The validity of an election to determine the county seat of a
county in Dakota under the laws of the Territory, when presented to
the courts in the form prescribed by those laws, becomes a subject
of action within the jurisdiction of the territorial court, whose
judgment thereon is subject to appeal to the Supreme Court of the
Territory.
"By the matter in dispute," as that phrase is used in the
statutes conferring jurisdiction on this Court, is meant the
subject of litigation, the matter
Page 130 U. S. 168
upon which the action is brought and issue is joined, and in
relation to which, if the issue be one of fact, testimony is taken,
and its pecuniary value may he determined not only by the money
judgment prayed, but in some cases by the increased or diminished
value of the property directly affected by the relief prayed or by
the pecuniary result to one of the parties immediately from the
judgment.
A promise by a third person to grant to a litigant certain
lands, or make particular donations exceeding $5,000 in value in
case of a successful prosecution of a suit, will not confer
jurisdiction on this Court if without such promise or conditional
donation, the court would not have the requisite jurisdiction.
A judgment of a lower appellate court which reverses the
judgment of the court of original jurisdiction and remands the case
to it for further proceedings is not a final judgment.
A judgment of reversal is only final when it also enters or
directs the entry of a judgment which disposes of the case.
Motions to dismiss or affirm. The case, as stated by the Court
in its opinion, was as follows:
The facts disclosed by the record are briefly as follows: the
Political Code of Dakota, in force in 1886, in providing for the
organization of counties and the location of their county seats,
authorizes the governor of the territory, upon proper application
of the voters of any unorganized county, to take measures for its
organization, and for that purpose to appoint commissioners to
locate the county seat temporarily, and to appoint officers of the
county, to hold their offices until the next general election.
Political Code, c. 21, §§ 2, 3, 4. It then directs that at the
first general election subsequent to such organization the legal
voters of the county shall designate on their ballots the place of
their choice for county seat, and that the place thus designated
receiving a majority of all the votes cast shall thereafter be the
county seat, but that if no place receives a majority of such
votes, the place designated as the county seat temporarily shall
remain the county seat until changed as provided in a subsequent
section. C. 21, § 6. That section declares in substance that upon
petition of two-thirds of the qualified voters of the county, it
shall be the duty of the county commissioners to notify the voters
to again designate upon their ballots at the next succeeding
general
Page 130 U. S. 169
election the place of their choice, and if, upon the canvass of
such votes, any of the places thus designated shall receive
two-thirds of the votes cast, such place shall be the county seat.
C. 21, § 7.
On the 30th of July, 1886, Congress passed an act "to prohibit
the passage of local or special laws in the territories of the
United States, to limit territorial indebtedness, and for other
purposes." 24 Stat. c. 818. The first section, among other things,
enacts
"That the legislatures of the territories of the United States
now or hereafter to be organized shall not pass local or special
laws in any of the following enumerated cases, that is to say,
granting divorces; changing the names of persons or places; laying
out, opening, altering, and working roads or highways; vacating
roads, town plats, streets, alleys, and public grounds; locating or
changing county seats; regulating county and township affairs;
regulating the practice in courts of justice; regulating the
jurisdiction and duties of justices of the peace, police
magistrates, and constables,"
etc. The seventh section declares that all acts and parts of
acts subsequently passed by any territorial legislature in conflict
with the provisions of this act of Congress shall be null and
void.
The County of Brown in Dakota was organized under the provisions
of the Political Code, and the City of Columbia was designated by
the commissioners as the county seat temporarily, and it remained
as such county seat until sometime in 1887, no other place having
been designated by a majority of the voters of the county. On the
11th of March, 1887, the territorial legislature passed an act
"to provide for the relocation of county seats in counties where
county seats have been located by a vote less than a majority of
all the electors voting thereon."
