dissenting. In dissenting from the opinion upon the question of jurisdiction adopted by all the other members of this court, it is due to candor and to the respect which I entertain for their judgment, to say, that my dissent is not dictated so much by weight of argument, as by the force of authority, and a consideration of the evils that would arise from overthrowing the doctrine established by the Supreme Court of the United States, and twice recognized by the former Supreme Court of this State. Were this question res nova, or even were the bankrupt law unrepealed, the inclination of my mmd would be to concur on the main question with the opinion just pronounced by the chief justice, though I might differ as to some of the minor questions incidentally discussed.
I do not wish to be understood as recognizing unqualifiedly the rule of stare decisis. Indeed, the rule itself is not inflexible, nor absolute. Those who respect law as a science would not hold themselves bound in all cases by decisions, whether pronounced by themselves or others, which mature reflexion should demonstrate to be opposed to sound reason. To do so would be to prostrate the science itself, by excluding it from the career of progress and improvement which is open to every other, and forbidding it to accomodate itself to those changes of manners and institutions, some amalgamation with which is indispensable to its utility and even to its existence. To perpetuate error might, in some cases, be as unpardonable as to originate it: and hence the history of every jurisprudence exhibits decisions overthrown, and rules limited or abandoned. As was said by a learned author and very eminent judge: “The revision of a decision very often resolves itself into a mere question of expediency, depending upon the consideration of the importance of certainty in the rule and the extent of property to be affected by a change in it.” Kent. vol. I, p. 477.
The question of the jurisdiction of the District Court of the United States, under the bankrupt law, over the rights of a mortgagee who has not voluntarily submitted himself to its authority, is the only question determined by the majority of the court, and therefore the only one upon which I shall remark. Between the Supreme Court of the United States and the highest State tribunals there has long been established a system of reciprocal deference. While the Supreme Court of the United States has always professed the highest re*127spect for tile decisions of State courts upon local laws; on the other hand it has been usual for the State tribunals to receive the construction given by the Supreme Court of the United States to the laws of the United States as their true construction. This rule, as may be gathered from a long series of decisions, and as is obvious to every mind, is founded upon the principle that, the judicial department of every government is the appropriate organ for construing the legislative acts of that government. If exceptions to this rule be made by State tribunals, it seems to me they should be limited to extreme cases, where either the error was too manifest to admit of doubt, or where the recognition of a princijile established by the federal tribunal would necessarily involve, in the conscientious opinion of the State tribunal, the prostration of some vital constitutional right or function of State power, or-a manifest usurpation of power by the general government.
It is admitted by the majority of the court that, the doctrinal opinion of the Supreme Court of the United States, in Ex parte Christy, 3 Howard, supports the jurisdiction of the United States District Court to the extent contended for by the counsel for the appellees, and is affirmed by that court in Nugent’s Case, 3 Howard. This admission is undeniably just. I have examined, with great care, the masterly brief presented in this cause by the counsel for the appellants. One of those learned counsel argued before the Supreme Court of the United States the cases of Christy and of Nugent. On the question of jurisdiction the identical points seem to me to have been raised, and the identical authorities to have been cited in Christy's case, which are now submitted to us. Those points and authorities were elaborately examined and replied to, if not answered, by Judge Story; on every essential point the opinion was adverse.
It is urged, however, that the circumstances under which the opinion was pronounced, were such as to withhold from it the force of authority. It is true that the case was one of an application for a prohibition; that the Supreme Court of the United States declared itself without jurisdiction to issue the writ, and that the decision of that point only was indispensable. Under ordinary circumstances, what was said by the court on the qxiestion of jurisdiction now presented to us, might be regarded as obiter dictum. But we cannot close our eyes to the remarkable fact that, the discussion of the jurisdiction of the District Court of the United States, of its organization and powers under the bankrupt law, and of the scope and meaning of that statute, occupies thirteen pages of the printed opinion, while the power of the Supreme Court to issue the writ of prohibition is disposed of in as many lines. For a course so novel in judicial exposition, it would be disrespectful to that high tribunal to suppose they had no adequate reason. That reason must at once suggest itself to every mind. The true interpretation of the bankrupt law was a subject of great moment; gx;eat conflict of opinions had arisen in the courts of the States, and in the inferior courts of the United States. Under the judicial organization of the District Court under the statxxte of 1841, there was no appeal from that court to the Supreme Court, and yet even the extrajudicial opinion of the Supreme Court, in this state of conflicting decisions, was eagerly desired by the bench and bar throughout the United States. Under such circumstances that opinion was elaborately given, after solemn argument, and its expositions cannot be treated as obiter dicta.
