US SUPREME COURT DECISIONS

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.

Under Rev.Stat. § 709, if the ground on which the jurisdiction of this Court is invoked to review a judgment of a state court 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 is in favor of its validity, this must appear on the face of the record before the decision below can be reexamined here.

A suggestion of such appearance, made on application for reargument, after the judgment of the trial court is affirmed by the supreme court of the state, comes too late.

This Court has no jurisdiction on a writ of error to a state court to declare a state law void on account of its collision with the state constitution.

An objection in the trial of an action in a state court that an act of the state was "unconstitutional and void," when construed in those courts as raising the question whether the state legislature had power, under the state constitution, to pass the act, and not as having reference to any repugnance to the Constitution of the United States, is properly construed.

The report of this case in the Supreme Court of Pennsylvania shows that it assumed that it was dealing, under the assignments of error, only with the state constitution.

Lewis Miller brought his action against the Cornwall Railroad Company in the Court of Common Pleas of Lebanon County, Pennsylvania, to recover damages for personal injuries sustained through the company's negligence while he was chanrobles.com-red

Page 168 U. S. 132

being carried on one of its trains. At the trial, the case was left to the jury, but the court reserved "the question as to whether there is any evidence of the defendant's negligence to go to the jury." A verdict was returned in plaintiff's favor, notwithstanding which judgment was entered for defendant on the point reserved. The decision turned on the conclusion that Miller was to be treated as if he was at the time of the accident, an employee of defendant because, though not in fact such employee, he came within the terms of the first section of an Act of the General Assembly of Pennsylvania, approved April 4, 1868, Laws Penn. 1868, p. 58, No. 26, § 1, which reads as follows:

"Section 1. That when any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the roads, works, depots and premises of a railroad company, or in or about any train or car therein or thereon, of which company such person is not an employee, the right of action and recovery in all such cases against the company shall be such only as would exist if such person were an employee, provided that this section shall not apply to passengers."

The court was asked by plaintiff to instruct the jury, among other points, as follows:

"1. Lewis Miller, the plaintiff, was a passenger on the train when he received his injury. . . . 2. The Act of April 4, 1868, is unconstitutional and void. . . . 3. The right of the plaintiff to have remedy for his injury was a well known and clearly defined common law right, one of the inherent, indefeasible rights guarantied to all citizens by the Constitution. The Act of April 4, 1868, can therefore not be invoked by the defendant against the plaintiff, and it is not remedy by the due course of law."

But the court refused to do so. The case was taken by appeal to the Supreme Court of Pennsylvania, and the first, second, and third errors assigned were to the refusals to give the foregoing points in their order. The words "inherent, indefeasible rights" and "remedy by the due course of law" were placed in quotation in point three, as given in the third assignment. The judgment was affirmed by the supreme court on February 27, 1893, chanrobles.com-red

Page 168 U. S. 133

at the January term of that year. 154 Penn.St. 473. On January 8, 1894, appellant, Miller, filed a motion for reargument, on these grounds:

"1. Because of material errors of fact into which the court fell in the consideration of the case and which, we believe, led to the affirmance of the judgment of the court below."

"2. Because the plaintiff desires to present the case for review on the point raised by the second assignment of error as to the constitutionality of the Act of April 4, 1868, under the XIV Amendment to the Constitution of the United States. The question was not orally argued for want of time, and the judgment is not in shape for such a review."

"3. General reargument."

A reargument was refused, and this writ of error then sued out.