An attempt to introduce a federal question into the record for
the first time by petition for rehearing is too late unless the
state court entertains and in fact passes upon it.
A denial of a petition for rehearing by the state court "after
mature consideration" does not amount to any more than a denial of
the motion, and does not show that the federal question was
considered or passed on. It affords no basis for jurisdiction of
this Court on writ of error.
Writ of error to review 107 Va. 853 dismissed.
The facts are stated in the opinion.
MR. JUSTICE DAY delivered the opinion of the Court.
This case grows out of one heretofore in this Court,
National Council of the Junior Order of United American
Mechanics of the United States v. State Council, 203 U.
S. 151. In that case, this Court affirmed a judgment of
the Supreme Court of Appeals of Virginia, which had affirmed a
decree of the lower court of that state. The effect of that decree
was to enjoin
Page 216 U. S. 397
the National Council of the Junior Order of United American
Mechanics of the United States, and certain persons, officers of a
voluntary association, from using in the State of Virginia the
corporate name of the state Council of the Virginia Junior Order of
United American Mechanics of the Virginia, or any other name likely
to be taken for it, and from using the seal of the said Virginia
order, and from carrying out under such name the objects for which
the Virginia order and the voluntary association had been
organized, from granting charters to subordinate councils in the
state, and from interfering in any way with the pursuance of its
objects by the Virginia order within the state, and from
designating their officers in the state by appellations set forth
as used by the plaintiff. After this decree, thus affirmed, had
become final in the Virginia state court, the plaintiffs in error
proceeded to obtain a charter under the name of the "Virginia
Branch of the National Council of the Junior Order United American
Mechanics" -- a name which they urged was clearly distinguishable
from that of the State Council of Virginia Junior Order United
American Mechanics of the Virginia, protected by the original
decree. Having taken out the charter by the name aforesaid, the
plaintiffs in error were prosecuted for contempt of court in
violating the original decree. Upon hearing in the Chancery Court,
an order was entered finding the plaintiffs in error to be in
contempt, and a fine of $20 was imposed on each of them, and the
same was ordered to be paid to the clerk of the court within
thirty-five days, and, in default thereof, each of the plaintiffs
in error to stand committed to the custody of the sheriff, to
remain in jail until the said sum be paid by then respectively.
A writ of error was allowed by the Supreme Court of Appeals of
Virginia to this order of the Chancery Court. In the Supreme Court
of Appeals, a motion was made to dismiss the writ of error as
having been improvidently granted. Upon consideration, the Supreme
Court of Appeals of Virginia sustained that motion upon the ground
that it had no jurisdiction
Page 216 U. S. 398
to review the judgment complained of, and dismissed the writ of
error accordingly. 107 Va. 853. The plaintiffs in error seek to
bring the case here upon the ground that the ruling of the Supreme
Court of Appeals of Virginia denies them due process of law and
deprives them of the equal protection of the laws in violation of
the Fourteenth Amendment of the Constitution of the United
States.
An inspection of the record shows that no claim of the rights
now asserted under the federal Constitution was made until the
petition for rehearing was filed after the judgment in the state
court of final resort. That petition embodies many objections to
the opinion and judgment of the Supreme Court of Appeals of
Virginia not involving the federal Constitution. As to the federal
Constitution, it was set up that, if the Virginia statute, which
provides that a writ of error shall lie to the Supreme Court of
Appeals of Virginia to a judgment for a contempt of court other
than for the nonperformance of, or disobedience to, a judgment,
decree, or order, was applied to deny a review in the pending case,
it would violate the Fourteenth Amendment of the Constitution of
the United States in that it attempts to deprive the plaintiffs in
error of a right to a writ of error from the Supreme Court of
Appeals of Virginia, as given under § 88 of the Constitution of
Virginia, and thereby deprive plaintiffs in error of their liberty
without due process of law, and denied to them the equal protection
of the laws; that a denial by the Supreme Court of Appeals of
Virginia of a writ of error under § 88 of the Virginia
Constitution, which provides that the Supreme Court of Appeals of
Virginia shall have appellate jurisdiction in all cases involving
the life or liberty of any person, will be in violation of the
Fourteenth Amendment, in that it would deprive them of property
without due process of law, and would deny to them the equal
protection of the laws.
In passing upon the petition for rehearing, the Supreme Court of
Appeals of Virginia said:
"On mature consideration of the petition of the plaintiffs in
error to set aside the judgment
Page 216 U. S. 399
entered herein on January 16, 1908, and to grant a rehearing of
said cause, the prayer of said petition is denied."
It has been many times held in this Court that an attempt to
introduce a federal question into the record for the first time by
a petition for rehearing is too late.
Loeber v. Schroeder,
149 U. S. 580,
149 U. S. 585;
Pim v. St. Louis, 165 U. S. 273.
There is an exception to this rule when it appears that the
court below entertained the motion for rehearing, and passed upon
the federal question. But it must appear that such federal question
was in fact passed upon in considering the motion for rehearing; if
not, the general rule applies.
Mallett v. North Carolina,
181 U. S. 589;
Leigh v. Green, 193 U. S. 79;
Corkran Oil & Development Co. v. Arnaudet,
199 U. S. 182;
McMillen v. Ferrum, 197 U. S. 343;
Waters-Pierce Oil Co. v. Texas, 212 U.
S. 112,
212 U. S. 118.
But, it is alleged, the memorandum which we have quoted shows
that the Virginia court must have considered and passed upon the
federal question made in the petition for a rehearing. Except that
the order is said to be upon "mature" consideration, it is almost
word for word the order on rehearing reviewed in
McCorquodale
v. Texas, 211 U. S. 432,
which was held to amount to no more than a denial of the motion.
See 211 U. S. 211 U.S.
437. In that case, the rule was again laid down that it was too
late to raise a federal question upon a petition for rehearing,
unless the federal question was passed upon in ruling upon the
petition.
It results that the writ of error in this case must be
dismissed.
Dismissed.