Thomas P. Crowell, garnishee of the Chesapeake and Delaware Canal Company v. John Randell, Jun.; Richard Shoemaker, garnishee of the Chesapeake and Delaware Canal Company v. John Randell, Jun., 10 Pet. 368

Mr Justice Story delivered the opinion of the Court. This is a writ of error to the superior court of the state of Bela-war?, to revise the judgment of the court of errors and appeals of the said state; the record of which judgment had been remanded to the superior court of the same.state. A motion has been made to dismiss the suit for want of jurisdiction upon the ground that there is nothing apparent upon the record to bring the case within the revising power of this court under the twenty-fifth

section of the judiciary act of 1789, ch. 20. That

section confers appellate jurisdiction in this court from final judgments and decrees in any suit in the highest court of law of equity of a state in which a decision in the suit could be had in three classes of cases: first, 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: secondly, 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 favour of súch their validity: thirdly, 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 specially set up or claimed by either party, under such clause of the said constitution, treaty, statute or commission.

The

section then goes on to provide that no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears upon the face of the récord ; and. immediately respects the beforementioned questions of -validity or construction of the said constitution, treaties, statutes, commissions or authorities in dispute. 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 manner required by the section. If both of these do not appéar on the record, the appellate jurisdiction fails. It is not sufficient to show that such a question might have occurred, or such a decision might have been, made in the -court below. It must be demonstrable that they did exist, and were made.

The principal, perhaps the only important' difficulty which has ever been felt by the court; has been in ascertaining in .particular cases whether these matters (the question and decision), were apparent on the record.

And here the doctrine of the court has been, that it is not indispensable that it should appear on the record, in totidem verbis or by direct and positive statement, that the question was made and the decision given by the court below on the very point; but that it is sufficient, if it is clear, from the facts stated, by just .and necessary inference, that’ the question was made, and that the court below must, in order to have-arrived at the judgment pronounced by it, have come to the.very decision of that question as indispensable’ to that judgment.

Although this has. been the course of. the decisions in this court, as to the extent and exercise of its appellate jurisdiction over the judgments and decrees of state courts ;.yet it is apparent from the arguments on the present occasion, as well as from those which have been addressed to us on-several other late occasions, that a different impression exists at the bar; and that it has been supposed that a much \yider latitude of

interpretation of the twenty-fifth-

section of the judiciary act of 1789 has been adopted by the court. To correct, at least as far as in us lies, this mistaken notion'; we shall now proceed to review the various, decisions which have heretofore been made on this subject. The earliest case is Owings v. Norwood’s Lessee, 5 (Cranch 344. In that case it clearly appeared, that the construction of a treaty was before the state court; and that it was decided that the right of the party' was not protected by the treaty.- This court affirmed the decision of the state court. The next, case was Smith v. The State of Maryland, 6 Cranch. Rep. 281.

In that case it. was contended that the' court had no jurisdiction, because the cause turned exclusively upon the confiscation laws of Maryland; and that no question relative to the construction of the treaty of peace, did or could occur. But upon the facts stated on the record, the only title asserted by .the original-plaintiffs, was founded on the confiscation acts of Maryland ; and the only title set up by the original defendant was for a British alien, protected by the treaty of peace.

If that title was so protected, then the plaintiffs were not entitled to the relief sought by the bill; if othérwise, then the plaintiffs were entitled to a decree. The state court decided that the plaintiffs were so entitled; and therefore necessarily decided against the treaty as a protection. The jurisdiction was maintained by this court upon this posture of the facts; and the decision of the state court was afterwards affirmed-But the court said, that in order to decide upon the main question, it was indispensable .to ascertain what the nature of the title was, to which the treaty was sought to be applied.

