Argument against the Motion.

Statutory authority to build and conduct a railroad includes the authority to build turnouts or side tracks, turn-tables, switches, depots, etc., those permanent and irremovable ap pendages which constitute parts of the complete structure. Lake Superior &c. Railroad v. United States, 93 U. S. 442, 453-4; Rock Creek v. Strong, 96 U. S. 271, 276.

The decision of this court in the case of Dupasseur v. Rochereau, 21 Wall. 130, seems to be decisive of the question of jurisdiction presented here.

That was a writ of error prosecuted under the provisions of § 709 of the Revised Statutes. A judgment had been rendered by the Circuit Court of the United States for Louisiana, on a vendor's privilege and mortgage, declaring it to be the first lien and privilege on the land; and the marshal sold the property clear of all prior liens; and the mortgagee purchased, and paid into court for the benefit of subsequent liens, the surplus of his bid beyond the amount of his own debt. This judgment and sale were set up by way of defence to a suit brought in the state court by another mortgagee, who claimed priority to the first mortgage, and who had not been made a party to the suit in the Circuit Court. The state court held that the plaintiff was not bound by the former judgment on the question of priority, not being a party to the suit. The case was brought to this court by writ of error and a question was made as to jurisdiction. This court sustained the jurisdiction. Mr. Justice Bradley, in delivering the opinion of the court, said in reference to the question of jurisdiction:

"The case would be one in which a title or right is claimed under an authority exercised under the United States, and the decision is against the title or right so set up. It would thus be a case arising under the laws of the United States, establishing the Circuit Court and vesting it with jurisdiction; and hence it would be within the judicial power of the United States, as defined by the Constitution; and it is clearly within the chart of appellate power given to this court, over cases arising in and decided by the state courts." Although the court sustained the jurisdiction, it held that the decision of the court below was correct. See also Embry v. Palmer, 107

Opinion of the Court.

U. S. 3; Day v. Gallup, 2 Wall. 97; Verden v. Coleman, 1 Black, 472; Chicago Life Ins. Co. v. Needles, 113 U. S. 574; Railroad Co. v. Maryland, 21 Wall. 456; McGuire v. Commonwealth, 3 Wall. 382, 387; Hall v. Jordan, 15 Wall. 393.

MR. CHIEF JUSTICE FULLER delivered the opinion of the

court.

Appellate jurisdiction was conferred on this court by the 25th section of the Judiciary Act of 1789, over final judgments and decrees in any suit in the highest court of law or equity of a State in which a decision in the suit could be had, in three classes of cases: First, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; secondly, where is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of such their validity; thirdly, where is drawn in question the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under, the United States, and the decision is against the title, right, privilege, or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute, or commission. 1 Stat. 73, 85, c. 20, § 25.

By the second section of the act of February 5, 1867, 14 Stat. 385, 386, c. 28, this original 25th section was re-enacted with certain changes, and among others the words "or where is drawn in question the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege, or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission," were made to read "or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of or commission held, or authority exercised under the United States, and the decision is against

Opinion of the Court.

the title, right, privilege, or immunity specially set up or claimed by either party under such Constitution, treaty, statute, commission, or authority," and this was carried into § 709 of the Revised Statutes.

The act of Congress entitled "An act regulating appeals from the Supreme Court of the District of Columbia, and the Supreme Courts of the several Territories," approved March 3, 1885, 23 Stat. 443, c. 355, provides:

"That no appeal or writ of error shall hereafter be allowed from any judgment, or decree in any suit at law or in equity in the Supreme Court of the District of Columbia, or in the Supreme Court of any of the territories of the United States, unless the matter in dispute, exclusive of costs, shall exceed the sum of five thousand dollars.

"SEC. 2. That the preceding section shall not apply to any case wherein is involved the validity of any patent or copyright, or in which is drawn in question the validity of a treaty or statute of or an authority exercised under the United States; but in all such cases an appeal or writ of error may be brought without regard to the sum or value in dispute."

