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ferred on this court is exclusively judicial, and it cannot be required or authorized to exercise any other. The existence of this court is therefore as essential to the organization of the Government established by the Constitution as the election of a President or members of Congress. It is the tribunal which is ultimately to decide all judicial questions confided to the Government of the United States. No appeal is given from its decisions, nor any power given to the legislative or executive departments to interfere with its judgments or process of execution. Gordon v. United States, 117 U. S. (appendix) 699, 700.


shall have original and appellate jurisdiction. Authorizes the Congress to establish inferior courts. And vests the Judicial Power of the United States in the Supreme Court, and in the courts so established.

The two things that arrest ones attention in the perusal of this Article are Judicial Power and Jurisdiction, which are the very antithesis of each other. The former it confers directly upon the courts, which exercise it with absolute independence of the other departments of the Gov. ernment. Taney, C. J., in note to U. S. v. Yale Todd, 13 How. 52.

The question to be answered, and which arises at the outset is,- What is this Judicial Power of the Courts which they derive directly from the Constitution! It is, indeed, very difficult to find any exact definition made to hand. Many are given in textbooks, and also in decisions of the Supreme Court. Perhaps some of the best definitions are given by Chief Justice Marshall in Osborn v. Bank of the United States, 9 Wheat. 738, 819, as follows:

“It is the power of the court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.

A case arises within the meaning of the Constitution when any question respecting the Constitution, treaties, or laws of the United States has assumed such a form that the judicial power is capable of acting on it."

Chief Justice Taney, in speaking of the Court and its judicial power, said:

“The Supreme Court does not owe its existence or its powers to the legislative department of the Government. It is created by the Constitution, and represents one of the great divisions of power in the Government of the United States, to each of which the Constitution has assigned its appropriate duties and powers, and made each independent of the other in performing its appropriate functions. The power con

Notwithstanding the unique position of the Court in our scheme of government, and the tremendous powers conferred upon it by the Constitution it is not a menace to our liberties and property rights, but their greatest bulwark and safeguard as proven by its history. While the court is supreme within its sphere, and its independence has been safeguarded in every way in the exercise of its duties there is no justification for the fear, sometimes expressed, of judicial usurpation on its part for

“While by the Constitution the judicial department is recognized as one of the three great branches among which all the powers and functions of the Government are distributed, it is inherently the weakest of them all. Dependent as its courts are for the enforcement of their judgments upon officers appointed by the Executive and removable at his pleasure, with no patronage and no control of the purse or the sword, their power and influence rest solely upon the public sense of the necessity of the existence of a tribunal to which all may appeal for the assertion and the protection of rights guaranteed by the Constitution, and by the laws of the land, and on the confidence reposed in the soundness of their de


cision and the purity of their motives. travagant praise and approval by both United States v. Lee, 106 U. S. 196, 223." American and foreign critics of our insti

tutions. JURISDICTION OF THE SUPREME COURT The jurisdiction of the Supreme Court

De Tocqueville says of it in his work, over the class of cases mentioned in Ar

Democracy in America: ticle 3, is divided into original and ap

“The Americans have acknowledged pellate. It gives to the Court original

the right of Judges to found their dejurisdiction in all cases affecting Ambas

cisions on the Constitution, rather than sadors, other public Ministers and Con

on the laws. In other words, they have suls, and those in which a State shall be

left them at liberty not to apply such a party. It exercises this jurisdiction ex

laws as appear to them to be unconsticlusive of any and every power of the

tutional. I am aware that a similar Congress in respect thereto. Congress can

right has been claimed, but claimed in no more interfere with this jurisdiction

vain, by courts of justice in other counof the court than it can with the judicial

tries; but in America it is recognized power of the Court. In all the other cases

by all the authorities. mentioned in the said Article the juris

"The power vested in the American diction of the Court is appellate, and is

courts of justice of pronouncing a subject to regulation by Congress. One

statute to be unconstitutional, forms of its earliest enactments upon the subject

one of the most powerful barriers whieh was, that no ordinary suit between indi

has ever been devised against the viduals could come to the Supreme Court

tyranny of political assemblies." for revision unless the amount involved In the Federalist, No. 78, it is said of was over two thousand dollars. It is now this subject : five thousand. Congress in many other "There is no position which depends respects has exercised its power in regu- on clearer principles, than that every lation of appeals to the Supreme Court, act of a delegated authority, contrary to but it is not deemed necessary to specify

the tenor of the commission under them, as its power in the premises is un- which it is exercised, is void. No legisdisputed.

lative act, therefore, contrary to the POWER OF COURT TO DECLARE LAWS

Constitution, can be valid.