The next case was Martin v. Hunter’s Lessee, 1 Wheaton’s Rep. 305, 355. There the original case eame before the court upon an agreed statement of facts, upon which the state court .gave judgment against the original defendant. That, judgment was upon a writ of error reversed by this court; and when the cause carné "afterwards before this court upon a second- writ of error, the objection was taken that the original case was not within the twenty-fifth

section of the judiciary act. Upon this occasiou, the court, after stating the material facts in the agreed'case, said : “ it is apparent, from this

summary explanation, that the title thus set up by the plaintiff, might be open to other objections; but the title of the defendant in error [against which the state court had decided] was perfect and complete, if it was protected- by the treaty of 1783. If, therefore, this court had authority to examine into the whole record, and to decide upon the legal validity of the title of- the defendant, as well as its application to the treaty of peace ; it-.would be a case within the express purview of the twenty-fifth

section of the act : for there was nothing in the record upon which the court below could have decided but upon the title, as connected with the treaty. And if the title was otherwise good, its sufficiency must have depended altogether upon its'protection under the treaty. Under such circumstances it was strictly a suit, where was drawn in question the construction of a treaty, and the decision was against -the title specially set up or claimed by the defendants. It would then fall within the very terms of the act.” The next case was Inglee v. Coolidge, 2 Wheat. 363, 4 Cond.

Rep. 155, where a motion was made to dismiss the writ of error upon the ground, that there was nothing apparent upon the record, which brought the case within the appellate jurisdiction of this court, under the twenty-fifth

section of the act of 1789. The court were of this opinion, and accordingly dismissed the writ of error. The next case was Miller v. Nicholls, 4 Wheat. 311, 315, 4 Cond. Rep. 465. Mr Chief Justice Marshall, in delivering the opinion, of the court, said : “it does not appear from the record, that either the constitutionality of the law of Pennsylvania, or any act of congress was drawn in question. It would not be required that the record should, in terms, state a misconstruction of

an act of congress, or that

an act of congress was drawn in question. It would have been sufficient to give this court jurisdiction of the cause, that the record should show that

an act of congress was applicable to the case. This is not shown by the record.” The language used in this last sentence, has been often cited : as if it imported, that- if

an act of congress was shown to be applicable to the case, although it was not in fact applied by the decision of the state court, it would sustain the appellate jurisdiction of this court. That was certainly not the understanding of the chief justice, or of the court. The case of Miller v.

Nicholls was decided in the state court, upon an agreed statement of facts ; by which it appeared that Nicholls was a debtor both to the United States and to the state of Pennsylvania; and the question raised was, whether the United States, or the state of Pennsylvania, was entitled to certain money of Nicholls, then in court, as the creditor of Nicholls. The United States claimed it in virtue of the priority given by the act of the 3d of March 1797, ch. 74.

But it did not. appear in the statement of facts, that Nicholls was then in a state of insolvency : and if he was not, then the priority of the United States did not attach ; or in other words, the act of congress was not applicable to it. It is to this state of the facts that the language of the chief justice was addressed. He added, “ had the fact of insolvency appeared unon 'the record ; that would have enabled this court to revise the judgment of the supreme court of Pennsylvania.” And why % it may be asked.

Because upon the statement of facts, the state court must, under these circumstances, have misconstrued the act of congress or disregarded it: for otherwise they would not have given the judgment which was sought to be revised. That this is the true explanation of this case, does not admit of controversy. In the very next case, Williams v. Norris, 12 Wheat. 117, 124, 6 Cond. Rep. 462; where this very expression, in Miller v. Nicholls, was relied on in argument to establish the position, that it is sufficient to give the court jurisdiction, that the record should show that

an act of congress was applicable to the case; the chief justice gave the very explanation of it which is now insisted on ; and added, “ had the record shown that this was a case of insolvency j so that

an act of congress applied to it, that act must have been misconstrued or its obligation denied, when the court decreed the money to Pennsylvania: and the- court were of opinion that the act could not be evaded by the omission to refer to it in the judgment, or to spread it on the record.” In the case of Williams v. Norris, this court dismissed the writ of error, because it was not stated on the record that the constitutionality of the act of Tennessee, set up in that case, was drawn in question. In Fisher v. Cockerill, 5 Peters’s Rep. 258, the casé of Miller v.

