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1711
VISIBLE AND INVISIBLE: THE CASE FOR A
TERRITORIAL REPORTER
Joseph T. Gasper II*
INTRODUCTION ................................................................................ 1711
I. REPORTING COURT DECISIONS ................................................... 1713
II. ONE EXAMPLE OF THE STRUGGLE:
THE U.S. VIRGIN ISLANDS ................................................... 1718
III. UNIQUE, BUT NOT SO UNIQUE ................................................. 1724
CONCLUSION ................................................................................... 1726
INTRODUCTION
The National Reporter System has unquestionably revolutionized the
whole plan of law reporting . . . .
1
Imagine a land in which the only legal codes have been repeatedly amended
for many years, but no compilation has been made of the amendments.
Imagine, moreover, that there is no system for recording legal decisions, so
that lawyers must rely upon their own briefs and records for
precedents . . . . [T]his was the situation in the Virgin Islands, a territory of
the United States of America as recently as 1957.
2
The goal of this Essay is straightforward: to shed some light on the
invisibility of opinions issued by America’s territorial courts. Surprisingly,
* © 2023, Joseph T. Gasper II. All rights reserved. Staff Master, Complex Litigation
Division, Superior Court of the Virgin Islands. The author wishes to express his gratitude to
the organizers of the symposium, Anthony Ciolli, Natalie Gomez-Velez, and Neil Weare, and
to Maya McGrath, the Executive Symposium Editor, and appreciation to the student editors
of the Fordham Law Review, including Kevin Green, for their assistance in getting this Essay
ready for publication. The opinions expressed within this Essay are the author’s alone and
should not be attributed to any member of the Virgin Islands judiciary. This Essay was
prepared for the Symposium entitled An Anomalous Status: Rights and Wrongs in America’s
Territories, hosted by the Fordham Law Review on October 27–28, 2022, at Fordham
University School of Law.
1
. W. PUBL’G CO., LAW BOOKS BY THE MILLION (1901), reprinted in Ross E. Davies,
How West Law Was Made: The Company, Its Products, and Its Promotions, 6 CHARLESTON
L. REV. 231, app. A, at 269 (2012).
2
. John D. Merwin, The U.S. Virgins Come of Age: A Saga of Progress in the Law,
47 A.B.A. J. 778, 778 (1961).
1712 FORDHAM LAW REVIEW [Vol. 91
the issue is not new.
3
Yet, even though the United States of America is
largely made up of former territories, the majority of states having started as
territories,
4
we seem to have been unable to settle on “a coherent territorial
system.”
5
“After the men to whom territories meant Kansas and Nebraska,
and before those to whom they meant Hawaii and Puerto Rico, there came a
generation to which territories meant Indian wars and mines, future
congressmen and present patronage, but not a great constitutional and
administrative problem.”
6
To be sure, these great constitutional and administrative problems have
plagued most, if not all, territories, and they are often left to courts to provide
answers. Yet, no one has collected the decisions of these courts addressing
the unique constitutional and administrative problems that territories face
into a reporter. We just reached the centennial of our last-acquired territory,
the U.S. Virgin Islands.
7
Although unlikely, other territories could await us
in the future.
8
But even if the U.S. Virgin Islands is our last territory, we
3
. See, e.g., 1 H.E. PRICKETT, REPORTS OF CASES ARGUED AND DETERMINED IN THE
SUPREME COURT OF IDAHO TERRITORY, FROM JANUARY TERM, 1866, TO SEPTEMBER TERM,
1880, INCLUSIVE iii–iv (1911) (“It is to be regretted that the decisions of our supreme court
have not before been made public, in an authentic and durable form; not only because the
public interests and the spirit of public discussion and of freedom of inquiry require that
everything that so closely concerns the community should be known and understood; but for
the further reason, that we now find the decisions so voluminous, that in order to include them
in one volume . . . we find it necessary . . . to omit the numerous dissenting opinions and the
greater portion of the briefs and arguments of counsel; and the learning and eloquence
displayed in many of the written arguments on file, are thus lost.”); 1 Henry M. Bates,
Foreword to TRANSACTIONS OF THE SUPREME COURT OF THE TERRITORY OF MICHIGAN 1805–
1814, at v (William Wirt Blume ed., 1935) (“The present volumes it is believed will make
available to lawyers and historians very valuable material. For the lawyer, the opinions of the
territorial and early state courts, some of which have never been published in any form, are of
definite practical value. For the first time we now have as nearly complete published reports
of the transactions and opinions of Michigan courts as it is possible to make.” (emphasis
added)); 1 CHARLES H. GILDERSLEEVE, REPORTS OF CASES ARGUED AND DETERMINED IN THE
SUPREME COURT OF THE TERRITORY OF NEW MEXICO FROM JANUARY TERM, 1852, TO JANUARY
TERM, 1879, INCLUSIVE (1911) (publishing in 1911 the decisions of the Supreme Court of the
Territory of New Mexico from 1852 to 1879).
4
. Willie Santana, Incorporating the Lonely Star: How Puerto Rico Became
Incorporated and Earned a Place in the Sisterhood of States, 9 TENN. J.L. & POL’Y 433, 437
n.12 (2014) (“Thirty one-states [sic] joined the Union following the process set out by the
Northwest Ordinance, the most recent being the former Territory of Hawaii. In fact, only the
original thirteen colonies and the states of Kentucky (ceded from Virginia), Vermont
(independent), Maine (ceded from Massachusetts), West Virginia (ceded from Virginia),
Texas (independent) and California (U.S. Military rule post–Mexican American War) joined
the Union through a process other than that established by the Northwest Ordinance.”).
5
. EARL S. POMEROY, THE TERRITORIES AND THE UNITED STATES 1861–1890, at 1 (1947).
6
. Id. at 1–2.
7
. See Joseph T. Gasper II, Too Big to Fail: Banks and the Reception of the Common
Law in the U.S. Virgin Islands, 46 STETSON L. REV. 295, 295 (2017) (“The one-hundredth
anniversary of Transfer Day—the name by which the 31st of March is known in the U.S.
Virgin Islands and also a legal holiday in the Territory—will occur in 2017.” (footnote
omitted)).
