It is to be presumed that when a writ of error is filed here
from Colorado, signed (the Chief Justice being absent) by a judge
who styles himself "Presiding judge of the Supreme Court" of that
state, that he acts in that capacity in the absence of the chief
justice, and in accordance with the provisions of the constitution
of the state, and that the writ was properly allowed.
The petition for a writ of error is not part of the record on
which this Court acts.
When a case is presented for the determination of the highest
court of a state without a suggestion that a federal question is
involved, and after decision a petition for a rehearing, containing
no such suggestion, is presented and denied, a denial of a motion
for further oral argument in which such a claim is for the first
time set up does not necessarily involve the decision of a federal
question.
This was an action brought in the name of William P. Linn and
Lewis C. Rockwell against Hugh Butler and Charles W. Wright in the
District Court in and for the County of Lake and State of Colorado
upon a contract between Linn and Butler and Wright, subsequently
assigned by Linn to Burrell, and by Burrell to Rockwell, as
collateral security for money loaned by him to Linn. Linn
subsequently died, and his executors were substituted.
The defenses raised no federal question. Upon trial had, a
verdict was rendered in favor of the plaintiffs and their damages
were assessed at the sum of $9,008.33, and a motion for new trial
having been overruled, judgment was rendered thereon January 17,
1888, whereupon the case was taken by appeal to the Supreme Court
of the Colorado. Appellants assigned forty-three errors, but these
involved no federal question. September 13, 1889, the Supreme Court
entered an order reciting that
"It appearing that this cause comes within the provisions of
Rule 51 of this court, it is ordered by the court that this cause
be, and is hereby, advanced for hearing, and that the same is
hereby assigned to the Supreme Court Commission for consideration
and report and for oral argument at such time as said commission
shall
Page 138 U. S. 53
order."
September 27, 1889, it was stipulated and agreed by and between
the parties that the cause might be set down for oral argument on
Wednesday, the 16th day of October, 1889. The cause was accordingly
heard by the Supreme Court Commission, which arrived at a decision
and opinion and reported the same to the Supreme Court. On the 24th
of December, 1889, the Supreme Court entered the following
order
"At this day, this cause coming on to be heard, as well upon the
transcript of proceedings and judgment had in said district court
in and for the County of Lake as also upon the matters assigned for
error herein, and the same having been heretofore argued by counsel
and submitted to the consideration and judgment of the court, and
it appearing to the court that there is no error in the proceedings
and judgment aforesaid of said district court, it is therefore
considered and adjudged by the court that the judgment aforesaid of
said district court be and the same is hereby affirmed and stand in
full force and effect, and that this cause be remanded to said
district court for such other and further proceedings according to
law as shall be necessary to the final execution of the judgment of
said district court in the cause notwithstanding the said
appeal."
"It is further considered and adjudged by the court that said
appellees do have and recover of and from said appellants their
costs in this behalf expended, to be taxed, and that they have
execution therefor. And let the opinion of the court filed herein
be recorded."
And the opinion of the commission was then given upon the
record, with these words attached: "
Per curiam: For the
reasons stated in the foregoing opinion, the judgment is
affirmed."
On the 7th of January, 1890, appellants filed their petition for
a rehearing in the cause, assigning various reasons but suggesting
no federal question and taking no exception, so far as appears, to
the fact that the case had been heard by the commission, which on
the 28th of March, the supreme court, upon consideration thereof,
denied.
