Piqua Bank v. Knoup, Treasurer.

"By the constitution, the judicial power of the United States is extended to all cases in law and equity arising under the constitution, laws, and treaties of the United States; but the resolutions declare the judicial power to extend to all questions arising under the constitution, laws, and treaties of the United States. The difference between the constitution and the resolutions was material and apparent. A case in law or equity was a term well understood, and of LIMITED SIGNIFICATION. It was a controversy between parties that had taken a shape for judicial decision. If the judicial power extended to every question under the constitution, it would involve almost every subject proper for legislative discussion and decision : if to every question under the laws and treaties of the United States, it would involve almost every subject upon which the executive could act. The division of power, which the gentleman had said could exist no longer, and the other departments, would be swallowed up by the judiciary. By extending the judicial power to all cases in law and equity, the constitution had never been understood to confer upon that department any political power whatever. To come within this description, a question must assume a legal form for forensic litigation and judicial decision. There [358 must be parties to come into court who can be reached by its process and bound by its power; whose rights admit of ultimate decision by a tribunal to which they are bound to submit." 5 Wheat., Appendix.

This interpretation is unquestionable. Cases in law and equity, within the meaning of the constitution, therefore, are suits or proceedings in court requiring the exercise of judicial power. And as this article of the constitution refers to, and has in view, no courts but the federal tribunals, it is manifest that the language, “the cases in law and equity arising under the constitution, laws, and treaties of the United States," comprehends only suits or proceeding instituted in the federal courts, invoking the exercise of the judicial power of the United States. The constitution does not say, that the judicial power shall extend to all questions arising under the constitution, laws, and treaties of the United States. The idea that the judicial power of the United States extends to every question arising under the constitution, laws, and treaties of the United States, is not only an absurdity, but an impracticability.

The judicial power acts only when its operation is invoked; and its action is invoked only by a case or suit instituted under its jurisdiction. It is not possible, therefore, for the judicial power to take cognizance of any question, except where a suit or judicial proceeding has been instituted under its jurisdiction, calling it into operation. A case, therefore, within the meaning of the constituVOL. VI-18

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Piqua Bank v. Knoup, Treasurer.

tion, and to which the judicial power of the United States extends, must be, first, a suit or judicial proceeding instituted under the authority of the federal constitution, invoking the action of the judicial power of the United States; and, second, it must involve a question, or relate to a subject-matter pertaining to the constitution, laws, or treaties of the United States, or involve one of the 359] other *elements of federal jurisdiction, specified in the constitution. Such would be a case arising under the constitution of the United States; and to all such cases, and none others, is the judicial power of the United States extended.

There is, therefore, no foundation for the doctrine that the first clause of the second section of this article of the constitution, confers an exclusive jurisdiction on the federal courts over all questions arising under the constitution, laws, and treaties of the United States. And the very claim to appellate jurisdiction in the Supreme Court of the United States over the state courts, in cases involving the specified subjects for adjudication, is an admission that the state courts may take cognizance of, and determine such questions, and that the jurisdiction of the federal courts over them is not exclusive. So that it can not be claimed that the language of the constitution extending the judicial power of the United States to all cases arising under the constitution, laws, and treaties of the United States, is exclusive.

It is insisted, however, that the state courts, as to these questions, are courts of inferior jurisdiction to the federal tribunals, and that, therefore, appellate jurisdiction, as to them, from the state courts, may be given to the federal courts. But, as has already been shown, the appellate jurisdiction of the Supreme Court of the United States is expressly defined by the second clause of this second section, and plainly limited to the supervision of the decisions of the inferior federal courts. And as there is no provision whatever in the constitution giving the federal courts appellate jurisdiction over the state courts, it follows that, as to these cases, to which the judicial power of the United States is extended, the state courts exercise a jurisdiction, concurrent and not inferior to that of the federal tribunals. And it is inherent in the nature of concurrent jurisdic360] tion, *that the courts which exercise it are tribunals of coordinate and co-equal authority, and neither can control the determinations of the other by the exercise of appellate power; but the adjudication of the court in which the jurisdiction first attaches, is

Piqua Bank v. Knoup, Treasurer.

conclusive and final. This is a fair deduction from the provisions in both the state and the federal constitutions. The jurisdiction of the state courts is admitted, and the judicial power of the United States is extended to the enumerated cases, but by no language which makes it exclusive. It follows that the jurisdiction of each is concurrent, and there is nothing in the constitution giving either appellate control over the other. Appellate jurisdiction by either, over the other, would be fundamentally incompatible with the theory and structure of our system of government.