8
. President Donald J. Trump garnered much attention when he floated the idea of
purchasing Greenland from Denmark. See Peter Baker, Cosmetics Billionaire Convinced
Trump That the U.S. Should Buy Greenland, N.Y. TIMES (Sept. 15, 2022),
https://www.nytimes.com/2022/09/14/us/politics/trump-greenland.html [https://perma.cc/
2023] VISIBLE AND INVISIBLE 1713
remain unprepared to address the administrative and constitutional problems
plaguing territories. A territorial reporter might be a modest start. Part I
briefly touches on the history of reporters of court decisions and describes
how, historically, territories have been omitted from court reporting systems
largely until after attaining statehood. Part II discusses the struggles that the
U.S. Virgin Islands has endured with reporting its court decisions as an
example of the broader problem for present territories. Part III concludes by
arguing for a reporter for the territories.
I. REPORTING COURT DECISIONS
“Eighteenth century lawyers and judges used parchment and wax to
memorialize their legal precedents.”
9
Thankfully, the printing press,
advances in typesetting machines, and later computers and the internet, made
reporting decisions much, much easier. But for much of the nation’s history,
no uniform approach existed. Eventually, state and federal court decisions
became available in “authorized reports.”
10
But these authorized reports
were specific to each jurisdiction.
11
With no “American reports” to rely on,
American lawyers relied on English cases and their own notes of prior
decisions.
12
Over time, American lawyers relied less on English cases and came to
disdain them,
13
relying more on broader principles found in American
cases.
14
But there was still no uniform approach to reporting the decisions
of American courts, and those reporters that did exist “varied widely in the
style, accuracy and frequency of their reports.”
15
In fact, legislatures were
AQ2P-3JKY] (“One of the odder moments of Donald J. Trump’s presidency came when he
publicly floated the idea of buying Greenland. It caused a predictable furor, generated gales
of late-night television jokes and soured relations with Denmark, which rejected the idea of
selling the giant Arctic territory.”). But President Trump was not the first American politician
to suggest buying Greenland. See, e.g., Brainerd Dyer, Robert J. Walker on Acquiring
Greenland and Iceland, 27 MISS. VALLEY HIST. REV 263, 263 (1940) (“In the summer of 1867
when William H. Seward, secretary of state, was negotiating with Denmark for the acquisition
of St. Thomas and St. John, Walker suggested to him ‘the propriety of obtaining from the same
power Greenland, and probably Iceland also.’”); American Troops in Iceland, 18 BULL. INT’L
NEWS 948, 948 n.1 (1941) (“The Christian Science Monitor (June 8, 1940) recalled, however,
that in 1867, when Anglo-American relations were not good, a proposal was made that the
United States should purchase Greenland and Iceland as a diplomatic move against Great
Britain.”).
9
. Susan W. Brenner, Of Publication and Precedent: An Inquiry into the
Ethnomethodology of Case Reporting in the American Legal System, 39 DEPAUL L. REV. 462,
462 (1990).
10
. See, e.g., W. Publ’g Co. v. Edward Thompson Co., 169 F. 833, 847 (C.C.E.D.N.Y.
1909) (“The decisions of the courts in the form of opinions, preceded by statements of fact,
and by a digest or syllabus of the important points of the decision, have long been published
in authorized reports, or in volumes compiled from the decisions of the courts themselves.”),
modified on other grounds by 176 F. 833 (2d Cir. 1910).
11
. See id.
12
. Brenner, supra note 9, at 490 (quoting LAWRENCE M. FRIEDMAN, A HISTORY OF
AMERICAN LAW 282 (1973)).
13
. See id.
14
. See id.
15
. Id.
1714 FORDHAM LAW REVIEW [Vol. 91
the first to require that courts issue written decisions.
16
“The first American
court reports were published in 1789. After a slow start, the number of
reports began to grow rapidly. In 1810 there were eighteen volumes of
American reports; by 1910, the number had grown to 8,208, excluding some
2,000 volumes of reprint.”
17
This advance was due largely to state statutory
and even constitutional mandates that judges issue written decisions.
18
To accommodate these mandates, officials were appointed to “report” on
the decisions of the courts to the public.
19
Early reporters often included
more than the decisions, however.
20
In fact, these earlier court reporters were
often known not by the name of the court whose decisions were being
reported, but by the name of the reporter.
21
States eventually remedied the
situation once they realized the value of “official” reporters.
22
Reporting the
decisions of courts quickly became “a valuable legal commodity.”
23
Territories, of course, lagged behind. The absence of reporters compiling
the decisions of the earliest territorial courts is unsurprising, considering that
written decisions were uncommon for all courts. For the earliest territories,
very few decisions were made available, and written decisions only emerged
several years later, “so that there was little of value to print when the time
came.”
24
What’s more, the way in which territorial courts reported their
decisions varied by judge.
25
Yet another reason why territories lagged behind—in a world where profit
dictated the availability of a court’s decision, there was likely little demand,
and even less willingness to pay, for a reporter of the decisions of these earlier
16
. See id. at 492 (“Idiosyncratic law reporting’s demise was hastened by another
innovation, ‘the appointment of official court reporters, whose duty it was to attend the courts
and publish judicial opinions.’ The Supreme Court made the first such appointment in 1790
and several states followed suit.” (quoting Erwin C. Surrency, Law Reports in the United
States, 25 AM. J. LEGAL HIST. 48, 55 (1981))).
17
. Byron D. Cooper, The Role of Publishing Houses in Developing Legal Research and
Publication: The United States, 38 AM. J. COMPAR. L. 611, 618 (1990) (footnotes omitted).
18
. See id.
19
. Brenner, supra note 9, at 492.
20
. See id. at 493 n.190 (“[I]t is difficult for modern lawyers to comprehend the extent to
which these early reporters ‘participated’ in the creation of their reports.”).
21
. See id.
22
. Id. at 493 (“[B]y the end of the nineteenth century, most jurisdictions had established
a system of ‘official’ reports.”).
23
. Id. at 494.
24
. John Welling Smurr, Territorial Constitutions: A Legal History of the Frontier
Governments Erected by Congress in the American West, 1787–1900, at 19 (June 1960)
(Ph.D. dissertation, Indiana University) (ProQuest).
25
. See, e.g., William Wirt Blum & Elizabeth Gaspar Brown, Territorial Courts and Law:
Unifying Factors in the Development of American Legal Institutions (pt. 2), 61 MICH. L. REV.
467, 477 n.70 (1963) (“The judges . . . would deliver oral opinions from notes or from
completely written manuscripts. In some instances written opinions were recorded in the
court’s journal; a few were deposited in the court’s files; a few were published in local
newspapers. Usually, the judge retained his notes or manuscript with his own personal
papers.”).