May 16, appellants filed their motion in words and figures as
follows:
"And now come the said appellants and move the
Page 138 U. S. 54
"
court to grant an oral argument on the merits of this cause and
appeal in and before this court, and that in the meantime no
mandate, remittitur, or process issue herein to affirm or enforce
in any way the judgment of the said District Court of Lake County
complained of and appealed from,
which motion was overruled May 23d. Thereupon appellants
presented their petition for a writ of error from this Court,
addressed to "Hon. J. C. Helm, Chief Justice of the Supreme Court
of the State of Colorado." In this paper it was claimed, after a
recital of various steps taken in the case, that the motion and
request of appellants that the Supreme Court should grant an oral
argument on the merits of the appeal and of the cause, and the
refusal of the court to grant the same and to hear an oral
argument,
"drew in question the constitutionality of the statutes of the
State of Colorado entitled 'An act to regulate the practice in the
Supreme Court; appointing commissioners therefor, fixing their
salary, and defining their duties,' approved March 7, 1887, and a
certain other act entitled 'An act providing for a Supreme Court
Commission,' approved April 1, 1889, in that by the said statutes
and the construction placed thereon and the practice adopted
thereunder by said Supreme Court, litigants and suitors in said
supreme court were deprived of their right to have their appeals
and writs of error and other judicial controversies to be tried
before, heard and decided by said supreme court, and because the
same are repugnant to and inconsistent with and forbidden by the
Fourteenth Amendment to the Constitution of the United States,
which provides that"
" No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor
shall any state deprive any person of life, liberty or property
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws,"
"and that said decision in this cause in effect sustains the
validity of said statutes so drawn in question."
The writ of error was allowed as follows:
"State of Colorado:"
"Desiring to give petitioners an opportunity to test in the
Page 138 U. S. 55
"
Supreme Court of the United States the question presented in the
foregoing petition, it is ordered that a writ of error be allowed
to said court, and that the same be made a supersedeas, the bond,
in the penal sum of sixteen thousand dollars, herewith presented,
being approved.
"In testimony whereof, witness my hand this 27th day of May,
A.D. 1890, the chief justice being absent."
"CHAR. D. HAYT"
"Presiding Judge of the Supreme Court"
"of the State of Colorado"
The writ of error having issued and citation having been duly
served, signed by and attested in the name of Judge Hayt, and the
transcript having been filed in this Court, the defendants in error
moved to dismiss or affirm.
MR. CHIEF JUSTICE FULLER, after stating the facts as above,
delivered the opinion of the Court.
The motion to dismiss is predicated upon two grounds -- first,
because the writ of error was not allowed, nor the citation signed,
by the Chief Justice of the Supreme Court of the State of Colorado;
second because no federal question was involved in the case, or
appeared or was raised upon the record.
It is essential to the exercise by this Court of revisory
jurisdiction over the final judgments or decrees of the courts of
the states that the writ of error should be allowed either by a
Justice of this Court or by the proper judge of the state court,
after ascertaining by an examination of the record that a question
cognizable here was made and decided in the state court and that
such allowance was justified.
Gleason v.
Florida, 9 Wall. 779. Section 999 of the Revised
Statutes provides that the citation shall be signed by the chief
justice, judge, or chancellor of the court rendering the judgment
or
Page 138 U. S. 56
passing the decree complained of, or by a Justice of this Court,
and it was held in
Bartemeyer v.
Iowa, 14 Wall. 26, that when the supreme court of a
state is composed of a chief justice and several associates, and
the judgment complained of was rendered by such court, the writ
could only be allowed by the chief justice of that court or by a
Justice of this Court.
Section 5 of Article VI of the Constitution of the State of
Colorado is as follows: "The Supreme Court shall consist of three
judges, a majority of whom shall be necessary to form a quorum or
pronounce a decision." And section § 8 of that article it is
provided that:
"The judge having the shortest term to serve, not holding his
office by appointment or election to fill a vacancy, shall be the
Chief Justice, and shall preside at all terms of the Supreme Court,
and, in case of his absence, the judge having in like manner the
next shortest term to serve shall preside in his stead."
Gen.Stats.Colorado, 1883, p. 49.
It appears from the record that the chief justice was absent
when this writ was allowed, and it is stated by counsel that Judge
Hayt, who allowed it, had the next shortest term to serve, as the
other associate justice was elected to fill a vacancy. It is
certainly to be presumed that Judge Hayt was, as he asserted
himself to be, the presiding judge of the court in the absence of
the chief justice. The first ground urged for the dismissal of the
writ of error is therefore untenable.
This brings us to consider whether the record before us so
presents a federal question as to justify the maintenance of the
writ. And it may be remarked in the outset that the petition for a
writ of error forms no part of the record upon which action here is
taken.
