The county court in Texas, being the highest court of the state
to which the case could be carried, considering the amount
involved, held that a railroad company was liable not only for the
damages claimed, but also for an attorney's fee under Chapter 47,
Laws of Texas, 1909. The railroad company sued out a writ of error
from this Court, having insisted in the state court that the
statute violated the due process and equal protection clauses of
the federal Constitution. Before the case was reached in this
Court, the highest court of the state in another case adjudged the
statute to be violative of a provision in the state constitution
and void. That fact being brought to the attention of this Court,
held that:
Page 224 U. S. 504
The case not having been finally terminated, the right to the
attorney's fee is still
sub judice, and effect must be
given by this Court to the intervening decision of the highest
state court and, as to dismiss the writ would leave the judgment to
be enforced as rendered, the proper procedure is to vacate the
judgment and remand the case to the county court so that it may
give effect to the intervening decision of the highest state
court.
In the exercise of it appellate jurisdiction over the courts of
the several states, this Court is not absolutely confined to the
consideration and decision of the federal questions, but may
inquire whether, owing to any intervening event, such question have
ceased to be material, and dispose of the case in the light of that
event.
The facts are stated in the opinion.
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This was an action to recover damages from a railway company for
the killing of a cow by one of its trains in Milam County, Texas.
The case originated in a justice's court, and was carried by appeal
to the county court, where the plaintiff obtained a judgment for
$75 as damages and $20 as attorneys' fee. The attorneys' fee was
awarded under a statute of the state (Laws of 1909, c. 47) which
the company insisted was repugnant to the due process of law and
equal protection clauses of the Fourteenth Amendment to the
Constitution of the United States. The insistence was overruled,
and the company sued out this writ of error, the county court being
the highest court in the state to which the case could be carried,
considering the amount involved.
Page 224 U. S. 505
Since the case was brought here, the statute under which the
attorneys' fee was awarded has been adjudged invalid under the
state constitution by the highest court of the state because the
subject to which it relates is not sufficiently expressed in its
title.
Ft. Worth & D.C. Ry. Co. v. Loyd, 132 S.W. 899.
Thus, the judgment of the county court and the later decision of
the highest court of the state are not in accord. The former
proceeds upon the theory that the statute is valid under the state
constitution, while the latter conclusively establishes that it is
invalid. In these circumstances, what is the duty of this Court
respecting this matter of local law? Must we proceed upon the same
theory as did the county court, or must we give effect to the later
decision of the highest court of the state? If we take the latter
course and reverse the judgment for the attorneys' fee, the
question of the validity of the statute under the Fourteenth
Amendment need not be considered; otherwise, it must be. The
intervening decision does not, in itself, annul the judgment for
the fee or prevent its enforcement, and so does not render the
federal question a moot one unless it operates to place upon us the
duty of reversing the judgment without regard to the merits of that
question.
The case is still pending. The right to the attorneys' fee is
still
sub judice. It depends entirely upon the statute,
and the highest court of the state has pronounced the statute
invalid under the state constitution. How, then, can we sustain the
right or give effect to the statute? Should we not in this
situation apply the settled rule, that the decision of the highest
court of a state declaring a statute of the state valid or invalid
under the state constitution must be accepted by this Court? If
this were a criminal case wherein the accused had been convicted of
a violation of a state statute alleged to be repugnant to the
Constitution of the United States, would we not give effect to an
intervening decision of the highest court of the
Page 224 U. S. 506
state declaring the statute invalid under the state
constitution? These questions may not be directly answered by the
prior decisions of this Court, but their right solution is more
than suggested by the well recognized rule of decision that when,
during the pendency in an appellate court of an action for a
penalty, civil or criminal, the statute prescribing the penalty is
repealed without any saving clause, the appellate court must
dispose of the case under the law in force when its decision is
given, even although to do so requires the reversal of a judgment
which was right when rendered.
United States v. The
Peggy, 1 Cranch 103,
5
U. S. 110;
Yeaton v. United
States, 5 Cranch 281;
The Rachel
v. United States, 6 Cranch 329;
Vance v.
Rankin, 194 Ill. 625;
Hartung v. People, 22 N.Y. 95;
Musgrove v. Vicksburg & Nashville R. Co., 50 Miss.
677;
Montague v. State, 54 Md. 481;
Denver & R.G.
Ry. Co. v. Crawford, 11 Colo. 598;
Sheppard v. State,
1 Tex.App. 522;
Kenyon v. State, 31 Tex.Cr. 13; Cooley,
Const.Lim., 6th ed., 469; 2 Sutherland, Stat.Con., 2d ed, ยง 286. In
the first of the cases cited, it was said by Chief Justice
Marshall:
"It is in the general true that the province of an appellate
court is only to inquire whether a judgment when rendered was
erroneous or not. But if, subsequent to the judgment, and before
the decision of the appellate court, a law intervenes and
positively changes the rule which governs, the law must be obeyed,
or its obligation denied. . . . In such a case, the court must
decide according to existing laws, and if it be necessary to set
aside a judgment, rightful when rendered, but which cannot be
affirmed but in violation of law, the judgment must be set
aside."