2023] VISIBLE AND INVISIBLE 1715
territorial courts.
26
Compiling and publishing early decisions of territorial
courts eventually fell to industrious persons with an eye to preserving history,
often decades after the decisions had been issued, rendering their use as
precedent more historical than practical.
27
Take Michigan, for example,
which became a state on January 26, 1837. The Supreme Court of the
Territory of Michigan held its first session on July 29, 1805.
28
More than a
century would pass before the most “complete published reports” that could
possibly be made “of the transactions and opinions of Michigan [territorial]
courts” would appear.
29
And then came John Briggs West.
West’s foray into the legal publication market began in 1874 with an
appreciation for the state of disarray that it was in.
30
He quickly realized the
value of printing softcover volumes, which in turn allowed him to provide
attorneys with “all new decisions promptly and cheaply.”
31
His success also
originated with “resuscitating a practice from the era of the Year Books.”
32
26
. See generally POMEROY, supra note 5, at 31–33 (discussing the challenges and
pushback that territories encountered from the U.S. Department of the Treasury with
appropriations for printing costs).
27
. See generally supra note 3. Take, for example, the following note written by Samuel
H. Hempstead as a preface to his 1856 reporter compiling the decisions of the territorial and
state courts of Arkansas from 1820 to 1856:
This volume of reports is presented to the profession to preserve the decisions of the
federal courts of Arkansas in a more enduring form than in tradition. Adjudged
cases become precedents, and it is therefore important that they should be known.
In fact, if we have to appeal to recollection, or neglected records, justice safely
administered can hardly be expected. Those practising in these courts have felt the
inconvenience arising from the want of a published report of their decisions. If this
volume shall wholly or partially remove the evil, my labor will not have been lost.
It can never be a source of profit to me, and certainly distinction is not won by
performing the duties of reporter. It forms a sort of judicial history of Arkansas
from its commencement as a Territory down to this time, and in that point of view
will possess some interest there, if not elsewhere. The decisions of the superior
court are embraced, because it is conceded on all hands that the court was always
an able one; and although this book, no doubt, contains many cases of little or no
value, yet in that respect it is not different from other reports. Whilst tautology has
been omitted in the opinions, the substance, and generally the exact language of the
court, has been preserved. Cases sustaining a principle decided have been added;
and if time had permitted, I should have made full notes to the cases.
SAMUEL H. HEMPSTEAD, REPORTS OF CASES ARGUED AND DETERMINED IN THE UNITED STATES
SUPERIOR COURT FOR THE TERRITORY OF ARKANSAS, FROM 1820 TO 1836; AND IN THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF ARKANSAS, FROM 1836 TO 1849; AND IN THE
UNITED STATES CIRCUIT COURT FOR THE DISTRICT OF ARKANSAS, IN THE NINTH CIRCUIT, FROM
1839 TO 1856, at vii–viii (1856).
28
. See TRANSACTIONS OF THE SUPREME COURT OF THE TERRITORY OF MICHIGAN
1805–1814, supra note 3, at ix.
29
. Id. at v.
30
. Robert M. Jarvis, John B. West: Founder of the West Publishing Company, 50 AM. J.
LEGAL HIST. 1, 1 (2008) (“[West] realized that there was [a] multiplicity of reports published
in both official and unofficial form and in journals.” (second alteration in original) (quoting
John W. Heckel, Questions and Answers, 75 LAW LIBR. J. 299, 305 (1982))).
31
. Id. at 2 (quoting John W. Heckel, Questions and Answers, 75 LAW LIBR. J. 299, 305
(1982)).
32
. Brenner, supra note 9, at 494. As Professor Susan W. Brenner explains, the Year
Books were “rudimentary reporters.” Id. at 469.
1716 FORDHAM LAW REVIEW [Vol. 91
West would provide advance sheets and slip opinions, printed initially in
paperback, that were later reprinted in a bound volume once a sufficient
number of opinions were available.
What’s more, unlike his competitors, West also saw the need to expand
beyond the common state-by-state approach to reporting court decisions.
33
West decided instead “to report the decisions from a group of states in one
‘Reporter.’”
34
This approach became the National Reporter System that we
know today, which West first implemented in the 1880s.
35
Eventually, West
divided the United States into several regions—Atlantic, Northeastern,
Northwestern, Pacific, Southern, Southeastern, and Southwestern—and
reported the opinions and decisions from the courts in those regions in the
same books.
36
The National Reporter System “unquestionably
revolutionized” how decisions were reported.
37
And it is no exaggeration to
say that West—and the company he founded, the West Publishing
Company—“single-handedly revolutionized” the American legal
profession.
38
By combining decisions from different but neighboring
[Year Books] began in 1292 as guides to court procedures. The Year Books were
periodically updated, and these updates came to include case annotations . . . .
The earlier Year Books “resemble not so much the modern law report as a
professional newspaper which combines matters of technical interest with the lighter
side of professional life.”
They did share one feature with modern reporters. Case reports were noted on
slips of parchment and copied into pamphlets that circulated as “advance sheets.”
The materials in the advance sheets were later recopied into permanent volumes
which became the “Year Books.” Because reports were prepared by a number of
individuals, “there were frequently found to be two, three, four, or even more
versions of one case, so different that collation was impossible.” However, between
1377 and 1399, the variation in reports disappeared and consistent reporting was a
standard feature until the Year Books were replaced by “modern” case reports.
The Year Books “did not exist for the same reason as the modern law report,”
that is, they were not “collections of precedents whose authority should be binding
in later cases.” It was custom rather than “precedent” that controlled. “[C]ases are
used only as evidence of the existence of a custom of the court. It is the custom
which governs the decision, not the case or cases cited as proof of the custom.”
In the sixteenth century, “modern” case reports replaced the Year Books and
references to “precedent” began to appear. Although decisions were not yet
accorded binding precedential effect, they were recognized as having some value,
and this recognition created a market for volumes which reported the decisions that
the judges were making.
Id. at 469–70 (footnotes omitted) (quoting T. PLUCKNETT, A CONCISE HISTORY OF THE
COMMON LAW 33–34, 270, 347 (5th ed. 1956)).
33
. Id. at 495.
34
. W. PUBL’G CO., supra note 1, app. A, at 270.
35
. Christianson v. W. Publ’g Co., 53 F. Supp. 454, 455 (N.D. Cal. 1944).
