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HIRAM BENNER, JOSEPH B. BROWNE, AND SALISBURY HALEY, ASSIGNEES OF ELEAZER P. HUNT APPELLANTS, v. JOSEPH Y. PORTER.

January 1, 1850

HIRAM BENNER, JOSEPH B. BROWNE, AND SALISBURY HALEY, ASSIGNEES OF ELEAZER P. HUNT APPELLANTS,
v.
JOSEPH Y. PORTER.



THIS was an appeal from the District Court of the United States for Florida. It originated in the Superior Court for the Southern District of Florida, in March, 1846, and was transferred to the United States District Court for Florida on the 14th of May, 1847. On the 24th of March, 1846, Joseph Y. Porter filed a libel in admiralty against the appellants, in the Superior Court for the Southern District of the Territory of Florida, for the proceeds of the sloop Texas, charging that he had furnished supplies and stores to the master, at the port of Key West, whilst the vessel was engaged in the business of wrecking. On the 22d of May, 1846, the Superior Court gave judgment for the libellant, for the sum of $1,223.02. On the 14th of May, 1847, the cause was transferred to the District Court of the United States, and an appeal prayed by the defendants to this court. Upon this appeal the case came up. It was argued by Mr. Westcott and Mr. Gilpin, for the appellants, and by Mr. Jones, for the appellee. The counsel for the appellants made three points, of which it is only necessary to notice the first, as the decision of the court turned upon it. I. The first reason assigned for a reversal of this decree is that the Territorial court, established and organized in and for the Southern District of Florida, by the act of Congress of 1828, so far as it respects its jurisdiction of cases of Federal character, was abolished by the admission of Florida as a State, on the 3d of March, 1845. Congress could not, under the Constitution, continue such court after Florida became a State. The Federal courts in a State must be established and organized under and in conformity to the Constitution. They must be constitutional courts. The Territorial courts were not extablished under the provisions of the Federal Constitution relating to the judicial system. The Territorial judges were appointed for four years. The judges of the constitutional Federal courts in the States held their offices during good behaviour. This court has decided the question. (American Insurance Company v. Canter, 1 Peters, 511; Hunt v. Palao, 4 Howard, 589.) No Territorial statute was in force in 1845, investing any tribunal with admiralty jurisdiction. The act referred to in the case in 1 Peters had long been repealed, and Congress had exercised its right of legislation on that subject. The libel was filed in the court as a Federal court, and under the general law of admiralty. Neither the convention of the people of Florida that formed the State constitution, nor the Legislature of the State, possessed any power to provide for the continuance of the Territoral courts, as Federal courts, nor to interfere with cases exclusively of Federal jurisdiction, in any wise. No provision of the State constitution, or of any act of the State Legislature, could in any degree affect such cases, even as to their transfer to the Federal court organized after the State government went into operation. The State Legislature avoided such interference as to the transfer of the papers of 'cases of Federal character and jurisdiction.' (State Act of July, 1845, §§ 8, 11, 12, 13, and 14; Thompson's Digest, pp. 53, 54, &c.) The continuance of the Territorial courts as Federal courts, after the Territorial government ceased to exist, was incompatible with the Federal Constitution. Those provisions of the Federal Constitution having reference to the Federal judiciary in the States, then became of force. Even the consent of a State could not justify a departure from the Constitution. It has elsewhere been contended, that the act of Congress of the 3d of March, 1845, admitting Florida as a State, and the supplementary act of the same day, for the establishment of a Federal District Court (with Circuit jurisdiction) for the whole State, did not, ex vi termini, operate as a repeal of the acts establishing the Territorial courts, and annihilate those Territorial courts, as Federal courts; but that such abolition of the Territorial courts then in existence was only effected when the constitutional Federal courts in the State were fully organized. This is the true question in this case, and is fairly stated. We contend that the Territorial courts, as Federal courts, were abolished the moment Florida was admitted as a State. The State constitution continued them as State courts only. It borrowed them from the Territorial organization, temporarily, till the permanent State courts should be organized by the Legislature, and the State judges elected, and all the authority of the Territorial judges to act a day after the admission of Florida as a State was derived from the State constitution, and from that alone. In this case the suit was instituted, and the decree appealed from was made, after the State courts were organized, and after the State Circuit Judge for the Southern District of Florida had been chosen, and the State court there fully organized and in operation. The jurisdiction exercised by the Territorial judge was as a Federal court, in a case of exclusive Federal jurisdiction and character, and upon the ground that the Territorial court, as a Federal court, was not abolished until the term of four years, for which the judge had been appointed, had expired, or until he was superseded by the appointment of another Federal judge, to whom the jurisdiction of the Territorial court, of a Federal character, had