When the validity of a statute of, or authority exercised under, the United States, is drawn in question in a state court, the decision of the latter must be against its validity in order to justify a review of such decision, but under this act it is sufficient if the validity is drawn in question irrespective of the conclusion reached. So that the inquiry is confined to whether the validity of such a statute or authority is actually controverted.

In Dupasseur v. Rochereau, 21 Wall. 130, 134, Mr. Justice Bradley, delivering the opinion of the court, says: "Where a State court refuses to give effect to the judgment of a court of the United States rendered upon the point in dispute, and with jurisdiction of the case and the parties, a question is undoubtedly raised which, under the act of 1867, may be brought to this court for revision. The case would be one in which a title or right is claimed under an authority exercised under the United States, and the decision is against the title or right so set up. It would thus be a case arising under the laws of the

Opinion of the Court.

United States establishing the Circuit Court, and vesting it with jurisdiction." This is so because a claim of right or title under an authority exercised under the United States was sufficient to give jurisdiction under that act, whereas the act of 1885 does not so provide, but only that the validity of the authority must be drawn in question. The distinction is palpable between a denial of the validity of the authority and a denial of a title, right, privilege or immunity claimed under it.

That part of original § 25, and of the act of 1867, as to decisions in favor of the validity of a statute of, or of an authority exercised under, any State, when drawn in question on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, has been frequently passed upon, and the distinction between the construction of a statute, or the extent of an authority, and the validity of a statute, or of an authority, pointed out. Thus in Commercial Bank of Cincinnati v. Buckingham, 5 How. 317, where a general law had declared all banks liable to pay six per cent interest on their notes, when they had refused payment on demand, and a subsequent act, incorporating the bank in question, provided for the payment of twelve per cent, and the question was whether the bank was liable to pay eighteen, this court held that the question submitted to and decided by the state court was one of construction and not of validity. There both the prior and subsequent statutes were admitted to be valid under any construction of them, "and therefore no construction placed by the state court on either of them, could draw in question its validity, as being repugnant to the Constitution of the United States, or any act of Congress." Bridge Proprietors v. Hoboken Co., 1 Wall. 116, 144.

In Lawler v. Walker, 14 How. 149, where, in 1816, the legislature of Ohio had passed an "act to prohibit the issuing and circulation of unauthorized bank paper," and, in 1839, an act amendatory thereof, and the question arose whether or not a canal company, incorporated in 1837, was subject to these acts, it was held that the Supreme Court of Ohio, in deciding that it was, "only gave a construction to an act of Ohio, which neither of itself, nor by its application, involved in any way a

Opinion of the Court.

repugnancy to the Constitution of the United States, by impairing the obligation of a contract."

Whenever the power to enact a statute as it is by its terms, or is made to read by construction, is fairly open to denial and denied, the validity of such statute is drawn in question, but not otherwise.

In Millingar v. Hartupee, 6 Wall. 258, 261, 262, it was held that the word "authority" stands upon the same footing with "treaty" or "statute;" and said the court, through Chief Justice Chase:

"Something more than a bare assertion of such an authority seems essential to the jurisdiction of this court. The authority intended by the act is one having a real existence, derived from competent governmental power. If a different construction had been intended, Congress would doubtless have used fitting words. The act would have given jurisdiction in cases of decisions against claims of authority under the United States." "In many cases the question of the existence of an authority is so closely connected with the question of its validity that the court will not undertake to separate them, and in such cases the question of jurisdiction will not be considered apart from the question upon the merits, or except upon hearing in regular order. But where, as in this case, the single question is not of the validity but of the existence of an authority, and we are fully satisfied that there was, and could have been, no decision in the state court against any authority under the United States existing in fact, and that we have, therefore, no jurisdiction of the case brought here by writ of error, we can perceive no reason for retaining it upon the docket."

So in Lewis v. Campau, 3 Wall. 106, where the final judgment of the highest court of law and equity in the State of Michigan was that the revenue stamps attached to a deed offered in evidence and objected to as not having stamps proportioned to the value of the land conveyed, were sufficient, was held not a subject for review by this court under the 25th section of the Judiciary Act; and in Mining Company v. Boggs, 3 Wall. 304, 310, which was ar action of ejectment