Cohens v. Virginia. 6 W.

who are willing to purchase. Can it be affirmed that this is so limited a market, that the incorporating act must be extended beyond its words, and made to conflict with the internal police of the States, unless it be construed to give a more extensive market?

It has been said, that the States cannot make it unlawful to buy that which congress has made it lawful to sell.

This proposition is not denied; and, therefore, the validity of a law punishing a citizen of Virginia for purchasing a ticket in the city of Washington, might well be drawn into question. Such a law would be a direct attempt to counteract and defeat a measure authorized by the United States. But a law to punish the sale of lottery tickets in Virginia, is of a different character. Before we can impeach its validity, we must inquire whether congress intended to empower this corporation to do any act within a State which the laws of that State might prohibit.

[ * 445 ]

* In addition to the very important circumstance that the act contains no words indicating such intention, and that this extensive construction is not essential to the execution of the corporate power, the court cannot resist the conviction, that the intention ascribed to this act, had it existed, would have been executed by very different means from those which have been employed.

Had congress intended to establish a lottery for those improvements in the city which are deemed national, the lottery itself would have become the subject of legislative consideration. It would be organized by law, and agents for its execution would be appointed by the President, or in such other manner as the law might direct. If such agents were to act out of the district, there would be, probably, some provision made for such a state of things, and in making such provisions congress would examine its power to make them. The whole subject would be under the control of the government, or of persons appointed by the government.

But in this case no lottery is established by law, no control is exercised by the government over any which may be established. The lottery emanates from a corporate power. The corporation may authorize, or not authorize it, and may select the purposes to which the proceeds are to be applied. This corporation is a being intended for local objects only. All its capacities are limited to the city. This, as well as every other law it is capable of making, is a by-law, and, from its nature, is only coextensive with the city. It is not [* 446] probable that such an agent would be employed in the execution of a lottery established by congress; but when it acts, not as the agent for carrying into effect a lottery established by congress, but in its own corporate capacity, from its own corporate

*

Cohens v. Virginia. 6 W.

powers, it is reasonable to suppose that its acts were intended to partake of the nature of that capacity and of those powers; and, like all its other acts, be merely local in its nature.

The proceeds of these lotteries are to come in aid of the revenues of the city. These revenues are raised by laws whose operation is entirely local, and for objects which are also local; for no person will suppose, that the President's house, the capitol, the navy-yard, or other public institution, was to be benefited by these lotteries, or was to form a charge on the city revenue. Coming in aid of the city revenue, they are of the same character with it; the mere creature of a corporate power.

The circumstances that the lottery cannot be drawn without the permission of the President, and that this resource is to be used only for important improvements, have been relied on as giving to this corporate power a more extensive operation than is given to those with which it is associated. We do not think so.

The President has no agency in the lottery. It does not originate with him, nor is the improvement to which its profits are to be applied to be selected by him. Congress has not enlarged the corporate power by restricting its exercise to cases of which the President might

approve.

* We very readily admit, that the act establishing the seat [* 447] of government, and the act appointing commissioners to superintend the public buildings, are laws of universal obligation. We admit, too, that the laws of any State to defeat the loan authorized by congress, would have been void, as would have been any attempt to arrest the progress of the canal, or of any other measure which congress may adopt. These, and all other laws relative to the district, have the authority which may be claimed by other acts of the national legislature; but their extent is to be determined by those rules of construction which are applicable to all laws. The act incorporating the city of Washington is, unquestionably, of universal obligation; but the extent of the corporate powers conferred by that act, is to be determined by those considerations which belong to the case.

Whether we consider the general character of a law incorporating a city, the objects for which such law is usually made, or the words in which this particular power is conferred, we arrive at the same result. The corporation was merely empowered to authorize the drawing of lotteries; and the mind of congress was not directed to any provision for the sale of the tickets beyond the limits of the corporation. That subject does not seem to have been taken into view. It is the unanimous opinion of the court, that the law cannot be construed to embrace it. Judgment affirmed.

Gibbons v. Ogden. 6 W.

[* 448 ]

*JUDGMENT. This cause came on to be heard on the transcript of the record of the quarterly session court for the borough of Norfolk, in the commonwealth of Virginia, and was argued by counsel. On consideration whereof it is adjudged and ordered that the judgment of the said quarterly session court for the borough of Norfolk in this case be and the same is hereby affirmed, with costs.

5 P. 1, 190; 6 P. 515; 11 P. 351, 420; 12 P. 657; 14 P. 614; 16 P. 539; 12 H. 299; 14 H. 103; 16 H. 275; 19 H. 393.

GIBBONS v. Ogden.

6 W. 448.

A decree of the highest court of equity of a State, affirming the decretal order of an inferior court of equity of the same State, refusing to dissolve an injunction granted on the filing of the bill, is not a final decree within the 25th section of the Judiciary Act, (1 Stats. at Large, 85,) from which an appeal lies to this court.

APPEAL from the court for the trial of impeachments and the correction of errors of the State of New York.

