A judgment of an intermediate appellate state court is not a
final judgment of the state court of last resort within the meaning
of § 237, Judicial Code, if the highest court of the state has a
discretionary power to review which has not been invoked and
refused.
The usual practice in the various states where discretionary
power to review exists in the highest court of the state is to
invoke the exercise of such discretion in order that, upon the
refusal to do so, there may be no question concerning the right to
review in this Court.
Appeal from a judgment of the Court of Appeals of Ohio dismissed
on the ground that, under the Constitution and laws of Ohio the
supreme court of the state had a discretionary power of review
which had not been invoked and refused.
The facts, which involve the jurisdiction of this Court to
review the judgment of a state court under § 237, Judicial Code,
are stated in the opinion.
Memorandum opinion by MR. CHIEF JUSTICE WHITE, by direction of
the Court:
To reverse a judgment rendered by the Ohio Court of Appeals of
the Seventh Appellate District on the ground of
Page 239 U. S. 56
federal errors committed, this writ of error is prosecuted to
that court. There is a motion to dismiss, based on the ground that
the court of last authority, the supreme court of the state, was
the highest court in which a decision in the suit could be had.
This rests not upon the contention that in all cases, as a matter
of right and of duty, the supreme court was given authority to
review the judgments and decrees of the courts of appeals, but upon
the proposition that, under the Constitution and laws of Ohio, the
supreme court was vested with power to review in every case the
judgments or decrees of the courts of appeals where, in the
exercise of its judgment, the supreme court deemed them to be of
such public or great general interest as to require review.
The premises upon which the proposition is based being
undoubtedly accurate -- indeed, not disputable (Ohio Const. Art.
IV, § 2;
Akron v. Roth, 88 Ohio St. 457) -- we think the
motion to dismiss must prevail. True, it is urged that, under the
Ohio law, the jurisdiction of the supreme court was not imperative,
but gracious or discretionary -- that is, depending upon its
judgment as to whether the case was one of public or great general
interest -- an exceptional class in which the case before us, it is
insisted, we must now decide was not embraced. But this simply
invites us to assume jurisdiction by exercising an authority which
we have not -- that is, by indulging in conjecture as to what would
or would not have been the judgment of the Supreme Court of Ohio if
it had been called upon to exert the discretion vested in it by
state laws. When the significance of the proposition upon which the
claim of jurisdiction is based is thus fixed, it is not open to
contention, as it has long since been adversely disposed of.
Fisher v. Perkins, 122 U. S. 522;
Mullen v. West. Un. Beef Co., 173 U.
S. 116. Indeed, conforming to the rule thus thoroughly
established, the practice for years had been in the various states
where discretionary power
Page 239 U. S. 57
to review exists in the highest court of the state, to invoke
the exercise of such discretion in order that, upon the refusal to
do so, there might be no question concerning the right to review in
this Court.
See West. Un. Tel. Co. v. Crovo, 220 U.
S. 364;
Norfolk Turnpike Co. v. Virginia,
225 U. S. 264;
St. Louis San Francisco Ry. v. Seale, 229 U.
S. 156.
Dismissed for want of jurisdiction.
