228 U.S. 596 (1913), 152, Consolidated Turnpike Company v. Norfolk & Ocean View Railway Company

Docket Nº:No. 152
Citation:228 U.S. 596, 33 S.Ct. 605, 57 L.Ed. 982
Party Name:Consolidated Turnpike Company v. Norfolk & Ocean View Railway Company
Case Date:May 12, 1913
Court:United States Supreme Court

Page 596

228 U.S. 596 (1913)

33 S.Ct. 605, 57 L.Ed. 982

Consolidated Turnpike Company

v.

Norfolk & Ocean View Railway Company

No. 152

United States Supreme Court

May 12, 1913

Petition for rehearing submitted April 28, 1913

ERROR TO THE SUPREME COURT OF APPEALS

OF THE STATE OF VIRGINIA

Syllabus

Petition for rehearing granted, not because of doubt of correctness of the decree, but to prevent misconception concerning the reasons for dismissing the writ of error in this case, ante, p. 326.

The certificate of the judge of the court below that a federal question was raised and passed upon is not, in the absence of any journal entry, a certificate of the court, but this Court may, if there is a recital in the certificate that the court orders the certificate to be made, accept it as incorporating into the record the necessary proof of existence of a federal question. Marvin v. Trout, 199 U.S. 212, distinguished.

Where the judgment of the state court rests upon a question of general law broad enough to support the decision, this Court will not consider the federal question, although it may have been raised in, and passed upon by, the court below. Gaar, Scott & Co. v. Shannon, 223 U.S. 468.

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This Court is not justified in taking jurisdiction on the bare claim that property has been taken without compensation unless the averment of fact raise real and substantial questions which are not so devoid of merit as to be frivolous or which have not been foreclosed by prior decisions of this Court.

The state courts of Virginia having held that a railroad company which had acquired title to land on which it had built its roadbed could condemn the interest in the land of a mortgagee in possession without paying for its own improvements, this Court declines to review on the ground that the question of whether the mortgagee was deprived of his property without due process of law is frivolous.

The rule of the common law that fixtures annexed to the realty become a part thereof and subject to existing liens thereon is subject to many exceptions: in Virginia, a corporation possessing the power of eminent domain may enter and use for public utility purposes and condemn the interest of the mortgagee without being obliged to pay more than the value of the land without such improvements.

Petition to rehear, 228 U.S. 326, dismissing writ of error to review 111 Va. 131 denied.

The facts, which involve the jurisdiction of this Court to review judgments of the state courts where the federal question is so devoid of merit as to be frivolous, are stated in the opinion.

LURTON, J., lead opinion

Opinion of the Court on petition to rehear, by MR. JUSTICE LURTON:

We gave leave to file the application for rehearing not because of any doubt as to the correctness of the decree previously announced, but because of our desire to prevent any misconception concerning the reasons by which our previous conclusion to dismiss was sustained. It is insisted that the certificate of the presiding judge of the

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court below, reciting that a federal question was raised and passed upon by the court when it considered and disposed of the petition to rehear, was plainly not the certificate of the judge alone, but that of the court itself, and therefore was sufficient to demonstrate the existence of jurisdiction under the ruling in Marvin v. Trout, 199 U.S. 212.

The judgment of the inferior court in Marvin v. Trout had been affirmed without any opinion. Thereafter, the Ohio Supreme Court ordered what is termed "a journal entry" to be made, certifying that the plaintiff in error had claimed that the judgment affirmed was founded upon certain sections of the Revised Statutes of Ohio, and that the plaintiff in error had

in his petition asserted that the said sections of the Revised Statutes were in contravention of specified provisions of the Constitution of the United States,

and that the judgment of affirmance was in favor of the validity [33 S.Ct. 606] of said statutes. This Court said that the certificate was "a certificate from the court, as distinguished from one by an individual judge."

In the present case, while it is true that the certificate of the presiding judge contains a recital to the effect that

the court orders it to be certified and made a part of the record in this case, and the Honorable James Keith, president judge of said Supreme Court of appeals, does now certify,

etc., there is no journal entry as to the matter, and nothing is otherwise contained in the record giving the slightest intimation that a federal question was raised and decided, or the nature and character of such question, if any.

The distinction between this case and Marvin v. Trout is therefore this: here, there is nothing in the record proper showing that a federal question was considered and passed upon by the court below, although there is a certificate of the presiding judge to the effect that such was the case,

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