1. A decision of a state supreme court dismissing a petition in
error to review a judgment of an intermediate court upon the ground
that the constitutional question raised, and upon which the
jurisdiction of the higher court depended, was not debatable
was frivolous) is a decision of the merits, so that
a writ of error from this Court must go to the supreme court, and
not to the intermediate court. P. 269 U. S.
2. A writ of error from this Court will not lie to the judgment
of an intermediate state court when the supreme court of the state,
though lacking jurisdiction through writ of error taken as of
right, had discretionary power to review the judgment by
certiorari, and the plaintiff in error failed to apply for that
remedy. P. 269 U. S.
Writs of error dismissed.
Error to decrees of the Court of Appeals of the Ohio in suits to
enjoin the collection of special tax assessments. The cases were
disposed of here on motions to dismiss the writs of error.
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
Marianna Matthews owns one tract of land, and Mortimer Matthews
five others, in Hamilton County, Ohio. They lie within half a mile
of Section X of the Glendale
Page 269 U. S. 263
and Milford Road. The plaintiffs brought suits under § 12075 of
the General Code of Ohio, providing that common pleas courts may
enjoin the illegal levy or collection of taxes and assessments, to
enjoin the county treasurer, the defendant in error, from
collecting assessments made and levied on these lands for the cost
of the improvement of Section X. Among other grounds for the
petitions were allegations that the proceedings to assess were in
violation of the Fourteenth Amendment of the federal Constitution
in that they took away property from the plaintiffs without due
process of law. In the common pleas court, the injunctions were
sustained to the extent of some interest found to be excessive, but
were denied in other respects. Appeals were taken to the Court of
Appeals of Hamilton County, which affirmed the decrees of the
common pleas court. Appeals as of right were then prosecuted to the
supreme court of the state based on the ground that the cases
involved constitutional questions. The supreme court made the
following order in each case:
"Dec. 27, 1923. . . . This cause came on to be heard upon the
transcript of the record of the Court of Appeals of Hamilton
County, and it appearing to the court that this cause was filed as
of right, and that the record presents no debatable constitutional
question, it is ordered that the petition in error be, and the same
hereby is, dismissed."
"It is further ordered that defendant in error recover from the
plaintiff in error his costs herein expended, taxed at $ ___."
Thereupon, writs of error were applied for and allowed not to
the Supreme Court of Ohio, but to the court of appeals. Motions are
now made to dismiss the writs.
We think the motions must be granted. In Hetrick v. Village
of Lindsey, 265 U. S. 384
Hetrick brought suit
Page 269 U. S. 264
under the same section of the Ohio Code to enjoin the illegal
collection of a special assessment. The injunction was denied in
the common pleas court and in the court of appeals on appeal. The
plaintiff filed a petition in error in the supreme court of the
state. The defendant moved to dismiss on the ground that no leave
to file it had been granted. The plaintiff claimed that no leave
was necessary under the Ohio practice, because the case involved a
question under the Constitution of the United States, and the
appeal was of right. The court sustained the motion to dismiss on
the ground that the statute whose validity was attacked had been so
long held constitutional by the courts of the state that it could
no longer be questioned. A writ of error to bring the case here was
allowed by the Chief Justice of the Ohio Supreme Court and
entertained by this Court. That case is exactly like this except as
to the court to which the writ of error was directed.
The plaintiffs in error rely on the case of Norfolk &
Suburban Turnpike Co. v. Virginia, 225 U.
, and the rule laid down by Chief Justice White,
in which the said (at pp. 225 U. S.
"For the purpose of avoiding the complexity and doubt which must
continue to recur, and for the guidance of suitors in the future,
we now state that, from and after the opening of the next term of
this Court, where a writ of error is prosecuted to an alleged
judgment or a decree of a court of last resort of a state declining
to allow a writ of error to or an appeal from a lower state court,
unless it plainly appears, on the face of the record, by an
affirmance in express terms of the judgment or decree sought to be
reviewed, that the refusal of the court to allow an appeal or writ
of error was the exercise by it of jurisdiction to review the case
upon the merits, we shall consider ourselves constrained to apply
the rule announced in the Crovo
case, and shall therefore,
by not departing from
Page 269 U. S. 265
the face of the record, solve against jurisdiction the ambiguity
created by the form in which the state court has expressed its
Western Union Telegraph Co. v. Crovo, 220 U.
, 220 U. S. 366
was a Virginia case in which a writ of error was denied by the
Supreme Court of Appeals under a local practice, because the court
thought "the judgment was plainly right." The law and equity court,
that is the lower court, was held to be the highest court of the
state to which the case could be carried, and the writ of error
from this Court to that court was sustained, a federal question
being properly saved.
We think, however, that in these cases, as in the
case, on the face of the record, the state supreme
court did pass on the merits of the case by holding that the
questions involving the Constitution of the United States, and
being the only ground for a writ of error from this Court, were not
debatable. It is one of those not infrequent cases in which
decision of the merits of the case also determines jurisdiction.
The petition was dismissed not because the court was really without
jurisdiction, for it could have taken it, but because the question
was regarded as frivolous, which is a different thing from finding
that the petition was not in character one which the court could
Another reason why the motions to dismiss should be granted,
even if the foregoing conclusion were wrong, is that the plaintiffs
in error did not exhaust all their remedies for review by the
supreme court of the state. After their petitions for writs of
error as of right were denied, they had, under the Ohio practice,
the right to apply to the supreme court in its discretion for writs
of certiorari to bring the cases to that court for its
consideration. No such application was made.
In Stratton v. Stratton, 239 U. S.
, another Ohio case, a writ of error was directed to
the court of appeals to
Page 269 U. S. 266
reverse a judgment of that court. on the ground that it was the
highest court in which a decision in the suit could be had. It was
held, however, that as the supreme court, by the constitution of
the state, had authority to review the judgments and decrees of the
courts of appeal by certiorari and no application had been made
therefor, the court of appeals could not be considered the court of
last resort and a writ of error from this Court to that would not
lie. The same view was taken in Andrews v. Virginian Railway
Co., 248 U. S. 272
plaintiffs in error are thus in a dilemma from which they cannot
escape. If the supreme court, by final decree, disposed of the
constitutional questions on the merits by dismissal of the
petition, then the writ of error lay to the supreme court. If it
did not, then the decree of the court of appeals did not become
that of the highest court to which a writ of error would lie from
this Court for lack of application for certiorari.
Writs of error dismissed.