# Murdock v. City of Memphis
## Dissenting Opinion

    Clifford
United States Supreme Court
87 U.S. 590
Murdock v. City of Memphis
ERROR to the Supreme Court of Tennessee; the case being thus:
The Constitution of the United States after vesting the judicial power of the United States 'in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish,' ordains as follows:
'The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made under their authority,' &c.
On the 24th of September, 1789, at the first Congress of the United States, after the adoption of the Constitution, Congress passed the 'act to establish the judicial courts of the United States;' the great act commonly called the Judiciary Act. The twenty-fifth section of it gave to this court whatever power was given in the act at all to re-examine, reverse, or affirm the final judgments or decrees in suits in the highest courts of law or equity of the States.
On the 5th of Feb., 1867, after the late rebellion had been suppressed,-and just before the adoption of the fourteenth amendment to the Constitution, which declares that 'no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States'-but while more or less disorganization of things remained in the Southern States, Congress passed an act entitled 'An act to amend an act to establish the judicial courts of the United States.' This act was in two sections. The first section gives to the courts of the United States, and the several judges thereof, within their respective jurisdictions, in addition to the authority already conferred by law, power to grant writs of habeas corpus in all cases where any person may be restrained of liberty in violation of the Constitution, or of any treaty or law of the United States.
The second-the one alone much concerning this case,-was on the same subject as the twenty-fifth section of the old act.
The twenty-fifth section of the old act and the second section of the new one are here juxtaposited verbatim in columns.
THE TWENTY-FIFTH SECTION OF THE ACT OF 1789.
That a final judgment or decree in any suit, in the highest court of law or equity 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 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 by either party, under such clause of the said Constitution, treaty, statute, or commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error, the citation being signed by the chief justice, or judge, or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States, in the same manner and under the same regulations, and the writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a Circuit Court, and the proceeding upon the reversal shall also be the same, except that the Supreme Court, instead of remanding the cause for a final decision, as before provided, may at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same and award execution. But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid than such as appears on the face of the record and immediately respects the before-mentioned questions of validity or construction of the said Constitution, treaties, statutes, commissions, or authorities in dispute. THE SECOND SECTION OF THE ACT OF 1867.
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 such 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 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 of the United States, upon a writ of error, the citation being signed by the chief justice, or judge, or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States, in the same manner, and under the same regulations, and 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; and the proceeding upon the reversal shall also be the same, except that the Supreme Court may, at their discretion, proceed to a final decision of the same, and award execution or remand the same to an inferior court.
The published proceedings of the two houses of Congress show that the bill, which subsequently became a law, was reported by a committee which had been instructed 'to inquire and report what legislation was necessary to enable the courts of the United States to enforce the freedom of the wives and children of soldiers of the United States, under the joint resolution of Congress of March 3d, 1865, and the liberty of all persons under the operation of the constitutional amendment abolishing slavery.' The bill, so far as the point now under consideration is concerned, was not the subject of special comment. The effect of it was declared by the member of the House of Representatives who reported it from the committee, to be 'to enlarge the privilege of the writ of habeas corpus.' In the Senate an inquiry was made 'whether the second section was drawn on the same principle as the twenty-fifth section of the Judiciary Act of 1789.' The reply was, 'It is a little broader than the Judiciary Act. It is of a similar character.'
Thus, apparently it happened that the fact that Congress had passed the act of 1867, was hardly noted for some time within the precincts of this bar-where the venerable Judiciary Act of 1789 was in some sort regarded as only less sacred than the Constitution, and most unlikely to be wished to be altered-and that the less studious observers considered that the new section was but a careless transcript of the old one. However, the more careful readers were early awakened by possibilities of meanings in the second section of the new act which would have far-reaching effects. Mr. Phillips in his work on Practice, in this court, early observed that the new act 'in some of its provisions and omissions seems to have been intended to work a change in the exercise of the jurisdiction of the court.' So in the case of Stewart v. Kahn, the difference between the two acts was enforced by Mr. S. M. Johnson, counsel, on one side of the case who claimed for it vast effects.
