Although a state may not be named as a party in the original
proceeding, if it was really begun and prosecuted on its behalf and
the state is named in all the papers on appeal and the state's
attorney appears in this Court generally, even if inadvertently, a
motion to dismiss on the ground that the state is not a party will
not prevail.
Where the highest court of the state refuses a writ of error
because, in its opinion, the judgment below is plainly right, doubt
exists as to whether it is a refusal to take jurisdiction or an
exercise of jurisdiction and affirmance; under the circumstances of
this case, however, the chief justice of the state court having
allowed the writ of error for review by this Court,
held
that the judgment was on the merits, and the writ of error runs to
the highest court.
Western Union Telegraph Co. v. Crow,
220 U. S. 364,
distinguished.
Where the refusal of the highest court of the state to allow a
writ of error is also a refusal to take jurisdiction, the writ of
error from this Court runs to the lower court.
Hereafter, this Court will regard the refusal of the highest
court of the state to allow a writ of error to review the judgment
of a lower court as a refusal to take jurisdiction, and not as an
affirmance, unless the contrary plainly appears on the face of the
record.
Page 225 U. S. 265
A state does not take property of a turnpike company by opening
the gate when it road is out of repair, nor is the enforcement of a
statute which make the keeping of a toll road in repair a condition
precedent to the right to collect tolls an unconstitutional taking
of property without due process of law, and in this case so
held as to the enforcement of such a statute which has
been in force in the State of Virginia since 1817.
The facts, which involve the jurisdiction of this Court under §
709, Rev.Stat., and the power of a state under the Fourteenth
Amendment to suspend tolls on a turnpike pending the making of
repairs properly ordered by state authority, are stated in the
opinion.
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
On April 24, 1911, as authorized by the laws of Virginia, the
judge of the Circuit Court of Princess Anne County, Virginia, of
his own motion, appointed three persons, styled viewers, to examine
and report upon the condition of three turnpikes, situated in the
county and owned by the plaintiff in error. The viewers reported
the turnpikes to be in bad condition, and made recommendations as
to the work necessary to be done to put them in good order. The
turnpike company appealed from the report of the viewers to the
circuit court. On the hearing of the appeal, various motions were
made on behalf of the turnpike company, to the overruling of which
exception was taken, and which will be hereafter referred to, and
an order was
Page 225 U. S. 266
entered as authorized by a statute, suspending the taking of
tolls on the turnpikes until they were put in proper repair. The
effect of the order, however, was suspended by the making of an
application of the Supreme Court of Appeals of Virginia for the
allowance of an appeal and a writ of error to the order of the
circuit court. The application, however, was rejected by an order
reading as follows:
"In the Supreme Court of Appeals, held at the Library Building
in the City of Richmond, on Thursday, the 11th day of January,
1912."
"The petition of the Norfolk & Suburban Turnpike Company, a
corporation, for a writ of error and supersedeas to a judgment or
order entered by the Circuit Court of Princess Anne County, on the
12th day of December, 1911, in certain proceedings, pending in said
court, whereby the collection of tolls by the said petitioner on
certain sections of a turnpike located in said county was
suspended, having been maturely considered and the transcript of
the record of the judgment or order aforesaid seen and inspected,
the court being of opinion that the said judgment or order is
plainly right, doth reject said petition."
A writ of error addressed to the Supreme Court of Appeals of
Virginia was then allowed by the president of that court. It was
therein recited that the Supreme Court of Appeals of Virginia had
"refused a writ of error, thereby affirming said judgment of said
Circuit Court of Princess Anne County, Virginia." The same judicial
officer also approved the bond and signed the citation. The
Commonwealth of Virginia, however, was named as the obligee in the
bond, and the citation was directed to that state as the "defendant
in error." The Attorney General of the state, who states in his
brief that he inadvertently signed as "Commonwealth's Attorney of
Princess Anne County," acknowledged service of the citation and
entered the appearance of the commonwealth in this Court "without
admitting
Page 225 U. S. 267
that the Commonwealth of Virginia is a proper party, and
reserving all rights."
Appearing for the defendant in error, the Attorney General of
Virginia moves to dismiss the writ of error, "because this Court
has no jurisdiction," or to affirm the order and judgment below
"because the questions on which jurisdiction depend are so
frivolous as not to need further argument."
The motion to dismiss is based upon the contention that the
appearance in this Court is a qualified one, and "that the appeal
was improvidently awarded in this case, that the Commonwealth of
Virginia has nowhere in the proceedings been made a party, and is
not now a proper party in this case." But, although the
Commonwealth of Virginia was not named as a party to the
proceedings initiated by the judge of the circuit court, it is not
claimed that those proceedings were not in reality begun and
prosecuted on behalf of the commonwealth, which in effect must have
been the conclusion of the President of the Supreme Court of
Appeals of Virginia when he approved the bond and allowed the
citation, as shown by the recitals in those papers to which we have
heretofore referred. The grounds of the motion are therefore
without merit.
Pearson v. Yewdall, 95 U. S.
294.
But, aside from the propositions on which the motion to dismiss
rests and which we have disposed of, there is an additional ground
to which, on our own motion, we deem it necessary to refer -- that
is, the existence of a possible doubt as to our jurisdiction,
begotten by the form in which the court expressed the action taken
by it concerning the proceedings to review the order or judgment of
the trial court. Thus, although the Supreme Court of Appeals of
Virginia denied a writ of error to the circuit court because it was
of the opinion that the order of the lower court was "plainly
right," it does not affirmatively appear whether, by this action,
the court was merely declining
Page 225 U. S. 268
to take jurisdiction of the case, or in effect was asserting
jurisdiction and disposing of the case upon the merits by giving
the sanction of an affirmance of the judgment of the trial court.
