion of the court. Some of the decisions of this court under the act of 1789 would undoubtedly justify the view taken by the counsel of the defendant in error, in support of the motion to dismiss, if it were very clear that the second proposition on which the Court of Appeals placed its judgment was sufficient to control the case, and that it involved no consideration of Federal law. But the act of 1789 contained restrictive language not in the act of 1867; and in construing the statute as it now stands, we have ruled in the case of Murdock v. Memphis, just decided, that where the Federal question has been raised, and has been decided against the plaintiff in error, the jurisdiction has attached, and it must be heard on the merits. To what this examination on the merits shall extend we have in that opinion considered. But until we have determined that the State court decided erroneously the Federal question which it did decide, we can go no further into the re-examination. The counsel of both parties in this court are entitled to be heard when the record shows the existence of a decision which gives us jurisdiction, on the soundness of that decision, on its sufficiency to control the judgment in the whole case, and on the sufficiency of any other point decided, to affirm the judgment even if the Federal question was erroneously decided. For these reasons the motion to dismiss the case is OVERRULED. |