This radical change of an extremely important statute is to be regretted. The statute was drawn in the first instance with extraordinary wisdom and skill. For a century and a quarter it had admirably served its purpose, and the power conferred upon it had been most discreetly exercised by the Supreme Court. At last under the influence of temporary excitement, already subsided, it has been fundamentally altered. Further, the change was not made with even ordinary skill. Instead of enacting a new statute, complete and self-consistent in itself, Congress simply added to the existing statute an amendment which, while leaving the old law still standing, destroyed its most striking features.64 In theory the amendment greatly enlarges the already extensive control of the Supreme Court over the state courts; in practice it will probably have little effect.

§ 72. General propositions relating to review by Supreme Court. Upon an analysis of the statute it will be observed that:

(1) The decision of the state court must be final.

(2) The decision may be a judgment at law or decree in equity.

(3) The decision must be of the highest court of the state having jurisdiction of the suit, though this need not necessarily be the highest state court.65

(4) The statute provides for review only of decisions in cases involving a federal question, and not those of diverse citizenship, etc. The cases reviewable are cases of conflicting state and federal authority.

(5) The pecuniary amount involved is immaterial.

64a-This defect was corrected by the Act of Sept. 6, 1916.

65-Thus the writ of error may be to a justice court of a county. See Missouri, etc., R. Co. v. Harris,

234 U. S. 412 (in which case a judgment for $3.50 was affirmed), or to a county court. See Wells Fargo & Co. v. Ford, 238 U. S. 503.

(6) The right of review extends to criminal as well as to civil cases.66

(7) The validity not merely the construction of the statute, etc., must be drawn in question; merely controverting a right under a statute, etc., or disputing an act done by an authority, etc., is not drawing in question the validity of the statute, authority, etc.

By the original statute the decision of the state courts must be adverse to the federal government. If favorable thereto it cannot be reviewed. That is to say, the federal law, etc., must have been declared by the state court to be invalid, or the decision must have been against the title, etc., claimed under the federal authority; or the state law, etc., must have been held valid as against an objection that conflicts with the federal law. If the state court upholds the federal law or authority, or declares the state law repugnant to the constitution or laws of the United States, its decisions cannot be reviewed by the Supreme Court. This has been changed by the amendment of 1914. It is now immaterial which way the state court decides.

Under the old law also the Supreme Court can review by writ of error only and not by appeal, and hence the power of review extends to questions of law only and not of fact. This applies to equity cases as well as to cases at law.67 Under the amendment of 1914 the review may be "by certiorari or otherwise."

The subject of the review of the decisions of the state courts by the Supreme Court was very fully considered in 1875 by Mr. Justice Miller in an opinion in the course of which he said: 68

"We hold the following propositions on this subject as flowing from the statute as it now stands:

66-Twitchell v. Com., 7 Wall.

321.

67—Dower v. Richards, 151 U. S.

68-Murdock v. City of Memphis, 20 Wall. 590, 635.

"1. That it is essential to the jurisdiction of this court over the judgment of a state court, that it shall appear that one of the questions mentioned in the act must have been raised and presented to the state court.

"2. That it must have been decided by the state court, or that its decision was necessary to the judgment or decree rendered in the case.

"3. That the decision must have been against the right claimed or asserted by the plaintiff in error under the Constitution, treaties, laws or authority of the United States [changed by the act of 1914].

"4. These things appearing, this court has jurisdiction and must examine the judgment so far as to enable it to decide whether this claim of right was correctly adjudicated by the state court.

"5. If it finds that it was rightly decided, the judgment must be affirmed.

"6. If it was erroneously decided against plaintiff in error, then this court must further inquire whether there is any other matter or issue adjudged by the state court which is sufficiently broad to maintain the judgment of that court, notwithstanding the error in deciding the issue raised by the federal question. If this is found to be the case, the judgment must be affirmed without inquiring into the soundness of the decision on such other matter or issue.

"7. But if it be found that the issue raised by the question of federal law is of such controlling character that its correct decision is necessary to any final judgment in the case, or that there has been no decision by the state court of any other matter or issue which is sufficient to maintain the judgment of that court without regard to the federal question, then this court will reverse the judgment of the state court, and will either render such judgment here as the state court should have rendered, or remand the case to that court, as the circumstances of the case may require."

§ 73. Procedure. It is provided by statute that,9 "Writs of error from the Supreme Court to a state court in cases authorized by law, shall be issued in the same manner and under the same regulations, and shall have the same effect as if the judgment or decree complained of had been rendered or passed in a court of the United States."

It is also provided that,70 "Cases on writ of error to revise the judgment of a state court in any criminal case shall have precedence on the docket of the Supreme Court of all cases to which the government of the United States is not a party, excepting only such cases as the court, in its discretion, may decide to be of public importance."

It is not deemed of importance in a work of this scope to set out in detail the proceedings for taking a case to the Supreme Court.

Writs of error to state courts are not allowed as a matter of right. The practice is to submit the record of the state court in the cause to a justice of the Supreme Court and he may allow the writ. In case of the refusal of any justice to allow the writ, application may be made to individual justices successively or to the whole court.71

To furnish a basis for the writ of error, the federal question involved must have been distinctly raised in the state court and have been decided therein, and these facts must appear from the record. As declared by the

Supreme Court,72 "It is well settled by a long series of adjudications that to give this court jurisdiction by writ of error to a state court, it must appear affirmatively, not only that a federal question was presented for decision to

69-U. S. Rev. St. § 1003, 4 Fed. St. Ann. 616.

70-Judicial Code, § 253, 4 Fed. St. Ann. 490.

71-Twitchell v. Com., 7 Wall. 321. See in the Frank Case of Georgia, Frank v. Magnum, 237 U. S. 309,

The Supreme Court will not consider an application for writ of error except upon request of one of the justices. In re Ingalls, 139 U. S. 548.

72-Wood Mowing, etc., Co. v. Skinner, 139 U. S. 293.

the highest court of the state having jurisdiction, but that its decision was necessary to the determination of the case, and that it was actually decided, or that the judgment as rendered could not have been given without deciding it."

§ 74. Rule where other than federal questions are involved. On the whole it seems that the Supreme Court is careful not to interfere with the decisions of the state courts, except when clearly proper, such interference being a somewhat delicate proceeding. When, therefore, it appears from the record that the adverse decision of the state court may have been based on either of two independent grounds, one of which is not a federal question, the Supreme Court will dismiss the writ of error, assuming that the decision was based on the non-federal ground, unless this is so palpably insufficient that it cannot be presumed that the state court based its decision upon it. In the latter case the Supreme Court will assume that the state court decided on the federal ground only, and will review the decision."

73-Johnson v. Risk, 137 U. S. 300; Leathe v. Thomas, 207 U. S. 93; Bonner v. Gorman, 213 U. S. 86.

73