A careful reading of the act shows, indeed, to every one certain verbal changes. Thus:
1st. By the old act, this court could not proceed to final judgment and award execution, except in cases where the cause 'had been once remanded before.'
By the new act, this limitation is omitted, and the court is authorized in all cases at their discretion, to render judgment and award execution.
2d. By the old law the jurisdiction is vested in cases where is drawn in question the construction of any clause of the Constitution, or treaty, or statute, or commission.
In the new, we have the use of these other words, 'or where any right, title, privilege, or immunity is claimed,' under the Constitution, &c.
3d. By the old law it was required that what is called 'the Federal question' must 'appear on the face of the record.'
In the new, the words making this requisition are omitted.
4th. By the old law, 'no other error could be assigned or regarded as ground of reversal, than such as immediately related to the validity or construction of the Constitution, treaties, statutes, commissions, or authorities in dispute.'
In the new, the words putting this limitation on the jurisdiction disappear, and makes an argument plausible that Congress or the draughtsman of the act had meant to say that if a Federal question once existed in the case, and this court so got jurisdiction of the case, then it was bound to go on and decide every question in it, though these questions were questions of local law, and such as, in numberless cases, the court had decided that, under the old section and in consequence of the now omitted language at the close of it, could not be passed on here.
Referring to this last change, its operation seemed so important and its bearing on the twenty-fifth section so direct, in a matter oftener discussed and decided by this court than any question ever submitted to it; that it was difficult for some persons to conclude that the legislator who drew the bill, and the legislature that adopted it, did not comprehend that the bill was effecting a radical change in the exercise of the jurisdiction of the court.
However, it was obvious that as long as in the cases brought up here, either,
1st. No Federal question at all existed in the case, OR,
2d. The Federal question, where one did exist, had been wrongly decided in the court below,-and there was no local question on which the case might have been disposed of—
There was no necessity to pass upon the effect of the concluding sentences of the new section. The case would come within both the old and new. The necessity to consider the effect of the new act would, however, arise on the first occasion when some case should come before the court, in which (1st), there was a Federal question, (2d), where that question had been rightly decided, and (3d), where there were, besides, local questions which would dispose of the case, and which the plaintiff in error alleged had been wrongly adjudged below. Such a case now seemed to be here.
The case was thus:
Murdock filed a bill in one of the courts of chancery of Tennessee, against the city of Memphis, in that State. The bill and its exhibits made this case:
In July, 1844,-Congress having just previously authorized the establishment of a naval depot in that city, and appropriated a considerable sum of money for the purpose-the ancestors of Murdock by ordinary deed of bargain and sale, without any covenants or declaration of trust on which the land was to be held by the city, but referring to the fact of 'the location of the naval depot lately established by the United States at said town'-conveyed to the city certain land described in and near its limits 'for the location of the naval depot aforesaid.'By the same instrument (a quadrupartite one) both the grantors and the city conveyed the same land to one Wheatley, in fee, in trust for the grantors and their heirs, 'in case the same shall not be appropriated by the United States for that purpose.'
On the 14th of September, 1844, the city of Memphis, in consideration of the sum of $20,000 paid by the United States, conveyed the said land to the United States with covenant of general warranty; there being, however, in this deed to the United States no designation of any purpose to which the land was to be applied, nor any conditions precedent or subsequent, or of any kind whatsoever.
The United States took possession of the land for the purpose of the erection of a naval depot upon it, erected buildings, and made various expenditures and improvements for the said purpose; but in about ten years after, by an act of August 5th, 1854, transferred the land back to the city. The act was in these words:
'All the grounds and appurtenances thereunto belonging, known as the Memphis Navy Yard, in Shelby County, Tennessee, be, and the same is hereby, ceded to the mayor and aldermen of the city of Memphis, for the use and benefit of said city.'
There was no allegation in the bill that the city was in any way instrumental in procuring this transfer or the abandonment of the site as a naval depot; on the contrary, it is averred that the city authorities endeavored to prevent both.
