CHAPTER XII.

XII. THE JUDICIARY-MORRISON R. WAITE, CHIEF JUSTICE FROM JANUARY 21, 1874, DOWN

TO THE PRESENT TIME.

On January 21, 1874, the Hon. Morrison R. Waite, of Ohio, was commissioned to fill the vacancy caused by the death of Chief Justice Chase in 1873.

Of late years, the docket of the Supreme Court has been burdened with cases, and Congress has lessened the number of cases which can be taken there by enlarging the amount of money required to be in controversy to give the court jurisdiction. The power of Congress to order and establish inferior Federal courts and to regulate the appellate jurisdiction of the Supreme Court, has given us the District and Circuit Courts and the Court of Claims. The two former were created by the Judiciary Act of 1789; the latter was called into existence by the circumstances of the war of '61, and has jurisdiction of all claims founded upon any law of Congress, or upon any regulation of the executive department, or upon any contract with the United States, and claims referred to said court by either house of Congress; of set-offs by the government against claimants against it; of relief sought by persons liable to pay money to the United States, and of claims for property destroyed by the government.

The Supreme Court has appellate jurisdiction from these three courts under certain rules. That court is also largely occupied by deciding upon matters brought there from the highest courts of the States, since Congress has enacted that “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; or where any title, right or 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 set up or claimed by either party under such Constitution, treaty, statute, commission or authority, may be reexamined and reversed or affirmed in the Supreme Court on a writ of error."

Although in Federal affairs the Supreme Court has this high power, yet the laws of the several States, except where the Constitution, treaties or statutes of the United States otherwise require or provide, are regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply. It is enacted, too, that the practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admirality causes in the dis

trict and circuit courts, shall conform as near as may be to the practice and pleadings and forms and modes of proceeding existing at the time in like causes in the courts of record of the State within which such district or circuit courts are held, any rules of court to the contrary notwithstanding.

The mode of forming juries practiced in each State so far as such mode may be practical by the courts of the United States or the officers thereof, are followed in empannelling juries in Federal causes.

No witness can be excluded from testifying on account of color or interest; but in all other respects the laws of the State in which the court is held shall be the rules of decisions as to the competency of witnesses in the courts of the United States, in trials at common law and in equity and admirality.

It is the settled law of the Federal courts that the Supreme Court of a State is the highest authority upon the construction to be placed upon the statutes of that State. The Federal courts follow the decisions of the State courts upon matters of local legislation and State law. Where the constitution and laws of a State have been construed differently at different times by the highest court of the State, the Supreme Court of the United States adopt the first decisions and reject the last.

All of the recent decisions of the Federal Supreme Court are worthy of study, but let us glance at a few of the most important opinions on constitutional questions.

The city of Topeka,* in Kansas, was authorized by *Loan Association vs. Topeka, 20 Wallace, 655.

the State legislature to issue bonds to aid a manufacturing enterprise in that city. The bonds were sold, and some of them purchased by citizens of Ohio. The city denied its liability, and the suit to recover the value of the bonds reached the Supreme Court, where the powers of the legislature to authorize taxation were discussed at length.

It was held that a statute which authorizes towns to contract debts or cther obligations, payable in money, implies the duty to levy taxes to pay them, unless some other fund or source of payment is provided. If there is no power in the legislature which passed such a statute to authorize the levy of taxes in aid of the purpose for which the obligation is to be contracted, the statute is void, and so are the bonds or other forms of contract based on the statute. There is no such thing in the theory of our governments, State and national, as unlimited power in any of its branches. The executive, the legislative and the judicial departments are all of limited and defined powers. There are limitations of such powers, which arise out of the essential nature of all free governments, implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name. Among these is the limitation of the right of taxation, that it can only be used in aid of a public object—an object which is within the purpose for which governments are established. It cannot, therefore, be exercised in aid of enterprises strictly private, for the benefit of individuals, though in a remote or collateral way the local public may be benefited thereby. The line