#### United States, appellant, *v.*McElroy, respondent.

Appeals in United States courts. The appellate jurisdiction of the courts of the United States is regulated by the acts of congress.

Same — *laws of Territory.*The Civil Practice Act, which prescribes the mode of appealing to this court, is not applicable to cases arising under the constitution and laws of the United States.

*Appeal from Second District, Deer Lodge Gov/nty.*

Clagett *&*Dixon and Sharp & Napton, for the motion to dismiss the appeal.

M. 0. Page, United States Attorney, contra.

*238Seeyis, J.

At tbe April term, 1873, of tbe second judicial district court, sitting to try and determine causes arising under tbe constitution and laws of tbe United States, tbe respondent was indicted for tbe crime of embezzling money, tbe property of tbe United States. At tbe following September term of said court, tbe court, upon motion, quashed said indictment. Erom tbis ruling tbe district attorney gave notice of an appeal to tbis court, and procured and filed in tbis court, as sucb appeal, a transcript of tbe proceedings in tbe court below.

Tbe respondent files bis motion to dismiss tbis appeal upon tbe following grounds:

1. That no appeal lies upon tbe part of tbe United States.

2. That tbe transcript was not filed witbin thirty days after tbe appeal was taken.

Tbe question presented by tbis motion is one of practice — as to whether the practice in tbe United States courts or tbe Territorial practice shall prevail. Tbe mode of removing causes from an inferior court to a superior court witbin tbis Territory, is provided in tbe ninth section of tbe Organic Act. After providing for tbe jurisdiction and removal of causes arising under tbe Territorial laws, it is further enacted: “ And each of tbe said district courts shall have and exercise tbe same jurisdiction, in all cases arising under tbe constitution and laws of the United States, as is vested in tbe district and cmcuit courts of tbe United States; * * * and writs of error and appeal in all sucb cases shall be made to tbe supreme court of said Territory tbe same as in other cases.”

If a fair and reasonable construction of tbis section of tbe Organic Act did not of itself determine tbe question, we need but look to a few general principles to correctly solve it.

Appellate jurisdiction in national courts is exercised by writs of error or appeal, tbe former to review judgments at law, tbe latter to review a decree in equity. It is acquired from tbe sovereign power of tbe United States. Exclusive jurisdiction is tbe attendant upon exclusive legislation, and it is by virtue of sucb legislation that tbe case at bar bad its inception, and that, too, by sovereign legislation, which carries with it, in its administration, tbe general practice of tbe courts of. tbe United States when ad*239ministering tbe laws of tbe same. Tbe mode, and tbe only legal mode, for tbe removal of causes from an inferior national court to a superior is regulated by acts of congress, and does not depend upon tbe laws of a State or Territory. *Hudgins*v. *Kemp,*18 How. 530; *Kelsey*v. *Forsyth,*21 id. 85.

Tbe appeal in tbis case was perfected (if it could be) September 27, 1873, by filing a notice, as required by tbe Territorial laws. The transcript in tbis case was filed January 7, 1874, more than thirty days intervening. Under tbe Territorial practice a motion to dismiss tbe appeal might be well taken. But we are of tbe opinion that tbe Territorial practice does not prevail in cases arising under tbe constitution and laws of tbe United States, and that tbe case at bar is not before tbis court as required by law.

Tbe motion to dismiss tbe appeal is, therefore, granted.

*Appeal dismissed.*

Wade, O. J., concurred.

NNowles, J.,

dissenting. I dissent from tbe opinion of tbe court, upon tbe point that tbe appeal was not properly taken. I bold that appeals should be taken in United States causes tbe same as in Territorial causes.