This Court cannot review the final judgment of the highest court
of a state even if it denied some title, right, privilege or
immunity of the unsuccessful party, unless it appear from the
record that such title, right, privilege or immunity was "specially
set up or claimed" in the state court as belonging
Page 166 U. S. 649
to such party under the Constitution or some treaty, statute,
commission or authority of the United States. Rev.Stat. § 709.
The words "specially set up or claimed" in that section imply
that if a party in a suit in a state court intends to invoke for
the protection of his rights the Constitution of the United States
or some treaty, statute, commission or authority of the United
States, he must so declare, and unless he does so declare
"specially" -- that is, unmistakable -- this Court is without
authority to reexamine the final judgment of the state court. This
statutory requirement is not met if such declaration is so general
in its character that the purpose of the party to assert a federal
right is left to mere inference.
The case is stated in the opinion.
MR. JUSTICE HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
This writ of error brings up for review a final judgment of the
Supreme Court of Missouri reversing a judgment of the Circuit Court
of the City of St. Louis, Missouri, setting aside and declaring to
be null and void certain conveyances of lands in Butler county,
Missouri, and quieting the title thereto of the present plaintiffs
in error.
It is contended on behalf of the defendants in error, who were
defendants below, that under the statutes regulating the
jurisdiction of this Court, we have no authority to reexamine that
judgment.
It appears from the petition that the lands in controversy were
part of the lands granted to Missouri by the Swamp Land Act of
1850, 9 Stat. 519, c. 84, and were subsequently, in 1857, patented
by the state to the Cairo & Fulton Railroad Company, a Missouri
corporation, in payment of a subscription to the capital stock of
that company by the County of Butler, Missouri, which subscription
was made under the authority of the state; that, in payment of
certain bonds
Page 166 U. S. 650
issued by it, the railroad company, on the 23d of May, 1857,
conveyed the lands in question, with other lands, to John Moore,
John Wilson, and A.G. Waterman, as trustees; that in 1871 Chouteau,
having become the owner of the greater portion of such bonds,
brought suit in the Circuit Court of Mississippi County, Missouri,
for the foreclosure of the above deed of trust, in which suit there
was a decree for the defendants; that such decree was reversed by
the Supreme Court of Missouri and a decree of foreclosure directed
to be entered; that the lands were accordingly sold by a
commissioner, Chouteau becoming the purchaser, and that afterwards,
on the 19th day of November, 1886, Chouteau conveyed the same, with
other lands, to the plaintiffs in error.
The petition also alleged that the County of Butler, November 7,
1866, filed in the Circuit Court of Butler County its petition
against the Cairo & Fulton Railroad Company, and Moore, Wilson,
and Waterman, trustees as aforesaid, for the purpose of cancelling
and setting aside the patent from the state to the Cairo &
Fulton Railroad Company, as well as the deed of trust from the
railroad company to Moore, Wilson, and Waterman, trustees; that in
that suit,
"service was attempted to be had by publication, the plaintiffs
in said cause alleging that the said Moore, Waterman, and Wilson
were nonresidents of the State of Missouri; that in the said
proceeding the said Cairo & Fulton Railroad Company were
brought in, as was pretended, by personal service. But your
complainants herein here aver, charge, and show the fact to be that
the service in said cause, the pretended appearance of the
defendants by their attorney and in their own proper persons, was
in fact a fraud and deception imposed upon the circuit court trying
said cause; that in truth and in fact the said Waterman, previous
to the bringing of said action in said circuit court, and said
Moore, soon after the bringing of said action and before service
upon him therein had been obtained, had departed this life, and
their successors in said trust, and as trustees, had been appointed
in pursuance to the provisions of the said deed of trust; that in
consequence of their said deaths, and the appointment of their
successors as such trustees as aforesaid, no service
Page 166 U. S. 651
was had in said cause, the new trustees were not made parties,
were not served with process, and had no notice of proceedings,
although necessary and proper parties; the other defendant in said
cause,
viz., the said Cairo & Fulton Railroad Company,
was not a necessary or proper party, as by the foreclosure of the
state lien on said railroad, under what is known as the 'Sell-Out
Act,' and the purchase of said railroad under said sale, the said
company, before the commencement of said suit, was dissolved and
had ceased to exist, and could not legally be made a party to said
proceedings; that the only party defendant to said proceedings that
was in fact present or pretending to make a defense in said action
was Green L. Poplin, who had at one time been the President of the
said railroad company, but long previous to the bringing of said
suit had ceased to be connected with the said Cairo & Fulton
Railroad Company in any capacity whatever, but was in fact acting
in collusion with the attorneys and agents of said Butler County to
aid said Butler County and its attorneys to avoid and disregard
their said contract with the Cairo & Fulton Railroad Company.