Laws 1887, c. 173, p. 369. Section 1 of this act, as amended on
the same day when the original act took effect, provides
"That in all counties in this territory having a population not
less than twelve thousand, as shown by the census of 1885, and
having an area of not less than forty-eight congressional
townships, and in which the present county seat thereof has been
heretofore temporarily located under the
Page 130 U. S. 170
provisions of section four of chapter twenty-one of the
Political Code, and remaining the county seat under the provisions
of section six of chapter twenty-one of the Political Code by
reason of the fact that no place received a majority of all the
votes cast at the election held under the provisions of said
section six of chapter twenty-one of the Political Code, there
shall be held a special election of the duly qualified voters of
such counties on the twelfth day of July, A.D., 1887, at which
election the question of the relocation of the county seat of such
counties shall be voted upon,
provided that such election
shall not be held in any county unless there shall be presented to
the judge of the district court of the district in which such
county is situated, or, in his absence from such district or in his
inability to act, to the chief justice of said territory, a
petition signed by at least one-third in number of the electors of
said county, as shown by the vote cast at the last general
election, praying said judge to issue an order directing the
holding of said election as provided in this act. If said judge
shall find that said petition is signed by one-third of the
electors of said county as above provided, he shall issue an order
directing said election to be held in accordance with the
provisions of this act."
In other sections, provision is made for giving notice of the
election and for canvassing the votes and for removing the records
of the county to the place designated. Under this act, an election
was held in Brown County on the 12th of July, 1887, on the question
of relocating the county seat of that county. A majority of the
votes was cast in favor of the City of Aberdeen as the county seat,
and the county offices, with their records and papers, were
accordingly removed to it from Columbia.
By a law of the territory, any elector, upon leave of the
district court of the district embracing the county, may contest
the validity of such an election. The plaintiff below, John E.
Adams, upon a petition setting forth his objections to the election
in question, was allowed by the district court of the Fifth
district to contest its validity and to bring an action in that
court for that purpose. He accordingly filed a notice of
Page 130 U. S. 171
contest, addressed to the commissioners of the county, in the
nature of a complaint, commencing the action authorized.
The ground upon which the validity of the election was assailed
was that the act of the territorial legislature was in conflict
with the Act of Congress of July 30, 1886, prohibiting local or
special legislation "locating or changing county seats;" that the
territorial act, though general in its terms, was so drawn as to be
applicable to only one county, no other county coming within its
provisions; that this fact was well known at the time to the
legislature, and that the object of passing the act in this form
was to evade and nullify the act of Congress. The complaint
contains all other allegations as to the status of the contestant,
the appointment of the commissioners, the condition of Brown County
as an unorganized county, the temporary location of its county
seat, the number of its population, the passage of the territorial
act, and the election thereunder and consequent proceedings, which
were necessary to raise the question of the validity of the
election. To this notice of contest or complaint the commissioners
demurred on the ground that it did not state facts sufficient to
constitute a cause of action against them or either of them. The
district court sustained the demurrer as a matter of form, and, as
the plaintiff elected to stand upon his complaint without
amendment, ordered that the same be dismissed. On appeal to the
supreme court of the territory, this judgment was reversed, and the
cause remanded to the district court for further proceedings
according to law and the judgment of the appellate court.
The reversal was ordered on the grounds:
"First. That appellant's action was properly brought, and the
Act of the Legislature of the Territory of Dakota passed March 11,
1887, under which the election was held, by which the county seat
of Brown County, D.T., was removed from Columbia to Aberdeen, is in
conflict with the Act of Congress approved July 30, 1886,
prohibiting special legislation in the territories of the United
States."
"Second. That the appellant has such an interest in the subject
matter as enables him to maintain this action. "
Page 130 U. S. 172
"Third. That the judgment rendered is such a final judgment as
entitles him to an appeal."
To review the judgment of the supreme court of the territory,
the case was appealed to this Court, the appeal being allowed in
open court, and also by the chief justice of the territory. There
were five commissioners of the county, and three of them afterwards
prayed that the order allowing the appeal be vacated, stating that
they had become satisfied that no further proceedings should be had
in the case and that, as a majority of the board, they had, before
the appeal bond was filed or any citations were issued, directed
their attorneys not to perfect the appeal, but that the attorneys
had disregarded the instructions. It does not appear that any
action was taken in the court below upon the application.
It appears from documents filed in the court below after the
appeal was taken that on the 27th of June, 1887, the City of
Aberdeen conveyed to the County of Brown certain real property,
exceeding in value $5,000, situated within its limits, with the
building in process of erection thereon, to be held by the county
so long as the building should be used for a courthouse, but when
the building ceased to be thus used, the land to revert to the
grantor.
The respondent now moves that the appeal be dismissed, or that
the judgment below be affirmed, for the following, among other,
reasons:
"I. Because this Court has no jurisdiction of the subject matter
of the action, no federal question being involved."
