Where the supreme court of a state certified that there was
"drawn in question the validity of statutes of the State of Ohio,"
&c., without naming the statutes, this was not enough to give
jurisdiction to this Court, under the 25th section of the Judiciary
Act.
Nor, in this case, would the Court have had jurisdiction if the
statutes had been named, because --
In 1816, the Legislature of Ohio passed an "act to prohibit the
issuing and circulation of unauthorized bank paper," and in 1839 an
act amendatory thereof, and the question was whether or not a canal
company, incorporated in 1837, was subject to these acts. In
deciding that it was, the Supreme Court of Ohio only gave a
construction to an act of Ohio which neither of itself nor by its
application involved in any way a repugnancy to the Constitution of
the United States by impairing the obligation of a contract.
The case of
Commercial Bank of Cincinnati
v. Buckingham's Executors, 5 How. 317, examined and
sustained.
As the case was decided upon the point of jurisdiction, it will
be necessary to state only so much of it as to show what the
question was which came before this Court.
See 18 Ohio
151.
James H. Walker and John Walker, partners in trade under the
name of J. H. and J. Walker, brought a writ against the plaintiffs
in error in the Hamilton Court of Common Pleas in Ohio. The action
was brought to recover $2,000 from the plaintiffs in error, as
directors, stockholders or otherwise interested in an association
known as the Cincinnati & Whitewater Canal Company. The
evidence upon the trial was that the plaintiffs had become the
holders of a large amount of such notes as the following:
"No. 18667 D"
"
1 1"
"The Cincinnati & Whitewater Canal Co. promise to pay one
dollar to R. McCurdy, or order, twelve months after date, for value
received, at their office, Cincinnati, 9 Nov. 1840."
"SAM. E. FOOTE,
Sec'y J. BONSALL
Pres't"
"No. 1. Indorsed ''R. McCurdy'"
The court charged the jury as follows:
"That if the paper was issued under the directions or orders of
the defendants and intended to circulate as currency, they would be
liable in this action whether issued for the individual benefit of
the defendants or for the benefit of the Cincinnati
Page 55 U. S. 150
& Whitewater Canal Company; that if the company had issued
notes not intended to circulate as a currency, as bank paper
generally does, in the ordinary form, but merely to pay off their
creditors, the defendants would not be liable; that if the
defendants, in issuing said notes, acted merely as directors of the
Cincinnati & Whitewater Canal Company, and within the limits of
their corporate powers, they would not be personally liable; but
that said charter of said company did not authorize the issuing of
notes designed or calculated to circulate as money, and therefore
would not protect the defendants if the jury should be satisfied
that they issued such notes; that although, in ordinary cases where
notes are made payable to order, it may be necessary for a
plaintiff to prove the endorsement, yet if the jury find in this
case that these notes were issued and intended to circulate as a
currency, it is not necessary to prove the handwriting of the
endorser, and the mere fact of the plaintiffs having the notes in
their possession is
prima facie evidence of
ownership."
The jury found a verdict for the plaintiffs for $3,452.10.
The Supreme Court of Ohio affirmed the judgment of the Court of
Hamilton County and gave the following certificate:
"In this cause, the judgment of the Court of Common Pleas having
been affirmed, it is now certified that this is the highest court
of law in the State of Ohio in which a decision of this suit could
be had, and that there is drawn in question the validity of
statutes of the State of Ohio in which it is claimed by plaintiffs
in error those statutes are in violation of the Constitution of the
United States, and which statutes have been held valid and binding
by this court notwithstanding such objections. And this certificate
is ordered to be made part of the record."
The defendants brought the case up to this Court.
Page 55 U. S. 152
MR. JUSTICE WAYNE delivered the opinion of the Court.
We do not think that this Court has jurisdiction of this case.
We cannot find in the record, nor can it be inferred from any part
of it (the certificate of the Supreme Court included) which of the
statutes of Ohio were declared to be valid which has been alleged
to be in conflict with the Constitution of the United States.
The 25th section of the act to establish the judicial courts of
the United States requires something more definite than such a
certificate to give to this Court jurisdiction.
The conflict of a state law with the Constitution of the United
States and a decision by a state court in favor of its validity
must appear on the face of the record before it can be reexamined
in this Court. It must appear in the pleadings of the suit or from
the evidence in the course of trial, in the instructions asked for,
or from exceptions taken to the ruling of the court. It must be
that such a question was necessarily involved in the decision, and
that the state court would not have given a judgment without
deciding it.
The language of the section is that no other cause can be
assigned or shall be regarded as a ground of reversal than such as
appears on the face of the record.
This certificate is that the Supreme Court of Ohio held that
certain statutes of Ohio were valid which had been alleged to be in
violation of the Constitution of the United States, without naming
what those statutes were. This is neither within the letter nor
spirit of the act.
If permitted, it would make the state courts judges of the
jurisdiction of this court, and might cause them to take
jurisdiction in cases in which conflicts between the state laws and
the Constitution and the laws of the United States did not
exist.
The statutes complained of in this case should have been stated.
Without that, the court cannot apply them to the subject matter of
litigation to determine whether or not they violated the
Constitution or laws of the United States.
