[469] to the particular phase of the question which | Supreme Court as established by the Act of In view of the practical construction put on this provision of the Constitution by Congress, at the very moment of the organization of the government, and of the significant fact that, from 1789 until now, no court of the United States has ever in its actual adjudications determined to the contrary, we are unable to say that it is not within the power of Congress to grant to the inferior courts of the United States jurisdiction in cases where the Supreme Court has been vested by the Constitution with original jurisdiction. It rests with the Legislative Department of the Government to say to what extent such grants shall be made, and it may safely be assumed that nothing will ever be done to encroach upon the high privileges of those for whose protection the constitutional provision was intended. At any rate, we are unwilling to say that the power to make the grant does not exist. It remains to consider whether jurisdiction [4701Act of March 3, 1875, ch. 137, 18 Stat. at L., The same exemption was claimed in Cohens v. Va., to show that the appellate jurisdiction of this court did not extend to the review of the judgments of a state court in a suit by a State against one of its citizens, but Chief Justice Marshall said, p. 391, "The argument would have great force if urged to prove that this court could not establish the demand of a citizen upon his State, but is not entitled to the same force, when urged to prove that this court cannot inquire whether the Constitution or laws of the United States protect a citizen from a prosecution instituted against him by a State. * it * It may be true that the partiality of the state tribunals, in ordinary controversies between a State and its citizens, was not apprehended and, therefore, the judicial power of the Union was not extended to such cases; but this was not the sole nor the greatest object for which this department was created. A more important, a much more interesting object, was the preser- [471] vation of the Constitution and laws of the United States, so far as they can be preserved by judicial authority and, therefor, the jurisdiction of the courts of the Union was expressly extended to all cases arising under the Constitution and those laws. If the Constitution or laws may be violated by proceedings instituted by a State against its own citizens, and if that violation may be such as essentially to affect the Constitution and the laws, such as to arrest the progress of government in its constitutional course, why should these cases be excepted from that provision which expressly extends the judicial power of the Union to all cases arising under the Constitution and laws? After bestowing on this subject the most attentive consideration, the court can perceive no reason, founded on the character of the parties, for introducing an exception which the Constitution has not made; and we think the judicial power, as originally given, extends to all cases arising under the Constitution or a law of the United States, whoever may be the parties." The language of the Act of 1875 in this particular is identical with that of the Constitution, and the evident purpose of Congress was to make the original jurisdiction of the circuit courts co-extensive with the judicial power in all cases where the Supreme Court had not already been invested by law with exclusive cognizance. To quote again from Chief Justice Marshall in Cohens v. Va., p. 379, "The jurisdiction of the court, then, being extended by the letter of the Constitution to all cases arising under it or under the laws of the United States, it follows that those who would withdraw any case of this kind from that jurisdiction must sustain the exception they claim, on the spirit Messrs. Horatio F. Averill and Geo. F. Betts, for appellee: The application to remove this cause was not made in time. Babbitt v. Clark, 103 U.S., 606 (XXVI.,507). Cramer v. Mack, 20 Blatchf., 481; Gaffney v. and true meaning of the Constitution, which | 94th Eq. Rule, and Hawes v. Oakland, 104 U. spirit and true meaning must be so apparent as S., 450 (XXVI., 827); Babbitt v. Clark, 103 U. to overrule the words which its framers have S., 606 (XXVI., 507). employed." This rule is equally applicable to the statute we have now under consideration. The judicial power of the United States extends to all cases arising under the Constitution and laws, and the Act of 1875 commits the exercise of that power to the circuit courts. It rests, therefore, on those who would withdraw any case within that power from the cognizance of [472] the circuit courts to sustain their exception "on the spirit and true meaning of the" Act, "which spirit and true meaning must be so apparent as to overrule the words its framers have employed." To the extent that the words conflict with other laws giving exclusive original jurisdiction to the Supreme Court this has been done, but no more. The judicial power of the United States exists under the Constitution, and Congress alone is authorized to distribute that power among the courts. Mr. Chief