1. Where a court has no jurisdiction of a case, it cannot award
costs, or order execution for them to issue.
2. where a party removes under a statute of the United States
from a state court to the circuit court of the United States a case
depending in point of merits on the right construction of such
statute, the circuit court
cannot dismiss and remand the case, upon motion, on the ground
that it has no jurisdiction, because the statute is
unconstitutional and void.
3. The validity of the defense which such statute may authorize
to be made is a distinct subject, and to be passed on by the court
when in due form before it.
The Constitution of the United States ordains that
"The judicial power of the United States shall be vested in one
Supreme Court,
and in such inferior courts as Congress may from
time to time ordain and establish,' and that this power 'shall
extend to
all cases, in law and equity, arising under this
Constitution and
the laws of the United States."
With this provision in force as fundamental, Congress, having in
1789 established circuit courts, inferior to the Supreme Court,
passed, during the late rebellion, to-wit, March 3, 1863, "An act
in relation to habeas corpus and regulating judicial proceedings in
certain cases," and on the 11th May, 1866, another amendatory of
it.
The statutes provided, in respect to all acts done or omitted to
be done, "under any law of Congress," or "by virtue of any order,
written or verbal, general or special, issued by the President or
Secretary of War, or any military officer of the United States
holding command" of the place where such act or omission occurred,
that such authority should be a defense in all courts for all
concerned, to any civil action or criminal prosecution
therefor.
And provided further for the removal, in a manner prescribed, of
all such cases, before or after final judgment, from the state
courts to the circuit courts of the United States.
Page 73 U. S. 248
In this state of law, constitutional and statutory, Cooper sued
the Mayor and Aldermen of Nashville, and with them one Smith, in
the Circuit Court of Davidson County, in that state; his
declaration alleging trespasses upon real estate, and the
asportation and conversion of chattels. The mayor and aldermen
pleaded the general issue.
Both parties defendant presented petitions verified by affidavit
to the court in which the suit was pending, praying for a removal,
under the statutes of 1863 and 1866 just named, of the causes to
the circuit court of the United States for that district.
The petition of Smith set forth that the trespasses complained
of, if committed, were committed during the rebellion by authority
of the President of the United States, under an order issued by
General G. H. Thomas, an officer of the United States, holding
command of the district within which the trespasses are alleged to
have occurred, which order was approved by Andrew Johnson then an
officer of the United States, and the military governor of the
State of Tennessee.
That of the mayor and aldermen alleged that at the time of the
commission of the alleged trespasses, their co-defendant Smith was
the Acting Mayor of Nashville, and that he and the persons acting
with him as aldermen and councilmen held their positions as mayor,
aldermen, and councilmen as the appointees and agents of the
government of the United States, appointed under the authority of
the President of the United States, by the then military Governor
of Tennessee, to serve the lawful military purposes of the said
President of the United States, as the commander-in-chief of the
forces thereof, in suppression of the rebellion, and that all the
acts complained of, if done, were done under the authority and for
the benefit of the United States and the army thereof; and that the
said acting mayor and aldermen, at the time when the trespasses are
alleged to have been committed, had received military orders from
the said military governor, under the authority of the Secretary of
War of the United States, and also orders from the military
officers of the United
Page 73 U. S. 249
States having command of the district, to do all the things
which were done, or are alleged to have been done by the
defendants.
The cause was removed to the circuit court of the United States
according to the prayer of the defendants.
A
motion was made there to dismiss the suit
upon
the ground that the court had no jurisdiction of the cause. No
allegation, apparently, was made against the regularity in point of
form of the proceedings by which the case had been removed from the
state court, or that the case was not within the acts of Congress
of 1863 and 1866. The motion to dismiss was sustained by the court.
The court held that the defense had
"
failed to show that they are entitled to have this
cause removed from the Circuit Court of Davidson County, Tennessee,
to this Court for hearing under the provisions of the Act of
Congress of March 3, 1863, and the act amendatory thereof, passed
May 11, 1866,
and that the said acts of Congress, so far
as they authorize and provide for the removal of causes from the
state to the federal courts in cases where the petitioner shall
show that the acts complained of were done under the order of the
President or Secretary of War, or of a military commander, or
otherwise than under an act of Congress,
are unconstitutional
and void."
