Powell v. Supervisors of Brunswick County/Opinion of the Court
The determination of the jurisdiction of this court to review the judgment of a state court, under section 709 of the Revised Statates, necessarily devolves upon the court itself: and, while the certificate of the presiding judge of the state court as to the existence of the state of the case upon which our interposition may be successfully invoked is always regarded with respect, it cannot confer jurisdiction upon this court to re-examine the judgment below. Lawler v. Walker, 14 How. 149; Railway Co. v. Rock, 4 Wall. 177; Parmelee v. Lawrence, 11 Wall. 36; Caperton v. Bowyer, 14 Wall. 216; Brown v. Atwell, 92 U.S. 327; Gross v. Mortgage Co., 108 U.S. 477, 2 Sup. Ct. 940; Felix v. Scharnweber, 125 U.S. 54, 8 Sup. Ct. 759; Roby v. Colehour, 146 U.S. 153, 13 Sup. Ct. 47.

In Parmelee v. Lawrence, Mr. Justice Nelson, speaking for the court, said: 'We will add, if this court should entertain jurisdiction upon a certificate alone, in the absence of any evidence of the question in the record, then the supreme court of the state can give the jurisdiction in every case where the question is made by counsel in the argument. The office of the certificate, as it respects the federal question, is to make more certain and specific what is too general and indefinite in the record, but is incompetent to originate the question, within the true construction of the 25th section.'

As many times reiterated, it is essential to the maintenance of jurisdiction upon the ground of erroneous decision as to the validity of a state statute, or a right under the constitution of the United States, that it should appear from the record that the validity of such statute was drawn in question as repugnant to the constitution, and that the decision sustained its validity, or that the right was specially set up, or claimed and denied. If it appear from the record, by clear and necessary intendment, that the federal question must have been directly involved, so that the state court could not have given judgment without deciding it, that will be sufficient; but resort cannot be had to the expedient of importing into the record the legislation of the state, as judicially known to its courts, and holding the validity of such legislation to have been drawn in question, and a decision necessarily rendered thereon, in arriving at conclusions upon the matters actually presented and considered.

A definite issue as to the validity of the statute, or the possession of the right, must be distinctly deducible from the record, before the state court can be held to have disposed of such a federal question by its decision.

The bill of complaint in this case nowhere claimed relief by reason of any right, title, privilege, or immunity under the constitution of the United States, or because of the violation by the proceedings in reference to the subscription of any provision of that constitution, nor did the petition in error to the court of appeals suggest any federal question; but, in a supplemental brief filed in that court, it was urged that by section 9 of the charter of the railway company the designated counties were authorized to subscribe 'according to the forms prescribed by the Code of Virginia of eighteen hundred and seventy-three;' that these 'forms' were set forth in sections 62-64, c. 61, of that Code; and that by subscription thereunder the property owners of the county would be deprived of their property 'without due process of law;' in violation of the fourteenth amendment, for want of provision in those sections requiring notice of the election to be given to the voters. The argument seems to have been that those sections of the Code must be read into section 9; that a valid subscription could not be made without a vote had as therein prescribed; and that, irrespective of whether the vote was taken at a general election, or upon notice of the special matter actually given, as notice was not provided for, the sections were void, and no subscription could be made at all.

The difficulty with this contention is that the supreme court of appeals has otherwise construed section 9 of the railroad charter.

In Taylor v. Supervisors, 86 Va. 506, 510, 10 S. E. 433, which was the case of a bill filed by the citizens of Greensville county, one of the counties designated in the ninth section, to countest the validity of the subscription of that county, the point was raised and pressed that section 62 was included in the 'forms' referred to in the ninth section; but the court decided to the contrary, and, speaking through Hinton, J., said: 'The provisions of section 62, c. 61, Code 1873, seem to have been mainly designed to give to the people a definite idea of what is purposed to be done in behalf of the county, and to fix a limit beyond which, generally, the power to subscribe shall not be exercised. These objects, however, the legislature has evidently seen fit to accomplish, so far as they were practicable, by the provisions of this charter; and we must hold, therefore, that that section of the Code has no application to the case. But what, then, are the 'forms prescribed' by the Code of 1873, which the charter directs shall be observed in making this subscription? Why, manifestly, the forms given in sections 65, 66, c. 61, of the Code, under the heading, 'If subscription be voted for, how is it to be made,' etc. In other words, the forms prescribed by the Code of 1873, according to which the subscription is to be made, are those which are to be observed in making the subscription after the voters have declared at the polls that the subscription shall be made.' That decision was approved and followed in the case under consideration, the court saying: 'The case of Taylor v. Supervisors, supra, was a controversy arising concerning this same railroad in its construction through the county of Greensville. The identical questions raised here were raised there, as to the irregularities of the organization and the subscription of that county, and especially the excess of the subscription in the aggregate, when computing it at the sum of $3,500 per mile, as compared to the provisions of the general law, as set forth in section 62 of chapter 61 of the Code of 1873. But Judge Hinton sufficiently disposes of this objection and apparent difficulty by pointing out that the proceedings here were by virtue of a special act of assembly upon this very subject, passed not only subsequently to the Code, but enacted to govern this particular case. The questions raised as to the election are considered and disposed of there, and furnish reasons satisfactory as to this case.'

The fourteenth amendment was not referred to by the court, and although the conclusion of the opinion, that 'on all other questions we are of opinion to affirm the decree appealed from,' is broad enough to cover the objection that the statute was in conflict with the constitution of the United States, we presume that allusion to the subject was thought unnecessary, in view of the settled construction of the railroad charter to the contrary of that upon which the supposed conflict depended.

As to that construction, we perceive no reason for declining to accept it in accordance with the general rule applicable to the decisions of the highest court of a state in reference to the laws of the state. Gormley v. Clark, 134 U.S. 338, 348, 10 Sup. Ct. 554.

Writ of error dismissed. 

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