1. When Congress has passed an act admitting a territory into
the Union as a state but omitting to provide by such act for the
disposal of cases pending in this Court on appeal or writ of error,
it may constitutionally and properly pass a subsequent act making
such provision for them.
2. This Court will not hear, on writ of error, matters which are
properly the subject of applications for new trial.
Page 69 U. S. 161
This was a writ of error to the Supreme Court of Nevada
Territory.
Smith had obtained a judgment against Freeborn and Shelden in
the Supreme Court of Nevada; Nevada being at the time a territory
only, not a state. To this judgment a writ of error went from this
Court under the law organizing the territory, and the record of the
case was filed here, December Term 1862. After the case was thus
removed, the Territory of Nevada was admitted by act of Congress,
March, 1864, into the Union as a state. The act admitting the
territory contained, however, no provision for the disposal of
cases then pending in this Court on writ of error or appeal from
the territorial courts.
Mr. Cope and Mr. Browning, in
behalf of
the defendants in error, accordingly moved to
dismiss the writ in this and other cases similarly situated on the
ground that, the territorial government having been extinguished by
the formation of a state government in its stead, and the act of
Congress which extinguished it having in no way saved the
jurisdiction of the court as previously existing, nothing further
could be done here. The territorial judiciary, it was urged, had
fallen with the government of which it was part, and the
jurisdiction of this Court had ceased with the termination of the
act conferring it.
Hunt v. Palao [
Footnote 1] and
Benner v. Porter [
Footnote 2] were relied on to show that
the court had no power over cases thus situated.
It being suggested by
Mr. O'Connor and Mr. Carlisle on the
other side, or as interested in other cases from Nevada
similarly situated, that a bill was now before Congress supplying
the omissions of the act of March, 1864, the hearing of the motion
for dismissal was suspended till it was seen what Congress might
do. Congress finally acted, and on the 27th of February, 1865,
passed "An Act providing for a District Court of the United States
for the District of Nevada," &c.
Page 69 U. S. 162
The eighth section of this enacts:
"That all cases of appeal or writ of error heretofore prosecuted
and now pending in the Supreme Court of the United States upon any
record from the Supreme Court of the Territory of Nevada may be
heard and determined by the Supreme Court of the United States, and
the mandate of execution or of further proceedings shall be
directed by the Supreme Court of the United States to the District
Court of the United States for the District of Nevada or to the
Supreme Court of the State of Nevada, as the nature of said appeal
or writ of error may require, and each of these courts shall be the
successor of the Supreme Court of Nevada Territory as to all such
cases, with full power to hear and determine the same, and to award
mesne or final process thereon."
The motion to dismiss the writ for want of jurisdiction was now
renewed.
Assuming jurisdiction to exist, this case of
Smith v.
Freeborn was argued also on a question of merits. The judgment
mentioned at the beginning of the case, which Smith had obtained
against Freeborn and Shelden, he had obtained against them as
secret surviving partners of a certain Shaw. One ground of the writ
of error was that no evidence whatever had been offered of a
partnership with Shaw between Freeborn
and Shelden (a
matter which was more or less patent on the record), and that
judgment having gone against both (two jointly) and error as to
one, the judgment would have to be reversed. A motion had been made
and refused below for a new trial.
There was also another question of merits. To rebut the evidence
of partnership, the defendants offered some letters between
themselves and Shaw, and between themselves and one Eaton, an agent
of theirs; which letters, though containing, as was urged, some
admissions against their own interest, the court below refused to
let go in evidence to disprove a partnership.
Its action on these two points was one matter argued, but the
great question was that of jurisdiction, a matter affecting other
cases as well as this.
Page 69 U. S. 173
MR. JUSTICE GRIER delivered the opinion of the Court.
The most important question of this case is that of
jurisdiction.
It is objected to the Act of 27 February, just passed, that it
is ineffectual for the purpose intended by it; that it is a
retrospective act interfering directly with vested rights that the
result of maintaining it would be to disturb and impair judgments
which, at the time of its passage, were final and absolute; that
the powers of Congress are strictly legislative, and this is an
exercise of judicial power which Congress is not competent to
exercise. But we are of opinion that these objections are not well
founded.
The extinction of the territorial government and conversion of
the territory into a state under our peculiar institutions
necessarily produce some anomalous results and questions which
cannot be solved by precedents from without.
It cannot be disputed that Congress has the exclusive power of
legislation in and over the territories, and consequently that the
Supreme Court has appellate jurisdiction over the courts
established therein "under such regulations as Congress may make."
[
Footnote 3] In the case of
Benner v. Porter, [
Footnote 4] it is said:
"The territorial courts were the courts of the general
government, and the records in the custody of their clerks were the
records of that government, and it would seem to follow necessarily
from the premises that no one
Page 69 U. S. 174
could legally take possession or custody of the same without the
assent, express or implied, of Congress."
The Act of 22 February, 1848, chapter 12, which provides for
cases pending in the supreme or superior court of any territory
thereafter admitted as a state, made no provision for cases pending
in this Court on writ of error or appeal from a territorial court.
In the case just mentioned, we have decided that it required the
concurrent legislation of Congress and the state legislature, in
cases of appellate state jurisdiction, to transfer such cases from
the old to the new government.