Justice Waite delivered the opinion of the court: This is an appeal from an order of the circuit court remanding a case removed from a state court. The suit was begun on the 2d of March, 1883, in the Supreme Court of New York, by Eliphalet Nott, a citizen of New York, for himself and all others who should come in and We conclude, therefore, that the cases were re-be made parties to the action, and contribute to morable under the Act of March 3, 1875. The order to remand, in each case, is reversed and the Circuit Court directed to entertain the cases as properly removed from the State Court and proceed accordingly. the expenses, against Las Nueve Minas de Santa Maria Gold and Silver Mining Company, a New York corporation, John B. Alley, a citizen of Massachusetts, and certain other persons, some of whom were citizens of Illinois, and others, citizens of New York. Nott was the holdJames H. McKenney, Clerk, Sup. Court, U.S.er of three hundred shares of the stock of the Cited-112 U. S., 98, 206. True copy. Test: 1. A demurrer to a complaint, because it does not state facts sufficient to constitute a cause of action, raises an issue which, when tried, will finally dispose of the case as stated in the complaint, on its merits, unless leave to amend or plead over is granted. 2. The trial of an issue raised by a demurrer which involves the merits of the action, is a trial of the action within the meaning of the Act of 1875, in regard to the removal of causes. 3. Where the State Court decided such an issue but, before entering final judgment, granted a new trial with leave to amend the pleadings, it is too late to remove the cause. [No. 1245.] Submitted Mar. 24, 1884. Decided Apr. 21, 1884. The history and facts of the case appear in the opinion of the court. Mr. Albert A. Abbott, for appellant: The removal was in time. Standard law writers have, we believe, uniformly defined the word "trial" as meaning the investigation and decision of fact only. Steph. Pl., 77; note 29, App., citing Bract. 105 a, and Britt., ch. 92; 3 Bl. Com., 330; Bouv. L. Dic., tit. Trial; Vannevar v. Bryant, 21 Wall.,43 (88 U.S.,XXII.,477); Lewis v. Smythe, 2 Woods (C. C.), 117; Dill. Rem., 2d ed., 78; Miller v. Tobin, 18 Fed. Rep., 609. See, also, mining company, and the several individual The summons required an answer to the com- [474] nation of this motion. On the 13th of July an- | tion within the meaning of the Act of March 3, other of the defendants appeared and filed a de- 1875. To allow a removal after such a trial murrer to the complaint. On the first of Au- would be to permit "A party to experiment on gust the defendants who had appealed with- his case in the state court and, if he met with drew their appeals and also their respective de- unexpected difficulties, stop the proceedings, and murrers, and paid the costs awarded to the take the suit to another tribunal. This, as was plaintiff by the interlocutory decree, and the said in Removal Cases, 100 U. S., 473 [XXV., costs of the appeal. Separate answers were filed 599], could not have been the intention of Conon the same day by each of the several individ- gress. In effect, when this case was heard on ual defendants, whose demurrers had been the demurrer, the issue made by the pleadings overruled, and on the next day, August 2, Alley and on which the rights of the parties depended, presented to the court a petition for the removal was submitted to the court for judicial deterof the suit to the Circuit Court of the United mination. This issue the court decided, but, States for the Southern District of New York. before entering final judgment, granted a new In this petition the citizenship of Nott, the trial, with leave to amend pleadings. The situCompany and Alley are stated, and it is then ation of the case at this time, for the purposes averred "That the controversy in this suit or of removal, was precisely the same as it would action, so far as it respects or is between the be if the trial, instead of being on an issue of plaintiff individually or as representing the law involving the merits, had been on an issue said mining company and this petitioner, is of fact to the jury, and the court had, in its dis[475] wholly between citizens of different States, and cretion, allowed a new trial after verdict. We that the same can be fully determined and a can hardly believe it would be claimed that a final determination of the controversy in said removal could be had in the last case and, in action can be had, so far as concerns the plaint-our opinion, it cannot in the first. iff and this petitioner, without the presence of either of the other defendants or parties in said cause." It is then stated "That, since the service of said answer there has been no term of the court at which this action could have been tried." The suit was docketed in the circuit court at once, and on the 11th of October a motion was made to remand. This motion was granted on the 21st of December, and from an order to that effect the appeal was taken. In our opinion, the petition for removal was not filed in time. The statute requires the filing to be at or before the term at which said