law of a state is claimed to be in contravention of the constitution of the United States. In all other cases the appellate jurisdiction is in the circuit courts of appeals. But the most important feature of the appellate jurisdiction of the supreme court (at least from the point of view of constitutional law) is that which gives it power to review the judgments of the highest courts of the states in certain cases The judiciary act of 1789 provided that "a final judgment or decree in any suit in the highest court of a state in which a decision in the suit could be had, 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; or where is drawn in question the validity of a statute of, or an authority exercised un der, any state, on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favor of their validity; or where any title, right, privilege, or immunity is claimed under the constitution, or any treaty or statute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed by either party, under such constitution, treaty, statute, commission, or authority, may be re-examined, and reversed or affirmed, in the supreme court on a writ of error." The constitutionality of this act has been fully vindicated.104 But the supreme court holds itself strictly within the limits of the jurisdiction here laid down. It will not take jurisdiction to review a case thus brought to it merely on the ground that a federal question might have formed the basis of decision of the case; it must appear that such a question actually did arise in the case and form the ground of the judgment of the state court, adverse to the plaintiff in error. When the state court, in rendering judgment, decides a federal question, and also decides against the plaintiff in error upon an independent ground, not involving a federal question, and broad enough to support the judgment, the writ of error will be dismissed by the United States supreme court without considering the federal question.105 Even where it does not appear upon what ground the state court placed its judgment, if the

" 103

103 Rev. St. U. S. § 709; Judiciary Act, § 25. 104 Martin v. Hunter's Lessee, 1 Wheat. 304.

105 Bacon v. Texas, 163 U. S. 207, 16 Sup. Ct. 1023; Beaupre v. Noyes, 138

judgment may be supported without deciding a federal question, the federal court will have no jurisdiction to review the case.106 But if the adjudication of a federal question is necessarily involved in the disposition of a case by the state court, it is not necessary that it should appear affirmatively in the record, or in the opinion of the court, that such a question was raised and decided.107 And the court will confine its review of the judgment of the state court to the questions arising under the federal constitution or laws.108 In order to be appealable, the judgment or decree must have been rendered by the highest court of the state "in which a decision in the suit could be had," that is, the court of last resort for that particular case, which is not necessarily the highest court of the state.109 And

it must be final. The inquiry therefore is important, what are final judgments and decrees which may be reviewed in the supreme court? The general rule is as follows: A final judgment is such a judg ment as at once puts an end to the action by declaring that the plaintiff has or has not entitled himself to the relief for which he sues. And a decree is final which disposes of the whole merits of the cause and leaves nothing for the further consideration of the court. A decree is interlocutory which finds the general equities, but retains the cause for reference, feigned issue, or consideration, to ascertain some matter of fact or law when again it comes under the consideration of the court for final disposition.110 "When a decree decides the right to the property in contest, and directs it to be delivered up by the defendant to the complainant, or directs it to be sold, or directs the defendant to pay a certain sum of money to the complainant, and the complainant is entitled to have such decree carried immediately into execution, the decree must be regarded as a final one to that extent, and authorizes an appeal to this court, although so much of the bill is retained in the circuit court as is

U. S. 397, 402, 11 Sup. Ct. 296; Armstrong v. Treasurer, 16 Pet. 281; Crowell v. Randell, 10 Pet. 368; Murdock v. City of Memphis, 20 Wall. 590.

106 Walter A. Wood Mowing & Reaping Mach. Co. v. Skinner, 139 U. S. 293, 11 Sup. Ct. 528.

107 Kaukauna Water Power Co. v. Canal Co., 142 U. S. 254, 12 Sup. Ct. 173. 108 Rector v. Ashley, 6 Wall. 142.

109 Gelston v. Hoyt, 3 Wheat. 246; McGuire v. Com., 3 Wall. 382; Green v. Van Buskerk, Id. 448.

110 1 Black. Judgm. §§ 21, 41.

necessary for the purpose of adjusting by further decree the accounts between the parties pursuant to the decree passed." 111

The statute authorizing this kind of review in the supreme court includes only the case where the decision is against the validity of a treaty or statute or authority of the United States, or where a state statute is upheld against objections to its validity based on the federal constitution or laws, or where a title or right or privilege claimed under federal law is denied. But these cases are sufficient to defend the supremacy of the national constitution and laws and protect the rights of citizens thereunder. If the decision of the state court accomplishes the same result, by recognizing the validity of the federal statute, or denying that of the state statute, or allowing the right or privilege claimed, there is no need of a review by the federal courts, and revisory jurisdiction is very properly withheld from them.112

POWERS AND PROCEDURE OF FEDERAL COURTS.

93. The federal courts, constituting a different system from that of the state courts, are entirely independent of the latter.

94. In cases not governed by federal statutes or treaties, the federal courts will administer the law of the state in which they sit, including the common law, statutes, and customs, so far as the same is not inconsistent with federal law.

95. The practice and procedure of the federal courts, except in equity and admiralty cases, is assimilated to that of the state within whose limits they are established.

