ERROR TO THE SUPREME COURT OF APPEALS OF THE STATE OF VIRGINIA.
MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.
The determination of the jurisdiction of this court to review the judgment of a state court under section seven hundred and nine of the Revised Statutes necessarily devolves upon the court itself, and, while the certificate of the presiding judge of the state court as to the existence of the state of case upon which our interposition may be successfully invoked is always regarded with respect, it cannot confer jurisdiction upon this court to re-examine the judgment below. Lawler v. Walker, 14 How. 149; Railway Company v. Rock, 4 Wall. 477; Parmelee v. Lawrence, 11 Wall. 36; Caperton v. Bowyer, 14 Wall. 216; Brown v. Atwell, 92 U.S. 327; Gross v. United States Mortgage Co., 108 U.S. 477; Felix v. Scharnweber, 125 U.S. 54; Roby v. Colehour, 146 U.S. 153.
In Parmelee v. Lawrence, Mr. Justice Nelson, speaking for the court, said: "We will add, if this court should entertain jurisdiction upon a certificate alone in the absence of any evidence of the question in the record, then the Supreme Court of the State can give the jurisdiction in every ease where the question is made by counsel in the argument. The office of the certificate, as it respects the Federal question, is to make more certain and specific what is too general and indefinite in the record, but is incompetent to originate the question within the true construction of the 25th section."
As many times reiterated, it is essential to the maintenance of jurisdiction upon the ground of erroneous decision as to the validity of a state statute or a right under the Constitution of the United States, that it should appear from the record that
the validity of such statute was drawn in question as repugnant to the Constitution and that the decision sustained its validity, or that the right was specially set up or claimed and denied. If it appear from the record by clear and necessary intendment that the Federal question must have been directly involved so that the state court could not have given judgment without deciding it, that will be sufficient; but resort cannot be had to the expedient of importing into the record the legislation of the State as judicially known to its courts, and holding the validity of such legislation to have been drawn in question, and a decision necessarily rendered thereon, in arriving at conclusions upon the matters actually presented and considered.
A definite issue as to the validity of the statute or the possession of the right must be distinctly deducible from the record before the state court can be held to have disposed of such a Federal question by its decision.
The bill of complaint in this case nowhere claimed relief by reason of any right, title, privilege, or immunity under the Constitution of the United States, or because of the violation by the proceedings in reference to the subscription of any provision of that Constitution, nor did the petition in error to the Court of Appeals suggest any Federal question, but in a supplemental brief, filed in that court, it was urged that by section nine of the charter of the railway company the designated counties were authorized to subscribe "according to the forms prescribed by the Code of Virginia of eighteen hundred and seventy-three;" that these "forms" were set forth in sections 62, 63, and 64 of chapter 61 of that code; and that by subscription thereunder the property owners of the county would be deprived of their property "without due process of law," in violation of the Fourteenth Amendment, for want of provision in those section requiring notice of the election to be given to the voters. The argument seems to have been that those sections of the code must be read into section nine; that a vaid subscription could not be made without a vote had as therein prescribed; and that, irrespective of whether the vote was taken at a general election or upon notice of the special matter actually given, as notice was not provided for,
the sections were void and no subscription could be made at all.
The difficulty with this contention is that the Supreme Court of Appeals has otherwise construed section 9 of the railroad charter.
In Taylor v. Supervisors, 86 Virginia, 506, 510, which was the case of a bill filed by the citizens of Greensville County, one of the counties designated in the ninth section, to contest the validity of the subscription of that county, the point was raised and pressed that section 62 was included in the "forms" referred to in the ninth section, but the court decided to the contrary, and, speaking through Hinton, J., said: "The provisions of sec. 62, ch. 61, Code 1873, seem to have been mainly designed to give to the people a definite idea of what is proposed to be done in behalf of the county, and to fix a limit beyond which generally the power to subscribe shall not be exercised.These objects, however, the legislature has evidently seen fit to accomplish, so far as they were practicable, by the provisions of this charter, and we must hold, therefore, that that section of the code has no application to the case. But what, then, are the 'forms prescribed' by the Code of 1873, which the charter directs shall be observed in making this subscription? Why, manifestly, the forms given in sections 65 and 66, ch. 61, Code under the heading 'If subscriptions be voted for, how it is to be made,' etc. In other words, the forms prescribed by the Code of 1873, according to which the subscription is to be made, are those which are to be observed in making the subscription after the voters have declared at the polls that the subscription shall be made." That decision was approved and followed in the case under consideration, the court saying: "The case of Taylor v. The Board of Supervisors of Greensville County, ...