1. There is no Federal question, and consequently no jurisdiction in this court to pass on anything. If there was a trust in the case, it was made not by the act of Congress, but by the deed of the grantors. No title, right, or privilege was specially set up or claimed by the complainant under the act, and the act is mentioned in his bill only as an item in the history of things, indicating the time when his right, if he had one, arose. The decree that the complainant took no benefit under the act does not bring the case within the twenty-fifth section, because it is not stated that the complainant ever claimed any title under it, and the language does not necessarily imply that he did. The language of the court means simply that the city took title under the act of Congress for its own use, and not in trust for any one else.
2. If there was a Federal question, the question was rightly decided. It was rightly decided for many reasons. One is enough, and that is that there was no breach of condition or trust, but on the contrary performance or execution. If there was any condition or trust, it was that the property should be conveyed to the United States for the purpose of a naval depot. It was so conveyed. The condition-if there was a condition-was performed; the trust-if there was a trust-was executed when the United States established the navy yard upon the land in question. Mead v. Ballard, is in point. There a grant was made 'upon the express understanding and condition' that an institution should be permanently located upon the granted premises, and that on failure of such location within a year from the date of the deed, and on repayment of the purchase money without interest, the premises should revert to, and become the property of, the owners. The building was erected within the time named. It was afterwards burned, and the trustees then erected other buildings upon some contiguous property. This court held that the condition was performed when the trustees passed a resolution locating the building on the premises, with the intent that they should be the permanent place of business of the corporation, and that it did not operate as a covenant to build and rebuild, or keep the building on the land for an indefinite time.
3. If it was not rightly decided the matter is unimportant. The record shows that there were other questions, exclusively of State cognizance, sufficient to dispose of the case. The demurrer having been to the whole bill, and being sustained, disposed of the case. The defendants pleaded the statute of limitations, and the case being heard on the merits, the court decided that the defendants had a good title under it. This disposed of the whole case. The writ of error should, therefore, be dismissed.
The position taken by opposing counsel as to the effect of the re-enactment of Feb. 5th, 1867, is radical in the extreme. It would subvert every principle which has ever governed this court in reference to the adjudiciations by State courts on State law. What is quoted from Stewart v. Kahn was said extra-judicially. Besides, there may be 'a substantial omission' in the new act, and many such omissions, and yet no such far-reaching effect as is here claimed for them follow; an effect, so far as concerns State jurisprudence, which is revolutionary.
CURIA ADVISARI VULT.
As appeared by the final judgment given in the case, the court, upon advisement, was of the opinion,
1st. That there was a Federal question involved.
2d. That it was decided rightly.
Accordingly the case, when thus under advisement, presented the exact conditions referred to, supra, p. 596, and under which it would become necessary carefully to consider the effect of the act of Feb. 5th, 1867. It became necessary, therefore, to pass upon the third point above discussed by counsel; discussed, however, not so fully as the primary points of their case, nor otherwise than as points which might arise. The court accordingly now, March 10th, 1873, ordered the case to be reargued on the following propositions:
'1. Does the second section of the act of February 5th, 1867, repeal all or any part of the twenty-fifth section of the act of 1789, commonly called the Judiciary act?
'2. Is it the true intent and meaning of the act of 1867, above referred to, that when this court has jurisdiction of a case, by reason of any of the questions therein mentioned, it shall proceed to decide all the questions presented by the record which are necessary to a final judgment or decree?
'If this question be answered affirmatively, does the Constitution of the United States authorize Congress to confer such a jurisdiction on this court?'