To give the Supreme Court of the United States jurisdiction,
under the twenty-fifth section of the Judiciary Act in a case
brought from the highest court of a state, it must be apparent in
the record that the state court did decide in favor of the validity
of a statute of the state the constitutionality of which is brought
into question on the writ of error. Two things must be apparent in
the record: first that someone of the questions stated in the
twenty-fifth section did arise in the state court, and secondly
that a decision was actually made thereon by the same court in the
manner required by the section.
Where one of three parties, plaintiffs in a writ of error, dies
after the writ of error is issued, it is not necessary to make the
heirs and representatives of the deceased parties to the writ of
error, as the cause of action survives to the two other plaintiffs
in error.
MR. JUSTICE McKINLEY delivered the opinion of the Court.
This is a writ of error to a judgment of the Court of Appeals of
Kentucky, affirming a judgment of the Jessamine Circuit Court.
The heirs of John Moss recovered a judgment in ejectment against
the defendant in error in the said circuit court at the October
term, 1815, for a tract of land in Jessamine County, and at the
same term commissioners were appointed in conformity with the Act
of 31 January, 1812, concerning occupying claimants of lands, to
value
Page 37 U. S. 67
the land in controversy, the improvements thereon, &c. At a
subsequent term of the court, the commissioners made their report,
and, among other things, reported the improvements on the land to
be of the value of one thousand six hundred and ninety-eight
dollars. At the October term, 1819, of the said circuit court, on
the motion of the defendant, judgment was rendered in his favor
against the plaintiffs in ejectment for said sum of one thousand
six hundred and ninety-eight dollars. And on 26 October, 1819, the
plaintiffs in error, as sureties of the plaintiffs in ejectment,
executed a bond to the defendant with condition to pay said sum of
one thousand six hundred and ninety-eight dollars, in two equal
annual installments, with interest as authorized by said act, which
bond had, by law, the force of a judgment, and execution was
authorized to be issued thereon, as in case of replevin bonds.
On 7 December, 1821, an execution issued on the bond, against
the plaintiffs in error, who, availing themselves of the benefit of
a statute, then in force, replevied the debt for two years more.
When execution issued against them, on the replevin bond, they
applied to the judge of said circuit court for a writ of error
coram vobis, and in their petition assigned, in substance,
these errors: first, the act of 31 January, 1812, concerning
occupying claimants of lands, is a violation of the compact between
Virginia and Kentucky, and a violation of the Constitution of the
United States, and therefore the bond and other proceedings, under
it, are void; second, but one bond was given for both installments,
when there should have been a bond given for each installment;
third, but one execution issued for both installments, when there
should have been an execution issued for each installment; fourth,
the law under which the replevin bond was given is a violation of
the Constitution of Kentucky, and a violation of the Constitution
of the United States, and therefore the bond is void; fifth, the
whole proceedings are erroneous, wanting form and substance.
The judge of the circuit court awarded the writ of error
coram vobis, on 15 March, 1824, returnable to the next
term of said circuit court. At which term, on 28 April, 1824, by
judgment of the court, the writ of error
coram vobis was
dismissed. From this judgment, the plaintiffs in error appealed to
the Court of Appeals, and assigned, there, the following errors:
first, the court erred in giving judgment upon the several matters
and errors alleged in the petition for the writ of error
coram
vobis, and the assignment
Page 37 U. S. 68
of errors therein contained; second, the court ought to have
quashed the said execution, bond, &c., as prayed for in the
petition and writ of error
coram vobis. Upon the hearing
of the cause, the Court of Appeals affirmed the judgment of the
circuit court.
The jurisdiction of this Court over this cause was not
questioned at the bar, but the question appears necessarily to
arise on the record, and must therefore be decided by the court.
The 25th section of the Judiciary Act of 1789, confers appellate
jurisdiction on this Court, from final judgments and decrees, in
any suit in the highest court of law or equity of a state in which
a decision of 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 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 set up or claimed by either
party.
In this case, two statutes of Kentucky have been drawn in
question, on the ground of their repugnance to the Constitution of
the United States. But, whether the Court of Appeals decided in
favor of their validity, will depend first, upon, whether the
questions arising under those statutes were not, or might have
been, decided upon the authority of the state laws, without
involving their validity under the Constitution of the United
States, and secondly whether the record of this case shows that the
court did decide in favor of their validity.
A question arose at the bar whether the judgment of the circuit
court, in favor of the defendant, and against the plaintiffs in
ejectment, was before the Court of Appeals, on the trial there. The
counsel for the plaintiffs in error, insisted that it was, and
therefore a proper subject of examination in this Court. The
plaintiffs in error were not parties to the judgment of the circuit
court. They became parties in the record by being the sureties of
the plaintiffs in ejectment in the improvement bond, which was
subsequent to, and in fact the fruit of that judgment. The appeal
which they took was from the judgment of the circuit court, upon
the writ of error
coram vobis, and the errors which they
assigned in the Court of Appeals limited the
Page 37 U. S. 69
inquiry before that court, to the correctness of that judgment.
But independent of these grounds, the statutes of Kentucky
regulating the writ of error
coram vobis, limit its
operation, expressly, to errors arising subsequent to the judgment
of the inferior court. Morehead & Brown's Digest 1554,
1555.