Subsequently, in Nugent’s case, the same learned counsel renewed the discussion. The chief justice, who then acted as the organ of the court, apparently *128ex diligentia, and to give additional force, if necessary, to tlie opinion in Christy’s case, recited in full the opinion of the circuit judge. That opinion contains, among others, the views of the circuit judge upon a point of legislative expediency. “I agree fully in the opinion,” says Judge McKinley, “that upon the ground of expediency, the jurisdiction of the District Court of the United States over all the property of the bankrupt, mortgaged or otherwise, should be exclusive; but I do not understand the bankrupt law to render it so.” But he also says: “I wish it, however, to be distinctly understood, that I am fully of opinion that the District Court of the United States is vested with jurisdiction over mortgaged property belonging to the bankrupt, and that, when a proper case is shown, it has poiver to foreclose a mortgage, and to do all other acts necessary to bring about a final distribution and settlement of the bankrupt estate.” After insei ting this opinion at length, the chief justice proceeds: “We have inserted the whole of this decree, because we think the court were not only right in dismissing the bill, but, with a single exception, we concur also in the principles and reasoning on which the learned judge founded his decision. The exception to which we allude is, that part of the decree in which he expresses his opinion that, upon the ground of expediency, the jurisdiction of the District Court of the United States over all the property of the bankrupt, mortgaged or otherwise, should be exclusive, so as to take away from the State courts any jurisdiction in such cases. Upon that subjóct it is not our province to decide, and we have no desire to express an opinion upon it. But, in every other respect, the decree conforms to the opinion delivered by this court at the present term, upon the motion for a prohibition in the case Ex parte the City Bank of New Orleans, in the matter of Wm. Christy, assignee of Daniel T. Walden, a Bankrupt, v. The City Bank of New Orleans. In that case, the opinion of this court in relation to the jurisdiction of the District Court inmatters of bankruptcy, has been fully expressed, and need not be repeated here; and, according to the principles therein stated, the decree of the Circuit Court in this case must be affirmed.”
The substance of these decisions, I understand to be, that the District Court of the United States has jurisdiction over mortgages, and when, in its discretion, that jurisdiction is exercised, it may, by summary proceedings, bring the mortgagees before it, decree a sale, settle the rank of creditors, and distribute the proceeds ; protecting, however, in such distribution the rights of the mortgagees, as they would be protected in the State Courts, and distributing the residue among the ordinary creditors ; that this jurisdiction is not exclusive, and, that if not exercised by the United States Court, a mortgagee, who has not come into the bankrupt court, may proceed in the State court to the foreclosure of his mortgage and sale of the mortgaged property. It will be observed that this doctrine protects the two classes of titles, those acquired by sales under State process, and those made under decrees of the bankrupt court.
Now, when we recollect that the bankrupt law went into effect in February, 1842; that the rules of the District Court of the United States upon the subject matter of mortgages, were adopted in October, 1842; that, in April, 1843, the Circuit Judge for Louisiana recognized their legality, and the jurisdiction of the District Court over mortgaged property and mortgagees ; that the Supreme Court of the United States and the former Supreme Court of Louisiana, have each twice recognized the same doctrine; that property of great value has been sold and under numerous decreesi of the District Court; that the bankrupt law *129has been repealed, and the great mass of bankrupt estates administered; it seems to me too late for a court in Louisiana to entertain the question of jurisdiction.
By reason of the repeal of tho bankrupt law, we are sitting here to adjudicate upon the past. Were that law unrepealed, and the opinion expressed by authority so high manifestly erroneous, it might be said that the importance of avoiding future error should outweigh the danger of unsettling established landmarks, and disturbing important rights, which parties, under the sanction of the highest judicial authority, supposed they had acquired. But such is not the case. The doors of the bankrupt court have long since been closed to new applicants, and tile administration of the great mass of estates under their charge has been consummated. The future is not before us. It is true that the decision now rendered, if affirmed, might, as suggested by the court, be a beacon to the future legislator; but it appears to me that the conflict of decisions, which has alreadyjjccurred, would be an ample warning to that department of thejgovernment, should they ever think proper again to exercise that branch of their constitutional power.
From having had considerable opportunity of observing the course of procedure in the District Court of the United States for this State, it is to my personal knowledge not only that mortgaged property of great value was sold under its decrees, but that, in very many cases, mortgagees who were cited, unless they held an early rank, made no appearance, and did no acts which could be construed into a personal ratification of the sales made, or even afifect them with bad faith. The door which will be thrown open by this decision to vexatious litigation, will be a very wide one. The bankrupt law itself is considered by many as having been pregnant with evil; and if it be, at this late day, declared that the District Court was without jurisdiction over mortgaged property and mortgagees, an additional and fruitful source of evil will be opened.
For the grave reasons above stated I feel bound, on this question of jurisdiction, to submit my own doubts to the force of authority, and stand upon what has been solemnly decided. ,
In these brief remarks I have confined myself solely to the question of jurisdiction, because that is the only question really involved in the opinion of the majority of the court. I have considered that it would be superfluous, at present, to say any thing on the questions of citation and nullity, and the very important question of subrogation, and .other equities in favor of these purchasers, or othor parties interested.