It was accordingly ordered and adjudged
"that said cause be
dismissed and remanded to the
Circuit Court of Davidson County,
and that the defendants . . .
pay all the costs incurred in this court, for which execution may
issue."
This writ of error was prosecuted to reverse that judgment.
Page 73 U. S. 250
MR. JUSTICE SWAYNE delivered the opinion of the Court.
It does not appear that any question was raised in the court
below as to the regularity of the proceedings by which the case was
removed from the circuit court of the state to the circuit court of
the United States. Nor does it appear to have been denied that the
acts of Congress referred to embraced the case, and if valid, gave
the right to have the transfer made. We are therefore relieved from
the necessity of considering those subjects. We have found nothing
in the record, and nothing in the statutes which, as we think,
authorizes a doubt or objection as to either point.
The judgment of the court proceeded entirely upon the ground of
the constitutional invalidity of the provisions in the acts
referred to, which relate to the subject.
We have not had an opportunity to see the opinion of the court,
and no argument has been submitted to us in behalf of the defendant
in error. We are therefore at a loss to imagine what train of
reasoning conducted the learned judge to the conclusion announced
in the order, and hence are constrained to examine the subject
without reference to the particular views which controlled the
decision.
Before adverting to the constitutional question, there is
another feature of the order which calls for remark. The court held
that it had no jurisdiction whatever of the case, and yet gave a
judgment for the costs of the motion, and ordered that an execution
should issue to collect them. This was clearly erroneous. If there
were no jurisdiction, there was no power to do anything but to
strike the case from the docket. In that view of the subject, the
matter was as much
coram non judice as anything else could
be, and the award of
Page 73 U. S. 251
costs and execution was consequently void. Such was the
necessary result of the conclusions of the court.
This Court has the power to declare an act of Congress to be
repugnant to the Constitution, and therefore invalid. But the duty
is one of great delicacy, and only to be performed where the
repugnancy is clear, and the conflict irreconcilable. Every doubt
is to be resolved in favor of the constitutionality of the law.
The question before us relates to the 4th and 5th sections of
the statute of 1863, and the 1st, 3d, 4th, and 5th sections of the
statute of 1866.
They provide, in respect to the acts specified, and all acts
done or omitted to be done, "under any law of Congress," or
"by virtue of any order, written or verbal, general or special,
issued by the President or Secretary of War, or any military
officer of the United States holding command"
of the place where such act or omission occurred, that such
authority shall be a defense in all courts for all concerned, to
any civil action or criminal prosecution for the acts or omissions
complained of.
They provide further for the removal, in the manner prescribed,
of all such cases, before or after final judgment, from the state
courts to the circuit courts of the United States.
The Constitution provides that
"The judicial power of the United States shall be vested in one
Supreme Court, and in such inferior courts as Congress may from
time to time ordain and establish,"
and that this power "shall extend to all cases, in law and
equity, arising under this Constitution and the laws of the United
States." The other particulars of the grant of power it is not
necessary in this case to consider.
The power here under consideration is given in general terms. No
limitation is imposed. The broadest language is used. "All cases"
so arising are embraced. None is excluded. How jurisdiction shall
be acquired by the inferior courts, whether it shall be original or
appellate, or original in part and appellate in part, and the
manner of procedure
Page 73 U. S. 252
in its exercise after it has been acquired, are not prescribed.
The Constitution is silent upon those subjects. They are remitted
without check or limitation to the wisdom of the legislature.
The sixth article declares that "the Constitution and the laws
of the United States,
which shall be made in pursuance
thereof, . . . shall be the supreme law of the land." The
grant of the judicial power contains no such qualification. It is
declared to extend "to all cases arising under the Constitution
and laws of the United States," without distinction or
discrimination as to the latter; nor is there any restriction as to
the tribunals -- state or federal -- in which they may arise.
Wherever found, they are within the reach of this authority, and
subject, for its exercise, to the lawmaking power of the
nation.
