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    PHILADELPHIA & READING COAL & IRON CO. v. GILBERT , 245 U.S. 162 (1917)

    U.S. Supreme Court

    PHILADELPHIA & READING COAL & IRON CO. v. GILBERT , 245 U.S. 162 (1917)

    245 U.S. 162

    PHILADELPHIA & READING COAL & IRON CO.
    v.
    GILBERT.
    No. 454.

    Argued and Submitted Nov. 6, 1917.
    Decided Nov. 26, 1917.

    [245 U.S. 162, 163]   Mr. Pierre M. Brown, of New York City, for plaintiff in error.

    Mr. Samuel Seabury and Mr. William M. Seabury, both of New York City, for defendant in error.

    Mr. Justice VAN DEVANTER delivered the opinion of the Court.

    This was an action in a state court in New York by a resident of that state against a Pennsylvania corporation [245 U.S. 162, 164]   to recover for a personal injury sustained by the former while employed in the latter's coal mine in Pennsylvania. In addition to mining coal in Pennsylvania, the defendant was doing business in New York and, conformably to the laws of the latter state, had designated an agent therein upon whom process against it might be served. The summons was served upon this agent. After an unsuccessful effort to have the service set aside as invalid, the defendant answered and the further proceedings resulted in a judgment for the plaintiff, which was affirmed, without opinion, by the Appellate Division of the Supreme Court. An appeal to the Court of Appeals was denied, and the defendant sued out this writ of error. A motion to dismiss the writ is made upon the ground that the judgment, if open to review here, cannot be reviewed upon a writ of error, but only upon a writ of certiorari.

    Under section 237 of the Judicial Code, as amended September 6, 1916 ( 39 Stat. 726, c. 448), a final judgment or decree of a state court of last resort in a suit 'where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity, or where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity,' may be reviewed in this court upon writ of error; but, if the suit be one 'where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is in favor of their validity, or where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is against their validity, or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute [245 U.S. 162, 165]   of, or commission held or authority exercised under the United States, and the decision is either in favor of or against the title, right, privilege, or immunity especially set up or claimed, by either party, under such Constitution, treaty, statute, commission, or authority,' the judgment or decree can be reviewed in this court only upon a writ of certiorari. The difference between the two modes of securing a review, as contemplated by the statute, lies in the fact that a writ of error is granted as of right, while a writ of certiorari is granted or refused in the exercise of a sound discretion.

    By a timely motion the defendant sought to have the service of the summons set aside upon the ground--

    The motion was overruled and the defendant, having first excepted to the ruling, answered to the merits.

    All that was drawn in question by the motion was the validity of the service and the power of the court, consistently with the first section of the Fourteenth Amendment-probably meaning the due process of law clause, to proceed upon that service to a hearing and determination of the case. It did not question the validity of any [245 U.S. 162, 166]   treaty or statute of, or authority exercised under, the United States. Neither did it challenge the validity of a statute of, or an authority exercised under, any state, on the ground of its being repugnant to the Constitution, treaties, or laws of the United States. Challenging the power of the court to proceed to a decision of the merits did not draw in question an anthority exercised under the state, for, as this court has said, the power to hear and determine cases is not the kind of authority to which the statute refers. Bethell v. Demaret, 10 Wall. 537, 540; French v. Taylor, 199 U.S. 274, 277 , 26 S. Sup. Ct. 76.

    It follows that the judgment cannot be reviewed upon writ of error. If a review was desired it should have been sought under that clause of the certiorari provision which reads, 'or where any title, right, privilege, or immunity is claimed under the Constitution,' etc.

    Writ of error dismissed.

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