Forbes v. State Council of Virginia

delivered'the opinion of the court.

. This case grows out of one heretofore in this court, National Council of the Junior Order of United American Mechanics of the United States v. State Council, 203 U. S. 151 . In that case this court affirmed a judgment of the Supreme Court of Appeals of Virginia, which had affirmed a decree of the lower court of that State. The effect of that decree was to enjoin

A writ of error was allowed by the Supreme Court of Appeals of Virginia to.this ’order of the Chancery Court. In the Supreme Court of Appeals a motion was- made to dismiss the .'writ of erjror as having'been improvidently. granted. Upon -consideration the Supreme Court of Appeals of Virginia sustained that motion upon the ground that it had no jurisdiction

An inspection of the record shows that no claim of the rights now asserted’ under the Federal Constitution was made until thfe petition for rehearing was filed after the judgment in the state court of final resort. That petition embodies many objections to the opinion and judgment of the Supreme Court of Appeals of Virginia not involving the Federal Constitution. As to the Federal Constitution, it was set up that if the Virginia statute, which provides that a writ of error shall lie to the Supreme Court of Appeals of Virginia to a judgment for a contempt of court other than for the non-performance of, or disobedience to, a judgment, decree or .order, was applied to deny a review in the pending Case, it would violate the Fourteenth Amendment of the Constitution of the United States, in that it attempts to deprive the plaintiffs in error pf a right-to a writ of error from the Supreme Court of Appeals of Virginia, as given under § 88 of the constitution of Virginia, and thereby deprive plaintiffs in error of their liberty without due=)process of ‘law, and denied to them the equal protection of the laws; that a denial by the Supreme Court of Appeals of Virginia of a writ of error under § 88 of the Virginia constitution, which provides that the Supreme Court of Appeals of Virginia shall have appellate jurisdiction in all cases involving the life or liberty of any person, wjll be in violation of the Fourteenth Amendment, in that it would deprive them of property without due process of law, and would deny to them the equal protection of the laws.

In passing upon the petition for rehearing the Supreme Court of Appeals of Virginia said: “ On mature consideration of-the petition of the. plaintiff in error to set aside the judg

It has been many 'times held in this court that an attempt to introduce a Federal question into the record for the first time by a petition for rehearing is too late. Loeber v. Schroeder, 149 U. S. 580 , 585; Pim v. St. Louis, 165 U. S. 273 .

Thpre is an exception to this rule when it appears that the court below entertáined the motion for rehearing, and passed upon the Federal question. But it must appear that such Federal question was in fact passed upon in considering the motion for rehearing; if not, the general rule applies. Mallett v. North Carolina, 181 U. S. 589 ; Leigh v. Green, 193 U. S. 79 ; Corkran Oil Co. v. Arnaudet, 199 U. S. 182 ; McMillen v. Ferrum, 197 U. S. 343 ; Waters-Pierce Oil Co. v. Texas, 212 U. S. 112 , 118.

But, it" is alleged, the memorandum which we have quoted shows that the Virginia court must have considered and passed upon the Federal question made in the petition for a rehearing. Except that the order is said to be upon “mature”consideration, it is almost word for word the order on rehearing reviewed in McCorquodale v. Texas, 211 U. S. 432 , which was held to amount to no more than a denial of the motion. See 211 U. S. 437 . In that case the rule was again laid down that it was too late to raise a Federal question upon a petition for rehearing, unless the Federal question was passed upon in ruling upon the petition.-

It results that the writ of error in this case must be dismissed.

Dismissed.