As regards all courts of the United States inferior to this
tribunal, two things are necessary to create jurisdiction, whether
original or appellate. The Constitution must have given to the
court the capacity to take it, and an act of Congress must have
supplied it. Their concurrence is necessary to vest it. It is the
duty of Congress to act for that purpose up to the limits of the
granted power. They may fall short of it, but cannot exceed it. To
the extent that such action is not taken, the power lies dormant.
It can be brought into activity in no other way. Jurisdiction,
original or appellate, alike comprehensive in either case, may be
given. The constitutional boundary line of both is the same. Every
variety and form of appellate jurisdiction within the sphere of the
power, extending as well to the courts of the states as to those of
the nation, is permitted. There is no distinction in this respect
between civil and criminal causes. Both are within its scope. Nor
is it any objection that questions are involved which are not all
of a federal character. If one of the latter exist, if there be a
single such ingredient in the mass, it is sufficient. That element
is decisive upon the subject of jurisdiction.
"A case in law or equity consists of the right of the one party
as well as the other, and may be truly said to arise under the
Constitution or a law of the
Page 73 U. S. 253
United States whenever its correct decision depends upon the
right construction of either."
The rule applies with equal force where the plaintiff claims a
right, and where the defendant claims protection, by virtue of one
or the other. [
Footnote 1]
It is the right and the duty of the national government to have
its Constitution and laws interpreted and applied by its own
judicial tribunals. In cases arising under them, properly brought
before it, this Court is the final arbiter. The decisions of the
courts of the United States within their sphere of action, are as
conclusive as the laws of Congress made in pursuance of the
Constitution. This is essential to the peace of the nation, and to
the vigor and efficiency of the government. A different principle
would lead to the most mischievous consequences. The courts of the
several states might determine the same questions in different
ways. There would be no uniformity of decisions. For every act of
an officer, civil or military, of the United States, including
alike the highest and the lowest, done under their authority, he
would be liable to harassing litigation in the state courts.
However regular his conduct, neither the Constitution nor laws of
the United States could avail him, if the views of those tribunals
and of the juries which sit in them, should be adverse. The
authority which he had served and obeyed would be impotent to
protect him. Such a government would be one of pitiable weakness,
and would wholly fail to meet the ends which the framers of the
Constitution had in view. They designed to make a government not
only independent and self-sustained, but supreme in every function
within the scope of its authority. The judgments of this Court have
uniformly held that it is so. [
Footnote 2]
The jurisdiction here in question involves the same principle,
and rests upon the same foundation with that conferred by the
twenty-fifth section of the Judiciary Act of 1789.
Page 73 U. S. 254
The constitutionality of that provision has been uniformly
sustained by the unanimous judgment of this Court whenever the
subject has been presented for adjudication. The twelfth section of
the act of 1789, and the third section of the act of the 2d March,
1833, relating to revenue officers, present the same question. We
are not aware that a doubt as to the validity of either has ever
been expressed by any federal court. The acquiescence is now
universal.
The fourth and fifth sections of the act of 1863 are copied
largely from the eighth section of the Act of February 4, 1815.
[
Footnote 3] That act expired
by its own limitation at the close of the then existing war. The
section referred to, was continued in force for one year in the
sixth section of the Act of March 3, 1815. [
Footnote 4]
See also the third section of the
Act of March 3, 1817. [
Footnote
5]
We entertain no doubt of the constitutionality of the
jurisdiction given by the acts under which this case has
arisen.
The validity of the defense authorized to be made is a distinct
subject. It involves wholly different inquiries. We have not had
occasion to consider it. It has no connection whatever with the
question of jurisdiction.
The order of the court below is reversed. An order will be
remitted that the cause be reinstated, and that the court proceed
in it according to law.
[
Footnote 1]
Martin v. Hunter's
Lessee, 1 Wheat. 304;
Cohens v.
Virginia, 6 Wheat. 264;
Osborn
v. Bank of the United States, 9 Wheat. 821.
[
Footnote 2]
United States v.
Peters, 5 Cranch 115;
Ableman v.
Booth, 21 How. 506;
Freeman v.
Howe, 24 How. 450.
[
Footnote 3]
3 Stat. at Large 198.
[
Footnote 4]
id. 233.
[
Footnote 5]
id. 396.