Nicholls was again cited, and commented on by the chief justice, and the same explanation of the decision was recognized and enforced : and, because the facts did not appear on the record, which would bring the case within the terms of the twenty-fifth

section of the act of 1789, the writ of error, in Fisher v. Cockerill, was also dismissed. But, to proceed with the other cases in their chronological order: the next case was Hickie v. Starke, 1 Peters’s Rep. 98. There a motion was made to dismiss the writ of error for the want of jurisdiction.

Mr Chief Justice Marsháll, in delivering the opinion of .the court dismissing the writ of error, said : “ in the construction of that section, [the twenty-fifth] the court has never required that the treaty or act of congress, under which the party claims, who brings the final judgment of a state court into review before this court; should have been pleaded specially or spread on the record. ' But it has always been deemed essential to the exercise of jurisdiction in such a case, that the record should show a complete title under, the treaty or act of congress, and that the judgment of the court is in violation of that treaty.” The next case was Wilson v.

The Black Bird Creek Marsh Company, 2 Peters’s Rep. 245, 250. In that case, the chief justice, in delivering the opinion of the court sustaining the jurisdiction, said : “ we think it impossible to doubt that the constitutionality of the act [of Delaware] was the question and the only question, which could have been discussed in the state court. That question must have been discussed and decided. This court has repeatedly decided in favour of its jurisdiction in such a case. Martin v. Hunter’s Lessee, Miller v. Nicholls, and Williams v. Norris, are expressly in point.

They establish, as far as precedents can establish any thing,.that it is not necessary to state in terms on the record, that the constitution or a law of the United States was drawn in question. It is sufficient to bring the case within the provisions of t._3 twenty-fifth

section of the judicial act, if the record shows, that the constitution or a law or a treaty of the United States, must have been misconstrued, or the decision could not have been made; or, as in this case, that the constitutionality of a state law was questioned, and the decision-was. •in favour of the party claiming under such law.” The next case was Satterlee v.

Mathewson, 2 Peters’s Rep. 380, 410: where Mr Justice Washington, in delivering the opinion of the court sustaining the jurisdiction, after citing prior cases, said : “if it sufficiently, appear from the record itself, that the repugnancy of a statute of a statp to the constitution of the United States, was drawn into question, or that that question was applicable-to the'case ; this court has jurisdiction of the cause under the

section of the act referred to, although the record should not in terms state a misconstruction of the constitution of the United States, or that the repugnancy of the statute of the state to any part of that constitution was drawn into question.” But he immediately adds, as explanatory of his remarks, and to correct their generality: “ now, it is manifest from this récord, not only that the constitutionality of the statute of the 8th of April 1826 was drawn into question, and was applicable to the case ; but that it was so applied by the judge, and formed the basis of his opinion to the jury, that they should find in favour of the plaintiff, if in other respects she was entitled to a verdict.

It is equally manifest that the right of the plaintiff to recover in that action depended on -that' statute; The next case was Harris v. Dennie, 3 Peters’s Rep. 292, 302 ; where the court, in answer to the objection of a want of jurisdiction, because it did not appear upon the record that any'question within the twenty-fifth

section arose in the state court upon the special verdict, said : “ it has been often decided in this court that it is not necessary that it should appear, in terms, upon the record that any such question was made. It is sufficient, if, from the facts stated, such a question must have arisen, and the judgment of the state court would not have been what it is if there had not been a misconstruction of some act of congress, or a decision against the validity of the right, title, privilege, or exemption, set up under it.” The next case was Craig v.

The State of Missouri, 4 Peters’s Rep. 410; in which Mr Chief Justice Marshall, in affirming the jurisdiction of the court, said : “ to give jurisdiction to this court it must appear in the record: 1. That the validity of a statute of the state of Missouri was drawn in question, on the ground of its being repugnant to the constitution of the United States. 2. That the decision was in favour of its validity.” And again: “there has been a perfect uniformity in the construction given by this court to the twenty-fifth

section of the judicial act. That construction is, that it is not necessary to state, in terms, in the .record, that the constitution or a treaty or.law of the United States has been drawn in question,-or the validity of a state law on the ground of its repugnance to the constitution. It is sufficient if the record shows that the constitution, or a treaty or law of the United States might have been construed, or that the constitutionality of a state law must have 'been questioned ; and the decision has been in favour of the patty claiming under such law.” In Fisher v.

