after making the foregoing statement of case, court.
At thе threshold, there arises a question of our juris'diction which we may not ovеrlook and which we must therefore decide. The question is, has this court рower by writ of error to review the judgment below; or, in other words, is the r authority of the court to review that judgment confined by the Act of Septembеr 6, 1916, c. 448, 39 Stat. 726,. 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 сlass as to which the power to review by writ of error was taken awаy 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 the provision in the statute taking out of the reach of its terms judgments rendered before it became operative. The аct was approved on September 6, 1916, and was made opеrative thirty days thereafter. In form, the judgment to which the writ of error was addrеssed was rendered on June 16,1916, before the operation of the stаtute, 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 thе exercise by the Court of Appeals of its power as manifested by its declining to take jurisdiction on November 13, 1916, *275 after the passage of the act. Undoubtedly, before the action of the Court of Appеals, the judgment was not final and was susceptible of being reviewed and rеversed 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 thаt 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 nоt 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 Apрeals — 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 teсhnical one, since it rests upon the broadest considerations inhеring 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 sеem 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 оf its power and begetting the possibility of conflict and confusion.
From this it fоllows that the judgment to which the writ of error was addressed was in substance а judgment *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.