been legally assigned by act of Congress. A law officer of the United States, in 1845, wrote an elaborate opinion in favor of the right of the Territorial judges to continue to try and decide cases of Federal character and jurisdiction. It was published in the newspapers, and is to be found in the Daily Union of the 5th of May, 1845, No. 4, Vol. I., which is in court for the use of the counsel for the appellee, if he desires to use it. The United States treasury officers continued to pay the salaries of the Territorial judicial officers of Federal appointment, it is believed, till the State Federal courts were organized. The printed opinion of the former Solicitor of the Treasury, referred to, will be allowed to pass for what it is worth, without any comment, unless the counsel for the appellee urges it as entitled to consideration. Nor is it deemed necessary to discuss the question whether an illegal payment of salaries of judges by the treasury can revive and continue courts that are by the law of the land defunct, and the existence of which would be inconsistent with the Constitution. It has been said, the course pursued has been sanctioned by Congress, in the appropriation acts of 1845 and 1846; but it is submitted that the allegation is not sustained by a reference to the acts; and, besides, as before argued, the power of Congress to continue the Territorial courts, as Federal courts, in the State, is denied. But so far from Congress intending to allow or sanction he continuance of these Territorial courts as Federal courts, after the 3d of March, 1845, and so far from its having passed any law confirming the acts of the judges, by the act of the 22d of February, 1847, ch. 17, the question now presented is expressly reserved for the decision of this court. (See section 8 of said act, Pamph. Laws of 1847, p. 24, ch. 17.) It has been suggested, that, if the arguments just urged are correct, this court will dismiss the appeal in this case without reversing the decree, upon the ground that the proceedings recited in the record were not the acts of a court, were not judicial proceedings, but acts of naked, unwarranted usurpation, utterly null and void, and that no appeal can lie from the decree, as the decree of a judicial tribunal. The suggestion is not deemed to be of very great importance. The decision of this court without a technical reversal of the decree made below, but declaring it to be a nullity for the reason stated, will be all-sufficient for appellants, and we are careless as to the disposition of the case here, consequent on such judgment. Our remedy in such case is plain. If we had paid the money on a void decree, we could recover it back. All parties are liable to us in damages; even the judge may not be exempt, if the case is so decided. But it is conceived that, the decree being rendered under color of judicial authority, and the appeal being taken under the eighth section of the act of Congress of February 22, 1847, ch. 17, before cited, which looks to the decision of this question by this court, and provides the appeal in order that it may be obtained, it is proper that the decree should be formally reversed and set aside, and the case sent back by the mandate of this court to the present United States District Court for the Southern District of Florida, under the same act, in order that the judgment of this court may be entered of record in that court, into which the proceedings and decree appealed from have been transferred under that act. The record shows that the respondents made objection as to the jurisdiction in the court below; though, if omitted, the decree would not thereby have been legalized. On the part of the appellee it was contended,–– 1. That, upon principles of general law recognized by the common law, and from a civil necessity operating under all changes of sovereignty and jurisdiction, the tribunals established by Congress in the Territory of Florida continued in existence, and in the practical exercise of their functions, until superseded by other tribunals, called into actual existence and endued with the practical functions of judicature. 2. That this principle applies, a fortiori, to the Superior Courts established by Congress in the Territory for the exercise of those functions of judicature which the Constitution has appropriated exclusively to the judicial power of the United States; such as civil cases of admiralty and maritime jurisdiction, and seizures under the revenue laws, &c. 3. That there is nothing in either of the acts of Congress referred to inconsistent with the continued existence of the said Superior Courts in the active exercise of their functions, as instance courts of admiralty, until the District Court for the new District of Florida should be called into being and activity. 4. But, on the contrary, the identical act of Congress (22d Feb., 1847, ch. 17) which called this identical appeal into existence,–the authority asserted for this court, actually assumed by the court, and whereof the court is, at this moment, in the active use and exercise, to review, in the regular course of appellate jurisdiction, the decree of the said Superior Court for the Southern District of Florida,–does necessarily infer the existence of that court, and its continued possession of its judicial functions at the time of the rendition of the decree in question. The still subsisting relation between that court and this, of inferior court and appellate court, being recognized and admitted, to deny the existence of either court, or to assert the utter extinguishment of its judicial capacity, would be equally absurd, whether denied or asserted of the inferior or of the appellate court.