And these complainants aver and charge the fact to be that
notwithstanding the fact that the said circuit court proceeded to
find the issues in said case, for the said County of Butler, and to
decree that the said deed from the State of Missouri to the Cairo
& Fulton Railroad Company, and the deed of trust from said
railroad company to the said Moore, Waterman, and Wilson, be
cancelled, set aside, and for naught held, and that the interest of
the defendants therein be divested out of them, and invested in
said County of Butler; that all said pretended proceedings were
null, void, and of no effect whatever on account of the collusion
of the parties thereto, and because the parties holding the title
under said deed of trust in trust for the holders of the bonds of
the said Cairo & Fulton Railroad Company were not parties to
said suit, and did not appear thereto, either in person or by
attorneys, and because neither the said bondholders nor their
assigns were in court by service of process or otherwise."
It was further alleged that, in the year 1863, a number of
judgments were obtained in the Circuit Courts of Mississippi
Page 166 U. S. 652
County, Missouri, against the railroad company, and part of the
lands in controversy were sold under execution, various persons
becoming the purchasers and receiving conveyances. The petition
sets out various sales of lands embraced in the above deed of
trust, and makes defendants numerous parties who were in possession
claiming title, including the St. Louis, Iron Mountain &
Southern Railroad Company. The petition avers that in the several
suits in the Butler Circuit Court, the railroad company
"was the only defendant. Neither said trustee nor the
bondholders were made parties to said suits; neither did they in
any way have notice thereof, or appear therein by attorney or
otherwise, and whatever rights said judgment creditors acquired by
reason of their said several judgments, and whatever title the said
purchaser at said sheriff's sale made under said judgments acquired
were subject and subservient to the said first deed and the rights
of the bondholders of said Cairo & Fulton Railroad Company. The
purchasers at said foreclosure proceeding under the decree of the
supreme court took a paramount and superior title to all said
parties and purchasers at said sheriff's sale. That the said
sheriff's deeds made to the purchasers at said execution sales
conveyed no title to the said purchaser, as against the prior lien
of the said trustees under said trust deed,"
etc.
In the court of original jurisdiction, the issues were found for
the plaintiffs. Some of the defendants moved to set aside the
finding a judgment upon these general grounds: because the court
erred in admitting improper, illegal, irrelevant, and incompetent
evidence, and in rejecting proper, legal, relevant, and competent
evidence; in refusing to sustain defendants' demurrer to the
plaintiffs' evidence offered at the close of plaintiffs' case; in
finding the issues in favor of the plaintiffs, and in rendering a
decree in their favor, and because the decree was against the
weight of the evidence. The motion for new trial was overruled, and
the cause was carried to the Supreme Court of Missouri upon the
appeal of the County of Butler and others. By the latter court, the
judgment was reversed and the cause remanded to the Circuit Court
of the City of St.
Page 166 U. S. 653
Louis with instructions to enter a final decree dismissing the
bill.
The opinion of the Supreme Court of Missouri is reported in 121
Mo. 614.
We have made a full statement of the case because of the earnest
contention of the plaintiffs in error that this Court has authority
to reexamine the final judgment of the Supreme Court of
Missouri.
This Court may reexamine the final judgment of the highest court
of a state when the validity of a treaty or statute of, or an
authority exercised under, the United States is "drawn in question"
and the decision is against its validity, or when the validity of a
statute of, or an authority exercised under, any state, is "drawn
in question" on the ground of repugnancy to the Constitution,
treaties, or laws of the United States, and the decision is in
favor of its validity. But it cannot review such final judgment,
even if it denied some title, right, privilege, or immunity of the
unsuccessful party, unless it appear from the record that such
title, right, privilege, or immunity was "specially set up or
claimed" in the state court as belonging to such party under the
Constitution or some treaty, statute, commission, or authority of
the United States. Rev.Stat. § 709.
Looking into the record, we do not find that any reference was
made in the court of original jurisdiction to the Constitution of
the United States. Nor can it be inferred from the opinion of the
Supreme Court of Missouri that that court was informed by the
contention of the parties that any federal right, privilege, or
immunity was intended to be asserted. For aught that appears, the
state court proceeded in its determination of the cause without any
thought that it was expected to decide a federal question.