This Court has already passed upon a certificate of a like kind
from Ohio in the case of
Commercial Bank v. Eunice
Buckingham's Executors, 5 How. 317. That was more
to
Page 55 U. S. 153
the purpose than this, but it was declared to be insufficient to
give jurisdiction to this Court. In that case it was certified that
the plaintiffs in error relied upon the charter granted them in
February, 1829, and the 4th section of it was given, and they
claimed if a section of an act of 1824 was applied in the
construction of their charter that it would be a violation of the
Constitution of the United States, because it impaired the
obligation of a contract. It was also stated that the objection had
been overruled and that a decision had been given in favor of the
validity of the act of 1824. When the case was considered here, we
first examined our jurisdiction under the 25th section, and
determined against it. Not because we did not think that the
certificate was a part of the record or that it did not show
sufficiently the act which the plaintiffs in error alleged could
not be applied in that case without impairing the obligation of a
contract, but because we thought from our view of the entire record
that the only question which was raised on the trial of the case in
the state court was one of construction of two Ohio statutes. And
that was whether or not the bank was legally liable to pay on
account of its refusal to pay its notes in specie, the six percent
imposed by the act of 1824, as a penalty for such refusal, in
addition to the twelve percent imposed by its charter. The
constitutionality of the act of 1824 was not denied. Indeed, it was
admitted. But it was urged that the application to make the bank
pay the penalty imposed by it and twelve percent besides would
impair the obligation of a contract which the state had made with
the corporation in their charter. Here, then, the validity of the
act of 1824 was not drawn in question on the ground of its being
repugnant to the Constitution, treaties, or laws of the United
States, nor was a point raised for the construction of any clause
of the Constitution, of a treaty, or of a statute of the United
States. The admission of the constitutionality and validity of the
act of 1824 only raised a question of construction of two state
statutes, one of which it was said would be repugnant to the other,
if its penalty should be applied to the bank, in addition to that
imposed by its charter, without words implying that the bank would
not be liable to an universal statute, passed before the bank was
chartered, which imposes six percent upon all banks which should
refuse to pay their notes in specie. The Court decided that the
bank was liable to the penalty of the act of 1824, but it
erroneously supposed, because a constitutional point had been made
in the argument, that it was one which necessarily arose from the
case itself, and that it could not give a judgment in the case upon
its merits without deciding that it involved the question of a
conflict with the Constitution of the United States.
Page 55 U. S. 154
It was in that view of the case that this Court said in its
opinion
"It is not enough that the record shows that the plaintiff
contended and claimed that the judgment of the court impaired the
obligation of a contract and violated the provision of the
Constitution of the United States and that this claim was overruled
by the court, but it must appear by clear and necessary intendment
from the record that the question must have been raised and must
have been decided in order to induce the judgment."
And it was also in this view, when one state statute was said to
be repugnant to another, both being admitted to be constitutional,
that it was said in that case, "It is the peculiar province and
privilege of the state courts to construe their own statutes," and
when they did so, "it was not part of the functions of this Court
to review their decisions," or, in such cases, "to assume
jurisdiction over them, on the pretence that their judgments have
impaired the obligation of contracts."
Having said that this Court had not jurisdiction in this case on
account of the insufficiency of the certificate, we now say if it
could be made as definite as that in the case of
Buckingham's
Executors by inserting in it the statutes of Ohio, which the
Court supposed involved a constitutional question, that it would
not give this Court jurisdiction. Then the cases would be so much
alike that the
Buckingham Case would rule this as to the
question of jurisdiction. In the
Buckingham Case it was
urged that the penalty in a general statute upon banks for refusing
to pay their notes in specie could not be imposed upon a bank
subsequently chartered, in addition to the penalty imposed by its
charter, without a violation of the Constitution of the United
States. It is urged in argument in this case that a statute passed
in 1816, entitled "an act to prohibit the issuing and circulating
of unauthorized bank paper," which was amended in 1839, could not
be applied to make the defendants liable to pay notes which were
issued in 1840 by a canal company, in its corporate name, and which
notes were meant for circulation in the community as bank paper. It
was not contended that the canal company could legally issue such
paper for circulation as money, though it was said they could give
notes payable to order in payment of its debts.
It was not denied that the company could give notes in payment
of debts, but it was said that they could not make them for that
purpose and for circulation as bank paper. The point then raised
for decision was whether the canal company could do so without
making its stockholders and directors liable to pay them to the
holders of the notes under the statute of 1816, amended in 1839.
The Supreme Court decided that the defendants in this case, being
directors and stockholders of the
Page 55 U. S. 155
canal company were liable, by the statutes of 1816 and 1839, to
pay such notes. It seems to us that the statement gives its own
answer and that the Supreme Court, in making its decision, only
gave a construction to an act of Ohio which neither of itself, nor
by its application involved in any way a repugnancy to the
Constitution of the United States by impairing the obligation of a
contract. Whether the construction of the act and the charter of
the canal company was correct or not we do not say. We do not mean
to discuss that point or to give any opinion upon it, but we mean
to say that the construction does not violate a constitutional
point under the 25th section of the Judiciary Statute so as to give
this Court jurisdiction of this cause.
If more was wanting in aid of our conclusion, it is to be found
in the pleadings in the case, in the evidence given on the trial,
the objections made to the admissibility of certain parts of it, in
the prayers of the defendant to the court to instruct the jury, and
in the charge which the court gave. By no one of them is a
constitutional question raised. It was only suggested in argument,
and on that account it was that the court certified that the
"validity of statutes of Ohio was drawn into question, which
were said to be in violation of the Constitution of the United
States, and not because the court considered that such a point had
been rightly raised before it under the 25th section of the
Judiciary Act of 1789."
We do not think it necessary to repeat anything which this Court
has hitherto said from an early day to the present concerning the
25th section. Its interpretation will be found in the case of
Crowell v.
Randall, 10 Pet. 308, in other cases cited in that
case, and in
Armstrong v. Treasurer of
Athens County, 16 Pet. 281. We shall direct this
suit to be
Dismissed for want of jurisdiction.
Order
This cause came on to be heard on the transcript of the record
from the Supreme Court of the State of Ohio and was argued by
counsel. On consideration whereof, it is now here ordered and
adjudged by this Court that this cause be, and the same is hereby,
dismissed for the want of jurisdiction.
