251 U.S. 256
MERGENTHALER LINOTYPE CO.
DAVIS et al.
Submitted on Motion to Dismiss Dec. 8, 1919.
Decided Jan. 5, 1920.
Mr. Bradford Butler, of New York City, for plaintiff in error.
Messrs. Ernest A. Green, of St. Louis, Mo., and J. C. Sheppard, of Poplar Bluff, Mo., for defendants in error. [251 U.S. 256, 257]
Mr. Justice McREYNOLDS delivered the opinion of the Court.
Dismissal of this writ is asked-first, because it does not run to a final judgment 'in the highest court of the State in which a decision in the suit could be had'; second, because there was not properly drawn in question below 'the validity of a treaty or statute of, or an authority exercised under the United States' or '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.' Judicial Code, 237, Act Sept. 6, 1916, c. 448, 2, 39 Stat. 726 (Comp. St. 1214); Coon v. Kennedy, 248 U.S. 457 , 39 Sup. Ct. 146; Godchaux Co. v. Estopinal, 251 U.S. 179 , 40 Sup. Ct. 116, 64 L. Ed . --, decided December 22, 1919
The trial court, proceeding without jury, gave judgment for rentals due the Linotype Company under written lease of a machine, etc. The Springfield Court of Appeals affirmed that action. 181 S. W. 1183. Thereupon the Supreme Court took jurisdiction by writ of certiorari, rendered an opinion, quashed the judgment of affirmance, and remanded the cause to the Court of Appeals for decision. 271 Mo. 475, 196 S. W. 1132.
Following the Supreme Court's opinion, the Court of Appeals ordered the judgment of the trial court 'reversed, annulled and for naught held and esteemed; that the said appellants be restored to all they have lost by reason of the said judgment; that the said appellants recover of the said respondent costs and charges herein expended, and have execution therefor.' A motion there for rehearing having been overruled, without more, this writ of error was sued out.
The assignments of error here challenge the validity of sections 3037- 3040 and section 3342, Revised Statutes of Missouri 1909, because in conflict with the Federal Constitution. This claim was first set up in the Court of Appeals upon the motion for rehearing. [251 U.S. 256, 258] The Missouri Constitution (article 6, 8, Amend. of 1884) gives the Supreme Court 'superintending control over the courts of appeals by mandamus, prohibition, and certiorari,' and provides (article 6, 6, Amend. 1884) that--
In State ex rel. v. Ellison, 268 Mo. 225, 238, 186 S. W. 1075, 1078, a proceeding upon certiorari, and court declared:
See, also, State ex rel. v. Ellison, 269 Mo. 151, 190 S. W. 274; Schmohl v. Travelers' Ins. Co. (Mo.) 197 S. W. 60.
In the present cause, the Supreme Court said:
Under the Missouri practice and circumstances here disclosed, we think the judgment of the Springfield Court of Appeals was final within the meaning of section 237, Judicial Code. No suggestion is made that further review by the Supreme Court could be had, as matter of discretion or otherwise.
The only ground mentioned in the assignments of error upon which this writ could be sustained is conflict between specified sections of the Missouri statutes relating to transactions by foreign corporations and the Federal Constitution. But this point came too late, being first [251 U.S. 256, 259] advanced below on the motion for rehearing. Godchaux Co. v. Estopinal, supra.
The claim that the lease contract was made in course of interstate commerce and therefore not subject to state statutes, was insufficient to challenge the validity of the latter; at most it but asserted a 'title, right, privilege, or immunity' under the Federal Constitution which might afford basis for certiorari but constitutes no ground for writ of error from this Court.