Norfolk & Suburban Turnpike Co. v. Virginia
225 U.S. 264 (1912)

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U.S. Supreme Court

Norfolk & Suburban Turnpike Co. v. Virginia, 225 U.S. 264 (1912)

Norfolk & Suburban Turnpike Company v. Virginia

No. 962

Submitted April 8, 1912

Decided June 10, 1912

225 U.S. 264

Syllabus

Although a state may not be named as a party in the original proceeding, if it was really begun and prosecuted on its behalf and the state is named in all the papers on appeal and the state's attorney appears in this Court generally, even if inadvertently, a motion to dismiss on the ground that the state is not a party will not prevail.

Where the highest court of the state refuses a writ of error because, in its opinion, the judgment below is plainly right, doubt exists as to whether it is a refusal to take jurisdiction or an exercise of jurisdiction and affirmance; under the circumstances of this case, however, the chief justice of the state court having allowed the writ of error for review by this Court, held that the judgment was on the merits, and the writ of error runs to the highest court. Western Union Telegraph Co. v. Crow,220 U. S. 364, distinguished.

Where the refusal of the highest court of the state to allow a writ of error is also a refusal to take jurisdiction, the writ of error from this Court runs to the lower court.

Hereafter, this Court will regard the refusal of the highest court of the state to allow a writ of error to review the judgment of a lower court as a refusal to take jurisdiction, and not as an affirmance, unless the contrary plainly appears on the face of the record.

Page 225 U. S. 265

A state does not take property of a turnpike company by opening the gate when it road is out of repair, nor is the enforcement of a statute which make the keeping of a toll road in repair a condition precedent to the right to collect tolls an unconstitutional taking of property without due process of law, and in this case so held as to the enforcement of such a statute which has been in force in the State of Virginia since 1817.

The facts, which involve the jurisdiction of this Court under § 709, Rev.Stat., and the power of a state under the Fourteenth Amendment to suspend tolls on a turnpike pending the making of repairs properly ordered by state authority, are stated in the opinion.

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