Consolidated Turnpike Company v. Norfolk Ocean View Railway Company

• Decision Date: 12 May 1913
• Docket Number: No. 152,152
• Parties: CONSOLIDATED TURNPIKE COMPANY et al., Plffs. in Err., v. NORFOLK & OCEAN VIEW RAILWAY COMPANY
• Court: U.S. Supreme Court

228 U.S. 596

33 S.Ct. 605

57 L.Ed. 982

CONSOLIDATED TURNPIKE COMPANY et al., Plffs. in Err.,

v NORFOLK & OCEAN VIEW RAILWAY COMPANY.

No. 152.

Submitted April 28, 1913.

Decided May 12, 1913.

Mr. Charles H. Burr in support of the petition.

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 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, 50 L. ed. 157, 26 Sup. Ct. Rep. 31.

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 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 while in the Marvin case there was a record disclosure of the existence of the Federal question which was in effect also certified to by the presiding judge of the court below. In other words, the distinction between the two cases in no way involved the accuracy of the certificate of the presiding judge, but whether conceding—as of course must be done—its complete accuracy, it was sufficient to show the existence of jurisdiction in the absence otherwise in the record of anything establishing that a Federal question was below considered and decided. Despite this difference, and to prevent any possible inference that there was any intention to doubt in the slightest degree the accuracy of the statement contained in the certificate of the presiding judge of the court below, we have concluded that, as it is recited in the certificate that it was made by the order of the court itself, for the purpose of affording record evidence of the fact that a Federal question was considered and disposed of, that we may treat the certificate to that effect as incorporating into the record the necessary proof of the existence of some Federal question as the basis upon which our authority to review may be exerted.

Assuming, therefore, that this certificate operates to show that some Federal question was decided when the petition to rehear was refused, yet, if it also appears that the judgment of the state court against the plaintiff in error was based upon a question of general law broad enough to support the decision, this court will not consider the Federal question, though it was considered and determined by the court below adversely to the plaintiff in error. Murdock v. Memphis, 20 Wall. 590, 636, 22 L. ed. 429, 444; Hale v. Akers, 132 U. S. 554, 33 L. ed. 442, 10 Sup. Ct. Rep. 171; Gaar, S. & Co. v. Shannon, 223 U. S. 468, 56 L. ed. 510, 32 Sup. Ct. Rep. 236.

The bare claim that the judgment operated to take property of the plaintiff in error without compensation is not enough to justify this court in taking jurisdiction unless it also appears from the averments of fact upon which the claim must depend that the question is one real and substantial, and not so utterly without merit as to be frivolous, or a question concluded by previous decisions of this court. New Orleans Waterworks Co. v. Louisiana, 185 U. S. 336, 46 L. ed. 936, 22 Sup. Ct. Rep. 691; Equitable Life Assur. Soc. V. Brown, 187 U. S. 308, 314, 47 L. ed. 190, 193...