1. A case from a state court involving only a question of the
construction and applicability, but not the validity, of act of
Congress is not reviewable by writ of error under Jud.Code, §
237(a), but by certiorari under § 237(b). P.
274 U. S.
500.
2. A failure to observe this distinction may subject the party
suing out the writ to damages and double cost, under Rev.Stats. §
1010; Jud.Code 237(c). P.
274 U. S.
500.
3. The papers on which a writ of error was improvidently allowed
by a chief justice of a state supreme court may, under Jud.Code, §
237(c), be treated as a petition for certiorari, and as if
presented to this Court at the time when they were presented to
him. P.
274 U. S. 501.
Writ of error to
114 Okla. 50
dismissed.
Certiorari granted.
The facts are set out in the opinion.
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
We here are asked to review a judgment of the Supreme Court of
Oklahoma rendered after the Act of February 13, 1925, c. 229, 43
Stat. 936, amending the Judicial Code, became effective. An
allotment made in the name and right of a deceased Choctaw Indian
woman under § 22 of the Act of July 1, 1902, c. 1362, 32 Stat. 641,
is involved. The only federal question in the case is whether
Page 274 U. S. 500
Congress intended by that section and other related
congressional enactments that the surviving husband of the deceased
should take an estate by the curtesy in the land. This question was
resolved by the supreme court of the state in favor of the husband,
and, at the instance of the opposing party, the chief justice of
that court allowed a writ of error bringing the judgment here for
review. The writ obviously was improvidently allowed. Section
237(a) of the Judicial Code restricts the cases in which we may
review a judgment or decree of a state court on writ of error to
those
"where is drawn in question the validity of a treaty or statute
of the United States, and the decision is against its validity, or
where is drawn in question the validity of a statute of any state
on the ground of its being repugnant to the Constitution, treaties,
or laws of the United States, and the decision is in favor of its
validity."
This case does not involve any such constitutional question, but
only a question of the construction and application of
congressional enactments concededly valid. It therefore falls
within the class where a review in this Court may be had only on
petition for certiorari under § 237(b) of the Judicial Code. The
distinction is important, has a real purpose, and should be given
effect by all who are invested with authority to allow writs of
error running from this Court to a state court. A failure to
observe it may subject the party suing out the writ to damages and
double costs (Rev.Stats. § 1010; Judicial Code, § 237(c)) and
result in harmful embarrassment to the other party. Of course,
where the writ is improvidently allowed, the other party may move
in this Court to dismiss it. But, in actual practice, this does not
operate as an adequate corrective, for the action of the judge in
allowing the writ usually is assumed to be advisedly taken. In the
present case, the fact that the allowance was improvident escaped
the notice of the parties for a full year.
Page 274 U. S. 501
While we cannot take jurisdiction on the writ of error so
improvidently allowed, we can, under § 237(c) of the Judicial Code,
treat the papers whereon the writ was allowed as a petition for
certiorari and as if presented to this Court at the time they were
presented to the judge who allowed the writ. The papers have been
examined under that section, and we are of opinion that, treating
them as a petition for certiorari, they disclose a case and
situation in which the petition should be granted.
Writ of error as such dismissed, but as petition for certiorari
granted.