The Supreme Court of Missouri properly said that only two
questions were presented by the record for its determination:
"First. Were the subscriptions by the county courts (county and
district) of Butler County to the stock of the Cairo & Fulton
Railroad Company, and the conveyance of the swamp lands of that
county to said railroad in satisfaction of said
Page 166 U. S. 654
subscriptions, authorized by law? Second. Ought the decree of
the Circuit Court of Butler County annulling the conveyance of said
lands be set aside for the reasons urged by the plaintiffs, to-wit,
first, because procured by fraud. and second because two of the
defendants named in it were dead at the time of its rendition, and
the railroad company a dissolved corporation?"
Whether the subscriptions by the County Court of Butler County
to the stock of the railroad company and the conveyance to that
company were valid, and whether the decree which the plaintiffs
sought to have declared void was obtained by fraud were questions
of local law or practice in respect of which the judgment of the
state court was final.
The only remaining question was not otherwise raised than by the
general allegation that the decree was rendered against dead
persons, as well as in the absence of necessary parties, who had no
notice of the suit and therefore no opportunity to be heard in
vindication of their rights. Do such general allegations meet the
statutory requirement that the final judgment of a state court may
be reexamined here if it denies some title, right, privilege, or
immunity "specially set up or claimed" under the Constitution or
authority of the United States? We think not. The specific
contention now is that the decree of the Butler County Circuit
Court in the suit instituted by the County of Butler was not
consistent with the due process of law required by the Fourteenth
Amendment of the Constitution of the United States. But can it be
said that the plaintiffs specially set up or claimed the protection
of that amendment against the operation of that decree by simply
averring -- without referring to the Constitution or even adopting
its phraseology -- that the decree was passed against deceased
persons, as well as in the absence of necessary or indispensable
parties?
This question must receive a negative answer if due effect be
given to the words "specially set up or claimed" in § 709 of the
Revised Statutes. These words were in the twenty-fifth section of
the Judiciary Act of 1789, 1 Stat. 85, and were inserted in order
that the revisory power of this Court
Page 166 U. S. 655
should not extend to rights denied by the final judgment of the
highest court of a state, unless the party claiming such rights
plainly and distinctly indicated, before the state court disposed
of the case, that they were claimed under the Constitution,
treaties, or statutes of the United States. The words "specially
set up or claimed" imply that, if a party intends to invoke for the
protection of his rights the Constitution of the United States, or
some treaty, statute, commission, or authority of the United
States, he must so declare, and unless he does so declare
"specially" (that is, unmistakably), this Court is without
authority to reexamine the final judgment of the state court. This
statutory requirement is not met if such declaration is so general
in its character that the purpose of the party to assert a federal
right is left to mere inference. It is the settled doctrine of this
Court that the jurisdiction of the circuit courts of the United
States must appear affirmatively from the record, and that it is
not sufficient that it may be inferred argumentatively from the
facts stated. Hence, the averment that a party resides in a
particular state does not import that he is a citizen of that
state.
Brown v.
Keene, 8 Pet. 115;
Robertson v. Cease,
97 U. S. 646,
97 U. S. 649.
Upon like grounds, the jurisdiction of this Court to reexamine the
final judgment of a state court cannot arise from mere inference,
but only from averments so distinct and positive as to place it
beyond question that the party bringing a case here from such court
intended to assert a federal right.
As the argument at the bar indicated some misapprehension as to
our decisions upon this subject, it will be appropriate to refer to
some of them.
In
Maxwell v.
Newbold, 18 How. 511,
59 U. S. 516,
which was a writ of error to the Supreme Court of Michigan, this
Court, speaking by Chief Justice Taney and referring to the
twenty-fifth section of the Judiciary Act of 1789 and the
interpretation placed upon it in
Crowell v.