Manning v. French, 133 U.
S. 186;
Clark v. Pennsylvania, 128 U.
S. 395;
Warfield v. Chaffe, 91 U. S.
690.
Sections 1 and 2 of Article VI of the Constitution of the State
of Colorado read thus:
"SECTION 1. The judicial power of the state as to matters of law
and equity, except as in the constitution otherwise provided, shall
be vested in a supreme court, district courts, county courts,
justices of the peace, and such other courts as may be provided by
law. "
Page 138 U. S. 57
"SEC. 2. The Supreme Court, except as otherwise provided in this
Constitution, shall have appellate jurisdiction only, which shall
be coextensive with the state, and shall have a general
superintending control over all inferior courts, under such
regulations and limitations as may be prescribed by law."
Gen.Stats.Colorado, 1883, p. 48; Sess.Laws of Colorado, 1887, p.
483.
In 1887, the Legislature of the State of Colorado passed a
statute authorizing the appointment of three supreme court
commissioners for the period of two years, unless sooner relieved
or discharged, and upon April 1, 1889, enacted a similar statute
authorizing the appointment of like commissioners for the period of
four years. Sections 2 and 3 of the latter act are as follows:
"SEC. 2. Said commissioners shall be subject to such rules and
orders as the Supreme Court shall from time to time adopt for their
government and for procedure before them; they shall examine and
consider together and report upon such cases as shall be referred
to them by the court for that purpose, and perform such other
services as the court shall require. Their reports shall be in
writing and signed by one of their number, and shall show which
concur therein and which, if any, dissent, and a dissenting
commissioner may likewise make a report. Every report shall contain
a concise but comprehensive statement of the facts in the case, the
opinion of the commissioner or commissioners submitting the report,
and a citation of the authorities relied on in support of the
opinion. The court may provide by rule for a hearing of an oral
argument by counsel before said commission,
provided that
no cause shall be referred to said commissioners in which they or
any of them are or have been interested as counsel or
otherwise."
"SEC. 3. Every opinion shall be promptly delivered to the chief
justice, who shall lay the same before the court. The court may
approve or modify or reject any such opinion. Whenever it shall
approve and adopt an opinion as submitted or as modified, the same
as approved and adopted shall be promulgated as the opinion of the
court, and shall be filed and
Page 138 U. S. 58
reported, and judgment shall be rendered in the same manner, and
with the same effect, and subject to the same orders, motions, and
petitions for rehearing as in the case of other opinions and
judgments of the court, and every such opinion shall show which
commissioner prepared the opinion, and which concurred, and the
approval and adoption, and by the concurrence of which judges, and
whenever the court shall reject the opinion of the commissioners in
any cause, the opinion of the court shall be prepared and a like
proceeding had in all respects as in other causes submitted to the
court."
Sess.Laws Colorado 1889, pp. 444, 445.
Three commissioners were appointed under this act, and are now
acting as such commissioners, and it was to them that the
consideration of this case on appeal was assigned by the state
supreme court. In the argument for plaintiffs in error, it is
asserted that the record involves the inquiry:
"Did the Supreme Court of the State of Colorado in this
instance, by reason of the state statute of 1889, deny to the
plaintiffs in error any right or privilege secured and protected by
the Fourteenth Amendment?"
and that "the right denied in this case was a review by a court,
created and existing under the law of the land, and created for the
purpose of determining such controversies." And it is contended
that, considering the nature of the right, the statute and the
course pursued under it deprived plaintiffs in error of due process
of law and the equal protection of the laws. The record discloses
that after the cause was assigned to the commission "for
consideration and report, and for oral argument at such time as
said commission shall order," it was stipulated and agreed by the
parties that the cause should be set down for oral argument on a
certain day. And it is nowhere shown that any objection was made by
plaintiffs in error to the commissioners acting, but the cause
proceeded to argument, report, and judgment, without question as to
the jurisdiction.
An application was then made to the supreme court for a
rehearing, and a brief filed in support thereof, and the authority
of the commission, or of the supreme court in its action upon the
commission's report, was not even then impugned.
