Inerarity, Adm'r, vs. Curtis and Griswold, Trustees.-Opinion of Court. The records and papers of the Territorial Courts did not pass to any court or courts, until the government, whose records they were, provided, either expressly or by implication, for the transfer, and the judicial action of some other tribunals; and, consequently, the mere fact that the courts of the State became possessed of such records, did not warrant jurisdiction; nor was the mode by which they are said to have become possessed, rightful and proper. The Supreme Court of Florida is not the successor of the Court of Appeals of the Territory, and cannot award process to execute the decrees of that court. The act of the General Assembly of July 25th, 1845, section 13, does not place the records therein mentioned in the custody of the Supreme Court, nor does it authorize any judicial action upon them. The Clerk of the Supreme Court is merely made the keeper of the records, &c., of the Court of Appeals; but as such, he is not amenable to this court, and might refuse to obey its mandate in relation thereto. The nature and object of the petition filed in this case, the grounds of the application, and of the argument of counsel for defendants in opposition to the motion, are fully stated in the opinion of the court. Judge BAKER sat in the place of ANDERSON, Chief Justice, who had been of counsel in the case. Davis, for the Petitioner. Archer, for the Defendant. THOMPSON, Justice, delivered the opinion of the court. This is a petition for the transfer and delivery to the District Court of the United States for the Northern District of Florida, of the record of the proceedings of the court of Appeals of the late Territorial Government of Florida in a cause wherein Curtis and Griswold, trustees of the Apalachicola Land Company were appellants, and John Inerarity, administrator of John Forbes, and James Inerarity were respondents, removed by appeal from the Superior Court of the Western District, for Escambia county, to the Inerarity, Adm'r, vs. Curtis and Griswold, Trustees.-Opinion of Court. said, Court of Appeals. The application is made by John Inerarity, who was the plaintiff in the original suit in the Superior Court. The decree of the Court of Appeals was pronounced at the January Term, 1844, and both parties appealed therefrom to the Supreme Court of the United States. While the cause was pending in that court, on the 3d of March, 1845, Florida was admitted into the Union, as a State, by an act of Congress of that date. The appeal in the Supreme Court of the United States was decided at January Term, 1848, and the decree of the Court of Appeals was by that decision affirmed. The petition sets forth that the mandate of the Supreme Court of the United States has issued to the District Court for the Northern District of Florida, according to the provisions of the 3d section of the act of Congress of February 22d, 1847, (Acts 2d Session 29th Congress, Chapter 17,) commanding the said District Court to proceed to the execution of the decree of the Court of Appeals; but that the said court cannot execute the said mandate for want of the record of the judgment and proceedings in said cause, which it is alleged are in the archives of this court; and praying that an order may pass directing the delivery of the same to the Clerk of the District Court, &c. This application is resisted by Messrs. Delafield and Curtis, Trustees of the Apalachicola Land Company, who are represented herein by counsel, on several grounds: 1. That the General Assembly of Florida have vested power in this court to take the papers and keep them. 2. That the subject matter of the suit is not cognizable by the Federal Courts, under the acts of Congress; and 3. That this court has jurisdiction over the subject-matter of the suit, and ought itself to do whatever is necessary to execute the judgment of the Court of Appeals, if the same appear to be affirmed, and grant process, &c. In the consideration of this subject it will be important to Inerarity, Adm'r, vs. Curtis and Griswold, Trustees.-Opinion of Court. ascertain the character of the courts of the late Territorial government, and to what power the records of the said courts appertained on the dissolution of the government; and also, whether this court has now any judicial or other power over them, de facto or de jure, so as to authorize an order directing their delivery to the District Court, as prayed for by the petitioners, in case we find the District Court is entitled to the records in question. 