[248 U.S. 272, 273] Messrs. A. P. Staples and A. B. Hunt, both of Roanoke, Va., for plaintiff in error. [248 U.S. 272, 274] Messrs. Harvey T. Hall and G. A. Wingfield, both of Roanoke, Va., for defendant in error
Mr. Chief Justice WHITE, after making the foregoing statement of the case, delivered the opinion of the Court.
At the threshold, there arises a question of our jurisdiction which we may not overlook and which we must therefore decide. The question is, has this court power by writ of error to review the judgment below; or, in other words, is the authority of the court to review that judgment confined by the Act of September 6, 1916, c. 448, 39 Stat. 726 (Comp. St. 1214), to the right to do so by certiorari in the mode and time provided by that act? Considering the subject only from the character of the controversy, it is indisputable that the case comes within the generic class as to which the power to review by writ of error was taken away by the act of 1916 and the authority to certiorari substituted. It results that, unless the judgment in question comes under some limitation or exception provided by the statute to the general rule which it establishes, we have no jurisdiction.
There is no room for such exception unless it results from the provision in the statute taking out of the reach of its terms judgments rendered before it became operative. The act was approved on September 6, 1916, and was made operative 30 days thereafter. In form, the judgment to which the writ of error was addressed was rendered on June 16, 1916, before the operation of the statute, and was therefore outside of its provisions. But the question remains, Was the judgment a final judgment at the date named, or did it become so only by the exercise by the Court of Appeals of its power as manifested by its declining to take jurisdiction on November 13, 1916, [248 U.S. 272, 275] after the passage of the act? Undoubtedly, before the action of the Court of Appeals, the judgment was not final and was susceptible of being reviewed and reversed by that court. Undoubtedly, also, until the Court of Appeals acted, the trial court was not the court of last resort of the state whose action could be here reviewed. The contention, therefore, that the judgment of the trial court was a final judgment susceptible of being here reviewed by writ of error must rest upon the impossible assumption that the finality of that judgment existed before the happening of the cause by which alone finality could be attributed to it.
It is true that under the law of Virginia, in a case like this the power of the Court of Appeals to review the judgment of the trial court was gracious or discretionary, and not imperative or obligatory; but the existence of the power, and not the considerations moving to its exercise, is the criterion by which to determine whether the judgment of the trial court was final at the time of its apparent date, or became so only from the date of the happening of the condition-the action of the Court of Appeals-which gave to that judgment its only possible character of finality for the purpose of review in this court. Nor is the result thus stated a technical one, since it rests upon the broadest considerations inhering in the very nature of our constitutional system of government, and material, therefore, to the exercise by this court of its rightful authority. That this is true, would seem to be demonstrated by considering that if it were not so a judgment of a state court susceptible of being reviewed by this court would, notwithstanding that duty, be open at the same time to the power of a state court to review and reverse, thus, in substance, depriving each court of its power and begetting the possibility of conflict and confusion.
From this it follows that the judgment to which the writ of error was addressed was in substance a judgment [248 U.S. 272, 276] rendered after the going into effect of the act of 1916, and was only reviewable by certiorari, as provided in that act. The writ of error, therefore, must be and it is
Dismissed for want of jurisdiction.