The federal question must be properly and seasonably set up in
the state court in order to give this Court jurisdiction to review
under § 709, Rev.Stat.
Where the state statute provides that an appeal from an order
refusing to remove a cause to the federal court must be taken
within two years, and no appeal is taken, and the highest court of
the state decides that an appeal from the judgment in the case
taken more than two years after entry of the order refusing to
remove does not bring up that order for review, the federal
question has not been properly preserved, and this Court has no
A federal constitutional objection may be waived so far as
having the right of review of a judgment in the state court is
concerned where the question is not made in the state court by
proper procedure. Harding v. Illinois, 196 U. S.
31 Ky. 500, affirmed.
The facts are stated in the opinion.
MR. JUSTICE DAY delivered the opinion of the Court.
The defendant in error, J. W. McDonald, as administrator of
Nancy J. Wilson, deceased, on March 23, 1900, brought
Page 214 U. S. 192
suit in the Lewis Circuit Court of Kentucky against the
Chesapeake & Ohio Railway Company and the Maysville & Big
Sandy Railroad Company, and certain employees of the former, to
recover damages for the alleged wrongful death of Nancy J. Wilson.
On May 29, 1900, the Chesapeake & Ohio Railway Company, a
corporation of Virginia, filed a petition for removal of the case
to the United States Circuit Court for the Eastern District of
Kentucky, and an order of removal was made accordingly. On
September 3, 1902, the case having been remanded by the United
States circuit court, it was redocketed in the state court. On
January 19, 1903, the plaintiff discontinued the action as against
the five individual defendants. On January 21, 1903, the Chesapeake
& Ohio Railway Company filed another petition to remove the
case to the United States circuit court on the ground of separable
controversy. This motion for removal was overruled by the Lewis
Circuit Court, and, thereafter, on May 19, 1904, the case went to
trial in the Lewis Circuit Court, and that court directed a verdict
for the railroad companies. Upon appeal to the Court of Appeals of
Kentucky, that judgment was reversed. 27 Ky. 778.
A second trial of the case in the Lewis Circuit Court, on
September 27, 1906, resulted in a verdict and judgment for the
defendant in error. From that judgment, an appeal was taken to the
Kentucky Court of Appeals, and it was there affirmed. 31 Ky.
The federal question attempted to be presented grows out of the
alleged error in refusing, upon the second application, to remove
the cause from the Lewis Circuit Court to the United States Circuit
Court for the Eastern District of Kentucky.
The right to review a judgment of a state court by error
proceedings in this Court is regulated by § 709 of the Revised
Statutes of the United States. To lay the foundation for such right
of review, it is necessary to bring the federal question in some
proper manner to the consideration of the state court whose
judgment it is sought to review; if this is not done, the federal
question cannot be originated by assignments of error
Page 214 U. S. 193
in this Court. The federal right asserted in this case comes
within the third class named in § 709 of the Revised Statutes,
wherein a right, title, privilege, or immunity is claimed under the
United States, and the decision is against such right, title,
privilege, or immunity. In this class of cases, the statute
requires that such right or privilege must be specifically set up
and claimed in the state court, and in any of the classes of cases
mentioned in § 709 it is essential that the record disclose that
the federal question involved was decided, or that the judgment
necessarily involved the federal right, and decided it adversely to
the claim of the plaintiff in error. Columbia Water Power Co.
v. Columbia Street Ry., 172 U. S. 475
Fowler v. Lamson, 164 U. S. 252
Clarke v. McDade, 165 U. S. 168
165 U. S. 172
Capital City Dairy Co. v. Ohio, 183 U.
, 183 U. S. 248
In the latter case, this Court said:
"It is settled that this Court, on error to a state court,
cannot consider an alleged federal question when it appears that
the federal right thus relied upon had not been, by adequate
specification, called to the attention of the state court, and had
not been by it considered, not being necessarily involved in the
determination of the cause. Green Bay & Miss. Canal Co. v.
Patten Paper Co., 172 U. S. 58
, 172 U. S.
