BUTLER et al. v. GAGE et al.

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 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 Colo. 1889, pp. 444, 445. There 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 eror 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. 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 Pac. Rep. 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 indorsement 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 in volved 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, 21 N. E. Rep. 244, where, upon an application for a writ of prohibition, the act of the legislature of Indiana creating such a commission was held unconstitutional; and to People v. Hayne, 83 Cal. 111, 23 Pac. Rep. 1, 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, K. & W. R. Co. v. Abilene T. S. Co., 21 Pac. Rep. 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 an d 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 mean time, 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 aquiesced 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 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 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, re-examine the judgment and orders of that court, and the writ of error must be dismissed.