The act of Congress admitting the State of Nevada omitted to
make such provision, although the Constitution of Nevada had
provided for their reception. Now it has not been and cannot be
denied that if the provisions of the act now under consideration
had been inserted in that act, the jurisdiction of this Court to
decide this case could not have been questioned.
By this omission, cases like the present were left in a very
anomalous situation. The state could not,
proprio vigore,
transfer to its courts the jurisdiction of a case whose record was
removed to this Court without the concurrent action of Congress.
Until such action was taken, the case was suspended and the parties
left to renew their litigation in the state tribunal. What good
reason can be given why Congress should not remove the impediment
which suspended the remedy in this case between two tribunals,
neither of which could afford relief? What obstacle was in the way
of legislation to supply the omission to make provision for such
cases in the original act? If it comes within the category of
retrospective legislation, as has been argued, we find nothing in
the Constitution limiting the power of Congress to amend or correct
omissions in previous acts. It is well settled that where there is
no direct constitutional prohibition, a state may pass
retrospective laws such as, in their operation, may affect suits
pending, and give to a party a remedy which he did not previously
possess or modify an existing remedy, or remove an impediment in
the way of
Page 69 U. S. 175
legal proceedings. [
Footnote
5] The passage of the act now in question was absolutely
necessary to remove an impediment in the way of any legal
proceeding in the case.
The omission to provide for this accidental impediment to the
action of this Court did not necessarily amount to the affirmance
of the judgment, and it is hard to perceive what vested right the
defendant in error had in having this case suspended between two
tribunals, neither of which could take jurisdiction of it, or the
value of such a right, if he was vested with it. If either party
could be said to have a vested right, it was plaintiff in error,
who had legally brought his case to this Court for review and whose
remedy had been suspended by an accident or circumstance over which
he had no control. If the judgment below was erroneous, the
plaintiff in error had a moral right at least to have it set aside,
and the defendant is only claiming a vested right in a wrong
judgment. "The truth is," says Chief Justice Parker in
Foster
v. Essex Bank, [
Footnote
6]
"there is no such thing as a vested right to do wrong, and the
legislature which, in its acts, not expressly authorized by the
Constitution, limits itself to correcting mistakes and to providing
remedies for the furtherance of justice, cannot be charged with
violating its duty, or exceeding its authority."
Such acts are of a remedial character, and are the peculiar
subjects of legislation. They are not liable to the imputation of
being assumptions of judicial power.
The constitutional difficulty attempted to be raised on the
argument that Congress cannot authorize this Court to issue a
mandate to a state court in a mere matter of state jurisdiction is
factitious and imaginary. It is founded on the assumption, that all
the questions which we have heretofore decided are contrary to law,
and is but a repetition of the former objections which have been
overruled by the court under another form of expression. For if it
be true, as we
Page 69 U. S. 176
have shown, that Congress alone had the power of disposing of
the territorial records, and providing for the further remedy in
the newly organized courts -- if it requires the concurrent
legislation of both Congress and the state to dispose of the cases
in the peculiar predicament in which this case was heard -- if
Congress had, as we have shown, the power to remove the impediments
to its decision, and remit it to a state court authorized by the
Constitution of the state to take cognizance of it, they must
necessarily regulate the conditions of its removal, so that the
parties may have their just remedy respectively. If a state
tribunal could not take possession of the record of a court removed
legally to this Court, nor exercise jurisdiction in the case
without authority of Congress (as we have decided), without the
legislation of Congress, they must necessarily accept and exercise
it subject to the conditions imposed by the act which authorizes
them to receive the record. This Court would have the same right to
issue its mandate as in cases where we have jurisdiction over the
decisions of the state courts, under the 25th section of the
Judiciary Act, and for the same reasons -- because we have
jurisdiction to hear and decide the case.
II. Having disposed of the question of jurisdiction, the case
presents no difficulty.
As to the case made on the motion for a new trial, our decision
has always been that the granting or refusing a new trial is a
matter of discretion with the court below which we cannot review on
writ of error.
The single bill of exceptions in the case is to the refusal of
the court to receive certain letters in evidence. The defendants
were charged to have been partners of one George N. Shaw or to have
held themselves out to the public as such. This was the only issue
in the case. To rebut the plaintiffs' proof, the defendants offered
a correspondence between themselves and some letters to them by one
Eaton, their agent. It is hard to perceive on what grounds the
parties should give their private conversations or correspondence
with one another or their agent to establish their own case or show
that they had not held themselves out to the
Page 69 U. S. 177
public as partners of the deceased. Let judgment of affirmance
be entered in the case, and a statement of this decision be
certified to the Supreme Court of Nevada. [
Footnote 7]
Affirmance and certificate accordingly.
[
Footnote 1]
45 U. S. 4 How.
589.
[
Footnote 2]
50 U. S. 9 How.
235.
[
Footnote 3]
Constitution, Art. 3.
[
Footnote 4]
50 U. S. 9 How.
235.
[
Footnote 5]
See Hepburn v. Curts, 7 Watts 300, and
Shenly v.
Commonwealth, 36 Pa.St. 57.
[
Footnote 6]
16 Mass. 245;
and see Rich v. Flanders, 39 N.H.
325.
[
Footnote 7]
See Webster v.
Reid, 11 How. 461.
