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Argument for Plaintiff in Error.

On December 2, 1895, the day before the case was called for argument in this court, the plaintiff in error moved for a writ of certiorari, suggesting a diminution of the record in omitting to state that on July 15, 1890, he filed in the District Court a petition for the allowance of a writ of error from the Circuit Court of the United States.

Mr. Thomas C. Chappell, plaintiff in error, in person.

The State of Maryland by an act of the General Assembly of Maryland, Acts of 1874, chapter 395, has expressly given its consent to the condemnation of land for light-house purposes, by the United States. Section 10 provides: "Jurisdiction is hereby ceded to the United States over such lands as shall be condemned, as aforesaid, for their use for public purposes, as soon as the same shall be condemned, under the sanction of the General Assembly of this State, herein before given to said condemnation."

It must be acknowledged that all the powers of the United States originate in the several States; that the States delegated certain rights and reserved certain rights, and that by the Tenth Amendment, those not delegated are reserved. One of these rights reserved was the right to prevent the United States from exercising exclusive jurisdiction in any places, except in the District of Columbia, and in such places as the State might consent to being acquired by purchase. If the State does not see fit to consent, it cannot be compelled to do so; if it sees fit to consent that jurisdiction shall be transferred "as soon as the same shall be condemned," that is not a consent to such jurisdiction before said condemnation, and the State cannot be compelled to consent, except on its

own terms.

The mode of procedure prescribed by the law of the State and the act of Congress itself has not been followed; a special jury of inquest has been convened, a statutory jury of inquiry. In the case of Kohl v. United States, 91 U. S. 367, this court laid down the rule, that a condemnation proceeding is an action at common law. Being an action at common law, the

Argument for Plaintiff in Error.

plaintiff in error is entitled to a trial by a common law jury, and he has not been afforded that trial. A special jury of inquest of damages is a body of men in the nature of commissioners, misnamed a jury. They cannot exercise any of the powers of a common law jury.

The result of this distinction between a special body of assessors of damages, by whatever name they may be called, a jury, commissioners or assessors, and a jury at common law is this, that on appeal from the action of said commissioners or special jury, the party is entitled to a trial de novo by a common law jury before the appellate tribunal. Steuart v. Baltimore, 7 Maryland, 500.

The result of this reasoning is that the plaintiff in error is entitled to such a trial before the appellate tribunal, under the decision of Steuart v. Baltimore, supra, by jury.

According to the rule laid down in Tide Water Canal Co. v. Arch, 9 Gill & Johns. 511, the appellate tribunal tries the case de novo, the laws of the States being the rule of decision in the courts of the United States, except where repugnant to the Constitution of the United States, this plaintiff in error is entitled to a trial by jury in this court, of the questions of fact raised in the record, according to the course of the common law under the Seventh Amendment to the Constitution of the United States.

This is the result of conferring jurisdiction upon the courts of the United States in this proceeding, which is held in Kohl v. United States, 91 U. S. 367, by this court, to be an action at common law.

These cases fully establish the principle that where a law secures a trial by jury upon an appeal, it is no violation of a constitutional provision for guarding that right, although such law may provide for a primary trial without the intervention of a jury. This is upon the ground that the party, if he thinks proper, can have his case decided by a jury before it is finally settled. Steuart v. Baltimore, ubi supra.

The modes in which this power is exercised vary according to circumstances. Sometimes it is initiated by summoning a jury upon warrant, in the nature of an inquest ad quod dam

Opinion of the Court.

num; at others, boards of assessors are appointed to appraise dues and benefits; with the right of appeal to a court of record, and of review by a jury. Maryland v. Graves, 19 Maryland, 351.

In Cruger v. Hudson River Railroad, 12 N. Y. 190, it was held that the word "jury" had been used in a number of statutes to describe a body of men who are in fact commissioners or assessors.

The plaintiff in error being entitled to a trial by a common law jury, under Article VII of the Constitution of the United States, has not been afforded that right, because he was not brought into the lower court according to the course of the common law.

The case of Tidewater Canal Co. v. Archer, ubi sup., demonstrates that a statutory jury of view is not a common law jury, and also lays down the rule that the party is entitled to have a trial before the appellate tribunal by a common law jury, and to try the case de novo.

Mr. Assistant Attorney General Dickinson for defendants in error.

MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.

The motion for a writ of certiorari for diminution of the record, in not stating that on July 15, 1890, the plaintiff in error filed a petition for the allowance of a writ of error from the Circuit Court of the United States to the District Court in which the proceedings were pending, must be denied, for several reasons: 1st. The motion was not made at the first term, as required by Rule 14 of this court, and no satisfactory cause is shown for the delay. 2d. The copy of docket entries, submitted with the motion, while it shows that a petition for a writ of error was filed on that day, does not show that a writ of error was then allowed or sued out; and the plaintiff in error afterwards obtained the allowance of a writ of error from the Circuit Court to the District Court, which he abandoned, and,

Opinion of the Court.

instead thereof, applied for and obtained the present writ of error from this court. 3d. The order overruling the demurrer to the petition, and directing a jury to be empanelled, was not a final judgment upon which a writ of error would lie. Luxton v. North River Bridge Co., 147 U. S. 337.

The writ of error now before us was sued out from this court to the District Court of the United States for the District of Maryland, under the Judiciary Act of March 3, 1891, c. 517, § 5, which provides that "appeals or writs of error may be taken from the District Courts or from the existing Circuit Courts direct to the Supreme Court in the following [among other] cases:

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First. "In any case in which the jurisdiction of the court is in issue; in such cases, the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision."

Fifth. "In any case in which the constitutionality of any law of the United States" "is drawn in question." 26 Stat. 827, 828.

In order to bring a case within the first class, not only must it appear of record that a question of jurisdiction was involved. in the decision below, but that question, and that alone, must be certified to this court. If both a question of jurisdiction and other questions were before the court below, and a writ of error is allowed in the usual and general form to review its judgment, without certifying or specifying the question of jurisdiction, this court cannot take jurisdiction under this clause of the statute. Maynard v. Hecht, 151 U. S. 324; Moran v. Hagerman, 151 U. S. 329; Colvin v. Jacksonville, 157 U. S. 368; Davis & Rankin Co. v. Barber, 157 U. S. 673; The Bayonne, 159 U. S. 687; Van Wagenen v. Sewall, ante, 369.

If, indeed, the writ of error is allowed upon the petition of the original plaintiff, asking for a review of a judgment dismissing the action for want of jurisdiction, and the only question tried and decided in the court below was a question of jurisdiction, that question is sufficiently certified to this court. Lehigh Co., petitioner, 156 U. S. 322; Interior Construction Co. v. Gibney, ante, 217. And if an appeal from a decree

Opinion of the Court.

of the Circuit Court appointing a receiver is allowed by that court "solely upon the question of jurisdiction," and on a petition praying an appeal from the decree as "taking and exercising jurisdiction," the question of jurisdiction is sufficiently certified. Shields v. Coleman, 157 U. S. 168.

But in the case, just cited, of Shields v. Coleman, the essential requisite of the appellate jurisdiction of this court in this class of cases was defined as follows: "It is not necessary that the word 'certify' be formally used. It is sufficient if there is a plain declaration that the single matter which is by the record sent up to this court for decision is a question of jurisdiction, and the precise question clearly, fully and separately stated. No mere suggestion that the jurisdiction of the court was in issue will answer. This court will not of itself search, nor follow counsel in their search of the record, to ascertain whether the judgment of the trial court did or did not turn on some question of jurisdiction. But the record must affirmatively show that the trial court sends up for consideration a single definite question of jurisdiction." 157 U. S. 176, 177.

The record in the present case falls far short of satisfying any such test. The defendant, among many other defences, and in various forms, objected to the jurisdiction of the District Court, because the act of Congress under which the proceedings were instituted was unconstitutional, because the proceedings were not according to the laws of the United States, and because they should have been had in a court of the State of Maryland; and the court, overruling or disregarding all the objections, whether to its jurisdiction over the case, or to the merits or the form of the proceedings, entered final judgment for the petitioners. There is no formal certificate of any question of jurisdiction; the allowance of the writ of error is general, and not expressly limited to such a question; and the petition for the writ, after mentioning all the proceedings in detail, asks for a review of all the "rulings, judgments and orders" of the court "upon the question of jurisdiction raised in said exceptions, pleas and demurrers, and the other papers on file in this cause," without defining or indicating any spe

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