Where a bank was chartered and its charter repealed by the
legislature of a territory, the question of the validity of the
repealing act cannot be brought before this Court under the
twenty-fifth section of the Judiciary Act.
The power of review is confined by that section to certain laws
passed by states, and does not extend to those passed by
territorial legislatures.
At the November term, 1845, of the District Court of Dubuque
County, in the Territory of Iowa, the district Attorney of the
United States filed the following information:
"James Grant, District Prosecutor of the third Judicial
District, who prosecutes for the United States, on leave granted,
comes into said District Court of Dubuque County, at the courthouse
in Dubuque County, on the first Monday in November, in the year of
our Lord one thousand eight hundred and forty-five, and for said
United States gives the court to be informed and understand, that
John Wharton Patrick Quigley, Robert Waller, John Thompson, Peter
Waples, Jesse P. Farley, and Timothy Davis, for the space of two
months last past, and since, have had and still use, without any
legal authority the liabilities and franchises of President,
Directors, and Company of the Miners' Bank of Dubuque, and discount
bills, loan money, buy and sell bills of exchange, and do all such
other acts and things as bodies corporate for banking usually
do."
"All which privileges, liabilities, and franchises, the said
defendants
Page 53 U. S. 2
have usurped, and still do usurp, upon said United States, to
the great damage and prejudice thereof."
"Whereupon the said attorney prays the aid of this Court in the
premises, and due process of law against said defendants, to answer
to said United States by what warrants they claim to have and enjoy
the liabilities, privileges, and franchises aforesaid."
"JAMES GRANT,
Dist. Pros."
Whereupon the attorney for the Bank filed the following plea,
viz.:
"And the said John Wharton Patrick Quigley, Robert Waller, John
Thompson, Peter Waples, Jesse P. Farley, and Timothy Davis,
President, Directors, and Co. &c."
"As to the said liabilities, franchises, and privileges, of the
said President, Directors, and Company, of the Miners' Bank of
Dubuque, say that by an act of the Legislature of Wisconsin
approved on the thirtieth day of November in the year of our Lord
one thousand eight hundred and thirty-six, which act, with
alterations, was approved by Congress on the third day of March in
the year of our Lord one thousand eight hundred and thirty-seven,
said President, Directors, and Company were duly incorporated as a
company or body politic and corporate, with the privileges,
liabilities, and franchises aforesaid; that by an act of Congress
in session on 12 June, in the year of our Lord one thousand eight
hundred and thirty-eight, the Territory of Wisconsin was divided,
and the Territory of Iowa formed therefrom, and by this warrant the
said defendants have, and during the time in said information
mentioned, and still use the liabilities, privileges, and
franchises, as they well might and still may; without this, that
said defendants have usurped, or do now usurp, said liabilities,
franchises, and privileges, in manner and form as by said
information is supposed, all which the said defendants are ready to
verify, and wherefore they pray judgment, and that said liberties,
franchises, and privileges, above by them claimed, may be allowed
and adjudged them, and that they may be herein dismissed
&c."
"DAVIS,
Att'y for Bank"
The replication of the plaintiff was as follows:
"And the said plaintiffs, for replication to said plea of said
defendants, say that the act of the Legislature of Wisconsin by
which said defendants claim the liberties, franchises, and
privileges aforesaid, by an act of the Legislature of Iowa
Territory, within whose jurisdiction the said corporate body
existed, after the division of the Territory of Wisconsin, in force
the twenty-first day of May in the year of our Lord one thousand
eight hundred and forty-five, the said liabilities, privileges, and
franchises, was repealed,
Page 53 U. S. 3
disallowed, and declared for naught; and this he is ready to
verify; wherefore he prays judgment &c."
"JAMES GRANT,
Dist. Pros."
The defendants rejoined, but afterwards had leave to file the
following amended rejoinder:
"The said defendants, as to the said replication of the said
plaintiffs to the plea of defendants, say that they ought not to be
barred of the franchises, liberties, and privileges secured to them
by their aforesaid charter, because they say that the act of the
said Legislature of Iowa aforesaid, whereby it is supposed the said
charter was repealed, was passed without the said corporation
defendants having first failed to go into operation, and without
having abused or misused its privileges; and this they are ready to
verify."
"DAVIS & SMITH,
Atty's for Defendants"
To this rejoinder the plaintiff demurred, and the defendants
joined in demurrer.
