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Dissenting Opinion
Catron

United States Supreme Court

48 U.S. 185

United Statess  v.  Chicago


Mr. Justice CATRON, dissenting.

On a bill in equity being presented by the United States to the district judge, he granted an injunction against the city of Chicago, to restrain the corporation from running a street through the public property attached to a military post within the corporate limits. By the act of February 1st, 1807, injunctions granted by district judges in vacation only remain in force until the next term of the Circuit Court. Accordingly, at the next term a motion was made to continue the injunction granted by the district judge, and the judges were opposed in opinion whether an injunction should or should not be granted. The entire matters of law and fact arising on the face of the bill, and on affidavits and documents introduced by the defendant to resist the motion, were sent up to this court, covered by three points, on which the judges assume to have been opposed. And the motion to renew the injunction is presented to us, as it was to the Circuit Court. And the question is, Have we any power to grant the injunction? By the Constitution, the judicial power is vested in the Supreme Court, and such inferior courts as the Congress may from time to time ordain and establish. In cases affecting public ministers and consuls of other countries, and in cases where States are the parties, this court has original jurisdiction. In all other cases, the Constitution provides, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make. That is to say, with such exceptions to the exercise of appellate jurisdiction as Congress shall interpose; as that no cause shall come up, unless the matter in controversy exceeds the sum or value of two thousand dollars, nor shall a writ of error lie in a criminal cause, nor from a District Court, &c. That the original jurisdiction of the Supreme Court is limited to the two classes of cases above referred to was held by this court in Marbury v. Madison, 1 Cranch, 174. Is, then, the granting an injunction an exercise of original jurisdiction? It may be done out of court by the circuit judge; and so an expired injunction may be renewed at any time by him, the courts of equity being always open for such purpose by our present rules. This bill and affidavits are placed before us as they were before the Circuit Court, and for the same purpose, of founding an original motion on them, thereby to procure an order for the restraining writ to issue. We are asked to take an original incipient step, as the court below was, before any answer is filed, and before any thing could be adjudged between the parties by the Circuit Court, so as to bind their rights.

What is appellate jurisdiction in the sense of the Constitution? Our practice under the thirteenth section of the Judiciary Act of 1789 has settled the meaning of the term. It is to re examine, and to reverse or affirm, the judgment, sentence, order, or decree of an inferior court,-to pass on that which has been adjudged. Here, nothing was adjudged in the court below.

From the threatening nature of this precedent, it is deemed improper to pass over it unnoticed, as I have done in other cases. If a division can be certified in this instance, so there may be in every other where an injunction is applied for in open court, and the judges see proper to send us the cause,-for as to real divisions, they hardly exist at present. The cases are sent here by agreement of counsel, with the assent of the Circuit Court, usually without any examination below.

I, therefore, am of opinion, that we have no jurisdiction, and that the matter before us should be dismissed.


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).