cause could be first tried, and before the trial thereof. By the New York Code of Civil Procedure, issues are of two kinds: 1, of law; 2, of fact. Sec. 963. An issue of law arises only on a demurrer. Sec. 964. A demurrer to a complaint may be, among other things, because the complaint does not state facts sufficient to constitute a cause of action. Sec. 488. Upon the decision of a demurrer, either at a General or Special Term or in the Court of Appeals, the court may, in its discretion, allow the party in fault to plead anew or amend on such terms as may be just." Sec. 497. An issue of law in the Supreme Court must be tried at a term held by one judge. Sec. 976. At any time after the joinder of issue, either party may serve a notice for trial. Sec. 977. A demurrer to a complaint because it does not state facts sufficient to constitute a cause of action, is equivalent to a general demurrer to a declaration at common law, and raises an issue which, when tried, will finally dispose of the case as stated in the complaint, on its merits, unless leave to amend or plead over is granted. The The case of Vannevar v. Bryant, 21 Wall., 43 were as to the time when a case could be re- Without deciding whether Alley would have True copy. Test: James H. McKenney, Clerk, Sup. Court, U. 8. [477] trial of such an issue is the trial of the cause as TEXAS PACIFIC RAILWAY COMPANY, [488] a cause, and not the settlement of a mere mat ter of form in proceeding. There can be no other trial except at the discretion of the court, and if final judgment is entered on the demurrer, it will be a final determination of the rights Plff. in Err., 0. JAMES MURPHY. (See S. C., Reporter's ed., 488-490.) of the parties which can be pleaded in bar to Time for appeal or writ of error, how enlarged any other suit for the same cause of action. Un[476]der such circumstances, the trial of an issue raised by a demurrer which involves the merits of the action is, in our opinion, a trial of the ac motion for rehearing. 1. If a petition for rehearing is presented in season and entertained by the court, the time limited Submitted Apr. 3, 1884. Decided Apr. 21, 1884. IN ERROR to the Supreme Court of Texas. On motions. The history and facts of the case sufficiently Messrs. A. H. Garland and W. Hallett motions. Messrs. W. D. Davidge and John C. Brown, for plaintiff in error, contra. Mr. Chief Justice Waite delivered the opin ion of the court: The defendant in error moves to dismiss this writ on the ground that it is brought to review an order of the court below refusing a rehearing, and not the final judgment. With this motion he unites another to affirm under section 5, Rule 6. If these motions are denied he asks that the supersedeas may be vacated. The facts are these: therefore, in the absence of anything to the contrary, that it was filed in time to give the court. control of the judgment which had been entered, and jurisdiction to enforce any order that might be made. This presumption has not been over come. The writ of error as issued is on its face for the review of the final judgment, not of the or- The motion to dismiss is overruled. which has been followed in many cases since, On the 29th of May, 1883, a judgment was The motion to vacate is, therefore, overruled. James Murphy. } No. 422. Opinion of the court delivered by Mr. Justice Slayton. Mr. Chief Justice Willie not sitting in this cause. Motion of the appellant for a rehearing in this [489] cause came on to be heard, and the same having been considered by the court, it is ordered that the motion be overruled and the rehearing refused; that the appellant, the Texas Pacific Railway Company, pay all the costs of this motion.' On the 3d of January, 1884, the Chief Justice of the State indorsed his allowance on a petition presented to him for a writ of error from this court for a review of the record and proceedings in the suit, properly describing it,"In which a final judgment was rendered against the Texas and Pacific Railway Company on the 21st of December, A. D. 1883." The writ was issued on the 9th of January, describing the suit and the parties properly, but not giving the date of the judgment. The objection now made is, that as the judgment entered on the 21st of December was only an order overruling a motion for a rehearing, which is not reviewable here, we have no jurisdiction. True copy. Test: WEST, BRADLEY & CARY MANUFACT- (See S. C., Reporter's ed., 490-499.) *Letters patent No. 122001, granted to the Eagleton Manufacturing Company, December 19, 1871, for an improvement in japanned furniture springs, as the alleged invention of J. J. Eagleton, held to be invalid, and the following points ruled: 1. The patent is for steel furniture springs, protected by japan and tempered by the heat used in baking on the japan; 2. Such springs, so protected and tempered, were known and used by various persons named in the answer, before the date of the patent; 3. The specification which accompanied the original application by Eagleton, July 6, 1868, did not set forth the discovery that moderate heat, such as may be applied in japanning, will impart temper to the springs, but