36
. Id.
37
. W. PUBL’G CO., supra note 1, app. A, at 269.
38
. Jarvis, supra note 30, at 2. But cf. Erwin C. Surrency, Law Reports in the United
States, 25 AM. J. LEGAL HIST. 48, 48–49 (1981) (“Lawyers have been inclined to see early law
reporting as primitive and to view developments in the Nineteenth Century as steps in a
gradual progression to modern, sophisticated forms of the art. Such a view, however, is faulty.
Lawyers in different eras have reported cases to suit their needs, and methods of reporting
have not so much progressed as merely changed in accordance with the changing needs of the
profession.”).
2023] VISIBLE AND INVISIBLE 1717
jurisdictions, West was able to get more information—more law—into the
hands of attorneys faster and cheaper than any of his competitors.
39
And the
rest, as they say, is history.
The decline of official reporters of state courts only quickened in the years
that followed. Official reports, while initially filling an important need, were
never quick.
40
Hence, commercial, “unofficial” reports became “more
valuable to lawyers.”
41
Official reports just could not compete. As a result,
many states “discontinued the official publication of reports for their courts
of last resort.”
42
And what of the territories?
West Publishing Company initially included the decisions of territorial
supreme courts within its National Reporter System, occasionally reprinting
previously reported decisions within the appropriate regional reporter.
43
One
example stands out—decisions of the Supreme Court of the Territory of
Arizona were included within the Pacific Reporter from the very first volume
published in 1884, even though Arizona would not become a state for another
thirty years.
44
The inclusion of territorial court decisions may have been a
recognition that territories will eventually become states and that including
them in the regional reporters would avoid the need to reprint in future
volumes decisions that were previously only available in official reporters.
45
However, even though West went on to publish several topic-based
reporters—such as West’s Bankruptcy Reporter and West’s Military Justice
Reporter, and even West’s American Tribal Law Reporter—West eventually
ceded the reporting of territorial court decisions to other publishers.
46
39
. See W. PUBL’G CO., supra note 1, app. A, at 270.
40
. See Cooper, supra note 17, at 621.
41
. Id.
42
. Id.
43
. See, e.g., Territory v. Potter, 25 P. 529, 529 n.1 (Ariz. Terr. 1883) (“This case, filed
January, 1883, is now published by request, with others, in order that the Pacific Reporter may
cover all cases in the Arizona Reports from volume 1, p. 1.”); Territory v. Couk, 47 N.W. 395,
395 n.1 (Dakota Terr. 1879) (per curiam) (“This case, filed at October term, 1879, is now
published by request, with two others, in order that the Northwestern Reporter may cover all
cases in volume 2, Dakota Reports.”); Territory v. Woolsey, 24 P. 765, 765 n.1 (Utah Terr.
1867) (“This case, filed October 24, 1867, is now published by request, with 16 others, in
order that the Pacific Reporter may cover all cases in volume 3, Utah Reports.”).
44
. Arizona became a state on February 14, 1912. The title page of volume 1 of the Pacific
Reports includes the Territory of Arizona (along with other then territories such as Montana
and Washington), though decisions from those courts do not actually appear until later
volumes. 1 THE PACIFIC REPORTER (Saint Paul, West Publ’g Co. 1884). But cf. Story v. Black,
1 P. 1 (Mont. Terr. 1883).
45
. See, e.g., State v. Barbour, 22 A. 686, 686 n.1 (Conn. 1885) (“This case, filed June 8,
1885, is now published by request, with others, in order that the Atlantic Reporter may cover
all cases in volume 53, Connecticut Reports.”); Smith v. State, 17 S.W. 560, 560 n.1 (Tex. Ct.
App. 1886) (“This case, filed June 15, 1886, is now published by request, with others, in order
that the Southwestern Reporter may cover all cases in volume 21, Texas Appeals Reports.”).
46
. But see infra note 81 (explaining that West had published decisions of Alaskan
territorial courts).
1718 FORDHAM LAW REVIEW [Vol. 91
II. ONE EXAMPLE OF THE STRUGGLE: THE U.S. VIRGIN ISLANDS
The U.S. Virgin Islands became a territory of the United States on March
31, 1917, when “the islands of St. Thomas, St. John, St. Croix (and the
adjacent cays) formally changed sovereignty.”
47
A hundred years later, it
remains a territory. For the majority of that time, “no system for recording
legal decisions existed in the Virgin Islands.”
48
In fact, nearly forty years
would pass before the first volume of the Virgin Islands Reports was printed,
containing decisions from the District Court of the Virgin Islands (including
decisions of District Court commissioners), the U.S. Court of Appeals for the
Third Circuit, and the local police courts.
49
Subsequent volumes continued to include opinions of the District Court
and the Third Circuit, and later, the Municipal Court of the Virgin Islands
and its successor courts—the Territorial Court of the Virgin Islands, which
later became the Superior Court of the Virgin Islands.
50
When an
intermediate appellate division, consisting of a three-judge panel within the
District Court, was created, the Virgin Islands Reports also embraced
decisions of the Appellate Division of the District Court of the Virgin Islands.
Decisions of the recently established Supreme Court of the Virgin Islands are
also now printed in the Virgin Islands Reports.
The Virgin Islands Reports were long overdue. Before then, “the opinions
of the local courts for the most part ha[d] not been readily available, being
buried unpublished, undigested and unindexed in the voluminous files of the
clerks of the courts.”
51
By 1959, the Virgin Islands Reports “supplied an
urgent need of the legal profession that had existed ever since the acquisition
of the Virgin Islands from Denmark in 1917.”
52
Unfortunately, the Virgin
Islands Reports have also been buffeted by the same economic winds that
have affected many state reports, as well as West’s competitors.
Like other legislatures, it was the Legislature of the Virgin Islands that first
“provided for the preparation and the first publication of legal decisions
affecting the Virgin Islands” in the Virgin Islands Reports.
53
From initial
publication in 1959 until approximately 1988, the Virgin Islands Reports was
published by Equity Publishing Corporation in Orford, New Hampshire.
How Equity Publishing Corporation was selected to publish the Virgin
Islands Reports is unknown, though the U.S. Department of the Interior had
entered into a contract with Equity Publishing Corporation to publish the
47
. Gasper, supra note 7, at 295.
