Year: 1872

4 he viii forgive us when we express the
opinion that Major Houston viii not feel
llattered by his championship, and would
prefer being let alone by his friends We
certainly have higher opinion Of the Major
than to suppose he will ever rest his engi-
neering fame on the "disc0ge1y of the rise
and fall of Lake Superior, and Of tide
q ''therein," and the astounding discovery
"of q ue,o state Of contradictory facts" :"
in the domain Of carbohydrates.



/ We publish below the opinion Of Judge
Miller in the case of the estate of Wiscon-
sin VS.. the City Of Duluth ct. ais" Next
week we expect to publish the report of the
counsel for the State to the Governor Of
Wisconsin, showing the authorities upon
which they relied, and the reasons why
they commenced in the Circuit Court Of the
United States


The papers are already on their way to
Washington, TO commence the action i'll the
Supreme Court of the United States, and
the delay Of few weeks will not affect The
merits of our cause The citizens of Nor
thern Wisconsin may be assured that Gov.
W Washburn is tully aroused as 20 the wrongs
and usurpations of which Duluth has been
guilty against the rights of this State, and
will see these injuries redressed and the
rights Of The State maintained to the ut
most.


BEFORE JUDGES MILLER AND DILLON.
TIE State Of Wisconsin, rs Tile Citg Of Dsautl, tie


Northern PGcifc Il. r. Co., and Sidney Luce, Noyor
! of Doluht.


Mr.. JUSTICE MILLER.


The bill in equity Of the State of Wisconsin asserts
the interest OF State aud OF her citizens in the
igaon Of the ST Louis, from its mouth, where it
empties into Lake Superior, Superior City Tor about
twenty miles up the river, part of which, by reason
of the expansion of the river is known the Bay of
Superior and il alleges that the City OF Duluth, and
| Mr. Luce, the Mayor Of that city, and the Northern
Pacific Railroad Company, are now extending dyke
into the navgabe waters of said river, whereby the
use of the for navigation Will be seriously OBJ
sruced and the rights OF the State OF isconsn and
of her citizens will be impaired


The bill prays for injunction, and other appro-
pirate relief


The case comes before us at this time for prelim
mary Injunction and the defendants raise the question
Of the jurisdiction of the Circuit Court, and move to
dismiss the bill on that ground.


/ ~ Is Il
the Union maintain suit IN circuit court OF the
United States. t is OF interest and OF great i'm
po5rauce As shall presently see, it does not ap-
pear have bcea decided by the Supreme Court,
aud has only received the attention Of the circuit courts
In lwO or three reported cases.


10 is not asserted in behalf Of plaintiff that the jurs
diction be maintained the nature Of the reghts
asserted i'll the bill without regard thc character of
the parties buo it is insisted that OF the States
of the Federal Union, Wisconsin can sustain any ac-
VIII ich cIp he a


The constitution, in the second section Of the third
article declares that the Judicial power shall extend 10
controversies between State aad citizens OF another
State, and the defendant Luce and the city OF DU-
uth asa Qrdeuiaby citizens OF the State of Minnesota
yhe e IN Jaae yspect within that provision Of
( the Fundamental law.


The succeeding clause however of the same section
in defining she jurisdiction Of the Supreme Court, the
only court established by the constitution uses Ian
uage which cannot be disregardedin this connection.
ID SAYS chat in all affecting ambassadors, other
public ministers and Consuls, and those in which a
State snail te porty the Supreme Court shall have
original jurisdiction. In all other before men
Jioned u shalt nave appellate jurisdiction both as to
aW aad fact with such exceptions and under such reg
ulatious the Congress shall make.


As this is a case which a State is party, the Su-
Preme Court undoubtedly has original jurisdiction of
It, if it IS TO- which the power Of the edel al judi
ciary extends; and this jurisdiction it has without the
aid Of any Of Congress, for it is conferred in clear
and express terms by the constitution Nor is this





ton for that only protects the States from suits COM
menced or prosecuted against them when brought by
citizens Of another State OF foreign State 1t may
therefore be safely affirmed that the Supreme Court
would have jurisdiction of this suit far the char
acter of the parties give it, if brought in that
Court Pennsylvania the Wheeling Bridge Com
pany. l3 How, 5l6.


As that court has original jurisdiction Of such suits
it would that it cannot have IN any such case ap-
peate jurisdiction. The section in the constitution
which couters original Is followed by the decara-
ton hat in all other eases before mentioned the Su-
preme Court shall have appellate jurisdiction Did
the trainers of the constitution intend to give the
Supreme Court both original and appellate jursdc-
0n in the class of founded III the charac
Of the parties? Or did it by this clause intend to
define the cases in which it should have original and
| those in which it should have appellate jurisdiction
and 20 distinguish and separate them FROM each other


The natural import of the language used, defining
specially the cases IN which 1t has original jurisdiction
and declaring that in all others its jurisdiction shall be
appellate favors strongly the idea that in those
classes of of which it has original cognzlnce it
I can have appellate jurisdiction.


If this be sound exposition of the Constitution it
follows that if there is in the Circuit Courts jurisdic
( ton concurrent with the Supreme Court in to
which State is a party, appeal or writ of error
can be taken when the suit is brought in the former
This would be an anomaly in our system of ursprlI-
dence which stands alone and it weighs very heavily
against construction of the act of Congress creating
the Circuit Courts and comforting their powers, which
brings such eases within their jurisdiction by
implication.


But waving this view of the subject for the present.
these propositions may be fairly deduced from tue Con
stitution in regard suits brought by State against
citizens of another State.


/. That the Judiciary power of the federal govern
ment extends TO such


>. That the Supreme Court has original jurisdiction
I of such eases


3. That jurisdiction is conferred other court
if such eases by the constitution propria p'gore.


Conceding then that the jurisdiction OF the Supreme
Court derived from the constitution is exclusive
in this class of cases. still look other