Randall, 10 Pet. 368, said:
"Applying this principle to the case before us, the writ of
error cannot be maintained. The questions raised and decided in the
state circuit court point altogether for their solution to the laws
of the state, and make no reference whatever to the Constitution or
laws of the United States. Undoubtedly this did not preclude the
plaintiffs in error from raising the point in the supreme court of
the state if it was involved in the case as presented to that
court. And whether a writ of error from this Court will lie or not
depends upon the questions raised and decided in that court. But
neither of the questions made there by the errors assigned refer in
any manner to the
Page 166 U. S. 656
Constitution or laws of the United States except the third, and
the language of that is too general and indefinite to come within
the provisions of the act of Congress or the decisions of this
Court. It alleges that the charge of the court was against, and in
conflict with, the Constitution and laws of the United States. But
what right did he claim under the Constitution of the United States
which was denied him by the state court? Under what clause of the
Constitution did he make his claim? And what right did he claim
under an act of Congress? And under what act, in the wide range of
our statutes, did he claim it? The record does not show; nor can
this Court undertake to determine that the question as to the faith
and credit due to the record and judicial proceedings in Ohio was
made or determined in the state court, or that that court ever gave
any opinion on the question. For aught that appears in the record,
some other clause in the Constitution, or some law of Congress, may
have been relied on, and the mind of the court never called to the
clause of the Constitution now assigned as error in this
Court."
After stating the grounds upon which the decision in
Lawler v.
Walker, 14 How. 149, were placed, the Court
proceeded:
"So in the case before us, the clause in the Constitution and
the law of Congress should have been specified by the plaintiffs in
error in the state court in order that this Court might see what
was the right claimed by them, and whether it was denied to them by
the decision of the state court."
In
Hoyt v.
Sheldon, 1 Black 518,
66 U. S. 521 (a
writ of error to review the final judgment of a New York court), it
was contended that full faith and credit was not given by that
court to certain legislative enactments and judicial proceedings in
the courts of New Jersey, as required by the Constitution of
Page 166 U. S. 657
the United States. This Court, again speaking by Chief Justice
Taney, said:
"But, in order to give this Court the power to revise the
judgment of the state court on that ground, it must appear upon the
transcript filed by the plaintiff in error that the point on which
he relies was made in the New York court, and decided against him,
and that this section of the Constitution was brought to the notice
of the state court, and the right which he now claims here claimed
under it. The rule upon this subject is clearly and fully stated in
59
U. S. 18 How. 511,
59 U. S.
515,
Maxwell v. Newbold, as well as in many
other cases to which it is unnecessary to refer. This provision of
the Constitution is not referred to in the plaintiff's bill of
complaint in the state court, nor in any of the proceedings there
had. It is true, he set out the act of the Legislature of New
Jersey, the proceedings and decree of the Chancery Court of that
state under it, and the sale of the property in dispute by the
authority of the court, which he alleges transferred the title to
the vendee under whom he claims, and charges that the assignment
set up by the defendants was fraudulent and void for the reasons
stated in his bill. But all of the matters put in issue by the bill
and answers, and decided by the state court, were questions which
depended for their decision upon principles of law and equity, as
recognized and administered in the State of New York, and without
reference to the construction or effect of any provision in the
Constitution, or any act of Congress. This Court has no appellate
power over the judgment of a state court pronounced in such a
controversy, and this writ of error must therefore be dismissed for
want of jurisdiction."
If there has been any modification of the views expressed in the
two cases just cited, it has been only in the particular that it is
not always necessary to refer to the precise words or to the
particular section of the Constitution under which some right,
title, privilege, or immunity is claimed, and that it is sufficient
if it appears affirmatively from the record that a right, title,
privilege, or immunity is specially set up or claimed under that
instrument, or under the authority of the United States.
Page 166 U. S. 658
The question was again examined in
Sayward v. Denny,
158 U. S. 180,
158 U. S.
183-184,
158 U. S. 186. It
was stated in that case (THE CHIEF JUSTICE delivering the opinion
of the Court) that certain propositions must be regarded as
settled, among which were that "the title, right, privilege, or
immunity must be specially set up and claimed at the proper time
and in the proper way," and that
"the right on which the party relies must have been called to
the attention of the court in some proper way, and the decision of
the court must have been against the right claimed,"
citing in support of the first of these propositions
Miller
v. Texas, 153 U. S. 535, and
Morrison v. Watson, 154 U. S. 111,
154 U. S. 115,
and in support of the second proposition the above cases of
Hoyt v. Sheldon and
Maxwell v. Newbold. THE CHIEF
JUSTICE said:
"The contention is that the result of the rulings and decisions
of the trial court in these respects, as affirmed by the supreme
court, was to hold plaintiff in error conclusively bound by the
judgment rendered against Crawford in an action 'in which he was
not a party, and of which he had no notice,' and that this was, in
effect, to deprive him of his property without due process of law,
or to deny him the equal protection of the laws, and amounted to a
decision adverse to the right, privilege, or immunity of plaintiff
in error, under the Constitution, of being protected from such
deprivation or denial. But it nowhere affirmatively appears from
the record that such a right was set up or claimed in the trial
court when the demurrer to the complaint was overruled, or evidence
admitted or excluded, or instructions given or refused, or in the
supreme court in disposing of the rulings below. . . . We are not
called on to revise these views of the principles of general law
considered applicable to the case in hand. It is enough that there
is nothing in the record to indicate that the state courts were led
to suppose that plaintiff in error claimed protection under the
Constitution of the United States from the several rulings, or to
suspect that each ruling, as made, involved a decision against a
right specially set up under that instrument."