The opinion of the court was delivered by: Mr. Justice Nelson delivered the opinion of the court.

This is an appeal from the District Court of the Southern District of the State of Florida.

Joseph Y. Porter, the appellee, filed a libel in admiralty, on the 24th of March, 1846, against the respondents, in the Superior Court for the Southern District of the Territory of Florida, for the proceeds of the sloop Texas, charging that he had furnished supplies and stores to the master, at the port of Key West, while she was engaged in the business of wrecking upon the Florida coast, and on the high seas.

The respondents, among other grounds of defence, denied the jurisdiction of the court. As the conclusion at which we have arrived, upon this branch of the defence, disposes of the case, it will be unnecessary to set out the pleadings at large, or to refer more particularly to the facts.

The Territorial government of Florida was established by the act of Congress of March 30th, 1822, amended by the act of March 3d, 1823, and the judicial power vested in two Superior Courts, and such inferior courts and justices of the peace as the Legislative Council of the Territory might from time to time establish. One of these courts was held in West, and the other in East Florida. The judges were appointed by the President and Senate, for the term of four years, and possessed civil and criminal jurisdiction within their respective districts; and also the same jurisdiction in all cases arising under the laws and Constitution of the United States, which the acts of 24th September, 1789, and 7th March, 1793, vested in the court of the Kentucky District. 3 Stat. at Large, 654; Ibid. 750.

The number of judges was afterwards increased to five, and original and exclusive cognizance of all cases of admiralty jurisdiction within the Territory in terms conferred upon them. (Act of Cong., May 26, 1824, 4 Stat. at Large, 45; Act of Cong., May 15, 1826, Ibid. 164; Act of Cong., May 23, 1828, Ibid. 291; Act of Cong., July 7, 1838, 5 Stat. at Large, 294; Thompson's Dig. 585, App'x, where all the acts of Congress concerning the Territory of Florida are collected.)

Exclusive jurisdiction in these cases was specifically conferred by the act of May 15, 1826, probably on account of the case of The American Insurance Co. and others v. Canter, (1 Peters, 511,) in which it was held that the jurisdiction was not, as originally prescribed, exclusive, but might be vested by the Legislative Council of the Territory in subordinate courts. The case arose in 1825.

The court for the Southern District, in which the present case arose and was decided, was established by the act of Congress of May 23d, 1828, at Key West, and had conferred upon it all the jurisdiction within the district which belonged to the other Superior Courts of the Territory; besides a considerable enlargement of admiralty powers, which became necessary on account of the numerous wrecks usually happening upon that coast.

The objection to the jurisdiction taken by the respondents, however, is, not that the acts of Congress were insufficient to confer the power exercised by the courts, but that the acts had been abrogated and the jurisdiction superseded at the time of the rendition of the decree, by the admission of the Territory of Florida, as a State, into the Union, and were no longer in force. The admission was on the 3d of March, 1845.

The suit was commenced on March 24th, 1846, and the decree in favor of the libellant pronounced on May 22d of the same year. All the proceedings, therefore, took place before the court after the passage of the act of Congress admitting Florida into the Union; and must be upheld, if upheld at all, upon the ground that the jurisdiction still continued under the Territorial authority, notwithstanding the erection of the Territory into a State.

The people of the Territory, claiming a right to an admission into the Union under the pledge given by the sixth article of the treaty with Spain of the 22d February, 1819, met in convention and adopted their constitution, 11th January, 1839; but it was not acted upon by Congress till March 3, 1845. It was then accepted, and the Territory admitted, in the language of the act, 'into the Union on an equal footing with the original States in all respects whatsoever.' No conditions were annexed, except that she should not interfere with the disposal of the public lands, nor levy any tax on the same, while they remained the property of the United States.

Her constitution distributed the powers of the government into three separate and distinct departments, executive, legislative, and judicial, and prescribed the organic law of each. The judicial power was vested in a Supreme Court, Courts of Chancery, Circuit Courts, and justices of the peace, and the jurisdiction of each of them either defined, or provided for by imposing the duty upon the General Assembly. The State was to be divided into at least four convenient circuits, and until others were created by the proper authority, were to be arranged as the Western, Middle, Eastern, and Southern Circuits, for each of which a circuit judge was to be appointed. And, in order to avoid any inconvenience or delay in the organization of the government, an ordinance was adopted art. 17 of the constitution), 'that all laws, and parts of laws now (then) in force, or which may hereafter be passed by the Governor and Legislative Council of the Territory of Florida, not repugnant to the provisions of this constitution, shall continue in force until by operation of their provisions or limitation, the same shall cease to be in force, or until the General Assembly of this State shall alter or repeal the same'; and further, that 'all officers, civil and military, now holding their offices and appointments in the Territory under the authority of the United States, or under the authority of the Territory, shall continue to hold and exercise their respective offices and appointments, until superseded under this constitution.'

It will be seen, therefore, under this ordinance of the convention, that, on the admission of Florida as a State into the Union, the organization of the government under the new constitution became complete; as every department became filled at once by the adoption of the Territorial laws and appointment of the Territorial functionaries for the time being.

The convention being the fountain of all political power, from which flowed that which was embodied in the organic law, were, of course, competent to prescribe the laws and appoint the officers under the constitution, by means whereof the government could be put into immediate operation, and thus avoid an interregnum that must have intervened, if left to an organization according to the provisions of that instrument. This was accomplished by a few lines, adopting the machinery of ...


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