66 66 The Territorial government of Florida was the creature of the government of the United States, under the authority of the second clause of the third section of the fourth article of the Constitution, which vests in Congress the power to make all needful rules and regulations respecting the territory and other property belonging to the United States." By the act of March 30th, 1822, amended by the acts of March 3d, 1823, of May 26th, 1824, of May 15th, 1826, of May 23d, 1828, and of July 7th, 1838, and by other acts, (see Thompson's Digest, Appendix, 585 to 612,)) all the territory ceded by Spain to the United States, known by the name of East and West Florida, was erected into a Territory of the United States, under the name of the Territory of Florida, and the power and authority of that government ascertained and distributed into and among three departments, executive, legislative and judicial. The judicial power was vested in a court of appeals, in five superior courts and, also, in such inferior courts and justices of the peace as the legislative department should from time to time establish. The superior courts were courts of general original jurisdiction at common law and in equity, and had also jurisdiction of matters peculiarly cognizable by the courts of the Federal judiciary; and the Court of Appeals was a court of appellate jurisdiction over the judgments, sentences and decrees of the superior courts; the judgments and decrees of which latter court were subject to review by appeal or writ of error in the Supreme Court of the United States, under certain rules, regulations and restrictions. Inerarity, Adm'r, vs. Curtis and Griswold, Trustees.-Opinion of Court. This Territorial government was to continue only during the pleasure of Congress, and until the admission of the Territory into the Union of the States. Upon the happening of the latter event, by virtue of the act of Congress of March 3d, 1845, the Territorial government was displaced and abrogated fully and entirely, and no power or jurisdiction existed within the Territorial limits of Florida except that derived from State authority. It is true that the Governor, judges and other officers, continued to exercise authority and jurisdiction after the 3d of March, 1845, and until the full and complete organization of the State government; but the power and jurisdiction so exercised were by State authority and under the Constitution. The Schedule and Ordinance, forming the 17th article, in order that no inconvenience might arise from the organization and establishment of the new government, declared by section 1st, That all laws and parts of laws then in force, or which might thereafter be passed by the Governor and Legislative Council of the Territory of Florida, not repugnant to the provisions of the Constitution, should continue in force until, by operation of their provisions or limitations, the same should cease to be of force, or until the General Assembly of the State should alter or repeal the same; and by section 4, That all officers, civil and military, then holding their offices and appointments in the Territory under the authority of the United States or under the authority of the Territory, should continue to hold and exercise their respective offices and appointments, until superseded under the Constitution; and that all actions at law or suits in chancery, or any proceeding pending, or which might be pending in any court of the Territory of Florida, might be commenced in or transferred to such court of the State as may have jurisdiction of the subject matter thereof. By force of these provisions the State Government was put into immediate operation, and the interregnum that must have otherwise Inerarity, Adm'r, vs. Curtis and Griswold, Trustees.-Opinion of Court. intervened, thus avoided. The officers civil and military were pro hac vice State officers, and the government a State authority and jurisdiction. It was not a continuation of the former Territorial government, but the adoption and adaptation of the machinery of the old, to the purposes of the new government. That the effect of the admission of the Territory into the Union, as a State, was to deprive the several departments of that government of all their power, authority and jurisdiction is clear and incontrovertible. The right of sovereignty in the General Government which gave life and vigor to them was gone. The officers and the courts of the old system were continued, but they held by a new tenure; they could point no longer to the government of the United States as the source of their power but to the Constitution of the State of Florida. It was a government ad interim, to prevent anarchy and confusion during the period of time necessary to be consumed in arranging the new government, electing officers, &c., &c. The recent decision of the Supreme Court of the United States in Benner v. Porter fully supports this view of the subject. 9 Howard's Reports, 235. On the subject of the records of the courts of the Territory, the Supreme Court, in the same case, commenting on the previous case of Palao v. Hunt, 4 Howard's Reports, 589, says that there is no ground for qualifying the opinion expressed in that case, believing it to be sound and incontrovertible; but deem it proper, in the reiteration of that opinion, to do so with more fullness, as to its effect in respect to cases of State jurisdiction. The court says: "The "Territorial courts were the courts of the General government, and the records in the custody of their clerks, the records of that government; and it would seem to follow "necessarily from these premises, that no one could legally "take the possession or custody of the same without the "assent, express or implied, of Congress. Such assent is 66 66 |