"(a) The matter in dispute, exclusive of costs, does not exceed
the sum of $5,000, no sum of money being in dispute, and no right
the value of which can be calculated or ascertained."
"(b) No question is presented involving the validity of any
patent or copyright, nor is there drawn in question the validity of
a treaty or statute of, or an authority exercised under, the United
States."
"II. Because it appears from the record that before the appeal
to the Supreme Court of the United States was perfected, a majority
of the county commissioners declined to perfect and
Page 130 U. S. 173
prosecute the same, and directed their attorneys not to perfect
it, the instructions being given before any bond on appeal had been
approved or citations issued."
MR. JUSTICE FIELD, after stating the facts as above, delivered
the opinion of the Court.
The designation of the county seat of a county in Dakota, or
providing for its designation by popular election, was a matter
properly belonging to the legislative department of the territorial
government. It was not a matter, by itself, for judicial
cognizance. But when the law of the territory left the designation
of a county seat to the voters of the county, and provided that the
validity of the election could be contested by any competent
elector of the county before the district court of the district
within which the county was situated, upon leave obtained from such
court for that purpose, and prescribed the mode in which such
contest should be prosecuted by the contesting elector, and
defended by the commissioners of the county under whose direction
the election was held, and proofs be taken upon the matter in
issue, and that the validity of the election should then be
determined by the district court, the designation of a county seat
under the law became the subject of judicial cognizance, a case or
controversy arising upon such proceedings being taken to which the
judicial power of the territory attaches. This has been
substantially the meaning given to the terms "cases and
controversies," used in the judicial article of the Constitution
defining the limits of the judicial power of the United States. By
those terms are intended the claims or contentions of litigants
brought before the courts for adjudication by regular proceedings
established for the protection or enforcement of rights, or the
prevention, redress, or punishment of wrongs. Whenever the claim or
contention of a party takes such a
Page 130 U. S. 174
form that the judicial power is capable of acting upon it, then
it has become a case of controversy. Thus, in
Osborn v.
Bank of the United States, 9 Wheat. 738,
22 U. S. 819,
this Court, speaking by Chief Justice Marshall, after quoting the
third article of the Constitution declaring the extent of the
judicial power of the United States, said:
"This clause enables the judicial department to receive
jurisdiction to the full extent of the Constitution, laws, and
treaties of the United States when any question respecting them
shall assume such a form that the judicial power is capable of
acting on it. That power is capable of acting only when the subject
is submitted to it by a party who asserts his rights in the form
prescribed by law It then becomes a case, and the Constitution
declares that the judicial power shall extend to all cases arising
under the Constitution, laws, and treaties of the United
States."
We are of opinion, therefore, that the validity of an election
to determine the county seat of a county in Dakota under the laws
of the territory, when presented to the courts in the forms
prescribed by those laws, becomes a subject of action within the
jurisdiction of the territorial court. As thus presented, it is a
case or controversy between an elector of the county and its
commissioners, and the judgment thereon of the district court of
the territory was subject to appeal to its supreme court. Whether
the judgment of that court can be reviewed here must depend upon
the Act of Congress of March 3, 1885, 23 Stat. 443, c. 355, which
provides as follows:
"SEC 1. That no appeal or writ of error shall hereafter be
allowed from any judgment or decree in any suit at law or in equity
in the Supreme Court of the District of Columbia, or in the Supreme
Court of any of the territories of the United States, unless the
matter in dispute, exclusive of costs, shall exceed the sum of five
thousand dollars."
"SEC. 2. That the preceding section shall not apply to any case
wherein is involved the validity of any patent or copyright, or in
which is drawn in question the validity of a treaty or statute of,
or an authority exercised under, the United States; but in all such
cases an appeal or writ of error may be brought without regard to
the sum or value in dispute. "
Page 130 U. S. 175
The objection that no federal question is involved undoubtedly
has reference to the second section of the above act, which
provides that the appellate jurisdiction of this Court over cases
from the territorial courts shall not be determined by the amount
in dispute, if the validity of a treaty or a statute of, or an
authority exercised under, the United States, is drawn in question,
but that in such cases, an appeal or writ of error may be brought
without regard to the sum or value in dispute. No such question
being involved, our appellate jurisdiction in this case depends
upon whether the amount in dispute, exclusive of costs, exceeds the
sum designated. By matter in dispute is meant the subject of
litigation -- the matter upon which the action is brought and issue
is joined, and in relation to which, if the issue be one of fact,
testimony is taken. It is conceded that the pecuniary value of the
matter in dispute may be determined not only by the money judgment
prayed, where such is the case, but in some cases by the increased
or diminished value of the property directly affected by the relief
prayed, or by the pecuniary result to one of the parties
immediately from the judgment. Thus, a suit to quiet the title to
parcels of real property or to remove a cloud therefrom, by which
their use and enjoyment by the owner are impaired, is brought
within the cognizance of the court, under the statute only by the
value of the property affected.