96. The federal courts possess all such incidental and adjunct powers as belong to courts of record and which

111 Forgay v. Conrad, 6 How. 201; Thomson v. Dean, 7 Wall. 342; Beebe v. Russell, 19 How. 283; Farrelly v. Woodfolk, Id. 288; Ogilvie v. Knox Ins. Co., 2 Black (U. S.) 539; Wabash & E. Canal Co. v. Beers, 1 Black (U. S.) 54; Milwaukee & M. R. Co. v. Soutter, 2 Wall. 440; Grant v. Phoenix Mut. Life Ins. Co., 106 U. S. 429, 1 Sup. Ct. 414; Parsons v. Robinson, 122 U. S. 112, 7 Sup. Ct. 1153.

112 Missouri v. Andriano, 138 U. S. 496, 11 Sup. Ct. 385.

are necessary to enable them to exercise their constitutional and statutory jurisdiction.

Independence of Federal and State Courts.

In regard to the mutual respect to be paid to their judicial proceedings, and some other matters, the federal and state courts are not regarded as foreign to each other, but as related in the same way as the courts of two separate states in the Union. But in all other regards, they are entirely distinct and independent in the exercise of their respective powers. In order that each system of courts may preserve its own independence and that neither may encroach upon the proper jurisdiction of the other, they are governed by certain fixed rules of comity and mutual respect, in cases of conflicting or overlapping jurisdiction. It should be observed, however, that these rules of comity do not grow out of the peculiar relations of the state and federal courts entirely, or the limitations upon the jurisdiction of either, but are similar to those which obtain between any two courts of co-ordinate jurisdiction, as between the several superior courts of Great Britain or the district or circuit courts of the same state. In the first place, it is a well-settled rule that, of two courts having concurrent jurisdiction of any matter, the one whose juris

tion first attaches acquires exclusive control of all controversies respecting it involving substantially the same interests, and will hold and exercise this right until its duty is fully performed and the jurisdiction invoked is exhausted; and this rule applies to both civil and criminal cases, and is applied as between the state and national courts.118 As each court must be left free to exercise its jurisdiction once acquired, a state court will not enjoin an action brought and pending in a federal court,114 and it is expressly provided by act of congress that the writ of injunction shall not issue from a federal court to stay proceedings in a state court, except in the single case of matters arising under the bankruptcy laws.1

115

118 Bruce v. Railroad Co., 19 Fed. 342; In re James, 18 Fed. 853; Owens v. Railroad Co., 20 Fed. 10; Gates v. Bucki, 4 C. C. A. 116, 53 Fed. 969; State Trust Co. v. National Land Imp. & Manuf'g Co., 72 Fed. 575.

114 Schuyler v. Pelissier, 3 Edw. Ch. 191.

118 Rev. St. U. S. § 720. See Diggs v. Wolcott, 4 Cranch, 179; Louisville Trust Co. v. City of Cincinnati, 73 Fed. 716. But note that this rule is re

For similar reasons, it is an unalterable rule that when money or goods have been taken into the possession of the officer of one of the courts (the sheriff acting under the state court or a marshal under the federal court) by the levy of an execution, an attachment, a writ of replevin, or otherwise, it cannot be taken from his possession by any writ or other process issuing from the other court.116 When, for instance, the marshal has taken possession of a vessel, under process in admiralty, the courts of the state will not attempt, by the appointment of a receiver or otherwise, to interfere with that possession.117 So, where a state court has full control of mortgaged property under a general assignment, a federal court will not entertain a bill asking to have the mortgage declared to be for the benefit of all the mortgagor's creditors.118 And so, an estate which is in course of administration in a state probate court is in gremio legis, and a federal court cannot take charge of the administration, and determine and award the distributive shares of the heirs, at least as regards citizens of the same state.119 A receiver appointed by a court of equity is an officer of that court, and the receiver's possession of the property of the trust is the possession of the court. No private suitor may interfere with that possession, or sue the receiver, without leave of the court which appointed him. By an extension of this rule, the state and federal courts have determined that neither has any power to appoint a receiver of property which stricted to cases in which the proceedings were first begun in the state court. If the federal court first acquired jurisdiction of the proceedings, it may protect itself against being interfered with, and may, if necessary, enjoin adverse proceedings in a state court. Yick Wo v. Crowley, 26 Fed. 207.

116 Taylor v. Carryl, 20 How. 583; Hagan v. Lucas, 10 Pet. 400; Smith v. Bauer, 9 Colo. 380, 12 Pac. 397; Williams v. Chapman, 60 Iowa, 57, 14 N. W. 89; Alabama Gold Life Ins. Co. v. Girardy, 9 Fed. 142; Walker v. Flint, 7 Fed. 435; Domestic & Foreign Missionary Soc. v. Hinman, 13 Fed. 161; Beckett v. Sheriff, 21 Fed. 32; Patterson v. Mater, 26 Fed. 31; Summers v. White. 17 C. C. A. 631, 71 Fed. 106.

117 Thompson v. Van Vechten, 5 Duer (N. Y.) 618. 118 Keys Manuf'g Co. v. Kimpel, 22 Fed. 466.

119 Byers v. McAuley, 149 U. S. 608, 13 Sup. Ct. 906. But the mere fact that an administrator of a decedent's estate has been appointed by a state court having jurisdiction will not prevent the federal court from entertaining Jurisdiction of actions brought against him as administrator. Hook v. Payne, 14 Wall. 252.