Norfolk Suburban Turnpike Company v. Commonwealth of Virginia

Decision Date10 June 1912
Docket NumberNo. 962,962
Citation56 L.Ed. 1082,32 S.Ct. 828,225 U.S. 264
PartiesNORFOLK & SUBURBAN TURNPIKE COMPANY, Plff. in Err., v. COMMONWEALTH OF VIRGINIA
CourtU.S. Supreme Court

Mr. Nathaniel T. Green for plaintiff in error.

Mr. Samuel W. Williams, Attorney General of Virginia, and Mr. J. D. Hank for defendant in error.

Mr. Chief Justice White delivered the opinion of the court:

On April 24, 1911, as authorized by the laws of Virginia, the judge of the circuit court of Princess Anne county, Virginia, of his own motion, appointed three persons, styled viewers, to examine and report upon the condition of three turnpikes, situated in the county and owned by the plaintiff in error. The viewers reported the turnpikes to be in bad condition, and made recommendations as to the work necessary to be done to put them in good order. The turnpike company appealed from the report of the viewers to the circuit court. On the hearing of the appeal various motions were made on behalf of the turnpike company, to the overruling of which exception was taken, and which will be hereafter referred to, and an order was entered as authorized by a statute, suspending the taking of tolls on the turnpikes until they were put in proper repair. The effect of the order, however, was suspended by the making of an application of the supreme court of appeals of Virginia for the allowance of an appeal and a writ of error to the order of the circuit court. The application, however, was rejected by an order reading as follows:

'In the supreme court of appeals, held at the Library Building in the city of Richmond, on Thursday, the 11th day of January, 1912.

'The petition of the Norfolk & Suburban Turnpike Company, a corporation, for a writ of error and supersedeas to a judgment or order entered by the circuit court of Princess Anne county, on the 12th day of December, 1911, in certain proceedings, pending in said court, whereby the collection of tolls by the said petitioner on certain sections of a turnpike located in said county was suspended, having been maturely considered and the transcript of the record of the judgment or order aforesaid seen and inspected, the court being of opinion that the said judgment or order is plainly right, doth reject said petition.'

A writ of error addressed to the supreme court of appeals of Virginia was then allowed by the president of that court. It was therein recited that the supreme court of appeals of Virginia had 'refused a writ of error, thereby affirming said judgment of said circuit court of Princess Anne county, Virginia.' The same judicial officer also approved the bond and signed the citation. The commonwealth of Virginia, however, was named as the obligee in the bond, and the citation was directed to that state as the 'defendant in error.' The attorney general of the state, who states in his brief that he inadvertently signed as 'commonwealth's attorney of Princess Anne county,' acknowledged service of the citation and entered the appearance of the commonwealth in this court 'without ad- mitting that the commonwealth of Virginia is a proper party, and reserving all rights.'

Appearing for the defendant in error, the attorney general of Virginia moves to dismiss the writ of error, 'because this court has no jurisdiction,' or to affirm the order and judgment below 'because the questions on which jurisdiction depend are so frivolous as not to need further argument.'

The motion to dismiss is based upon the contention that the appearance in this court is a qualified one, and 'that the appeal was improvidently awarded in this case, that the commonwealth of Virginia has nowhere in the proceedings been made a party, and is not now a proper party in this case.' But although the commonwealth of Virginia was not named as a party to the proceedings initiated by the judge of the circuit court, it is not claimed that those proceedings were not in reality begun and prosecuted on behalf of the commonwealth, which in effect must have been the conclusion of the president of the supreme court of appeals of Virginia when he approved the bond and allowed the citation, as shown by the recitals in those papers to which we have heretofore referred. The grounds of the motion are therefore without merit. Pearson v. Yewdall, 95 U. S. 294, 24 L. ed. 436.

But aside from the propositions on which the motion to dismiss rests and which we have disposed of, there is an additional ground to which, on our own motion, we deem it necessary to refer; that is, the existence of a possible doubt as to our jurisdiction, begotten by the form in which the court expressed the action taken by it concerning the proceedings to review the order or judgment of the trial court. Thus, although the supreme court of appeals of Virginia denied a writ of error to the circuit court because it was of the opinion that the order of the lower court was 'plainly right,' it does not affirmatively appear whether, by this action, the court was merely declining to take jurisdiction of the case, or in effect was asserting jurisdiction and disposing of the case upon the merits by giving the sanction of an affirmance of the judgment of the trial court. This writ of error runs...

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    • January 7, 1946
    ...58 L.Ed. 1330; Covington & L. Turnpike Road Co. v. Sanford, 164 U.S. 578, 17 S.Ct. 198, 41 L.Ed. 560; Norfolk & S. Turnpike Co. v. Virginia, 225 U.S. 264, 32 S.Ct. 828, 56 L.Ed. 1082; Donovan v. Pennsylvania Co., 199 U.S. 279, 26 S.Ct. 91, 50 L.Ed. 192, and cases cited on pages 293—295 of 1......
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