"And it is the best expedient which This authority of the Court is one of

can be devised in any government to the elements of its judicial power vested

secure the steady, upright, and imparin it by the Constitution. While it is true

tial administration of the laws." that the Constitution does not confer upon

In Curtis' Constitution we find it stated: the courts in express terms the power to

“The judicial power of the United declare unconstitutional laws of the Con

States considered with reference to its gress and of the State Legislatures its adaptation to the purposes of its creaexercise by the courts is a necessary and tion, is one of the most admirable and inevitable incident of our form of Gov

felicitous structures that human gor. ernment, and of our written Constitution ernments have exhibited.” limiting and controlling the exercise of Viscount Bryce in his celebrated work the powers of Government by public offi- on our institutions, The American Comcials, and by the several Departments of monwealth, said: the Government. The validity of the “No feature in the government of exercise of this power has been un- the United States has awakened so answerably vindicated by the Court in a much curiosity in the European mind, great many cases, and its utility and im- caused so much discussion, received so portance have been the subject of ex- much admiration, and been more fre

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quently misunderstood than the duties In Vanhorn's Lessees v. Dorrance, 2 assigned to the Supreme Court and the Dall. 304, the Court said on this subject: functions which it discharges in guard- “But in the United States, if a legising the Ark of the Constitution."

lative act impugns a constitutional In the case of Marbury v. Madison, 1 principle, the former must give way, Cranch, 175, Chief Justice Marshall vin- and be rejected on the score of repugdicated the rightfulness of the exercise nance. In such case it will be the duty of this power, its justification and neces- of the court to adhere to the Constitusity beyond dispute in the following lan- tion, and to declare the act null and guage:

void. The Constitution is the basis of “If two laws conflict with each other legislative authority; it lies at the founthe courts decide upon the operation of

dation of all law, and is a rule and comeach. So if a law be in opposition to

mission by which both legislators and the Constitution; if both the law and

judges are to proceed. the Constitution apply to a particular

Quotations from the decisions of the case so that the court must either de- courts and from commentators on our cide that case conformably to the law,

institutions in support of this power are disregarding the Constitution; or con- many, but the foregoing are deemed formably to the Constitution disregard sufficient. Its exercise by the courts has ing the law; the court must determine been recognized and acquiesced in by the which of these conflicting rules governs

country at large, and is now disputed by the case. This is of the very essence of judicial duty. If then the courts are to Its existence and necessity being estabregard the Constitution, and the Consti- lished and undisputed it follows that it tution is superior to any ordinary act must be exercised by a majority of the of the legislature, the Constitution and court unless and until some other number not such ordinary act must govern the

shall be prescribed in and by the same case to which they both apply.

source and authority from which the “Those then who controvert the prin- power is derived, namely, the Consticiple that the Constitution is to be con

tution. sidered, in court, as a paramount law, If the power of the court to declare are reduced to the necessity of main- an act of the Congress unconstitutional taining that courts must close their eyes is one of the attributes of its Judicial on the Constitution and see only the Power, which, like the powers of the Conlaw. This doctrine would subvert the gress, it derives from the Constitution, very foundation of all written consti- then Congress can no more dictate the tutions. It would declare that an act number of judges that shall concur in which, according to the principles and such a decision than it can dictate to the theory of our government, is entirely court how it shall decide the case itself. void, is yet, in practice, completely ob- If the foregoing observations are well ligatory. It would declare that if the founded, and we believe them indisputlegislature shall do what is expressly able, a conclusive answer to the unconforbidden, such act, noth withstanding stitutionality of this bill of Senator Borah the express prohibition, is in reality is that if we admit the constitutional effectual. It would be giving to the leg- power of Congress to require a greater islature a practical and real omnipo- number than a majority of the court to tence, with the same breath which pro

declare laws unconstitutional, then we fesses to restrict their powers within logically concede that this power is withnarrow limits. It is prescribing limits

out limit, and that the Congress can go a and declaring those limits may be step further, which, in its present temper, passed at pleasure.”

it would likely do, and take from the court


this power altogether; thereby making an “I have always thought, from my act of the Congress superior to the or- earliest youth till now, that the greatest ganic law of the nation, and destroying scourge an angry heaven ever inflicted one of the most valuable and important upon an ungrateful and a sinning peopowers exercised by the courts for the ple was an ignorant, a corrupt, or protection of the liberties and the prop- dependent judiciary.” erty rights of the citizen.

As indicative of the necessity and value If the people conclude that a number of an independent judiciary in our sysgreater than a majority of the Judges tem of government, and because of its imshould concur to invalidate laws because pressiveness and authority, I cannot reof their repugnance to the Constitution frain from closing this article with the there is but one proper way by which following quotation from Viscount their will may be accomplished, and that Bryce's thoughtful, and in every way is by an amendment to the Constitution, splendid work on Modern Democracies, wherein the number shall be definitely Vol. 2, pp. 384-5; a work that should be fixed, and not left to the whim of Con- read by everyone who is interested in gress.

