Albert I. Sire, for plaintiff in error.
Asa Bird Gardiner, for the People of New York.
Mr. Justice WHITE delivered the opinion of the court.
Plaintiff in error seeks the reversal of a judgment of the [170 U.S. 408, 409] court of appeals of the state of New York, which affirmed a judgment of an appellate division of the supreme court of that state, holding valid a judgment entered in the court of special sessions for the city and county of New York sentencing the plaintiff in error upon a conviction for violation of a statute of the state of New York prohibiting any person from carrying on or engaging in the business of 'barbering' on the first day of the week. The record having been remitted by the court of appeals to the supreme court of the state, the writ of error was directed to the latter tribunal.
The correctness of the ruling of the court of appeals, upholding the validity of the statute referred to, was vigorously attacked in argument, emphasis being laid on the fact that three judges dissented from the opinion of the court, two of whom (Judges Gray and Bartlett) delivered opinions.
We are unable, however, to pass upon the question pressed upon our notice as to whether the statute referred to is repugnant to the constitution of the United States, for the reason that the court of appeals of the state of New York is composed of a chief Judge and several associate judges, and the writ of error in this case was allowed and the citation signed by an associate judge, who did not purport to act as chief judge or chief judge pro tem. of the court. The signature to the allowance of the writ was as follows: 'Edward T. Bartlett, Asso. Judge, N. Y. Court of Appeals,' while following the signature to the citation was the designation, 'Asso Judge, Court of Appeals, State of New York.' There is nothing contained in the record warranting an inference that the associate judge was at the time acting as chief judge pro tem. of the court. True it is that there is contained in the record, at the end thereof, an affidavit verified by counsel for plaintiff in error on July 29, 1896, stating that the deponent was informed and believed that the chief judge of the court of appeals was then abroad in Europe, and would be for some space of time to come, while the writ of error was allowed and the citation signed on the 6th of August following. The affidavit purports to have been filed with the papers in the case in the supreme court of New [170 U.S. 408, 410] York on September 2, 1896. It manifestly, however, in no particular justifies the inference that the associate justice who allowed the writ was, at the time of such allowance, the chief judge pro tem. of the court of appeals. It was essential, in order to confer jurisdiction on this court, that the chief judge of the court of appeals of New York, or his lawful substitute, or a justice of this court, should have allowed the writ and signed the citation.
Thus, it is provided in the Revised Statutes as follows:
The provision referred to was contained in the twenty-fifth section of the judiciary act (1 Stat. 86), and section 7 of the act of February 5, 1867 (14 Stat. 387). It was construed in Bartemeyer v. Iowa, 14 Wall. 26, where the court, taking notice sua sponte of the fact that there had been no proper allowance of a writ of error, said (page 27):
The Bartemeyer Case was approvingly referred to in Butler v. Gage, 138 U.S. 55 , 11 Sup. Ct. 236, where the court, speaking through Mr. Chief Justice Fuller, said:
In Butler v. Gage, however, the judge allowing the writ described himself as 'Presiding Judge of the Supreme Court of the State of Colorado.' As the constitution of Colorado provided that when the chief justice was absent the judge having the next shortest term should preside in his stead, and as the record showed that the chief justice was absent at the time the writ was allowed, and counsel conceded that the judge who allowed the writ had the next shortest term to serve, it was held that the writ was properly allowed.
Upon the facts appearing in the case at bar, however, it is manifest that the writ of error was not properly allowed, and it must be dismissed