set forth merely the protection of the springs by japan; 4. Not only does the evidence fail to show that Eagleton, who died in February, 1870, in fact made and used, prior to such other persons, the invention covered by the patent as issued, but it shows that he did not and that, probably, it never came to his In Brocket v. Brocket, 2 How., 238, it was de- Eagleton, in the specification which he signed and *Head notes by Mr. Justice BLATCHFORD. and strength are produced by the heat altogether, | ive view of one of my improved springs. In Argued. Apr. 15, 16, 1884. Decided May 5, 1884. APPEAL from the Circuit Court of the United York. The history and facts of the case fully appear in the opinion of the court. Mr. Frederic H. Betts, for appellant. Messrs. W. C. Witter and W. II. Kenyon, for appellees. Mr Justice Blatchford delivered the opinion of the court: This suit was brought in the Circuit Court of the United States for the Southern District of New York, on letters patent No. 122001, granted to the plaintiff, the Eagleton Manufacturing Company, December 19, 1871, for an improvement in japanned furniture springs. The patent contains these recitals: " Whereas, J. J. Eagleton, of New York, New York, Sarah N. Eagleton, administratrix, has presented to the Commissioner of Patents a petition praying for the grant of letters patent for an alleged new and useful improvement in japanned furniture springs, she having assigned her right, title and interest in said improvement, as administratrix, to Eagleton Manufacturing Company, of same place, a description of which invention is contained in the specification of which a copy is hereto annexed and made a part hereof, and has complied with the various requirements of law in such cases made and provided; and whereas, upon due examination made, the said claimant is adjudged to be justly entitled to a patent under the law." suitable vide a suitable bath ww a baking oven of the ordinary kind suitable for the baking of japanned articles, in which oven the springs are subjected to a temperature sufficient to bake and harden the japan; after which the springs are removed from the oven and allowed to cool, when they are ready for use. The treatment of the springs in this manner imparts to them two important and valuable qualitics: first, the springs, when they come from the oven and are cooled, have firmly attached to their exterior surface a water-proof covering or coating, which perfectly protects them from corrosion and fits them for service in all kinds of climates, hot or cold, dry or damp. Second, the springs thus prepared are strengthened or stiffened; the application of heat to the springs in the oven having the apparent effect to temper the steel of which they are composed, making the springs stronger and more elastic. As between a steel spring not japanned, as I have described, and a steel spring The specification of the patent is as follows: japanned, as described, both being of the same "Be it known, that I, J. Joseph Eagleton, of size and made from the same piece of wire, the New York, in the County of New York, and japanned spring will be found to be much State of New York, have invented a new and stronger than the spring not japanned. The useful improvement in furniture springs; and spring not japanned is, therefore, not only lack[492] I do hereby declare that the following is a full, ing in strength, but it is also practically useless, clear and exact description thereof, which will for want of a protecting covering. But the imenable others skilled in the art to make and use proved article, produced substantially in the the same, reference being had to the accom- manner I have described, forms a strong and panying drawing, forming part of this specifi- durable spring, and no article like it has, so far cation, in which the drawing represents a fur- as I am aware, ever been known or used. While niture spring provided, according to my im- I do not claim, broadly, the making of furniture provement, with a japan covering. (The helical springs of steel wire, I wish it to be understood springs heretofore employed for furniture seats, I do not limit or confine myself to the exact ormattresses, etc., have generally been made of der or method of operation here described, in iron wire, brass or copper; but steel wire, al-producing my improved springs, as the order though a far superior material for such springs, or method may be varied without departing [4931has not been commonly employed, owing to the from my invention.)" lack of means for protecting such springs from corrosion and the lack of means for imparting to them the necessary stiffness or temper. The object of this invention is to produce steel furniture springs that shall not only be protected from corrosion, but shall also be suitably tempered and stiffened. The drawing is a perspect There are two claims, namely: "1. The method, herein described, of strengthening metal springs. 2. As an improved article of manufacture, a spring made substantially as herein described." Eagleton, as inventor, filed in the Patent Office on the 6th of July, 1868, a petition for a patent [494] |