At December term, 1847, the district court gave the following
judgment:
"Thereupon the demurrer is sustained by the court, with leave to
the said defendants to answer over, but said defendants elect to
abide by their aforesaid amended rejoinder, and it being adjudged
by the court now here, that the information filed in this case, and
the matters and things therein charged are true, it is therefore
ordered, adjudged, and decreed that the said defendants, and all
others acting by, through, or under them, be ousted, and altogether
and forever excluded from all such corporate rights, privileges,
and franchises of the President, Directors, and Company of the
Miners' Bank of Dubuque; that the corporation of said President,
Directors, and Company be dissolved, and that the plaintiffs have
and recover of and from the said defendants their costs about their
suit in this behalf expended, and that they have execution
therefor."
The Bank appealed to the Supreme Court of Iowa, which affirmed
the judgment of the district court, and a writ of error brought the
case up to this Court.
Page 53 U. S. 4
MR. JUSTICE DANIEL delivered the opinion of the Court.
By a statute approved on 20 April, 1836, Congress, within the
boundaries designated by that statute, established the territorial
government of Wisconsin,
vid. 5 Stat. 10 to 16, and by a
subsequent law, approved June 12, 1838, Congress divided the
Territory of Wisconsin, and established over what had formed a
portion of that territory, the territorial government of Iowa,
vid. 5 Stat., 235 to 241, and on 3 March, 1845, the
Territory of Iowa was admitted into the Union, as one of the states
of this confederacy,
vid. 5 Stat. 742, and on 3 March,
1847, the like admission was extended to the Territory of
Wisconsin.
Vid. 9 Stat. 478. By what may be termed the
organic laws creating the governments of both the territories
above-mentioned, it will be seen that those governments were vested
with general legislative power, and were subjected to no enumerated
or specific limitations of that general power, save in certain
exceptions applicable to the lands or other property of the United
States, and to the right on the part of those governments, in
exercising the power of taxation, to discriminate between the
property of residents and nonresidents. The language of the
provisions here referred to is identical in the laws establishing
each of these territories, and is in the following words:
"That the legislative power of the territory shall extend to all
rightful subjects of legislation, but no laws shall be passed
interfering with the
primary disposal of the soil, no tax
shall be imposed upon the property of the United States, nor shall
the lands or other property of nonresidents be taxed higher than
the lands of residents."
Each of those provisions contains the following declaration:
"All laws of the governor and legislative assembly shall be
submitted to,
and if disapproved by the Congress of the
United States, the same shall be null and of no effect."
Vid. 5 Stat. 13 and
id., 237, § 6.
By a law of the Territorial Legislature of Wisconsin, approved
30 November, 1836, the plaintiffs in error were created a
corporation by the style of the Miners' Bank of Dubuque, to
continue until 1 May, 1851.
Vid. acts of Legislature of
Wisconsin of 1836, 18, No. 7. By an act of Congress, approved on 3
March, 1837, 5 Stat. 198, the charter granted by the Legislature of
Wisconsin was disapproved and annulled in certain particulars, but
allowed and left in force as to the provisions not thus vacated,
and contained, amongst other provisions, section 23, the
following:
"That this act be and the same is hereby declared to be a public
act, and that the same be for the time before limited, construed in
all courts and places benignly, and favorably, for every
Page 53 U. S. 5
beneficial purpose therein mentioned. Provided that if such
corporation shall fail to go into operation or shall abuse or
misuse their privileges under this charter, it shall be in the
power of the legislative assembly of this territory at any time to
annul, vacate, and make void this charter."
After the separation of Iowa from Wisconsin, the legislature of
the former territory, the Bank of Dubuque being situated within the
government thereof, by an Act of 21 May, 1845, repealed the act of
incorporation of the Miners' Bank, directed, under the supervision
of the court of the district, the settlement by trustees of the
affairs of that corporation, and the distribution of its assets
amongst the creditors and stockholders thereof.