This was a bill filed by the plaintiff below, (Ogden,) against the defendant below, (Gibbons,) in the court of chancery of the State of New York, for an injunction to restrain the defendant from navigating certain steamboats on the waters of the State of New York,

lying between Elizabethtown, in the State of New Jersey, [*449] and the city of New York; *the exclusive navigation of

which with steamboats had been granted, by the legislature of New York, to Livingston and Fulton, under whom the plaintiff below claimed as assignee. On this bill an injunction was granted by the chancellor, and on the coming in of the answer, which set up a right to navigate with steamboats between the city of New York and Elizabethtown, under a license to carry on the coasting trade, granted under the laws of the United States, the defendant below moved to dissolve the injunction, which motion was denied by the chancellor. The defendant below appealed to the court for the trial of impeachments and the correction of errors; the decretal order, refusing to dissolve the injunction, was affirmed by that court; and from this last order the defendant below appealed to this court, upon the ground that the case involved a question arising under the constitution, laws, and treaties of the United States.

The cause was opened for the appellant, by D. B. Ogden; but on inspecting the record, it not appearing that any final decree in the cause, within the terms of the 25th section of the Judiciary Act, had been pronounced in the state court, the appeal was dismissed for want of jurisdiction.

18 H. 86.

The Jonquille. 6 W.

SULLIVAN et al. v. THE FULTON STEAMBOAT COMPANY.

6 W. 450.

In order to maintain a suit in the circuit court, the jurisdiction must appear on the record; as, if the suit is between citizens of different States, the citizenship of the respective parties must be set frth.

APPEAL from the circuit court for the southern district of New York.

This was a bill in equity, filed in the court below, in which Sullivan, one of the plaintiffs, was described as a citizen of Massachusetts, and others of the plaintiffs, as citizens of Connecticut and Vermont, and the defendants were described as a corporate body incorporated by the legislature of the State of New [*451] York, for the purpose of navigating, by steamboats, the waters of the East River, or Long Island Sound, in said State. The object of the bill was to obtain an injunction to prevent the defendants from so exercising the privileges granted to them by the said act, and by an assignment from Livingston and Fulton of their rights under certain other acts of the legislature of New York, as to obstruct the plaintiffs in the right claimed by them under the constitution and laws of the United States, and under a coasting license, of employing a certain steamboat belonging to the plaintiffs in the transportation of goods and passengers in the waters of the States of Connecticut and New York. The defendants demurred to the bill, and a decree dismissing it was entered pro forma, by consent, and the cause was brought by appeal to this court.

Webster, for the appellants, opened the record, from which it not appearing that the court below had jurisdiction, as the respective parties were not described as citizens of different States, the decree, dismissing the bill, was affirmed.

16 H. 314; 18 H. 331; 19 H. 393.

THE JONQUILle.

6 W. 452.

An admiralty suit, where an appeal has been taken from the circuit court to this court, but not prosecuted, will be dismissed, upon producing a certificate from the court below, that the appeal has been taken, and not prosecuted.

Wheaton, for the respondents, moved to docket and dismiss the appeal in the case, which was a prize cause, commenced in the cir cuit court of North Carolina, in which a decree for costs and damages had been entered against the captors, from which they appealed, 11

VOL. V.

Hughes v. Blake. 6 W.

but had not prosecuted their appeal. He produced a certificate from the court below to that effect.

The COURT stated that the case was within the spirit of the 20th rule of court, although that rule applied, in terms, only to writs of Motion granted.1

error.

HUGHES V. BLAKE.

6 W. 453.

A decree cannot be pronounced, on the testimony of a single witness, unaccompanied by corroborating circumstances, against a positive denial, by the answer, of the equity of the bill, and this applies to an answer in support of a plea.

A replication to a plea is an admission of the sufficiency of the plea, as much as if it had been set down for argument and allowed; and if proved, in point of fact, a dismission of the bill is a matter of course.

APPEAL from the circuit court of the United States for Massachusetts.

The object of the bill in equity filed in this case, was to recover from the defendant, Blake, a sum of money arising from the sale of a tract of land, called Yazoo lands, alleged to have been made in 1795, by the defendant, as agent of certain persons named in the bill, in which lands the plaintiff, Hughes, claimed an equitable interest, in common with the immediate principals of the defendants, and, therefore, to be entitled to a proportion of the proceeds resulting from the sale. The bill also charged that the defendant had rendered himself distinctly liable for a specific sum of money, in virtue of a certain order, having reference to the plaintiff's interest in the lands, drawn by one Gibson, in September, 1796, in favor of the plaintiff, and accepted by the defendant, with certain modifications and conditions, as particularly expressed in the acceptance. *The defendant pleaded in bar, both to the relief and the discovery sought by the bill, a former verdict and judgment at law rendered in his favor, in the supreme court of Massachusetts, in the year 1810, upon a suit commenced against him by the present plaintiffs, in 1804, being long before the exhibition of the present bill, for the same cause of action. The plea averred that the judg ment at law was still in force; that the matters in controversy, and the parties in both suits, were the same; that the whole merits of the case, as stated by the bill, were fully heard, tried, and determined in the action at law, and in a court of competent jurisdiction; and, that the judgment was obtained fairly, and without fraud, covin, or misrepresentation, or the taking any undue advantage. It was also averred by the plea, that no evidence has come to the plaintiff's

[* 454]

1 Vide Rule No. 30, February T. 1821.