Where the validity of a state revenue statute itself is not
drawn in question, but plaintiff in error contends that he was
denied due process of law because state officers acting thereunder
did not fully comply with the statute, only questions of local law
and fact are involved, and the determination of the state court is
not reviewable on writ of error by this court.
It is too late to raise federal question.s on petition for
rehearing to the highest court of the state unless the petition is
entertained and the point passed on.
This was a suit to quiet title to certain real estate, brought
in the Superior Court of King County, Washington, by Sarah Woodward
and Sarah Woodward as executrix of Henry S. Woodward, against H. C.
Taylor and others. Sarah Woodward resigned her letters as
executrix, and John H. McGraw was appointed administrator with the
will annexed, and thereupon was made a co-plaintiff. The superior
court entered
Page 199 U. S. 275
a decree of dismissal and plaintiffs took the cause by appeal to
the Supreme Court of Washington, which affirmed the judgment. 33
Wash. 1. A petition for rehearing was filed and denied. 33 Wash.
11. Henry French was substituted as appellant, and he brought this
writ of error.
The case is stated by the supreme court thus:
"Several causes of action are alleged in the complaint. Each
cause is to set aside a separate deed to the property in question.
It is necessary to notice only the first cause alleged. For some
time prior to the year 1891, Sarah Woodward was a nonresident of
the State of Washington, and is still such nonresident. She was the
owner of lot 8, in block 11, Maynard's plat to the City of Seattle.
This property was assessed for general, state, and county taxes for
the year 1891, in the name of C. Winehill. It does not appear that
the taxing officers knew, when the assessment was made, that the
property belonged to Mrs. Woodward. Subsequently the taxes for that
year became delinquent, and the property was sold in 1894, under
the provisions of the Revenue Act of 1893. . . . The County of King
became the purchaser. Subsequently the county transferred the
certificate of sale to the respondents, who thereafter obtained a
tax deed. At the trial of the cause, the lower court held that this
tax deed conveyed a valid title, and dismissed the action. The
points relied upon by appellants to secure a reversal are that the
property was not assessed in the name of the owner, that no notice
of the sale, or of the expiration of the time of redemption, or of
the application for a deed, was given to the owner, and that
therefore the respondents acquired no title to the land by virtue
of the sale and tax deed. "
Page 199 U. S. 276
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
We understand it to be conceded, as it must be, that no federal
question was raised on the record prior to judgment unless by the
eleventh clause of paragraph V of the first cause of action set
forth in the complaint. The paragraph asserted in substance the
invalidity of the tax deed in that the names of the real owners of
the property were not given and the name of a person was given as
owner who was not such; that the return of the assessor was
insufficient; that the certificate of the county auditor was not
attached to each book containing the tax list; that the delivery of
the assessment rolls to the county treasurer was not strictly in
compliance with law; that the names of the real owners were not
given in the "Tax Judgment Sales, Redemption, and Forfeiture
Record;" that the certificate of purchase was insufficient; that
personal notice of the application for the tax deed was not given;
that the affidavit of notice was insufficient; that Taylor had not
paid all the previous taxes; that the signature to the tax deed was
not sufficient. Copies of certificates, affidavit, etc., were set
out with these specifications.
Then followed subdivision eleven:
"That all the proceedings in this paragraph hereinbefore
enumerated was and were in violation of Article V and the first
section of Article XIV of the amendments to the Constitution of the
United States, and of section eleven of Article I of the
Constitution of the State of Washington, in this: that they
constituted an attempt to deprive plaintiffs of their property
without due process of law."
The second class of cases in which the judgments and decrees of
state courts may be reexamined here under ยง 709, Rev.Stat.,
consists of those
"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
Page 199 U. S. 277
their validity."
Clause eleven, thrown into paragraph V, does not allege that the
tax acts of the State of Washington for 1889, 1890, 1891, or 1893
are in themselves in conflict with the Constitution of the United
States. Their validity was not drawn in question. Nor was the
validity of an authority exercised under the State of Washington,
for the power to hear and determine cases is not the kind of
authority referred to.
Bethell v.
Demaret, 10 Wall. 537. It is certain acts of county
officers and of defendants in error that are attacked by the clause
as unconstitutional.
Indeed, counsel for plaintiff in error says in his brief that he
does not contend "that the act itself is not sufficient to give due
process," but he insists "that the manner of observance of that act
is want of due process" -- in other words, that the statutes had
not been complied with. But the state supreme court held that the
acts provided for taxation
in rem; that notice was given
as required; that giving the name of the owner was not essential to
the validity of the assessment, and that the county officers and
defendants in error had fully complied with the laws. So that
subdivision eleven, in attacking the proceedings, only objects to
the determination of questions of local law or of fact, not in
themselves reviewable here.
Castillo v. McConnico,
168 U. S. 674,
168 U. S. 683;
Leigh v. Green, 193 U. S. 79.
In
Castillo v. McConnico, in which it was held that it
was not the province of the court to interfere with the policy of
the revenue laws of the states, nor with the interpretation given
to them by their courts, and that an assessment could not be
regarded as not constituting due process of law within the
Fourteenth Amendment because of error as to the name of the owner,
if the state law might have dispensed with any requirement of
mention of the name, Mr. Justice White said:
"The vice which underlies the entire argument of the plaintiff
in error arises from a failure to distinguish between the
essentials of due process of law under the Fourteenth Amendment,
and matters which may or may not be essential under the terms of a
state assessing or taxing law. The two are
Page 199 U. S. 278
neither correlative nor coterminous. The first -- due process of
law -- must be found in the state statute, and cannot be departed
from without violating the Constitution of the United States. The
other depends on the lawmaking power of the state; and, as it is
solely the result of such authority, may vary or change as the
legislative will of the state sees fit to ordain. It follows that
to determine the existence of the one -- due process of law -- is
the final province of this Court, whilst the ascertainment of the
other -- that is, what is merely essential under the state statute
-- is a state question, within the final jurisdiction of courts of
last resort of the several states. When, then, a state court
decides that a particular formality was or was not essential under
the state statute, such decision presents no federal question,
providing always that the statute as thus construed does not
violate the Constitution of the United States by depriving of
property without due process of law. This paramount requirement
being fulfilled, as to other matters the state interpretation of
its own law is controlling and decisive."
In
Leigh v. Green, it was held that a statute providing
for taxation
in rem was constitutional; that summary
methods of seizure and sale could be had; that the court, having
jurisdiction over the
res, might proceed to adjudicate the
right to the property; that the same could be sold and that a tax
deed issued thereunder would be valid, and that such proceedings
did not abridge the protection guaranteed by the Constitution
against the taking of property without due process of law.
And this being so, it cannot be successfully contended that the
right to due process of law under the Fourteenth Amendment was
specially set up or claimed by this eleventh clause, and denied by
the state supreme court.
It is said that federal questions were raised on a petition for
rehearing; but this is denied, and the petition is not in the
record. But if it were true, the suggestion came too late, though
if the supreme court had considered and decided such alleged
federal questions, we could take jurisdiction; but the
Page 199 U. S. 279
court did not do so. So as to the petition for writ of error
from this Court, or the assignments of error here. They form no
part of the record on which it is to be ascertained whether the
state court decided a federal question.
We are of opinion that no federal question was raised at the
proper time and in the proper way, and, moreover, that no federal
question was involved or decided.
Writ of error dismissed.
