Postponing consideration of a motion to dismiss until the
hearing of the case on the merits is not a decision that the court
has power to review the judgment.
The rule in cases coming from the District Court of the United
States for Porto Rico is that the existence of constitutional
questions must appear in a bill of exceptions.
Even though this Court may have an extraordinary discretion in
extreme cases to supply the absence of a bill of exceptions, there
is no ground in this case for the exercise of such discretion.
The facts, which involve the jurisdiction of this Court to
review judgments of the District Court of the United States for
Porto Rico, are stated in the opinion.
Page 239 U. S. 2
Memorandum opinion by MR. CHIEF JUSTICE WHITE, by direction of
the Court.
The plaintiffs in error prosecute this writ under the assumption
that the court below denied rights asserted
Page 239 U. S. 3
by them under the Constitution by refusing, as prayed, to return
papers taken from them under a search warrant, and in permitting
the papers over objection to be offered in evidence. There is no
bill of exceptions in the record, and nothing which enables us to
lawfully ascertain the existence of the constitutional questions
relied upon.
Clune v. United States, 159 U.
S. 590;
Metropolitan R. Co. v. District of
Columbia, 195 U. S. 322;
Porto Rico v. Emmanuel, 235 U. S. 251,
235 U. S.
255.
There is nothing therefore before us unless there be merit in
contentions to the contrary which are pressed and which we briefly
dispose of. First: on the face of things, it is obvious that the
postponing at the last term of the consideration of a motion to
dismiss was not a decision of the question of power to review.
Second: even indulging, for the sake of the argument only, in the
assumption of the correctness of the proposition urged that an
extraordinary discretion might exist in some extreme case to supply
the entire absence of a bill of exceptions, we see no ground
whatever for the premise that this is a case of that character.
Dismissed for want of jurisdiction.