As nothing can be found in the third article of the constitution providing the organic law for the judicial system of the United States, which authorizes the exercise of appellate jurisdiction by the federal courts over the state courts, can it be pretended that this extraordinary power can be derived from any other part of the constitution? There is no provision in the succeeding fourth, fifth, sixth, and seventh articles, even remotely bearing upon it; nor is there anything in the second article which defines the powers of the executive department, in any way relating to the subject. And certainly there is nothing to be found among the enumerated powers of Congress, in the first article, to warrant Congress in clothing the federal courts with any such authority. The eighth section of this article, containing the specific enumeration of the powers of Congress, authorizes Congress to establish courts inferior to the Supreme Court; but there is nothing empowering Congress to authorize appeals from the state courts to the Supreme Court, or to exercise any authority *whatever over the state courts. The [361 first clause of this section confers the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States." The authority here given to raise revenue, with a view to pay debts and provide for the common defense and general welfare, clearly contains no grant of judicial power. The most latitudinarian construction heretofore given to the constitution, has not conceded to Congress general discretionary power to pass laws providing for the general welfare. On the contrary, it appears to be settled that this authority of Congress to provide for the common defense and general welfare has relation to the enumerated powers, and can be exercised only pursuant to, and in the execution of, the express powers granted and specifically enumerated.

Where, then, is the authority in the constitution for this appellate

Piqua Bank v. Knoup, Treasurer.

power? Can it be found among the implied powers of the govern ment? The eighteenth clause of the eighth section, article one, em powers Congress "to make all laws which shall be necessary and. proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof." This is express authority for the exercise of the incidental powers, and having relation to the express powers, can only be exercised pursuant to them. It authorizes the enactment of all laws "proper and necessary" for the execution of the express powers vested in the several departments of the government. Now, as the express power giving the Supreme Court of the United States appellate jurisdiction, is that which is contained in the third article of the constitution, and has relation only to appeals from the inferior federal tribunals, it follows that the incidental or implied power in relation thereto is lim362] ited to *necessary and proper laws relating to appeals from the inferior federal courts to the Supreme Court, and nothing more.

The second clause of the sixth article of the constitution, declaring the constitution, laws, and treaties of the United States, the supreme law of the land, has been urged in support of the alleged supremacy of the judicial powers of the United States over the state courts. The clause, however, is merely declaratory, and vests no specific power whatever in the government, or any of its departments. No one questions the supremacy of the constitution, laws, and treaties of the federal government. This supremacy is not, however, absolute, and is limited to the sphere of the delegated powers of the federal compact. And the state courts are bound to observe this supremacy in all matters judicially brought before them, as well as the federal courts. This supremacy therefore imposes subjection to the constitution, laws, and treaties of the United States, but not subjection to the federal courts. The constitution and statutes of each state is the supreme law of the land within the sphere of the state authority; while the constitution, laws, and treaties of the United States are the supreme law of the land within their appropriate operation. But how can this mere declaratory provision authorize appellate jurisdiction in the federal courts over the stato tribunals? The very clause of the constitution which contains it, requires that the judges of every state shall be bound by the constitution, laws, and treaties of the United States as the supreme law of the land, anything in the constitution or laws of any state

Piqua Bank v. Knoup, Treasurer.

to the contrary notwithstanding. And the succeeding clause of the same article requires of the judicial officers of the several states, together with other officers, an official oath to support the constitution of the United States. Although the official oath of the federal officers requires the same thing, *yet it does not enjoin upon them [363 the duty of supporting the constitution of the several states. Not only, therefore, is no distrust in the state judiciary shown by the constitution, but the fidelity required by the oath of office implies that the determination of matters pertaining to the federal constitution, laws, etc., might occur in the state courts, as well as in the federal courts. And if a revising or controlling power over the state courts in this respect, by the federal courts, had been contemplated, it would undoubtedly have been expressly and distinctly delegated. But this not having been done, the judicial officers of the several states, as well as the federal officers, are required, under the injunction of an official oath, to observe and support the constitution, laws, and treaties of the United States, as the supreme law of the land.

The existence of appellate power in the Supreme Court of the United States over the state courts, has been argued from its tendency to produce uniformity of decision, and prevent conflict between the adjudications of the state and the federal tribunals. This argument is founded on the supposed utility or beneficial tendency of such a power. It is an argument in favor, rather of the propriety and policy of the power than of its existence; and would be more appropriate on a political question before a convention or legislative assembly, than on a legal question before a court of justice. The judicial question before us is a mere question of interpretation, and is to be determined from the language of the constitution, by an application of the known and settled rules of judicial construction. The duty of judicial action does not go beyond this. But it is to be lamented, that the political bearing of questions of mere constitutional interpretation, in our courts, has been, heretofore, a source of too frequent error in this country, leading to determinations making the constitution by construction *what the judges wish it to be, or what they think it ought [364 to be, rather than what it actually is

The alleged salutary tendency of this appellate power for the purpose of uniformity of decision, has been greatly exaggerated, and made a mere pretense to justify the power in question. For that