Vid. Laws
of Iowa Ter., c. 31. In pursuance of this law, the prosecuting
attorney for the territory, on 10 August, 1845, filed an
information in the nature of a writ of
quo warranto
against the President, Directors, and Company of the Bank of
Dubuque, as usurpers, upon the authority of the United States, of
the privileges and franchises of a banking corporation. To this
information the plaintiffs pleaded the act of incorporation by the
Legislature of Wisconsin, as altered by the act of Congress, and
the division of the Territory of Wisconsin, and the creation of the
government of Iowa, in justification of their corporate rights. To
this plea it is replied for the United States, that the act of the
Legislature of Wisconsin by which the defendants were incorporated
had, after the separation of the territories, been repealed by an
act of the Legislature of Iowa, within whose jurisdiction the
corporation existed. The plaintiffs in error the defendants below
rejoined that the repealing act of the Legislature of Iowa had been
passed without the said corporation having failed to go into
operation, and without having misused or abused its privileges. On
behalf of the United States there was a demurrer to this rejoinder,
and in the meantime the Territory of Iowa having become a state,
this case was tried before the Supreme Court for the Second
Judicial district of the statute, by which tribunal the demurrer
was sustained, and judgment of ouster pronounced against the
Bank.
By the plaintiffs in error it is insisted, that the averments in
their rejoinder being admitted by the demurrer, it follows
ex
consequenti that the repealing law of the Territory of Iowa
was unconstitutional, as a law arbitrarily abrogating the charter
of the Bank, and therefore a law impairing the obligation of a
contract. In reviewing this case thus made, this Court does not
consider themselves called upon to test either the power of the
government of Iowa for the enactment of the statute complained of,
the coincidence or incompatibility of that statute with the 10th
section of the First Article of the Constitution, or
Page 53 U. S. 6
regularity of the proceedings in the court below. At the
threshold of their examination of this case, they are met by an
inquiry far more important and controlling than either of these,
viz., an inquiry into their own authority to effect, under
any aspect under which this case is presented to them, the result
which is sought at their hands. Whatever authority there exists in
this Court to reexamine and reverse the judgments or decrees of the
courts, not those regularly appertaining to the organized judicial
system of the United States, such authority must be traced to the
25th section of the law establishing the "Judicial courts of the
United States," by which section alone the power of this Court for
the purposes above stated was created and is clearly defined. By
recurrence to that section it will be perceived, in order to give
the corrective power to this tribunal, that by the decision of the
state court, there must have been "drawn in question, the validity
of a statute or an authority exercised under the United States, and
the decision be against their validity," or it must be
"where is drawn in question the validity or 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 such their validity, or
where is drawn in question the construction of any clause of the
Constitution, or of a treaty or statute of, or commission held
under the United States, and the decision is against the title,
right, privilege, or exemption, specially set up or claimed under
such clause of the Constitution, treaty, statute, or
commission."
By a comparison of the record before us with the section of the
Judiciary Act above quoted, we think it nowhere apparent, that
there has been, by the decision of the court of Iowa, drawn in
question the validity of a treaty or statute of, or an authority
exercised under the United States, much less that there has been a
decision against the validity of either, or that there has been
drawn in question the validity of a statute of, or an authority
exercised under any state, on the ground of its being repugnant to
the Constitution, treaties, or laws of the United States, or the
construction of any clause of the Constitution, or of any treaty or
statute or of commission held under the United States, and a
decision adverse to the validity of the latter. And it may be
observed that every requisite to form a ground of jurisdiction
enumerated in each of the predicaments comprised in the statute,
must combine in order to give to this Court the power invoked by
the plaintiffs in error. The alleged wrong which the court are
called on to redress, is not an act of state power at all; it is an
act of the territorial government of Iowa, by which was repealed an
act of the preceding territorial government
Page 53 U. S. 7
of Wisconsin; consequently the decision of the court below
asserted no state act or power in opposition to the Constitution,
treaties, or laws, or to a commission or authority of, or under the
United States, and presents therefore no ground of jurisdiction
here, either as derived from the language of the statute, or from
any construction heretofore given of it. If the question whether a
writ of error would lie from this Court to review the acts of the
territorial governments could ever have been regarded as in any
sense equivocal upon the language of the 25th section of the
Judiciary Act, such a question could not now be considered as open,
under the express adjudications previously ruled by this Court.
Thus in the case of
Scott v.