Alexander
v. Pendleton, 8 Cranch 462;
Piersoll v.
Elliott, 6 Pet. 95;
Stark v.
Starrs, 6 Wall. 402;
Jones v.
Bolles, 9 Wall. 364,
76 U. S. 369,
and
Holland v. Challen, 110 U. S. 15. So,
in a case impeaching the right to an office, the amount of the
salary attached to it is considered as determining the value of the
matter in dispute. Thus, in
Smith v. Whitney, 116 U.
S. 167,
116 U. S. 173,
where the application was for a writ of prohibition restraining
proceedings by court-martial against an officer, an objection being
taken to the appellate jurisdiction of this Court on the ground
that the subject matter of the suit was incapable of pecuniary
estimation, the court, by MR. JUSTICE GRAY, replied:
"The matter in dispute is whether the petitioner is subject to a
prosecution which may end in a sentence dismissing him from the
service, and depriving him of a salary
Page 130 U. S. 176
as paymaster general during the residue of his term as such, and
as pay inspector afterwards, which in less than two years would
exceed the sum of five thousand dollars. Rev.Stat. §§ 1556, 1565,
1624, arts. 8, 22, 48, 53. The case cannot be distinguished in
principle from those in which it has been held that a judgment
awarding a peremptory writ of mandamus to admit one to an office,
or a judgment of ouster from an office, might be reviewed by this
Court upon writ of error if the salary during the term of the
office would exceed the sum named in the statute defining its
appellate jurisdiction.
Columbian Ins. Co. v.
Wheelright, 7 Wheat. 534;
United States v.
Addison, 22 How. 174."
Not doubting the correctness of the doctrine thus stated, we do
not perceive how it can help the appellants. It is true, they
represent the county, but it is impossible to state any rule by
which the benefit the county may gain, or the damage it may suffer,
from the result of the election contested, can be estimated. The
fact that the county may acquire or lose a parcel of land in
Aberdeen exceeding in value $5,000, with the building thereon, by
the conditional conveyance of that city according as the county
seat is kept at or removed from the place designated as county seat
by the election the validity of which is contested does not obviate
the difficulty. The acquisition or loss of the land in question is
not a necessary consequence of the election for the county seat,
such result not being created by law, but by a mere accident
arising from a voluntary gift by Aberdeen, made contingent upon the
removal of the county seat to that place, and its continuance
there. In
Smith v. Whitney, the salary was given by the
law, and went with the tenure of the office. A promise by a third
person to grant to a litigant certain lands, or make particular
donations in case of a successful prosecution of a suit, will not
confer jurisdiction on this Court to review the judgment if without
such promise or conditional donation the court would not have the
requisite jurisdiction. We think, therefore, there is not in the
case such an amount in dispute as to enable this Court to take
jurisdiction of the appeal. Upon this ground the appeal must be
dismissed.
It is not necessary therefore to consider the alleged
refusal
Page 130 U. S. 177
of a majority of the county commissioners to prosecute the
appeal, and their application to the court below to vacate the
order allowing it. The appeal had been perfected, and the
jurisdiction over the cause thus transferred to this Court, before
the attention of the court below was called to the action of the
majority. Whether such majority could afterwards authorize a
withdrawal of the appeal, holding the relation the commissioners do
to the county, need not now be discussed.
But there is a ground, not taken by the respondent, which forces
itself upon our consideration, and that is that the judgment of the
supreme court of the territory is not in form a final judgment. It
not merely reversed the judgment of the district court, but
remanded the cause to that court for further proceedings according
to law and the judgment of the appellate court. A judgment of a
lower appellate court which reverses the judgment of the court of
original jurisdiction and remands the case to it for further
proceedings is not a final judgment. A judgment of reversal is only
final when it also enters or directs the entry of a judgment which
disposes of the case. On this ground, therefore, as well as on the
previous ground, the appeal must be
Dismissed.