It is too late to raise a federal question by petition for
rehearing in the supreme court of a state after that court has
pronounced its final decision unless it appears that the court
entertained the petition and disposed of the question.
The certificate of the presiding judge of the supreme court of
the state, made after the decision, to the effect that a federal
question was considered and decided adversely to plaintiff in
error, cannot in itself confer jurisdiction on this Court, and, on
the face of this record and from the opinions, the reasonable
inference is that the application for rehearing may have been
denied in the mere exercise of discretion, or the alleged
constitutional question was not passed on in terms because not
suggested until too late.
The facts are stated in the opinion.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
Fullerton was charged by information with unlawfully conducting,
carrying on, and transacting the business of dealing in futures in
cotton, grain, etc., and unlawfully keeping a bucket shop,
so-called,
"where future contracts were then and
Page 196 U. S. 193
there bought and sold with no intention of an actual
bona
fide delivery of the articles and things so bought and
sold."
He was found guilty as charged, and sentenced to a fine of $200
and imprisonment for thirty days. The case was carried to the court
of criminal appeals of Texas, and judgment affirmed. The court, in
its opinion, stated the contention to be that the evidence did not
show a violation of the statute, namely, Art. 377 of the Penal
Code, and held, on a consideration of the facts, that Fullerton had
clearly brought himself within and violated the statute. 75 S.W.
534. Fullerton thereupon moved for a rehearing, which motion was
overruled. This application for rehearing assigned, among other
grounds, that the statute, as construed by the court, was in
violation of the Constitution of the United States, vesting in
Congress the power to regulate commerce among the several states.
In overruling the motion, the court delivered a second opinion on
the question of the sufficiency of the indictment, which was
attacked not in the motion for rehearing, but in an additional
brief, presented after the submission of that motion. The court,
however, held the indictment good, and, after stating that "the
motion for rehearing was mainly devoted to an attack on the
original opinion, wherein the evidence was held sufficient,"
adhered to that opinion. 75 S.W. 535. No reference to the
Constitution of the United States was made by the court, nor does
the record disclose any such reference except in the petition for
rehearing, as before stated.
We have repeatedly ruled that it is too late to raise a federal
question by a petition for rehearing in the supreme court of a
state after that court has pronounced its final decision, although,
if the state court entertains the petition and disposes of the
federal question, that will be sufficient.
Mallett v. North
Carolina, 181 U. S. 589. In
that case, it was observed:
"Had that court declined to pass upon the federal questions and
dismissed the petition without considering them, we certainly would
not undertake to revise their action."
Some weeks after the denial of the motion for a rehearing,
Page 196 U. S. 194
this writ of error was allowed by the presiding judge of the
court of criminal appeals, who certified that on that motion it was
contended
"that, under the evidence in the cause, plaintiff in error was
engaged in interstate commerce and commerce between different
states within the meaning of Article I, ยง 8, of the Constitution of
the United States, and that the statutes of the State of Texas
could not make such matters and transactions an offense, and that
to do so would violate said constitutional provision."
And further, "that said contention was duly considered by us and
decided adversely to plaintiff in error."
But, on the face of the record proper and from the opinions, the
reasonable inference is that the court may have denied the
application in the mere exercise of its discretion, or declined to
pass on the alleged constitutional question in terms, because it
was suggested too late, and nothing is more firmly established than
that such a certificate cannot in itself confer jurisdiction on
this Court.
Henkel v. Cincinnati, 177 U.S. 170;
Dibble
v. Bellingham Bay Land Co., 163 U. S. 63.
Writ of error dismissed.