Jones, 5 How. 343, it was expressly declared --
"That an objection to the validity of a statute on the ground
that the legislature which passed it were not competent or duly
organized, under the acts of Congress and the Constitution, so as
to pass valid statutes, is not within the cases enumerated in the
25th section of the Judiciary Act, and therefore this Court has no
jurisdiction over the subject. That in order to give this Court
jurisdiction, the statute, the validity of which is drawn in
question, must be passed by a state a member of the Union, and a
public body owing obedience and conformity to its Constitution and
laws. That if public bodies, not duly admitted into the Union,
undertake as states, to pass laws which might encroach on the Union
or its granted powers, such conduct would have to be reached either
by the power of the Union to put down insurrection, or by the
ordinary penal laws of the states or territories within which these
bodies are situated and acting, but their measures are not
examinable by this Court upon a writ of error. They are not states,
and cannot pass statutes within the meaning of the Judiciary
Acts."
Other cases cited by the Court in the opinion just quoted might
be adduced to show the difference ever taken by the Court in
reference to its relation to the states as states, and as
contradistinguished from the territories of the United States. It
seems to us that the control of these territorial governments
properly appertains to that branch of the government which creates
and can change or modify them to meet its views of public policy,
viz., the Congress of the United States. That control
certainly has not been vested in this Court, either in mode or in
substance, by the 25th section of the Judiciary Act.
It has been argued in this case that as Congress, in creating
the territorial governments of Wisconsin and Iowa, reserved to
themselves the power of disapproving and thereby annulling the acts
of those governments, and had, in the exercise of that power,
stricken out several of the provisions of the charter of
Page 53 U. S. 8
the Bank of Dubuque, enacted by the Legislature of Wisconsin,
assenting to the residue; that therefore the charter of this Bank
should be regarded as an act of Congress, rather than of the
territorial government, and consequently the decision of the state
court, in favor of the repealing law of Iowa, must be held to be
one in which was drawn in question and overruled the validity of a
statute of or an authority exercised under the United States, and
as a decision also against a right, title, or privilege set up
under a statute of the United States. The fallacy of this argument
is easily detected. Congress, in creating the territorial
governments, and in conferring upon them powers of general
legislation, did not, from obvious principles of policy and
necessity, ordain a suspension of all acts proceeding from those
powers, until expressly sanctioned by themselves, whilst for
considerations equally strong they reserved the power of
disapproving or annulling such acts of territorial legislation as
might be deemed detrimental. A different system of procedure would
have been fatal to all practical improvement in those territories,
however urgently called for -- nay, might have disarmed them of the
very power of self-preservation. An invasion, or insurrection, or
any other crisis demanding the most strenuous action would have had
to remain without preventive or remedy, till Congress, if not in
session, could be convened, or when in session, must have awaited
its possibly procrastinated aid.
The argument would render also the acts of the territorial
governments, even the most wholesome and necessary, and though
indispensably carried to the extreme of authority, obnoxious to the
charge of usurpation or criminality. The reverse of this argument,
whilst it is accordant with the investiture of general legislative
power in the territorial governments, places them in the position
of usefulness and advantage towards those they were bound to
foster, and subjects them at the same time to proper restraints
from their superior. The charter of the Bank of Dubuque enacted in
all its details and powers ever possessed by it, and according to
which it was in fact organized, by the Legislature of Wisconsin,
must be looked upon as the creature of that legislature. To regard
it, as we are urged to do by the argument for the plaintiff in
error, would constitute it rather a Bank of the United States,
situated without the United States, and operating within the
Territory of Wisconsin, now the State of Iowa, independently of the
power or local policy of that state, and beyond the reach of its
faculties or obligations to be exerted for its own citizens. We
think that the positions, urged for the plaintiff in error, leave
the objections to the jurisdiction as above stated, in their full
force. We regard both the charter granted by Wisconsin, and the
repeal of that charter by Iowa,
Page 53 U. S. 9
alike as acts of the territorial authorities, and not as the
acts of any State of this Union, and that as such, this Court has
no power, by writ of error, to take cognizance of them in virtue
of, and for the objects designated by, the 25th section of the
Judiciary Act.
We therefore adjudge that the writ of error in this case be
Dismissed for want of jurisdiction.
Order
This cause came on to be heard on the transcript of the record
from the Supreme Court for the Second Judicial District of the
State of Iowa, and was argued by counsel -- on consideration
whereof, it is now here ordered and adjudged by this Court, that
this cause be, and the same is hereby, dismissed for the want of
jurisdiction.
