JURISDIC⭑ in the same manner and under the same regulations, and the APPELLATE writ shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a circuit court, and the proceeding upon the reversal shall also be the same, except that the supreme court, instead of remanding the cause for a final decision, as before provided, may, at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. But no other error shall be assigned or regarded as a ground of reversal, in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before mentioned questions of validity or construction of the said constitution, treaties, statutes, commissions or authorities in dispute."36 This is the only statutory provision regulating the appellate jurisdiction of the supreme court over questions arising in the state courts, under the constitution, laws and treaties of the United States. tionality of provision. The constitutionality of this provision having been called Decisions. in question, it was held, after great consideration, that, as the Constituappellate jurisdiction of the supreme court conferred by the the above constitution was unlimited, and declared to extend to certain cases, without any reference to the courts in which they might originate; and as the constitution had morever expressly declared, that the constitution, laws and treaties of the United States should be binding upon the judges of the state courts, and as state courts must continually be called upon, in cases coming within their ordinary jurisdiction, to pronounce upon the effect of the laws of the United States, and as there ought to be but one common interpretation of those laws, the constitution meant to extend the appellate jurisdiction of the supreme court to the state courts. 38 $7. The judgment of the state court must be final; and there- Judgment must be final. APPELLATE fore where the highest state court had given judgment of re JURISDIC TION. "Highest state court," versal upon error from an inferior court, where judgment had been rendered for the plaintiff, and ordered a venire de novo, on remanding the cause; it was held that error would not lie to the supreme court, as the judgment might still be finally given for the plaintiff. The judgment must be final, so as to determine the particular cause, but need not be such as finally to decide the right, so that it can never again be litigated between the parties.40 39 That provision of the act which requires that the court its meaning. appealed from should be the highest court of the state in which a decision in the suit can be had, does not appear to have often called for the construction of the court; but in the case of Cohens vs. Virginia," the inferior court where the suit was depending having refused to allow an appeal to a higher state court, on the ground that it was a case not subject to revision, it seems to have been taken for granted that a writ of error lay to the inferior court. In this case the jurisdiction of this court necessarily appeared upon the record; but there does not appear to be any case suggesting a mode of reviewing the decisions of inferior state courts, upon matters collateral in a suit, where the laws of the United States are in question, but which not forming a part of the record cannot be carried to the highest state court, where judgment may be finally given. Citizenship tant, nor amount In a case where both parties claimed title to land under the not impor- same act of congress, but both were citizens of the same state, it was objected that the court, from this circumstance, had not in dispute; jurisdiction; but they held otherwise:42 And the court has also had occasion to decide that the value of the matter in dispute &c. is immaterial;45 that the writ need not purport to be issued sue from cir- upon the final judgment of the highest state court;44 and that writ need not purport, and may is cuit court. 393 Wheat. Rep. 433. 12 Ib. 135. 416 Wheat. 290. 42 4 Cranch. Rep. 382. it may issue, like writs to the circuit court, out of the circuit APPELLATE court. 45 JURISDIC- stock, Error lies upon writ of stock prohibition. Where a municipal body had taxed United States and an inferior state court, on the application of the holders, had granted a writ of prohibition to restrain the levying of the tax, and on a removal of the cause to the highest state court the order for the prohibition had been reversed; it was held, on error to the supreme court, that a writ of prohibition was a suit within the meaning of the act, and the judgment a final judgment, and within the appellate jurisdiction of the court.46 upon a mo mandamus. It has also been held, that a writ of error will lie upon the Error lies judgment of a court on a motion for a mandamus ;17 and where tion for a a state court entertained such a motion, as within its jurisdiction, for a mandamus to compel an officer of the United States to perform an alleged duty under the laws of the United States, but refused the mandamus on the merits of the case, and the relator brought a writ of error from their judgment to the supreme court, the court entertained the writ of error as within their jurisdiction, holding that the state court had no jurisdiction in