Appellant files an amended motion asking this court to grant a stay of mandate herein for sixty days so that his application for a writ of certiorari to the Supreme Court of the United States for review of our decision herein, can be acted upon. It is stated in the motion that the presiding judge of this court being of opinion that no Federal question is involved, refused to grant a writ or error herein, hence the necessity for certiorari and for this motion.
Appellant accompanies his motion by a copy of his petition for the writ of certiorari addressed to the Supreme Court of the United States, and our decision on this motion will necessarily call for some expression of our views relative thereto. *Page 332
A necessary predicate to invoke Federal review is that the state court have been first given opportunity to pass on the question as to whether there was involved in the particular matter any Federal question. Coffee v. Groover, 123 U.S. 1; Illinois Cent. R. R. v. Mulberry Coal Co., 238 U.S. 275; Cincinnati, etc., Ry. Co. v. Slade, 216 U.S. 78; Winona, etc., Land Co. v. Minnesota, 159 U.S. 540; Bolin v. Nebraska,176 U.S. 83; Erie Ry. Co. v. Purdy, 185 U.S. 148. This is always true when required under the practice of the particular state. Miller v. Texas, 153 U.S. 535.
While applicant claims that two Federal questions are presented in his petition for certiorari, but one of these was asserted as involving a Federal question when his cause was before the state court, viz: that the act of the legislature in creating a commission to aid the Court of Criminal Appeals of Texas, deprived applicant of a trial under the due process guaranteed by the Fifth Amendment to the Constitution of the United States. The other contention of applicant in his said petition, viz: that the statute defining aggravated assault and that creating the offense of assault with prohibited weapons, are in conflict, was presented to this court in the motion for rehearing herein, but not as in any way contrary to or violative of any Federal statute or provision of the Federal Constitution, and when before us the matter was not considered from any angle as raising a Federal question.
As to the claim of applicant that the legislature by its act creating a commission to aid this court, in any sense destroyed or affected the court's power or right to pass upon appeals regularly before it, and that one whose case on appeal was decided both on original presentation and rehearing, by members of the court itself, without act, interference or intervention of the members of the commission, was thus deprived of a trial in accordance with due process of the law of the land — seems to this court to present so little likelihood of being held by the Supreme Court of the United States as raising a Federal question, that we would not feel warranted in granting a stay of the mandate herein.
As stated above, the supposed conflict of the two state statutes referred to was not presented in this court as involving a Federal question, but if it had, this court would likely have held that a decision of the question of such conflict did not involve a Federal question. This would be our construction of the numerous decisions on that point handed down by the *Page 333 Supreme Court of the United States. Leeper v. Texas,139 U.S. 462; Smith v. Jennings, 206 U.S. 276; Medberry v. Ohio.65 U.S. 413; Layton v. Missouri, 187 U.S. 356. Proper construction of the constitution and laws of a state is not for the Supreme Court Bimetallic Inv. Co. v. State Board of Equalization, 36 S. Ct. 141. The meaning derived by construing together several state statutes is conclusive on the Federal Supreme Court. Int. Harvester Co. v. Kentucky, 234 U.S. 216. The construction of a state statute is not a Federal question. Johnson v. Life Ins. Co. 187 U.S. 491. When the applicability of one state statute depends on the construction of another such law, the state court's action presents no Federal question. Powell v. Brunswick, 150 U.S. 433.
It would seem under ordinary rules of construction that if this court had concluded the two statutes in irreconcilable conflict, it would have given effect to the one last enacted as having by implication repealed the first.
Being unable to agree that applicant's petition for certiorari presents any Federal question, and in view of the fact that if the Supreme Court of the United States is of a different view it has the power to stay the proceedings herein, the applicant's motion will be denied.
Motion denied.