48
. In re Adoption of the Rule on Uniform Reporting and Citation of Opinions,
No. 2018-008, 2018 WL 6012457, at *1 (V.I. Nov. 15, 2018).
49
. See Merwin, supra note 2, at 780.
50
. The Territorial Court of the Virgin Islands was renamed the Superior Court of the
Virgin Islands in 2004 as part of the legislation that created the Supreme Court of the Virgin
Islands as a court of last resort for the Territory.
51
. Albert B. Maris, Foreword to THE VIRGIN ISLANDS REPORTS vii, viii (1959).
52
. Merwin, supra note 2, at 780.
53
. Id.
2023] VISIBLE AND INVISIBLE 1719
Virgin Islands Code.
54
More likely than not, Equity Publishing Corporation
was chosen because of its involvement with the Virgin Islands Code. But
Equity Publishing Corporation also appears to have recognized a blind spot
of West Publishing Company: the territories. By 1960, when the
advertisement below was printed in the Harvard Law Review, Equity
Publishing Corporation had become the publisher of the legal codes for the
Territories of Alaska, the Canal Zone, Puerto Rico, and the Virgin Islands.
Equity Publishing Company also would go on to publish the Navajo Tribal
Code.
55
Equity became the de facto legal publisher for many jurisdictions
ignored or overlooked by West Publishing Company, publishing court
decisions of the Virgin Islands, Guam, the Trust Territory of the Pacific
Islands, and American Samoa. But in late 1988, Equity was acquired by
Butterworth.
56
A series of later acquisitions would leave the territories
somewhat lost in the corporate shuffle.
57
54
. See Fred A. Seaton, Foreword to 1 VIRGIN ISLANDS CODE ANNOTATED: HISTORICAL
DOCUMENTS, ORGANIC ACTS, AND CONSTITUTION ix (“This Code was edited and prepared
under a contract between the Department of the Interior and the Equity Publishing Corporation
of Orford, New Hampshire . . . .”); Revised Organic Act of the Virgin Islands, ch. 558, § 8(e),
68 Stat. 497, 501 (1954) (repealed 1982) (“The Secretary of the Interior shall arrange for the
preparation, at Federal expense, of a code of laws of the Virgin Islands, to be entitled the
‘Virgin Islands Code,’ which shall be a consolidation, codification and revision of the local
laws and ordinances in force in the Virgin Islands. When prepared, the Governor shall submit
it, together with his recommendations, to the legislature for enactment. Upon the enactment
of the Virgin Islands Code it and any supplements to it shall be printed, at Federal expense,
by the Government Printing Office as a public document.”).
55
. Equity Publishing Corporation Wheel Advertisement, in 73 HARV. L. REV. (1960),
following p.816; Equity Publishing Corporation “Follows the Law” Advertisement, in
66 A.B.A. J. 614, 634 (1980).
56
. A. Michael Beaird, My Alternate (or Aberrational Some Might Say) Career!, 93 LAW
LIBR. J. 381, 383 (2001).
57
. For example, Equity Publishing Corporation published all volumes of the Trust
Territory Reports but only the first volume of the Guam Reports, which includes the “opinions
of the appellate division of the District Court from 1955–1980, opinions of the Superior Court
of Guam from 1974–1979 and the only opinion from 1975 of the short-lived Supreme Court
of Guam.” GUAM L. LIBR., PACIFIC ISLANDS LEGAL MATERIALS, SELECTED BIBLIOGRAPHY OF
LIBRARY HOLDINGS 11 (2011), https://guamlawlibrary.org/wp-content/uploads/2013/01/pilm-
2011.pdf [https://perma.cc/V7HE-EZ4C]. The second volume was published by the former
Office of Compiler of Laws for Guam. See id. The decisions of the courts of Guam are now
only available online.
1720 FORDHAM LAW REVIEW [Vol. 91
RELX Group, previously Reed Elsevier, acquired LexisNexis, Michie, and
Butterworth in 1994, and Matthew Bender and Shepard’s in 1998.
58
The
LexisNexis we know today did not set out to be the de facto publisher of legal
materials for the territories. Instead, LexisNexis inherited whatever
publication rights Equity Publishing Company had following Butterworth’s
acquisition of Equity. Unfortunately, the care that Equity showed (at least
initially) has not been matched by its successors.
59
58
. See Leslie A. Street & David R. Hansen, Who Owns the Law?: Why We Must Restore
Public Ownership of Legal Publishing, 26 J. INTELL. PROP. L. 205, 218 (2019).
59
. See Alexander v. Todman, 5 V.I. 137, 157 (3d Cir. 1964) (noting the “instrumental”
role of Equity Publishing Company); Gov’t of V.I. v. Fredericks, 15 V.I. 558, 607 (3d Cir.
1978) (detailing correspondence between Equity’s president and Third Circuit chief judge
regarding changes to Virgin Islands Code). But see Rennie v. Hess Oil V.I. Corp., 62 V.I. 529,
539 n.7 (V.I. 2015) (noting LexisNexis printed a decision designated not for publication);
Ronan v. Clarke, 63 V.I. 95, 97 n.4 (Super. Ct. 2015) (noting amendments to the Virgin Islands
Code from 2012 were not reflected in 2013 or 2014 supplements); People v. Rohn, 55 V.I.
100, 111 n.3 (Super. Ct. 2011) (“The publishers of the Virgin Islands Code Annotated
reflected that amendment for all sections within Chapter 35 except Section 378.”), rev’d on
other grounds, 57 V.I. 637 (V.I. 2012); Ballentine v. United States, No. 1999-130, 2001 U.S.
Figure 1:
Equity Publishing
Corporation Wheel
Advertisement
Figure 2:
Equity Publishing
Corporation “Follows the
Law” Advertisement
2023] VISIBLE AND INVISIBLE 1721
In 1959, when the first volumes of the Virgin Islands Reports were
published, there was much hope for Virgin Islands case law.
60
But twelve
years later, in 1967, only one additional volume had been printed, containing
decisions from 1959 to 1964.
61
Later volumes also came on an inconsistent
basis.
62
Further complicating matters, for the majority of its existence, the
District Court of the Virgin Islands exercised jurisdiction both as a U.S.
district court and as a court of general jurisdiction for the Virgin Islands.
63
The District Court would hear a vast range of cases and proceedings, with
many not involving federal law.