The first error assigned, in the petition for the writ of error
coram vobis, draws in question the validity of the Act of
31 January, 1812, concerning occupying claimants of lands on the
ground that it is in derogation of the compact between Virginia and
Kentucky and repugnant to the Constitution of the United States.
Neither the plaintiffs in ejectment nor the defendant appears to
have raised this question in any part of the proceedings between
them. The plaintiffs in ejectment did not sign the improvement
bond, and were not, therefore, parties to the suit in the Court of
Appeals, and consequently are not parties here. They and they alone
had a right to object to the judgment of the circuit court against
them, and in favor of the defendant, and the proceedings under it,
on the ground that the Act of 31 January, 1812, was
unconstitutional. By that act, they were deprived of the rents and
profits of their land, while in the occupation of the defendant,
and compelled to pay him for all improvements which he had made
thereon. And this is the ground of the decision of this Court in
the case of
Green &
Biddle, 8 Wheat. 1, which was relied on by the
counsel for the plaintiffs in error. The plaintiffs in error were
the mere sureties of the plaintiffs in ejectment, for the money
adjudged to the defendant for his improvements. The bond which they
signed, was a voluntary act, and a part of the means provided by
the said law, to enable the defendant to obtain satisfaction of his
judgment. The validity of the proceedings, so far as they were
concerned, did not depend upon the constitutionality of the act
concerning occupying claimants of land, and therefore they had no
right to complain of it.
The fourth error in the petition draws in question the validity
of the statute of Kentucky, authorizing defendants to give replevin
bonds payable in two years upon the plaintiff's failing to cause to
be endorsed on his execution, that he would take the notes of
certain banks specified in the act in discharge thereof. Had the
plaintiffs in error paid the amount of the execution which issued
against them on the improvement bond in money, as they were bound
to do, this question would never have arisen. Having availed
themselves of the benefit of the credit extended to them by that
act, and delayed the
Page 37 U. S. 70
defendant in error in the payment of the debt they had thus
voluntarily again assumed upon themselves; is it proper that at the
end of four years they should be permitted to come into court and
set aside the whole proceedings against them on the abstract
principle that the statute under which they had taken place
violated the Constitution of the United States?
The Court of Appeals of Kentucky has decided that a replevin
bond cannot be set aside at the instance of the debtor on the
ground that the law under which it was given was unconstitutional.
Let it be conceded, says the court, that the Constitution of the
United States or of this state is violated by the law in question;
whose rights are infringed by it? Certainly not those of the
debtor, for the law is passed and operates exclusively for his
benefit.
Small & Carr v. Hodgen, 1 Lit. 16. And in a
subsequent case, the purchaser of a tract of land under an
execution sale, on a credit of one year, attempted to set aside the
bond, which he had given for the purchase money; on the ground that
the law under which the sale had been made and the bond had been
executed, violated the Constitution of the United States. On the
authority of the above case, the court refused to set aside the
bond and sale.
Rudd & Miller v. Schlatter &
Gilman, 1 Lit. 19.
Upon this view of the case, it may be fairly presumed, that the
Court of Appeals decided upon some or all of the grounds here
stated, and that it did not decide in favor of the validity of the
statutes referred to. But to give this Court jurisdiction, it is
not sufficient to show that the court below might have decided in
favor of the validity of these statutes or either of them; it must
be apparent in the record that the court did so decide. In the
cases of
Crowell v. Randell and
Shoemaker v.
Randell, 10 Pet. 391, the Court went into a review
of all the cases, which it had previously decided, under the
authority of the 25th section of the Judiciary Act of 1789.
In delivering the opinion of the Court, MR. JUSTICE STORY
said
"In the interpretation of this section of the act of 1789, it
has been uniformly held, that to give this Court appellate
jurisdiction, two things should have occurred and be apparent in
the record: first, that some one of the questions stated in the
section did arise in the court below, and secondly that a decision
was actually made thereon by the same court, in the same manner
required by the section. If both of these do not appear in the
record, the appellate jurisdiction fails. It is not sufficient to
show that such a question might have
Page 37 U. S. 71
occurred, or such a decision might have been made, in the court
below. It must be demonstrable that they did exist and were
made."
As it nowhere appears in the record of the cause under
consideration that the Court of Appeals of Kentucky did decide in
favor of the validity of either of the statutes drawn in question
before it, but on the contrary it appearing to be reasonably
certain that its judgment was rendered on all the questions
presented for its adjudication on the authority of the state laws;
this Court has therefore no jurisdiction of this case.
The writ of error must be
Dismissed.
On consideration of the suggestion and motion made by Mr. Jones,
of counsel for the plaintiffs in error, in this cause, on a prior
day of the present term of this Court, to-wit, on Thursday, 11
January, it is the opinion of this Court, that it is unnecessary to
make the heirs and representatives of John McKinney, whose death
has been suggested on the record, parties to this writ of error, as
the cause of action survives to the two other plaintiffs in
error.
This cause came on to be heard on the transcript of the record
from the Court of Appeals for the State of Kentucky, and was argued
by counsel, on consideration whereof it is the opinion of this
Court that this Court has not jurisdiction in this cause, whereupon
it is now here ordered and adjudged by this Court, that this writ
of error be, and the same is hereby dismissed for the want of
jurisdiction. All of which is hereby ordered to be certified to the
said Court of Appeals under the seal of this Court.