such a case, but affirming the judgment with costs.4 show a right of jurisdic tion. It is necessary, as has been seen when speaking of error to Record must the circuit court, that the appellate jurisdiction of the court should appear upon the record; but in a case where it was objected that it did not appear upon the record that an act of congress had been disregarded by the state court, which was the error alleged, the court said that "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 into question; but that it would have been sufficient to give the court jurisdiction of the cause, that the record should show that an act of congress was applicable to the case. 1149 APPELLATE Practice on error from Supreme court may The proceedings on writs of error to the state court are, with a few exceptions, which will be readily seen by referring to the statute, the same as on writs of error to the circuit courts state courts. which we have already considered, and to which the reader is referred. One material difference between error from the cirexecute its cuit and a state court is, that the supreme court may, if a cause has been once remanded to the state court, proceed to execute its own judgment instead of remanding it again; a power which it appears not to have had occasion to exercise more than once,50 and then a mandamus seems to have been suggested as preferable to an execution. own judg ment. Second writ where cause has gone back to the inferior court. Costs and direction of If the court of errors has given judgment and remanded the cause to an inferior court, where the record remains, so that the former court can not return the record with the writ, a second writ may be issued to the court where the record is to be found, in order to bring it up.5] 51 As to the costs of the writ, and to what state court the manthe mandate. date is to be directed, it was held, where a cause came up on error from the judgment of the highest state court, reversing the judgment of an inferior court, which had been rendered in favour of the plaintiff in error, that on reversing the judgment of the highest court, and affirming that of the inferior court, the judgment of the former having become a nullity, the costs must follow the right as decided here, and that the costs of all the courts should be allowed to the plaintiff, and the mandate for execution be issued to the inferior court.52 Certificate of points of disagreement from the circuit court. 53 Certificate of points of disagreement from the Circuit Court.] When the judges of the circuit court differ in opinion upon any question, except in cases coming up on error, or by appeal from the district courts, a summary and informal appeal for the determination of such question, is allowed to the supreme court of the United States, by the following statutory provision: 50 1 Wheat. Rep. 361. 52 3 Dall. Rep. 342. 53 Ante. JURISDIC- provision. "Whenever any question shall occur before a circuit court, APPELLATE upon which the opinions of the judges shall be opposed, the point upon which the disagreement shall happen, shall, during Statutory the same term, upon the request of either party, or their counsel, be stated under the direction of the judges, and certified under the seal of the court, to the supreme court, at their next session to be held thereafter; and shall, by the said court, be finally decided. And the decision of the supreme court, and their order in the premises, shall be remitted to the circuit court, and be there entered of record, and shall have effect according to the nature of the said judgment and order: Provided, that nothing herein contained shall prevent the cause from proceeding, if in the opinion of the court, further proceedings can be had without prejudice to the merits."54 court has over only point certi and that Upon this provision the following decisions have been Decisions. made: When a question in a cause is certified to the supreme Supreme court, the law gives that court jurisdiction over the single point jurisdiction only on which the judges were divided, and not over the whole the single cause, or any other part of it. It is not necessary that any of fied, the proceedings in the circuit court should be stated, upon only need be which the questions certified do not arise, but only enough to show the principle on which the judges were divided.55 But after a final judgment of the circuit court, the whole case may be brought before the supreme court by writ of error, in the same manner as if no question had been certified.5 stated; jurisdiction trict judge As the district judge can not vote in the circuit court, on a and has no writ of error from the district court, but judgment must be where disrendered according to the opinion of the presiding judge, the cannot vote; supreme court in such cases has no jurisdiction to entertain a certificate of a division of opinion of the judges, and consequently no division can be certified.57 Nor has the supreme proceedings court any jurisdiction where the question certified arises upon of the cause. 54 Act of 29 April, 1802. s. 6. Ls. U. S. 856. 55 10 Wheat. Rep. 1. 20. 21. 56 2 Cranch. 33. nor as to arising after the decision |