PETITION EOR REHEARING.
Per Curiam.In support of their petition for a rehearing, counsel for appellees have urged the same matters that were previously heard. Further consideration of the iriiportant question involved has not resulted in a change of our views.
In an additional brief in support of the application, for the first time the point is made that, inasmuch as they made their appropriation of water .in accordance with the pro*379visions of the statute in question, and relying upon the same as valid, incurred expenses and made investments upon the strength of it, and since the legislative and executive departments of the state have recognized its validity since its passage, the appellees have acquired a vested right to their appropriation which, after it was so perfected, it is as much beyond the power of this court, as it would be of the legislature, to destroy; and that, if the decision in this case holding unconstitutional the statute should now be applied to them, the practical effect would be to impair the obligation of a contract between appellees and the state which was virtually entered into when appellees made their appropriation upon the faith of the validity of the law.
In passing it is pertinent to remark that the supreme court of the United States has held that to “ come within the provision of the constitution of the United States, which declares that no state shall pass any law impairing the obligation of contracts, not only must the obligation of a contract have been impaired, but it must have been impaired by some act of the legislative power of the state, and not by a decision of its judicial department only.” Central Land Co. v. Laidley, 159 U. S. 103. But we shall not enter upon the investigation of this question, or make any determination concerning it, for, under well recognized rules of practice, the appellees cannot in a petition for rehearing for the first time raise a new question. Neither in the trial court nor in this court at the original hearing was any such question mooted, and it cannot now be injected into the case. Orman et al. v. Ryan et al., 25 Colo. 383, and cases therein cited.
Learned counsel request, if we adhere to our former opinion, that we make the proper certificate that a federal question has been presented so that it may be reviewed upon writ of error from the supreme court of the United States. If, in a proper case, a certificate be necessary, we cannot give it in this case, for we have just decided that the federal question attempted to be raised was presented too late for our consideration. Moreover, if we should comply with the *380request and make the desired certificate — which we would gladly do if it was proper — it would not avail appellees, though perhaps it is not for us, but for the federal court, so to determine. For when, in the state court, “ the federal question is suggested for the first time in a petition for rehearing after judgment, it is not properly raised, so as to authorize the supreme court of the United States to review the decisions of the highest court of the state.” Bushnell v. Crooke Mining Co., 148 U. S. 682; Desty’s Federal Procedure (9th ed.), § 223; Texas, etc., Ry. v. Southern Pac. Co., 137 U. S. 48; Butler v. Gage, 138 U. S. 52; Leeper v Texas, 139 U. S. 462.
The petition for rehearing will be denied, and it is so ordered.