BOLLING
v.
LERSNER
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Bolling challenged a Virginia court decree on the grounds that the judge who allowed an appeal was unconstitutionally appointed under the Reconstruction Acts, raising a federal constitutional question. The Supreme Court dismissed the case for lack of jurisdiction, holding that although a federal question was presented to the state court, the record did not show that the question was actually decided or necessarily involved in the judgment, and the state court could have resolved the case on the alternative ground that a de facto judge's acts are valid regardless of the validity of his appointment.
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' Mr. Chief Justice Waite delivered the opinion of -the court.
The Cirouit Court of Fauquier County, Va., rendered a decree in this cause Sept. 13, 1867. From this decree Lersner prayed an appeal to the District Court of Appeals, May 17, 1869. This was allowed by W. Willoughby, judge. Upon this allowance the appeal-, was docketed in the Appellate Court, and the parties appeared without objection or protest, and were heard. Upon the hearing, the decree of the Circuit Court was reversed, and the cause remanded with instructions to proceed as directed. When, the case came to the Circuit Court upon the mandate of the Appellate Court, Bolling appeared, and objected to the entry of the decree which had been ordered, for-:the reason, among others, that Willoughby, the-judge-who' allowed -the -appeal, had been appointed to his office by the. commanding-general exercising military authority in Virginia under, the reconstruction acts 'of Congress,-and that those-acts were unconstitutional and void. This-objection was overruled, and a decree entered according to the mandate. . From this decree Bolling took an appeal to the Supreme Court of Appeals, where the action of the Circuit Court was affirmed. To reverse this decree of affirmance the present writ of error, has been prosecuted.
We cannot re-examine the. judgment .or decree of a State court simply because a Federal question was presented to that court for determination. To give us jurisdiction, it must appear that such a question was in fact decided, or' that its decision was necessarily involved in the judgment or decree, as rendered.
In this case, Bolling' presented to the court for its determination the question of the constitutionality of the reconstruction. acts.' This was a Federal question; but the record does not show that it was actually decided, or that its decision was necessary to the determination of the cause. While it, perhaps, sufficiently appears that the judge was appointed' under the authority of the acts in question, it also appears that he was acting in the discharge of the duties of his office, and that he had the reputation of being the officer he assumed to be. ' It also appears, that, after the allowance of the appeal, the case was docketed in the Appellate Court; that Bolling appeared there; that he submitted himself to the jurisdiction of that court without objection, and presented his case for adjudication; that the case was heard and decided; and that the objection to the qualification of the judge who allowed the appeal was made for the first time in the Circuit Court, when the case came down with the mandaté.
From this it is clear that the case might have been disposed of in the State court without deciding upon the constitutionality of the reconstruction acts. Thus, if it was held that the objection to the.authority of the judge came too late, or that the allowance of an appeal by a judge defacto was sufficient for all the purposes of jurisdiction in the Appellate Court, it would be quite unnecessary to determine whether the judge held his office by a'valid appointment. We might, therefore, .dismiss the case, because it does not appear from the record that the Federal question was decided, or that its decision was necessary.
But if we go farther, and look to the opinion of the court, which, in this case; has been certified here as part of the record, we find that the Federal question was not decided.. All the judges .agreed that Willoughby was a judge defacto, and that his acts .were valid in respect to the public and third parties, even though he might not be rightfully in office. In this the court but followed its own: well-considered holding, by all the judges,, in Griffin v. Cunningham, 20 Gratt. 31, approved, in Quinn v. Cunningham, id. 138, and Teel v. Young, 23 id. 691, and the repeated decisions of this -court. Texas v. White, 7 Wall. 733; Thorington v. Smith, 8. id. 8; Huntington v. Texas, 16 id. 412; Horn v. Lockhart, 17 id. 580.
Writ dismissed for want of jurisdiction.