Cockerill, 5 Peters’s Rep. 255; the cases of Harris v. Dennie, and Craig v. The State of Missouri, were reviewed, and the doctrine stated therein confirmed; and. Mr Chief Justice Marshall, after that review, added : “ we say, with confidence, that this court has never taken jurisdiction unless the case, as stated in the record, was brought within the provisions of the twenty-fifth

section of the judicial act.” In Davis v. Packard, 6 Peters’s Rep. 41, 48; Mr Justice Thompson said : “it has also been settled, that in order to give jurisdiction to this court under the twenty-fifth

section of the judiciary act, it is not necessary that the record should state, in terms, that

an act of congress was in point of fact drawn in question, it is sufficient if it appears from the record that

an act of congress was applicable to the case, and was misconstrued ; or the decision in the state court was against the privilege or exemption specially set up under such statute.” In the Mayor of the City of New Orleans v. De Armas, 9 Peters’s Rep. 234; where the suit was dismissed for want of jurisdiction: the chief justice, in delivering the opinion of the court, said : “we can inquire only, whether the record shows that the constitution, or a treaty or a law of the United States has been violated by the decision of the state court.

To sustain the jurisdiction of the court in the case now under consideration, it must be shown that the title set up by the city of New Orleans is protected by the treaty ceding Louisiana to the United States, or by some act of congress applicable to that title.” These are all the cases, it is believed, in which the construction of the twenty-fifth

section of the judiciary act has been made matter of controversy; and they extend over a period of more, than twenty-five years. They exhibit an uniformity of

interpretation of that section, which has never been broken in upon. They establish, so far as a course of decision can establish, the propositions already stated in the early part of this opinion. The period seems now to have arrived in which the court should, upon a full review of all the cases; with a view to close, if possible, all future controversy- on the point; reaffirm the

interpretation which they have constantly, maintained, It is, that to bring a case within the twenty-fifth

section of the judiciary act,it must appear upon the face of the record: 1st. That some one of the questions stated in that

section did arise in the state court. 2d. That the question was decided by the stale court, as required in the same section. 3d. That it is not necessary that the question should appear on the record to have been raised, and the decision made in direct and positive terms, ipsissimis verbis; but that it is sufficient if it appears by clear and necessary intendment that the question must have been raised, and must have been decided in order to have induced the judgment. 4th.

That it is not sufficient to show that a question might have arisen or been applicable to. the case ; unless it is farther shown, on.the record, that it did arise, and wrfo applied by the state court to the case. If with these principles in view we examine the record before us, it is very clear that this court has no appellate jurisdiction., No question appears to be raised, or decision made by the state court within the purview of the twenty-fifth section.

The statement of facts upon which the judgment against the garnishee (the plaintiff in error) was given, presents no question as to the constitutionality of the laws of Delaware relative to garnishees; and no' right set up by the Chesapeake and Delaware Canal Company, under their charters, which has been infringed, in violation of the constitution of the United States. So far as we can perceive from the record, the judgment had no reference to any constitutional question whatsoever: but proceeded upon general principles of law, applicable to cases of garnishment.

If, indeed, we were compelled to draw any conclusion, it would be that the judgment proceeded upon the ground stated at the bar, that the payment of.the tolls for which the plaintiff was field liable as garnishee, was a meditated fraud upon the garnishee laws of Delaware, and a violation of the charters and by-laws of the company. But it is unnecessary for us to draw any such conclusion; since there is a total absence from the record of any question and decision which would give this court jurisdiction. * The judgment of the court is, that the suit must be dismissed for want of jurisdiction,