The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1876-09-08

3 81 ,,,,,,,r m SppEArs SusrA 3up1CTar.
orr1cE--y ALIDiTY or y THE Decisions s;s 0s
4 pa Facro 'Jns.s 81. fne f0lowiie ease
mas been disposed q BY the United States
Supreme Court; lssgs
robert B. Boiling, plaintiff Iii error, ps.
Gustay,,s lI.ersner. In error 20 the Supreme
Court Of Appesells Of the State OF Virginia.
The Circuit Court OF Fauquier county,
Va, rendered decree In this cause Sep
telnber rs, 1857. From this decree Lersner
prayed m appeal to the District Court, OF
Appeals May II, 1869. This was allowed
by $. Willoughby, Judge. Upon this allow
ancc the appeal was docketed in the appel
late court, and the parties appeared without
objection, or protest, and were heard. On
the hearing the decree OF the Circuit Court
was reversed, and the cause remandcd,
with instructions to proceed as directed.
Then the case came to the Circuit
Court upon the mandate OF the Appellate
Court. Boiling appeared and objected to
the entry Of the decree which has been or
dered, for the reason, among others. that
Willoughby, the Judge who allowed the
appeal, had been appointed to his office by
the commanding general exercising military
authority in Virginia under the reconstruc-
were unconstitutional and void. This OBJ
lection was overruled and the decree enter
ed according to the mandate. From this
decree Boiling took an appeal to the Su-
premc Court OF Appeals, where the action
OF the Circuit Court. was affirmed. To re-
verse this decree OF affirmance the present
writ OF error has been prosecuted. He can
not recXaEline the Judgment or decree of
State court simply because Federal
question was presented to that court for
determination to give us jurisdiction. It
must appear that such 4 question was in
fact decided OF that its decision was neces-
sarily involved in the Judgment or decree
as rendered. In this case Boiling presented
to the court for its determination the cues
ton OF the constitutiOnality OF the recon-
struction acts. This was Federal question,
but the record does not show that it was
actually decided or that its decision was
necessary to the determination Of the cause,
while it perhaps sufficiently appears that
the Judge was appointed under the authority
OF the acts in question. 1t also appears that
| he was acting in the discharge OF the duties
OF his office, and that he had tho reputation OF
being the officer he assumed to be. It
also appears that after the allowance
OF the appeal the ease was docketed
| in the appellate Court; that Boiling
| appeared there; that he submitted himself
to the jurisdiction Of that court without OBJ
lection, and presented his case for adjudica-
! ton; that the case was heard and decided,
and that the objection to the qualification OF
| the Judge who allowed the appeal was made
for the first time in the Circuit Court when
the case came down with the mandate.
From these facts it is held to be clear that
the case might have been disposed OF in the
State court without deciding upon the ques-
ton OF the validity of the reconstruction
acts, and that it actually was so, all the
judges having argued that Willoughby was
de facto Judge, and that his acts were
valid in respect OF the public and third par
ties, even though he might not be rightfully
in Office.
Motion to dismiss granted. The Chief
Justice delivered the opinion.