; Oxley Stave Co. v. Butler County,
166 U. S.
, 166 U. S. 654
-655, and cases
In the opinion of the Kentucky Court of Appeals in this case,
the question of the correctness of the order of removal is not
considered, nor is there anything in the record to indicate that
the alleged error in refusing to remove the case on the second
application was brought to the attention of the Kentucky Court of
Appeals. In this Court, the assignments of error concern the
alleged error in refusing to remove the case upon the second
application, and avers that the Kentucky Court of Appeals erred in
holding, in substance and effect, that the plaintiff in error had
no such right of removal. But, as we have said, the assignments of
error in this Court cannot enlarge the right of review. Moreover,
it is apparent that, if the question of the right of removal was
brought before the Kentucky
Page 214 U. S. 194
Court of Appeals upon the judgment to which this writ of error
is prosecuted, it would not have considered the question. The
refusal to remove upon the second application was in January, 1903.
The judgment which was taken to the Court of Appeals for review in
the present case was rendered on September 27, 1906.
The Kentucky Civil Code of Practice provides that an appeal from
judgments and final orders, which includes such orders as the one
now under consideration (Hall v. Ricketts,
9 Bush, 366,
370), shall not be granted except within two years after the right
of appeal first accrued. No appeal was taken from the order
refusing to remove within two years. At the time when the appeal in
the present case was made to the Kentucky Court of Appeals, it was
too late to review the order refusing to remove. In the case of
M. & B.S. R. Co. v. Willis,
31 Ky. 1249, 1252, the
Court of Appeals of Kentucky, dealing with the question, said:
"It is further insisted that it was error not to grant the
request of appellant to remove the action to the federal court.
This motion was based upon the ground that the original petition
did not state a good cause of action against either the Chesapeake
& Ohio Railway Company, which is a foreign corporation, or the
resident defendant, the Maysville & Big Sandy Railroad Company.
. . . The action of the lower court refusing to transfer the action
was made and entered in July, 1903, and it is now too late to raise
any question as to the regularity of this ruling. In fact, this
appeal is prosecuted alone from the judgment rendered in October,
1906, and under no state of case could this court review an error
of the character complained of, committed in 1903."
It is contended, however, that, if the case were a removable
one, the effect of filing a petition and bond was to divest the
jurisdiction of the state court, and this has been said in
decisions of this Court upon the subject. This does not mean,
however, that the right to review the judgment of a state court
only by proper proceedings under § 709 of the Revised Statutes
Page 214 U. S. 195
is in anywise altered or modified. When the state court, upon
the second application, refused to remove the case, it was the
privilege of the railroad company to take a transcript of the
record and make an application to file it in the federal circuit
court, and if that court sustained its jurisdiction, it might have
protected the same by injunction against further proceedings in the
state court, or, if the latter court refused to surrender the
record, a writ of certiorari could issue to require its transfer to
the circuit court of the United States (Chesapeake & O. R.
Co. v. McCabe, 213 U. S. 207
or, remaining in the state court after that court refused to
remove, it might, after final judgment, have brought the case here
for review; but this does not mean that it could have a review of
the judgment of the state court when it has failed to invoke the
judgment of that court within the time prescribed by the statute of
the state for the review of such orders. Under the statute in
Kentucky, the review of the order refusing to remove could only be
had within two years. Within that time, the plaintiffs in error
could have taken the question to the Kentucky Court of Appeals, and
if the ruling was against it, after final judgment, could have
brought the case here for review. But it could not remain in the
state court, without any attempt to have the order refusing the
removal reviewed within the statutory period, and escape its
judgment on the ground that it was void, if against it, because the
case was a removable one.
In Harding v. Illinois, 196 U. S.
, it was held that a federal constitutional objection
might be waived, so far as having the right of review of a judgment
in a state court was concerned, where the record in the case
disclosed that the question was not made in the state court by
proper procedure or argument in support of the assertion of the
federal question, and the state court had, for that reason, held
the right to review the federal question waived.
We are of the opinion that this case presents no valid exception
to the ruling of the state court upon a federal question duly
reserved by some proper form of procedure, as is required by
Page 214 U. S. 196
§ 709 of the Revised Statutes of the United States, in order to
be reviewable here.
It follows that the writ of error must be dismissed.