popular and efficient government. He Just so sure as Congress should be so says: ill advised as to enact this bill proposed “There is no better test of the excelby Senator Borah, just so sure will the lence of a government than the efficiency court be constrained by its oath of office of its judicial system, for nothing more to declare it null and void as an infringe- nearly touches the welfare and security ment upon the Constitutional power and of the average citizen than his sense independence of the judiciary. Congress that he can rely on the certain and should not subject the court to this em- prompt administration of justice. Law barrassing and unpleasant duty, for it holds the community together. Law is would be taken advantage of by every respected and supported when it is crack-brained political demagogue, and trusted as the shield of innocence and radical in the country to rail against the the impartial guardian of every private courts, and denounce their act as one of civil right. Law sets for all a moral judicial usurpation to the detriment of the standard which helps to maintain a like courts in the estimation of a large class of standard in the breast of each individour people, who are untutored and un- ual. But if the law be dishonestly adthinking.

ministered, the salt has lost its savour; Our courts have

proven themselves if it be weakly or fitfully enforced, the worthy of the great powers and respon- guarantees of order fail, for it is more sibilities imposed upon them by the Con- by the certainty than by the severity stitution. They are entitled to the re- of punishment that offenses are respect and the support of the people, for pressed. If the lamp of justice goes out the people created them, and it is to them in darkness, how great is that darkwe must look for the vindication of our ness! rights, for the protection of our liberties, "In all countries cases, sometimes and the safety of our property.

civil, but more frequently criminal, The integrity, the learning, and the in- arise which involve political issues and dependence of our judiciary must be excite party feeling. It is then that the maintained at all hazards, if we are to courage and uprightness of the judges escape revolution, and our institutions are

become supremely valuable to the nato endure. The great John Marshall never tion, commanding respect for the expouttered a finer or a truer thing than when sition of the law which they have to defending the judiciary in the Virginia deliver. But in those countries that Convention of 1829 he said:

live under a Rigid Constitution which,


while reserving ultimate control to the people, has established various authorities and defined the powers of each, the courts have another relation to politics, and take their place side by side with the Executive and the Legislative as a co-ordinate department of government. When questions arise as to the limits of the powers of the Executive or of the Legislative, or-in a Federation-as to the limits of the respective powers of the Central or National and those of the State Government, it is by a court of law that the true meaning of the Constitution, as the fundamental and supreme law, ought to be determined, because it is the rightful and authorized interpreter of what the people intended to declare when they were enacting a fundamental instrument. This function of Interpretation calls for high legal ability, because such decision given becomes a precedent determining for the future the respective powers of the several branches of government, their relations to one another and to the individual citizen."

The Court submitted the case to the jury on the first count alone, which alleged that plaintiff was an employee of the company engaged in interstate commerce; that he worked in its yards about six miles out of Savannah, Ga.; that to enable him to reach said yards said company furnished shuttle train, which transported its employees without charge to their work; that one of the points where said train received said employees was Thirty-seventh street, in the city of Savannah, at which street it was the custom of this train to slow up for such employees to board it; that the train had slowed up for this purpose, when, just as the plaintiff had touched the grabiron on the platform, the brakes, which had been applied, were released, which caused the speed of the train to increase suddenly, and caused the handhold on the rear end of the car, which plaintiff had seized, to be snatched forward, so that his grip on the same was relaxed; that the handhold or grabiron was in a defective condition, not firm and secure; that it got away from him, moving about six inches, which caused him to lose his hold, so that he was thrown under the car and caused to be injured. Plaintiff also alleged that the grabiron in question was a safety appliance, required by the Safety Appliance Act of Congress.

The evidence showed that plaintiff was fireman on a switch engine, engaged in mak. ing up and breaking up interstate railway freight trains coming from Charleston, S. C., and Jacksonville, Fla., into Georgia. The evidence also indicated that, when injured, he was in the act of stepping upon this train, which was moving at the rate of two or three miles per hour; that the rear platform rail was in a loose condition, so that it swung forward or backward from six to ten inches; that as he was in the act of getting on said train the brakes were released and the speed increased; that he missed one grabiron and his knee struck the step, but he caught the platform rail, which was loose, and fell under the car. The evidence showed that this shuttle train carried no paid passengers; that it was an appliance furnished by the railroad company to its employees to enable them to reach its yards to there discharge their duties. The Court instructed the jury that under the evidence Williams was an employee engaged in interstate commerce at the time of his injury, and this instruction is one of the errors complained of.

(1) 1. At the time Williams was hurt, he was engaged in going to his work with the railroad company, which as clearly an





284 Fed. 262

Circuit Court of Appeals, Oct. 17, 1922

A. A. Lawrence and E. H. Abrahams, both of Savannah, Ga., for plaintiff in error.

Edgar J. Oliver and F. M. Oliver, both of Savannah, Ga., for defendant in error.

Before WALKER, BRYAN and KING, Circuit Judges.

KING, Circuit Judge. C. M. Williams brought an action in the United States District Court for the Southern District of Georgia against the Atlantic Coast Line Railroad Company (hereinafter called company). The petition contained two counts. In the first count, he claimed damages as an employee engaged in interstate commerce under the federal Employers' Liability Act (Comp. St. $$ 8657-8665). In the second count, he sought to recover for the same injury as a passenger.


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