Supreme Court of United States.
*133 Mr. Benjamin Morris Strouse and Mr. A. Frank Seltzer for plaintiff in error.
Mr. Wayne Mc Veagh for defendant in error. Mr. Howard C. Shirk was on his brief.
MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.
The contention of plaintiff in error is that the first section of the act of April 4, 1868, is invalid because in contravention of the Fourteenth Amendment, in that it deprives him of due process of law and denies him the equal protection of the laws.
The validity of a statute is drawn in question whenever the power to enact it, as it is by its terms, or is made to read by construction, is fairly open to denial, and is denied. Baltimore & Potomac Railroad v. Hopkins, 130 U.S. 210, 224. And under section 709 of the Revised Statutes, if the ground on which the jurisdiction of this court is invoked is that the validity of a state law was drawn in question as in conflict with the Constitution of the United States, and the decision of the state court was in favor of its validity, this must appear *134 on the face of the record, before the decision below can be reexamined here. Dibble v. Bellingham Bay Land Co., 163 U.S. 63, 70.
The record in this case discloses no attempt to question the validity of the particular statute, in the state courts, as in contravention of the Federal Constitution, unless in the points requested to be given in the trial court and the refusal to give them, for even if it could be held that such question was raised on the application for reargument, nearly a year after the judgment of the Common Pleas was affirmed by the Supreme Court, the suggestion came too late. Texas & Pacific Railway v. Southern Pacific Company, 137 U.S. 48; Loeber v. Schroeder, 149 U.S. 580; Pim v. St. Louis, 165 U.S. 273.
We have no jurisdiction on a writ of error to a state court to declare a state law void on account of its collision with a state constitution, and it was long ago held that where it was objected in the state courts that an act of the State was "unconstitutional and void," the objection was properly construed in those courts as raising the question whether the state legislature had the power under the state constitution to pass the act, and not as having reference to any repugnance to the Constitution of the United States. Porter v. Foley, 24 How. 415.
By the constitution of Pennsylvania, it has always been declared that all men "have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness"; and also "that all courts shall be open, and every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by the due course of law, and right and justice administered without sale, denial or delay." Const. Penn. 1790, Art. IX, §§ 1, 11; Const. Penn. 1838, Art. IX, §§ 1, 11; Const. Penn. 1873, Art. I, §§ 1, 11.
The presumption as to point two is that it referred to the state constitution, and this was made certain by point three, which quotes from that instrument.
From the report of this case in 154 Penn. St. 473, it is apparent *135 that the state Supreme Court assumed that it was dealing under the assignments of error only with the state constitution, as was also the fact in Kirby v. Pennsylvania Railroad, 76 Penn. St. 506, where the question of the constitutionality of the first section of the act in question was directly passed upon, and the section sustained.
We agree with counsel in the statement, made on the application for reargument, in respect of a review of this judgment by this court because thereby the state Supreme Court had decided in favor of the validity of the act when drawn in question as repugnant to the Constitution of the United States, that "the judgment is not in shape for such a review."
Writ of error dismissed.