64
Since federal district courts never had “an
‘official’ case reporter,”
65
West would decide which decisions of the District
Court of the Virgin Islands were worthy of publication in the Federal
Supplement or the Federal Rules Decisions. Of course, West does not
publish every decision issued by federal district court judges, even though
“[t]he decision to publish an opinion rests with the judge who wrote it.”
66
Dist. LEXIS 16856, at *12 n.5 (D.V.I. Oct. 15, 2001) (“For some unfathomable reason, when
Butterworth was the publisher of the Virgin Islands Code, it deleted the full text of the 1936
Organic Act from the historical and reference materials preceding title 1 in the current edition
of Volume 1 of the Virgin Islands Code. It is available, however, in the 1967 Equity
Publishing Company edition of Volume 1 of the Virgin Islands Code.”). But cf. Willie v.
Amerada Hess Corp., 66 V.I. 23, 67 n.15 (Super. Ct. 2017) (“Although Gomes was also
reported in volume 6 of the Virgin Islands Reports, on pages 163 to 166, the portion of the
opinion that adopted contribution for the Virgin Islands was not. It only appears in the version
reported in the Federal Reporter, perhaps because the issue was addressed on petition for
rehearing.”).
60
. See Merwin, supra note 2, at 780 (“It can well be said that this series of Virgin Islands
Reports represents as fine a presentation of legal decisions as can be found anywhere. With
their advent into the field of legal bibliography in the territory, phase two of our legal maturity
was achieved.”).
61
. Equity Publishing Corporation Advertisement, 1 V.I. BAR J. (1967), following p.69
(“The Virgin Islands Reports consists of four bound volumes. The latest, Volume 4, covers
cases from 1959 to 1964. These Reports are kept current by means of an annual Advance
Pamphlet Service, the latest of which is Volume 5, No. 2.”).
62
. See infra note 73 and accompanying text.
63
. See Brow v. Farrelly, 994 F.2d 1027, 1032 (3d Cir. 1993) (“Section 1612 vested the
District Court of the Virgin Islands with the jurisdiction of a District Court of the United States
in all causes arising under the Constitution, treaties and laws of the United States, regardless
of the sum or value of the matter in controversy, and general original jurisdiction over all other
matters in the Virgin Islands, subject to the exclusive jurisdiction of the local courts of the
Virgin Islands over civil actions wherein the amount in controversy is less than $500.”); see
also id. at 1034 (“[E]ffective October 1, 1991, the Territorial Court shall have original
jurisdiction in all civil actions regardless of the amount in controversy.” (quoting V.I. CODE
ANN. tit. 4, § 5-76(a) (1991))).
64
. See Herman E. Moore, The Virgin Islands and Its Judicial System, 3 NAT’L BAR J.
349, 356 (1945) (“In the work of the District Court of the Virgin Islands it is often necessary
to turn in one day from a case involving domestic relations and support of children to one in
admiralty. Often within one session of court the jurisdiction of the District Court may run the
gamut, beginning at the opening of the session with the admission of new citizens to the United
States in naturalization cases, and the hearing of Federal cases, then turning to a local appeal
from the police courts, and from police court appeal to domestic relations, from domestic
relations to an insanity hearing; and from civil hearings to criminal, from criminal to probate,
from probate to chancery, and from chancery to admiralty, and then back to a local paternity
charge.”).
65
. Brenner, supra note 9, at 499.
66
. Cooper, supra note 17, at 622.
1722 FORDHAM LAW REVIEW [Vol. 91
Instead, West selects which opinions will be reported.
67
As a result, in the
context of the Virgin Islands, where the District Court served as both a
federal and a local court, many opinions designated for publication were
never published by West.
68
And even though the Virgin Islands Reports was
dedicated exclusively to publishing Virgin Islands decisions, it too failed to
include District Court opinions that were designated for publication.
69
Perhaps for this reason, the judges of the District Court began in the 1970s
to assemble their own “homemade” reporters, dubbed the St. Thomas
Supplement and the St. Croix Supplement. These “reporters” were more like
slip opinions or advance sheets than true reporters, though there was an effort
at annotating the volumes. Each volume is organized by year and contains
the typewritten decisions issued in the respective district, along with
occasional orders and opinions of the Third Circuit in cases appealed from
that district. At some point, the Third Circuit covered the cost to have these
supplements bound. But the bound version only contains photocopies of
typewritten opinions, paginated by hand in ink. Courts do cite the
supplements.
70
But the supplements only exist on the shelves of a few select
libraries, containing many decisions—found only in the pages of these
supplements—from a time when the District Court served as the court of
general jurisdiction for the Territory.
71
67
. See, e.g., Board Adopts Resolution on Citations and Public Databases, AM. ASS’N L.
LIBRS. NEWSL. (Am. Ass’n of L. Librs., Chicago, Ill.), Dec. 1994, at 168 (“West selects
opinions for reporting from the Federal District Courts, the Bankruptcy Courts and the U.S.
Courts of Appeals. For example, there are over 700,000 case dispositions per year in the U.S.
District courts and Bankruptcy Courts. From that number, West chooses to publish
approximately 7,000 case reports in Federal Supplement and approximately 2,500 case reports
in Bankruptcy Reporter. Approximately 15,000 are selected for inclusion on WESTLAW.”).
68
. See, e.g., FDIC v. Creque, 19 V.I. 6 (D.V.I. 1982) (an appeal from the Territorial Court
of the Virgin Islands that was published in the Virgin Islands Reports but not in the Federal
Supplement).
69
. See Gilbert v. Ahn, No. 1993-0187, 1994 WL 16972430, at *1 (D.V.I. App. Div. Apr.
19, 1994) (“FOR PUBLICATION” noted at the top of the opinion above the name of the
court).
70
. See, e.g., Banks v. Int’l Rental & Leasing Corp., Nos. 08-1603 & 08-2512, 2011 U.S.
App. LEXIS 26905, at *5 (3d Cir. Apr. 19, 2011) (citing Pool v. Hertz Corp., 1977 St. Croix
Supp. 520 (D.V.I. 1977)); Pomper v. Thompson, 836 F.2d 131, 133 (3d Cir. 1987) (citing
Benjamin v. Gov’t Emps. Serv. Comm’n, 1978 St. Thomas Supp. 315 (D.V.I. 1978)); see also
Gov’t of the V.I. v. Steele, 26 V.I. 190, 197 (Terr. Ct. 1991) (citing In re Deverita Carty
Sturdivant for Admission to the Bar, 1982 St. Thomas Supp. 162 (D.V.I. 1982)).
