Court from the Court of Claims, from the supreme courts of Hawaii and Porto Rico,48 from the supreme courts of the territories of Arizona and New Mexico,19 from the district court for the district of Alaska,5o from the supreme court of the Philippine Islands,51 and from the court of appeals of the District of Columbia.52 Appeals were also allowed from the court of private land claims when that court was in existence.53 The Supreme Court may also review the judgments or decrees of the Court of Customs Appeals in certain cases,54 and also had jurisdiction to review the decisions of the now abolished Commerce Court.55

§ 69. Writ of error to state courts-The statute. One of the most important branches of the appellate jurisdiction of the Supreme Court is its jurisdiction to review the decisions of the courts of the states. This jurisdiction is conferred by the twenty-fifth section of the Judiciary Act of 1789.56 This carefully drawn statute was so framed as to authorize the minimum amount of interference by the Supreme Court with the decisions of the state courts consistent with the proper maintenance of the supremacy of the Constitution, laws, and treaties of the United States.

The constitutionality of this section was strenuously contested in an early case. In 1813 the Supreme Court reversed the judgment of the court of appeals of Virginia in an action of ejectment, and directed the state

court to enter judgment in accordance with the opinion of the Supreme Court. The court of appeals refused to obey the mandate of the Supreme Court, on the ground that the Constitution does not extend the federal judicial power to the review by the Supreme Court of the decisions of the state courts, and that the statute authorizing such review was unconstitutional. This decision of the Virginia court was reversed in 1816 by the Supreme Court and the act was sustained as constitutional.57 The Supreme Court declined to attempt to compel the Virginia court to obey its mandate, but, by its own officer, put the party prevailing under its decision in possession of the premises.58 The constitutionality of this section has since been reaffirmed and is fully established.59

The power of the Supreme Court to review the judgments of state courts, especially in connection with the question of the validity of state legislation, operates to give the federal government what amounts, in effect, to a veto power over practically all state legislation. Since the adoption of the Fourteenth Amendment imposing new restrictions upon the states, there is scarcely any law of a state that might not be challenged on the ground that it violates the Federal Constitution, and the final determination of this question rests with the Supreme Court in the exercise of its appellate power over the state courts. However, this power has been exercised most conservatively, and the history of litigation under the Fourteenth Amendment seems to justify the characterization of its restrictions as "those last resorts of desperate cases.'' 60

57-Hunter v. Fairfax's Devisee, 1 Munf. (Va.) 218; Fairfax's Devisee v. Hunter, 7 Cranch 603; Hunter v. Martin, Devisee of Fairfax, 4 Munf. (Va.) 1; Martin v. Hunter, 1 Wheat. 304.

58-Tucker, Const. 766.

59-Cohens v. Virginia, 6 Wheat. Williams v. Bruffy, 102 U. S.

264; 248.

60—Per Mitchell, J., in Com. v. Phila., etc., Coal, etc., Co., 145 Pa. St. 283.

§ 70. Text of the statute. The text of the statute as it stood as Section 709 of the Revised Statutes, and as reenacted without change as Section 237 of the Judicial Code, is as follows: 61

"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,

[1] "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

[2] "Where is drawn in question the validity of a statute of or an authority exercised under 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

[3] "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 upon a writ of error. The writ 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.

"The Supreme Court may reverse, modify, or affirm the judgment or decree of such state court, and may, at their discretion, award execution, or remand the same to the court from which it was removed by the writ."

The provisions of this statute have been radically changed by the amendment of 1914 set forth in the next section.

61-Rev. St. § 709, 4 Fed. St. Ann. upon this section, see 4 Fed. St. Ann. For exhaustive annotations 468-490.

467.

was

§ 71. The amendment of 1914. The only material change in this provision since its enactment in 1789 62 made by an act of December 23, 1914, and this change has been re-enacted by Act of September 6, 1916, which amends Section 237 of the Judicial Code so as to read as follows: 63

"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 under 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, may be re-examined and reversed or affirmed in the Supreme Court upon a writ of error. The writ 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. The Supreme Court may reverse, modify, or affirm the judgment or decree of such State court, and may, in its discretion, award execution or remand the same to the court from which it was removed by the writ.

"It shall be competent for the Supreme Court, by certiorari or otherwise, to require that there be certified to it for review and determination with the same power and authority and with like effect as if brought up by writ of error, any cause wherein a final judgment or decree has been rendered or passed by the highest court of a State in which a decision 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 in favor of their validity; or where is drawn in question the

62-As to changes made by the Act of 1867, see Murdock v. City of Memphis, 20 Wall. 590.

63-38 Stat. L. 790, Supp. 1916, Fed. St. Ann. 135; 39 Stat. L. -.

validity of a statute of, or an authority exercised, under any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is against 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 either in favor of or against the title, right, privilege, or immunity especially set up or claimed, by either party, under such Constitution, treaty, statute, commission, or authority.

64

This amendment was doubtless passed in response to a popular clamor arising from the decision of the court of appeals of New York in a prominent case in which a workmen's compensation law of that state was held unconstitutional. Under the provisions of the statute providing for review of the decisions of state courts by the Supreme Court, this decision could not be reviewed since the statute authorized such review only when the state statute was held constitutional. A decision of a state court that a state statute was unconstitutional could not be reviewed by the Supreme Court. Under the present amendment any decision of a state court as to the validity of an act of Congress or of a state legislature may be reviewed by the Supreme Court, and it is immaterial whether the decision be in favor of the validity of the statute or against it.

64-Ives v. South Buffalo R. Co., 201 N. Y. 271 (1911). In a later case the New York court held a somewhat different statute constitutional, the state constitution having been in the meanwhile amended, though, of course, this could not affect the question of constitutionality under the federal Constitution. Jensen v. Southern Pacific R. Co., 215 N. Y. 514 (1915), L. R. A.

(1916A) 403. In a note to this case the editor of L. R. A. (p. 419) remarks: "The New York court has been severely criticized, particularly by laymen, for its decision in the Ives case, and also for its supposed inconsistency in holding the first act void while sustaining the later act. The editor then points out the difference between the two.