The bill charged that by the failure of the United States to appropriate the land for a naval depot, and the final abandonment by the United States of any intention to do so, the land came within the clause of the deed of July, 1844, conveying it to Wheatley in trust; or if not, that it was held by the city in trust for the original grantors, and the prayer sought to subject it to said trusts.
The answer, denying the construction put upon the deed of 1844, which established a trust, asserted that the land had been appropriated by the United States as a naval depot within the meaning and intent of the deed of July, 1844, and that the subsequent perpetual occupation of it was not a condition subsequent; and consequently that the abandonment of it as a naval depot was not a breach of a condition such as divested the title so conveyed by the deed.
It pleaded the statute of limitations. It also demurred to the bill as seeking to enforce a forfeiture for breach of condition subsequent.
The court sustained the demurrer, and also decreed that the city had a perfect title to the property against the complainants both under the act of Congress and the statute of limitations, and dismissed the bill. The Supreme Court of Tennessee affirmed this decree.
That court was also of opinion, and so declared itself to be, that the act of Congress 'cedes the property in controversy in this cause to the mayor and aldermen of the city of Memphis, for the use of the city only, and not in trust for the complainant; and that the complainant takes no benefit under the said act.'
The complainant thereupon sued out a writ of error to this court.
The case was first argued January 21st, 1873.
Messrs. W. I. Scott and J. B. Hieskell, for the plaintiff in error:
1. Is there a Federal question, so that the court can take jurisdiction? There is such a question. The ancestor of Murdock conveyed to the city and Wheatley on condition, or more properly speaking perhaps, in trust. Neither party could discharge himself of the trust. When the city conveyed to the United States, the United States took the land fettered with a trust. When the United States reconveyed to the city, they, of necessity, conveyed in trust. The fact that the deed said that it conveyed to the city 'for its own use' does not alter the case. If a trustee, in fraud of a declared trust, conveys to another for the use of that other, that other holds not for his own use but for the cestui que trust. Therefore, we set up and claim a right under the act of Congress. No right arose to us but for that act. When the act reconveyed the property to the city there was an abandonment, a breach of the trust or condition on which the property had been conveyed. The grantors or their heir, the present complainant, took it. There is, therefore, a Federal question, and that question has been decided against us.
2. That question was decided wrongly, as our remarks just made show.
Whether the new act changes the old twenty-fifth section or not the judgment below must be reversed, and the case remanded.
3. But, however our second point may be-that is to say, whether the Federal question was decided wrongly or rightly, and conceding that it was decided rightly-then although in consequence of the closing sentence of the old twenty-fifth section, no question of law merely local could formerly be considered here, yet that closing part being now left off, the restriction on this court to consider this class of questions is removed; and it being once shown that there is a Federal question in the case to give this court jurisdiction, the court must re-examine, affirm, or reverse the decision of the State court on these local questions as well as on the Federal question. This, doubtless, was what was meant by Mr. Justice Swayne in Stewart v. Kahn, where, distinguishing between changes merely verbal throughout the section and the great omission at its close, that learned justice says:
'The section is to a great extent a transcript of the twenty-fifth section of the prior act. There are several alterations which are not material, but at the close of the second section there is a substantial omission.'
[The learned counsel on an assumption of the correctness of this position, then went on to argue that the decision of the court below on the pleas of the statute of limitations, &c., was erroneous.]
Messrs. W. T. Otto, B. M. Estes, J. M. Carlisle, and J. D. McPherson, contra:

## Notes

* ↑ 1 Stat. at Large, 25.
* ↑ 14 Id. 485.
* ↑ Congressional Globe, first session 39th Congress, part 5, page 4151.
* ↑ Ib. page 4229.
* ↑ Page 128.
* ↑ A.D. 1870, 11 Wallace, 500.
* ↑ 10 Stat. at Large, 586.
* ↑ Supra, p. 593.
* ↑ 11 Wallace, 502.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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