This writ of error runs to the Supreme Court of Appeals, and not to
the trial court. In view of the ambiguity, it is unquestioned that
the writ of error would have to be dismissed if we applied the
ruling of the
Western Union Telegraph Company v. Crovo,
220 U. S. 364,
220 U. S. 366.
It will be seen, however, that the court below, in acting upon the
application presented to it to review the judgment of the trial
court, conformed to what was held to be an exercise of jurisdiction
by affirmance in
Gregory v.
McVeigh, 23 Wall. 294. It is clear, therefore, that
we cannot apply the rule announced in the
Crovo case and
the one previously declared in the
Gregory case, because
the two could not be consistently made here applicable. The
difference between the cases, however, is not one of principle, but
solely depends upon the significance to be attributed to the
particular form in which the action of the court below is
manifested. In other words, the apparent want of harmony between
the rulings of this Court has undoubtedly arisen from the varying
forms in which state courts have expressed their action in refusing
to entertain an appeal from or to allow a writ of error to a lower
court, and the ever-present desire of this Court to so shape its
action as to give effect to the decisions of the courts of last
resort of the several states on a subject peculiarly within their
final cognizance. A like want of harmony resulted from similar
conditions involved in determining what was a final judgment of a
state court, susceptible of being reviewed here, and the confusion
which arose ultimately led to the ruling that the face of the
judgment would be the criterion resorted to as the only available
means of obviating the great risk of confusion which would
inevitably arise from departing from the face of the record and
deducing the principle of finality
Page 225 U. S. 269
by a consideration of questions beyond the face of the alleged
judgment or decree which was sought to be reviewed. The wisdom of
that rule, as applied to a question like the one before us, is, we
think, apparent by the statement which we have made concerning the
rule in the
Crovo case and the previous decisions. Despite
the ambiguity involved in the form in which the court below
expressed its action, we do not think that ambiguity should be
solved against the existence of jurisdiction, because, in our
opinion, there is little or no room for doubt that, when the form
of expression used by the court below is read in the light of the
previous rulings it becomes quite clear that the court deemed that
it was exercising jurisdiction over the cause and virtually
affirming the judgment, and was expressing its action in such a way
as to clearly indicate that such was its intention. This is
fortified by the fact that the writ of error was allowed by the
presiding judge of the court. While therefore in this case, for the
reasons stated, we entertain jurisdiction, and do not of our own
motion dismiss the writ, 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 the
face of the record, solve against jurisdiction the ambiguity
created by the form in which the state court has expressed its
action.
Page 225 U. S. 270
Upon the merits, we are of opinion that the alleged federal
questions are so plainly wanting in merit as not to justify the
retention of the cause for oral argument. The supposed federal
questions are embodied in three motions made in the circuit court.
By motion No. 1, the circuit court was asked to dismiss the
proceedings because, as the statute, in the event the report of the
viewers was confirmed, authorized the public, until the turnpikes
were put in repair, to use the same for the purpose of travel and
passage without payment of toll or other compensation, a taking of
the property of the plaintiff in error for public use without just
compensation was authorized in violation of the due process clause
of the Fourteenth Amendment. Motion No. 2 embodied a request that
the court should not enter judgment affirming the report of the
views, because, for the same reasons specified in the first motion,
the judgment would operate to deprive the plaintiff in error of its
property without due process of law in violation of the Fourteenth
Amendment. By motion No. 3, it was in effect claimed that the
turnpikes in question were not profitable, that plaintiff went into
possession of the roads in July, 1908, and had operated the same
continuously; that no complaint had theretofore been made as to the
condition of the roads; that the statute under which the proceeding
was prosecuted fixed the tolls to be charged, and that
substantially all the revenue derived from the tolls had been
judiciously employed in keeping the roads in repair, and that they
had been kept "in as good repair as possible with the revenue
received therefrom." It was alleged that to enter a judgment
suspending the collection of tolls under such circumstances would
violate the due process clause of the Fourteenth Amendment. The
refusal of the court to hear evidence to substantiate the claim
made in this motion and the overruling of the motion were duly
excepted to. It nowhere appears in the record that there was even a
suggestion that the
Page 225 U. S. 271
statute in question invaded contract rights as to the tolls to
be charged, nor was it claimed that, since the acquisition by
plaintiff in error of his rights therein, the Legislature of
Virginia, in regulating the turnpikes, had altered the tolls. On
the contrary, in the brief of counsel for the commonwealth, the
statement is made that "this statute has been a law of Virginia,
with little change, since February 7, 1817," and there has been no
denial of this statement. The motions below did not, therefore,
amount to a claim against the rates
per se, but simply
asserted that, as the travel on the turnpikes was not sufficient to
cause their operation to be profitable -- that is to say, to
produce a sufficient revenue to enable the roads to be kept in good
order -- therefore the obligation imposed by the statute and
voluntarily assumed ought not to be enforced. The mere statement of
this proposition is sufficient to establish its entire want of
merit. To suspend the taking of tolls while the roads were out of
repair manifestly was not a taking of property, but was simply a
method provided by statute to enforce the discharge of the public
duty respecting the safe and convenient maintenance of a public
highway. In other words, as observed by the Attorney General for
the commonwealth, the burden of keeping the turnpikes in repair was
made a condition precedent to the right to collect tolls.
Affirmed.