We think what was there said is, in principle, applicable here.
For while, on a writ of error to a state court, our province
ordinarily is only to inquire whether that court has erred in the
decision of some federal question, it does
Page 224 U. S. 507
not follow that where, pending the writ, a statute of the state
or a decision of its highest judicial tribunal intervenes and put
an end to the right which the judgment sustains, we should ignore
the changed situation and affirm or reverse the judgment with sole
regard to the federal question. On the contrary, we are of opinion
that, in such a case, it becomes our duty to recognize the changed
situation and either to apply the intervening law or decision or to
set aside the judgment and remand the case so that the state court
may do so. To do this is not to review, in any proper sense of the
term, the decision of that court upon a non-federal question, but
only to give effect to a matter arising since its judgment, and
bearing directly upon the right disposition of the case.
This view of the subject received practical recognition in the
case of
Pacific Mail Steamship Co. v.
Joliffe, 2 Wall. 450. It was an action in a
California court to recover half-pilotage fees allowed by a law of
that state to a licensed port pilot whose services were tendered
and declined. Objections of a federal nature were interposed, but
judgment was given for the plaintiff, and the case was then brought
here. During its pendency in this Court, the legislature of the
state passed a new statute embodying the provisions of the prior
law, with some modifications, and also in terms repealing it. The
point was then made that the repealing clause terminated the right
to recover, and therefore that the action could no longer be
maintained. And while the question whether the simultaneous
reenactment and repeal of the prior law interrupted its continuity
was a question of local law, it was fully considered, and the
conclusion was reached that, in practical operation and effect,
there was no repeal, but only a continuance of the prior law, with
modifications not there material, thus leaving the right to recover
and the federal questions unaffected. The latter were then
considered, and, being found untenable, the judgment was affirmed.
In a dissenting
Page 224 U. S. 508
opinion, having the approval of three members of the Court, it
was maintained that the new act abrogated the prior law, thereby
putting an end to the right to recover, and that, in consequence,
the judgment should be reversed with a direction to dismiss the
action. Thus, the entire Court proceeded upon the theory that it
was necessary to inquire whether the intervening statute put an end
to the right to the fees in question, and, if so, to give effect to
the statute accordingly.
Almost from the beginning, it has been the settled rule in this
Court that when, pending a writ of error to a lower federal court,
and without the fault of the defendant in error, an event occurs
which renders it impossible, if the case was decided in favor of
the plaintiff in error, to grant him any effectual relief whatever,
the Court will not proceed to a formal judgment, but will dismiss
the writ. And in
Kimball v. Kimball, 174 U.
S. 158, it became necessary to consider whether this
rule was applicable to a case brought here on a writ of error to a
state court. The question was resolved in the affirmative, and it
was said:
"From the necessity of the case, this Court is compelled, as all
other courts are, to allow facts which affect its right and its
duty to proceed in the exercise of its appellate jurisdiction, but
which do not appear upon the record before it, to be proved by
extrinsic evidence.
Dakota County v. Glidden, 113 U. S.
222,
113 U. S. 225-226;
Mills
v. Green, 159 U. S. 651,
159 U. S.
653. The reasons are quite as strong, to say the least,
for applying the rule to a writ of error to a state court, on which
the jurisdiction of this Court is limited to federal questions
only, as to a writ of error to a circuit court of the United
States, on which the jurisdiction of this Court extends to the
whole case."
We conclude that, in the exercise of our appellate jurisdiction
over the courts of the several states, we are not absolutely
confined to the consideration and decision of the
Page 224 U. S. 509
federal questions presented, but, as a necessary incident of
that jurisdiction, are authorized to inquire whether, by some
intervening event, those questions have ceased to be material to
the right disposition of any particular case, and to dispose of it
in the light of that event.
The present case is not one in which the writ should be
dismissed, because that would leave the judgment to be enforced as
rendered, which the intervening decision shows ought not to be
done. Instead of being an obstacle to granting any effectual relief
to the plaintiff in error, that decision constitutes, in itself, an
all-sufficient ground for relieving it from the attorneys' fee,
independently of the federal question presented on the record, and,
for the reasons before stated, we think it becomes our duty to
vacate the judgment, so that the state court may apply the decision
by awarding a new judgment in conformity therewith.
The judgment is accordingly reversed, and the case is remanded
for further proceedings not inconsistent with this opinion.
Reversed.