Page 138 U. S. 59
Counsel frankly admits that
"Up to this time, no attack had been made against the authority
of the commission, or against the right of the court to accept and
adopt the work of the commission,"
but he continues that after the petition for rehearing in this
case was denied, the objection was made in another case that the
commission
"had no right or power to decide judicial controversies, and
that the supreme court had no right or power to base its final
judgment on the report or recommendation of the commission."
This other case was entitled
Bullock v. McGerr, and
will be found reported in 23 P. 980. The question came up on a
petition for a rehearing which, among other grounds, contained the
following:
"The counsel for appellants desire to argue the validity of an
opinion of the supreme court in the form of an endorsement or
ratification of the commission based on an oral argument heard
before the commission."
The rulings are embodied in the syllabus prepared by the court,
as follows:
"1. The constitutionality of the legislative act providing for a
Supreme Court commission is not necessarily involved upon the
petition for a rehearing of a cause which had been referred to the
commission in pursuance of said act."
"2. Courts ordinarily decline to determine the constitutionality
of legislative enactments in a case where the record presents some
other and clear ground upon which the judgment may rest."
"3. The Supreme Court alone can promulgate opinions and render
judgments, and its duty is not discharged by the adoption
pro
forma of the conclusions of the Supreme Court commission."
"4. The privilege of being heard orally before the Supreme Court
prior to final judgment is a right which, though subject to
reasonable regulation, cannot under our practice be denied to any
party litigant making seasonable application therefor."
Each of the three judges of the court delivered an opinion, and
the general subject was largely discussed, and reference made to
State v. Noble, 118 Ind. 350, where, upon an application
for a writ of prohibition, the act of
Page 138 U. S. 60
the Legislature of Indiana creating such a commission was held
unconstitutional, and to
People ex Rel. Morgan v. Hayne,
83 Cal. 111, where, upon
quo warranto, the Supreme Court
of California sustained the validity of the commission and, in
addition to these cases of a direct proceeding against the
commissioners as respondents, to
Chicago Railroad Co. v.
Abilene, 21 P. 1112, in which the Supreme Court of Kansas,
upon a petition for rehearing, refused to consider the question of
the constitutionality of a similar act and denied the rehearing
upon the merits. The opinions in
Bullock v. McGerr appear
to have been announced May 16, 1890, and on the same day appellants
made their motion that the supreme court grant an oral argument on
the merits of the cause, and that the remittitur be stayed in the
meantime, which motion was denied.
We are not informed of the ground upon which this denial was
based, but we presume, in the light of
Bullock v. McGerr,
that the supreme court considered the application to be heard
orally as coming too late, and it is quite clear that the
constitutionality of the act providing for the supreme court
commission was not considered to be necessarily involved, and was
not passed upon. Yet we are asked to retain this cause for the
purpose of deciding that question, notwithstanding plaintiffs in
error acquiesced in the hearing of the case by the commission and
stipulated as to the time when the argument should take place
before that body, participated in that argument, petitioned the
supreme court for a rehearing, and did not moot the point now
raised until after the final judgment of the supreme court had been
pronounced, and the petition for rehearing had been overruled. The
validity of a statute of, or an authority exercised under, the
State of Colorado on the ground of such statute or authority's
being repugnant to the Constitution, treaties, or laws, of the
United States was not drawn in question in the Supreme Court of
Colorado, and that court did not decide in favor of its validity.
No title, right, privilege, or immunity under the Constitution, or
any treaty or statute of, or commission held or authority exercised
under, the United States was specially set up or claimed under
such
Page 138 U. S. 61
Constitution, treaty, statute, commission, or authority, and no
decision was rendered against such title, right, privilege, or
immunity. The supreme court of the state confessedly went to
judgment without any suggestion that a federal question was
presented for its determination, and not even in the petition for
rehearing was any such question brought to the attention of the
court. And the disposition of the motion that oral argument be
permitted after the petition for rehearing was denied, did not in
itself necessarily involve the decision of a federal question.
We cannot under such circumstances reexamine the judgment and
orders of that court, and the writ of error must be
Dismissed.