71
. See, e.g., Saludes v. Ramos, 19 V.I. 544, 547 (D.V.I. 1983) (“To the extent that Davis
v. Knud Hansen Mem’l Hosp., 1978 St. T. Supp. 262 (D.V.I. July 7, 1978), rev’d on other
grounds, 635 F.2d 179 (3rd Cir. 1980), stands for the proposition that compliance with both
statutes is required under circumstances such as those presented in the present case, it is hereby
reconsidered and overruled.”), vacated on other grounds and remanded, 774 F.2d 992 (3d Cir.
1984); see also Dickson v. Hertz Corp., 559 F. Supp. 1169, 1174 (D.V.I. 1983) (citing Palley
v. Martin Marietta Corp., 1977 St. Croix Supp. 275, 279–85 (D.V.I. 1977) (holding that the
“jurisdictional presence of parent corporation [can be] imputed through subsidiary”). The
Palley decision is not available on Westlaw or Lexis and exists only in the 1977 volume of
the St. Croix Supplement. Similarly, the Pool decision cited by the Third Circuit in Banks,
see supra note 70, is also unavailable on Westlaw or Lexis, though it appears in table format
as having been affirmed by the Third Circuit. See Pool v. Hertz Corp., 661 F.2d 915 (3d Cir.
2023] VISIBLE AND INVISIBLE 1723
The situation eventually improved with advancements in technology.
CD-ROMs made it easier to make Virgin Islands case law (and statutory and
regulatory law) available to the bench and bar, and the internet reduced the
delay in making opinions available. But the hopes that the Virgin Islands
Reports inspired waned. On October 7, 1986, in an affidavit submitted in
support of a motion to intervene filed by the Virgin Islands Bar Association
in Barnard v. Thorstenn,
72
then president of the Virgin Islands Bar
Association, Patricia D. Steele—later a judge of the Territorial Court of the
Virgin Islands and Superior Court of the Virgin Islands—highlighted some
of the difficulties involved in accessing Virgin islands case law:
[T]here are very lengthy delays between the issuance of opinions by the
Virgin Islands Courts and their publication, if they are published. The most
recent volume of the Virgin Islands Reports contains opinions issued in
1983 and early 1984. Slip opinions are generally not disseminated to
attorneys. They are available only by reviewing the opinions in the office
of the law clerks for the District Court judges. Many significant opinions
are “published” only in the St. Croix and St. Thomas Supplements.
73
Things have changed but also stayed the same. The Supreme Court of the
Virgin Islands recently adopted a public domain citation format for local
opinions.
74
But that too has had its challenges, as Superior Court opinions
have not complied with the format.
75
Superior Court opinions have also been
issued inconsistently, resulting in gaps on Lexis and Westlaw and gaps in the
Virgin Islands Reports.
76
The Virgin Islands may be moving in the same
direction as those “states [who] began to abolish the reporters that they had
so painfully established in the nineteenth century.”
77
The problem is that “in
those jurisdictions, publication in a West reporter became the only means by
which decisions could appear in print and thereby attain precedential
status.”
78
1981). The Davis decision, cited in Saludes, is also not on Westlaw or Lexis, but the decision
on appeal is. See Davis v. Knud-Hansen Mem’l Hosp., 635 F.2d 179 (3d Cir. 1980).
72
. 489 U.S. 546 (1989).
73
. Joint Appendix at 33–34, Barnard v. Thorstenn, 489 U.S. 546 (Nos. 87-1939 &
87-2008), 1988 U.S. S. Ct. Briefs LEXIS 237, at *33.
74
. In re Adoption of the Rule on Uniform Reporting and Citation of Opinions,
No. 2018-008, 2018 WL 6012457 (V.I. Nov. 15, 2018).
75
. Promulgation Order No. 2018-008 implemented two citation formats: one for
opinions designated for publication, e.g., “2022 VI Super 1,” and another for opinions not
designated for publication, e.g., “2022 VI Super 1U.” The Superior Court effectively
combined the two with “2022 VI Super 2U” after “2022 VI Super 1.”
76
. For example, Williams v. Groundwater & Environmental Services, Inc., 2020 VI
Super 1, and People v. Rodriguez, 2020 VI Super 3U, are available on LexisNexis, but cases
in 2020 VI Super 2 are not. Both Williams and Rodriguez are available on Westlaw as well,
but Williams can only be retrieved via the public domain citation format by inputting “2020
VI Super 001,” and Rodriguez must include the “U” or it cannot be retrieved except through
a targeted search.
77
. Brenner, supra note 9, at 498.
78
. Id.
1724 FORDHAM LAW REVIEW [Vol. 91
III. UNIQUE, BUT NOT SO UNIQUE
The foregoing discussion has given a glimpse into the struggle faced by all
territories, not just present-day territories, in making their case law available.
But a simple solution is not readily available. Although the Legislature of
the Virgin Islands commissioned the preparation of the Virgin Islands
Reports, no agreement exists today between the Legislature and the current
publisher, LexisNexis (successor to Equity Publishing Corporation). Instead,
LexisNexis continues to report the decisions of Virgin Islands courts more
out of habit than contractual obligation.
79
Further, considering that many states have discontinued their official
reporters—largely because West makes the decisions of their courts of last
resort available within its regional reporters—the Territories find themselves
caught between a rock and a hard place. Being reported in a bound volume,
particularly one published by West, is seen as synonymous with having
precedential value.
80
However, at present, West does not report decisions of
territorial courts.
81
To be clear, Westlaw (like LexisNexis) does make
decisions of territorial courts available electronically.
82
But West does not
79
. In fact, it is not clear whether LexisNexis owns the right to publish under the title the
“Virgin Islands Reports,” as the initial volumes of the Virgin Islands Reports ascribe the
copyright to the Virgin Islands.
80
. See Brenner, supra note 9, at 498 (“As the use of ‘official’ reports declined,
publication in an ‘official’ reporter ceased to have any significance with regard to a decision’s
precedential status: ‘The fact that [decisions published in a West reporter] were unreported in
the official reports in no way lessen[ed] their authority as precedents.’ If publication in an
official report had no effect upon a decision’s precedential value, then there seemed to be little
if any reason to maintain two systems for reporting the same cases. Consequently, states began
to abolish the reporters that they had so painfully established in the nineteenth century. In
those jurisdictions, publication in a West reporter became the only means by which decisions
could appear in print and thereby attain precedential status.” (alterations in original) (quoting
MILES O. PRICE & HARRY BITNER, EFFECTIVE LEGAL RESEARCH 119 (1953)).
