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JAMES D. PORTER AND OTHERS, PLAINTIFFS IN ERROR, v. BUSHROD W. FOLEY.

December 1, 1860

JAMES D. PORTER AND OTHERS, PLAINTIFFS IN ERROR,
v.
BUSHROD W. FOLEY.



THIS case was brought up from the Court of Appeals for the State of Kentucky by a writ of error issued under the 25th section of the Judiciary act. A motion was made by Mr. Mooar to dismiss it for want of jurisdiction, under the following circumstances: Porter and others, the plaintiffs in error, filed a petition in the State court to recover the title and possession of a lot of land in the town of Covington. They claimed under a grant from the Commonwealth of Virginia, in 1787, to James Welsh, and a series of mense conveyances to themselves. The defendants below claimed under the same original title, and also under two acts of the Legislature of Kentucky passed on November 10 and November 26, 1823, by which William Porter was authorized to sell and convey certain parcels of ground which had been conveyed to his children. The plaintiffs objected to the admission of these acts as being unconstitutional and void. The court below, however, and the Court of Appeals, sustained them. The reader can now understand the points made by the counsel. In support of the motion to dismiss, Mr. Mooar made the following points: 1. As the bill of exceptions does not state that the statutes were repugnant to the Constitution of the United States, it must be presumed that the State Constitution was referred to; and this court has decided, in numerous cases, it had no jurisdiction on a writ of error from a State court to declare a State law void on account of its collision with a State Constitution. 3 Peters, 289. 4 Peters, 563. 20 Howard, 84. Ibid, 522. 2. The ground of jurisdiction must be stated with precision, and the ruling of the court, to bring the case under the 25th section, must appear on the record to have been decided against the right claimed. 18 Howard, 196. The only ruling of the court in this case was in overruling the objections of the plaintiffs to the introduction of the two State legislative acts as evidence in the cause. The reasons of the court for admitting the evidence are not stated in the record; nor did the counsel who made the objection rely upon any clause of the Constitution of the United States which renders said statutes unconstitutional and void. In Maxwell v. Newbold, 18 Howard, 517, Mr. Chief Justice TANEY said, 'the clause in the Constitution should have been specified by the plaintiffs in error in the State court, in order that this court might see what was the right claimed by them, and whether it was denied to them by the decision of the State court.' Neither the Constitution of the United States, nor any clause thereof, was specified or referred to in this case; nor is it sufficient that the judges of the State court, in their opinion, may have stated that certain clauses of the Constitution of the United States were involved in the decision, because, as Mr. Justice Story said, in the case of the Ocean Insurance Company v. Polleys, 13 Peters, 165, the opinion of the judges in the State court 'constitutes no part of the record; and it is to the record, and the record only, that we can resort to ascertain our appellate jurisdiction in cases of this sort.' As the record in this case does not show that the acts of the Legislature of Kentucky were objected to because of their repugnancy to the Constitution of the United States, or any clause thereof, no case is presented for the appellate jurisdiction of this court, and the writ of error should therefore be dismissed.

The opinion of the court was delivered by: Mr. Justice Grier delivered the opinion of the court.

Mr. Headington opposed the motion to dismiss the writ upon the ground that the statutes in question violate the seventh section of the compact of 1789 between Virginia and Kentucky, (1 Stanton's Ky. Stat., 82,) and are therefore repugnant to the tenth section of the first article of the Constitution of the United States.

Green v. Biddle, 8 Wheaton, 1.

The defendant in error now moves to dismiss the case on the ground that the record does not show that it falls within the twenty-fifth section of the Judiciary act of 1789.

1 Stat. at Large, 85.

The verdict and judgment in the Circuit Court were in favor of the defendant; and an appeal was taken to the Court of Appeals, and the judgment affirmed. The whole title of the defendant rested upon the above acts of the Legislature, the validity of which was sustained. If, therefore, the claim now made under the compact with Virginia, and the Constitution of the United States, was made in the Circuit Court, or Court of Appeals, it was necessarily involved in the decision, which was adverse thereto. Does the record show that the claim was made?

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; it is sufficient if this appears by clear and necessary intendment.

Wilson v. the Blackbird Creek Marsh Co., 2 Peters, 250.

Satterlee v. Matthewson, Id., 409-10.

Harris v. Dennie, 3 Peters, 302.

Craig v. the State of Missouri, 4 Peters, 427-8.

Davis v. Packard, 6 Peters, 48.

Crowell v. Randell, 10 Peters, 398.

Armstrong v. the Treasurer of Athens Co., 16 ...


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