In harmony with these views, we said at the present term, in
Chicago & Northwestern
Railway Co. v. Chicago, 164 U.S.
Page 166 U. S. 659
454,
164 U. S.
457:
"It is assigned in this Court for error that the judgment of the
court of original jurisdiction had the effect to deprive the
railroad company of its property without due process of law, in
violation of the Fourteenth Amendment of the Constitution of the
United States. But the record does not show that the company
specially set up or claimed in the state courts, or either of them,
any right under the Constitution of the United States. It does not
appear that the attention even of the trial court was called to the
fact that the company, in any form or for any purpose, invoked the
protection of that instrument. Nor does it appear from the record
that any federal right was specially set up or claimed in the
supreme court of the state."
Our attention is called by the plaintiffs in error to
Armstrong v.
Treasurer, 16 Pet. 281;
Bridge
Proprietors v. Hoboken Co., 1 Wall. 116, 140
[argument of counsel -- omitted];
Chicago Ins. Co. v.
Needles, 113 U. S. 574, and
Des Moines Navigation Co. v. Iowa Homestead Co.,
123 U. S. 552, as
establishing the jurisdiction of this Court in the present case.
Interpreting the general language in the opinions in some of these
cases in the light of the facts presented by them, it is clear that
no one of them supports our jurisdiction to reexamine the judgment
now before us.
In
Armstrong v. Treasurer, our jurisdiction was
maintained upon the ground that the state court certified "on the
record" that the validity of a statute of Ohio was drawn in
question on the ground of its repugnancy to the Constitution of the
United States, and that the decision was against the validity of
the statute. In
Bridge Proprietors v. Hoboken Co., the
Court said that the true and rational rule was that
"the court must be able to see clearly from the whole record
that a certain provision of the Constitution or act of Congress was
relied on by the party who brings the writ of error, and that the
right thus claimed by him was denied."
It was held in that case that, as the record showed that the
state court had upheld a statute of New Jersey whose validity had
been questioned as impairing the obligation of a contract, and that
as, under the pleadings, it could not have made the final judgment
complained of
Page 166 U. S. 660
without sustaining the validity of that act, this Court had
jurisdiction to reexamine that judgment. In
Chicago Life Ins.
Co. v. Needles, it was said that while the Supreme Court of
Illinois did not in terms pass upon the claim that the statutes
there in question were in derogation of rights and privileges
secured by the Constitution of the United States, our jurisdiction
could not be doubted, for the reason that the final judgment
necessarily involved an adjudication of that claim. That language
was used in a case in which it appeared from the record that the
federal right was specially set up and claimed in the inferior
state court, and reasserted in the supreme court of the state. In
Des Moines Navigation Co. v. Iowa Homestead Co., the
federal right was specially set up, because it was claimed under a
decree or judgment of a court of the United States, the validity of
which was disputed on the ground that the courts of the United
States had no jurisdiction of the suit in which it was rendered,
and therefore no legal power or authority in the premises. It is
manifest that none of these cases conflicts with the views herein
expressed.
Without further references to adjudged cases, we are of opinion
that the general allegation or claim, in different forms, that the
decree of the Butler County Circuit Court was passed against some
persons who were at the time dead, and against others who were
necessary parties, but who had no notice of the proceedings, does
not, within the meaning of § 709 of the Revised Statutes, specially
set up a right or immunity under the Fourteenth Amendment of the
Constitution of the United States, forbidding a state to deprive
any person of his property without due process of law. If it
appeared that the supreme court of the state regarded these general
allegations as asserting such federal right or immunity, and denied
the claim so asserted, our jurisdiction could be sustained. But it
does not so appear.
We are of opinion that this Court is without jurisdiction to
review the final judgment of the Supreme Court of Missouri.
Writ of error dismissed.