THE MAYOR V. COOPER, 73 U. S. 247 (1867)

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U.S. Supreme Court

The Mayor v. Cooper, 73 U.S. 6 Wall. 247 247 (1867)

The Mayor v. Cooper

73 U.S. (6 Wall.) 247


1. Where a court has no jurisdiction of a case, it cannot award costs, or order execution for them to issue.

2. where a party removes under a statute of the United States from a state court to the circuit court of the United States a case depending in point of merits on the right construction of such statute, the circuit court

cannot dismiss and remand the case, upon motion, on the ground that it has no jurisdiction, because the statute is unconstitutional and void.

3. The validity of the defense which such statute may authorize to be made is a distinct subject, and to be passed on by the court when in due form before it.

The Constitution of the United States ordains that

"The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish,' and that this power 'shall extend to all cases, in law and equity, arising under this Constitution and the laws of the United States."

With this provision in force as fundamental, Congress, having in 1789 established circuit courts, inferior to the Supreme Court, passed, during the late rebellion, to-wit, March 3, 1863, "An act in relation to habeas corpus and regulating judicial proceedings in certain cases," and on the 11th May, 1866, another amendatory of it.

The statutes provided, in respect to all acts done or omitted to be done, "under any law of Congress," or "by virtue of any order, written or verbal, general or special, issued by the President or Secretary of War, or any military officer of the United States holding command" of the place where such act or omission occurred, that such authority should be a defense in all courts for all concerned, to any civil action or criminal prosecution therefor.

And provided further for the removal, in a manner prescribed, of all such cases, before or after final judgment, from the state courts to the circuit courts of the United States.

Page 73 U. S. 248

In this state of law, constitutional and statutory, Cooper sued the Mayor and Aldermen of Nashville, and with them one Smith, in the Circuit Court of Davidson County, in that state; his declaration alleging trespasses upon real estate, and the asportation and conversion of chattels. The mayor and aldermen pleaded the general issue.

Both parties defendant presented petitions verified by affidavit to the court in which the suit was pending, praying for a removal, under the statutes of 1863 and 1866 just named, of the causes to the circuit court of the United States for that district.

The petition of Smith set forth that the trespasses complained of, if committed, were committed during the rebellion by authority of the President of the United States, under an order issued by General G. H. Thomas, an officer of the United States, holding command of the district within which the trespasses are alleged to have occurred, which order was approved by Andrew Johnson then an officer of the United States, and the military governor of the State of Tennessee.

That of the mayor and aldermen alleged that at the time of the commission of the alleged trespasses, their co-defendant Smith was the Acting Mayor of Nashville, and that he and the persons acting with him as aldermen and councilmen held their positions as mayor, aldermen, and councilmen as the appointees and agents of the government of the United States, appointed under the authority of the President of the United States, by the then military Governor of Tennessee, to serve the lawful military purposes of the said President of the United States, as the commander-in-chief of the forces thereof, in suppression of the rebellion, and that all the acts complained of, if done, were done under the authority and for the benefit of the United States and the army thereof; and that the said acting mayor and aldermen, at the time when the trespasses are alleged to have been committed, had received military orders from the said military governor, under the authority of the Secretary of War of the United States, and also orders from the military officers of the United

Page 73 U. S. 249

States having command of the district, to do all the things which were done, or are alleged to have been done by the defendants.

The cause was removed to the circuit court of the United States according to the prayer of the defendants.

A motion was made there to dismiss the suit upon the ground that the court had no jurisdiction of the cause. No allegation, apparently, was made against the regularity in point of form of the proceedings by which the case had been removed from the state court, or that the case was not within the acts of Congress of 1863 and 1866. The motion to dismiss was sustained by the court. The court held that the defense had

"failed to show that they are entitled to have this cause removed from the Circuit Court of Davidson County, Tennessee, to this Court for hearing under the provisions of the Act of Congress of March 3, 1863, and the act amendatory thereof, passed May 11, 1866, and that the said acts of Congress, so far as they authorize and provide for the removal of causes from the state to the federal courts in cases where the petitioner shall show that the acts complained of were done under the order of the President or Secretary of War, or of a military commander, or otherwise than under an act of Congress, are unconstitutional and void."

It was accordingly ordered and adjudged

"that said cause be dismissed and remanded to the Circuit Court of Davidson County, and that the defendants . . . pay all the costs incurred in this court, for which execution may issue."

This writ of error was prosecuted to reverse that judgment.

Page 73 U. S. 250

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