MILLINGAR

v.

HARTUPEE

The CHIEF JUSTICE delivered the opinion of the court.

It is insisted in behalf of the.defendant in error that the question raised and decided by the Supreme Court of Pennsylvania,'does not bring the case within either of the classes of which this court has jurisdiction under the twenty-fifth section of the Judiciary Act; and this must be admitted unless it can be maintained that the question was upon the validity of an authority exercised under the United States, and that the decision was against its validity.

It is clear that the case does not come under any other of the descriptions of the twenty-fifth section.

It seems equally clear that the authority of the District Court to direct the release was not drawn in question.

"Was, then, the authority of Millingar over the cotton an authority exercised under the United States in virtue of the release so directed ?

Something more than a bare assertion of such an author-; ity 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 respect to the question we are now considering, “ authority” stands upon the same footing with “treaty” or “statute.” If a right were claimed under a treaty or statute, and on looking into the record, it should appear that no such treaty or statute existed, or was in force, it would hardly be insisted that this court could review the decision of a State court, that the right claimed did not exist.

In the case before us Millingar claimed authority under an order of the District Court. On looking at the order, we fiud that it does not purport to confer any authority whatever upon him. It simply relieved the cotton from the claim of the government. He claimed to be owner of it, aud the order allowed him to take possession. But the court did not pass on the question of ownership or right of possession.

It left him, in these respects, precisely where he would have been, if the cotton had come into his possession without capture, and without any proceeding on the part of the government to subject it to forfeiture.

In that case he would certainly have had no “ authority under the United States.” We think he had as little through the proceedings of the court.

In many cases the questioii 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 cause brought here by writ of error, we can perceive no reason for retaining it upon the docket.

The motion for dismissal must therefore be allowed.*

*

Gill v. Oliver’s Executors, 11 Howard, 546; Williams v. Oliver, 12 Id 119; Lewis v. Campau, 3 Wallace, 106; Boggs v. Mining Co., 3 Id, 309.