Butler v. Gage

• Citation: 11 S.Ct. 235,34 L.Ed. 869,138 U.S. 52
• Parties: BUTLER et al. v. GAGE et al
• Decision Date: 19 January 1891
• Court: United States Supreme Court

138 U.S. 52

11 S.Ct. 235

34 L.Ed. 869

BUTLER et al. v. GAGE et al.

January 19, 1891.

[Statement of Case from pages 52-55 intentionally omitted] Hugh Butler, for plaintiffs in error.

L. C. Rockwell, for defendants in error.

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 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 rnedered 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 6 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 by 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. St. Colo. 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 assocate 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, 10 Sup. Ct. Rep. 258; Clark v. Pennsylvania, 128 U. S. 395, 9 Sup. Ct. Rep. 2, 113; Warfield v. Chaffe, 91 U. S. 690. Sections 1 and 2 of article 6 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. Sec. 2. The supreme court, except as otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be co-extensive 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. St. Colo. 1883, p. 48; Laws Colo. 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. Wheneverit 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 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...