81
. Ironically, as noted earlier, West initially included decisions of territorial supreme
courts. See supra note 43 and accompanying text. The Supreme Court of the Dakota Territory
was included within the Northwest Reporter. See, e.g., Territory v. Gay, 2 N.W. 477 (Dakota
Terr. 1879). And the first decision reported in volume 1 of the Pacific Reporter is a decision
of the Supreme Court of the Territory of Montana. See Story v. Black, 1 P. 1 (Mont. Terr.
1883). The decisions of Alaskan and Hawaiian courts would not be added to the Pacific
Reporter until volume 347 of the second series, published in 1960, a year after each had
become a state in 1959. Compare PACIFIC REPORTER: SECOND SERIES: VOLUME 346 P.2D
(1960) (listing jurisdictions included within the volume), with PACIFIC REPORTER: SECOND
SERIES: VOLUME 347 P.2D (1960) (same). However, West had published the decisions of the
Alaskan territorial courts separately under the title the Alaska Reports, and later, in 1938,
added the Alaska Federal Reports “[t]o supplement the Alaska Reports.” Marian G. Gallagher
& Mary W. Oliver, Questions & Answers, 50 LAW LIBR. J. 568, 568 (1957) (“Alaska Federal
Reports, in 5 volumes, is a 1938 reprint of cases [arising out of the Territory of Alaska that
were] previously published in Federal Cases, Federal Reporter, and the U.S. Supreme Court
Reports.”).
82
. Anecdotally, when I first started as a law clerk at the Superior Court of the Virgin
Islands in 2010, we used Westlaw for online research but had to get pincites for Virgin Islands
citations from the bound volumes of the Virgin Islands Reports or from a CD-ROM produced
by LexisNexis containing Virgin Islands primary law. Even though Westlaw made Virgin
Islands case law available online, it did not include page numbers to decisions in the Virgin
Islands Reports because LexisNexis was the publisher. Westlaw eventually came around in
2023] VISIBLE AND INVISIBLE 1725
publish any decisions of territorial courts in its regional reporters. There is
no T. or T.2d, for example, in which the opinions of the Supreme Court of
Guam or the Supreme Court of Puerto Rico can be found. The Territories
are also not included, geographically, in the closest regional reporter. Virgin
Islands cases are not reported in the Southern Reporter, for example. Canal
Zone cases were not reported in the South Western Reporter. Apart from the
obvious result that the Territories are excluded from the broader national
conversation, it also means that territorial court opinions cannot be found
through West’s Key Numbering System.
This blind spot may have contributed somewhat to the great administrative
and constitutional challenges that territories have faced throughout the life of
this nation. Blame cannot be lain only at the feet of Westlaw. Take, for
example, the opinion of the Superior Court of Louisiana in Desbois’ Case,
83
which held that inhabitants of the Territory of Orleans became citizens of the
United States once Louisiana became a state. Both LexisNexis and Westlaw
have made the case available on their platforms,
84
but only Westlaw has
added a headnote. Further, at least two other opinions cited Desbois’ Case,
85
yet neither appears within the citing history on LexisNexis or Westlaw. One
is left to wonder how many more “invisible” opinions are out there—efforts
of past judges and justices grappling with the same great administrative and
constitutional challenges of American territories.
86
large part because of requests from the law clerks to fix the problem. But to this day, some
decisions reported in the Virgin Islands Reports still do not appear on Westlaw. See, e.g.,
Lubick v. Travel Servs., Inc., 23 V.I. 120 (D.V.I. 1981). The Lubick opinion can be retrieved
on LexisNexis, but a search in “All Content” on Westlaw for “Marvin Lubick,” the plaintiff,
retrieves only an earlier decision in the same case.
83
. 2 Mart. (o.s.) 185 (La. 1812).
84
. See Desbois’ Case, 2 Mart. (o.s.) 185, 1812 WL 764, 1812 La. App. LEXIS 1
(La. 1812).
85
. See Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 165–66 (1892) (“In 1813, in
United States v. Laverty, 3 Martin, 733, Judge Hall of the District Court of the United States
held that the inhabitants of the territory of Orleans became citizens of Louisiana and of the
United States by the admission of Louisiana into the Union; denied that the only constitutional
mode of becoming a citizen of the United States is naturalization by compliance with the
uniform rule established by Congress; and fully agreed with the decision in Desbois’s case,
which he cited.”); People ex rel. Kimberly v. De La Guerra, 40 Cal. 311, 335 (1870) (“We
refer the Court to the cases of Cryer v. Andrews, (11 Texas Reports, p. 182); and to Desbois’s
case, (Martin La. Rep. N. S. 285); and to the case of The United States v. Laverty, decided in
the District Court of the United States, and reported in the same volume of Martin, p. 747.
These cases fully establish the respondent’s citizenship.”). Neither case appears when
Shepardizing it on LexisNexis or checking citing references on Westlaw. Citations to
Desbois’ Case were found by running text searches through all cases on both platforms.
86
. The lack of access to English translations of decisions issued by Puerto Rico’s courts
is probably the starkest example of the “invisibility” of territorial court decisions. The
Supreme Court of Puerto Rico does provide official English translations of its opinions. But,
as the brief history of court reporters discussed earlier shows, official reporters and
commercial reporters have always been at odds. Cf. supra note 40 and accompanying text.
Nothing precludes a publisher like West or Lexis from retaining its own translators and simply
noting that the English translation is not the official version, particularly since commercial
reporters always outpace official reporters.
1726 FORDHAM LAW REVIEW [Vol. 91
CONCLUSION
We are overdue for a territorial reporter. It may take the form of a regional
reporter similar to those in West’s National Reporting System, treating the
Territories like a geographic region,
87
or a topic-based reporter, like Bender’s
Immigration Case Reporter. Given that we have already passed the
centennial of the nation’s last territorial acquisition, with no change to the
status quo in sight, it is high time to bring past (if not also present and future)
decisions of America’s territorial courts together in a common reporter.
87
. West has, in the past, published formerly unpublished decisions on request. See Gulf,
Co. & Santa Fe Ry. Co. v. Sumrow, 18 S.W. 135, 135 (Tex. Ct. App. 1887) (“This case is
published by request, never having been published in the State Reports.”).
