This Court has no general power to review or correct the
decisions of the highest state court, and in cases of this kind,
exercises a statutory jurisdiction to protect alleged violations,
in state decisions, of certain rights arising under federal
authority, and if the question is not properly reserved in the
state court, the deficiency cannot be supplied in either the
petition for rehearing after judgment or the assignment of errors
in this Court, or by the certification of the briefs which are not
a part of the record by the clerk of the state supreme court.
This Court will not reverse the judgment of a state court
holding an alleged federal constitutional objection waived where
the record discloses that no authority was cited or argument
advanced in its support and it is clear that the decision was based
upon other than federal grounds and the constitutional question was
not decided.
The facts are stated in the opinion.
Page 196 U. S. 82
MR. JUSTICE DAY delivered the opinion of the Court.
This case was submitted on briefs, together with motion to
dismiss or affirm. In support of the motion to dismiss, the
position taken is that no federal question was properly raised in
the state court, and therefore none is reviewable here.
The case was commenced in the Circuit Court of Cook County,
Illinois, to recover taxes for the years 1897, 1898, 1899, and
1900, on a block of land in the Elston Addition to the City of
Chicago. At the trial, a jury was waived, and, upon hearing, a
judgment was rendered in favor of the plaintiff for the sum of
$2,123.05. An inspection of the record shows that the principal
controversy was over the effect of a deed made by Harding, the
plaintiff in error, to the Chicago Real Estate Loan & Trust
Company, dated June 10, 1896, and recorded July 2 of the same year,
which conveyed, for the consideration of five dollars,
"all interest in the following described real estate, to-wit:
any and all lands, if every kind and description, claimed or owned
by me in the State of Illinois, and all lots and lands, of every
description, in the City of Chicago, in which I have any right,
title, or interest whatsoever, situated in the State of
Illinois,"
etc. It was the contention of the state that this deed was too
general in its terms to convey specific property, and was therefore
insufficient notice to the taxing officer of Cook County that the
ownership of the property had changed. The trial court admitted
this deed in evidence, subject to this objection. Upon appeal to
the Supreme Court of Illinois, of this deed and other evidence in
the case, that court said:
"Conceding that the deed, if it stood alone, would overcome the
prima facie case made by the plaintiff, the tax records of
Cook County for the year 1898, offered in evidence by the people,
tended to prove ownership in the defendant. The items in the tax
warrant for the year 1897 on this property were charged to him and
merged into a judgment. He appeared
Page 196 U. S. 83
in the county court and objected to the validity of the tax, but
judgment was rendered against him as owner. This was subsequent to
the date of the deed. His remedy as to that tax, if levied unjustly
against him, was by appeal.
Biggins v. People, 106 Ill.
270. As to that tax he clearly could not, in this proceeding,
attack the validity of the former judgment. Moreover, after the
date of the deed, he received the rents accruing from the property
and deposited the money so received to his personal account.
Notwithstanding the attempted explanation of that transaction, we
think the weight of the evidence is that he continued, after the
pretended conveyance, to deal with the premises as his own."
"In the light of all the evidence in the case, it is very clear
that the conveyance of June 10, 1896, was merely colorable, and not
executed with the honest purpose of conveying the absolute
ownership of the property to the grantee."
202 Ill. 122.
Much of the elaborate brief of the counsel for plaintiff in
error is devoted to a discussion of alleged errors of the Supreme
Court of Illinois in deciding questions which, it is alleged, were
not properly made, or in failing to give due weight to matters of
evidence in the record. This Court has no general power to review
or correct the decisions of the highest state court, and, in cases
if this character, exercises a statutory jurisdiction to protect
alleged violations, in state decisions, of certain rights arising
under federal authority.
Central Land Co. v. Laidley,
159 U. S. 103;
Marchant v. Pennsylvania R. Co., 153 U.
S. 380.
The proceeding was brought under section 230, chapter 120, 3
Starr & Cur.Stat. of Illinois 3501. This section provides:
"In any such suit or trial for forfeited taxes, the fact that
real estate or personal property is assessed to a person, firm, or
corporation shall be
prima facie evidence that such
person, firm, or corporation was the owner thereof, and liable for
the taxes for the year or years for which the assessment was made,
and such fact may be proved by the introduction in evidence
Page 196 U. S. 84
of the proper assessment book or roll, or other competent
proof."
It is the contention of the plaintiff in error in this Court
that this statute is unconstitutional, permitting assessment of
those who may not be the owners of the property assessed, and
consequently a violation of the protection guaranteed by the
Fourteenth Amendment to the Constitution of the United States. The
adverse holding in the state court upon this proposition is the
decision upon a federal right which, it is asserted, gives
jurisdiction to review the judgment in this Court. The motion to
dismiss raises the question whether this objection was properly
reserved in the state court. Upon the constitutionality of this
act, the Supreme Court of Illinois said:
"It is also said that the foregoing section of the statute,
under which the action is brought, is unconstitutional; but no
authorities are cited or argument advanced in support of that
assertion. The point, if it can be so considered, has therefore
been waived."
In the petition for allowance of a writ of error, and the
assignment of errors in this Court, it is alleged that the supreme
court of the state erred in holding that the constitutional
objection had been waived. And the plaintiff in error appears to
have put upon file here, without leave, the briefs and petition for
rehearing below, in which it is insisted there is sufficient to
show that the constitutional objection was not abandoned. But
neither the petition for a rehearing or petition for writ of error
in the state court after judgment, or assignments of error in this
Court, can supply deficiencies in the record of the state court, if
any exist.
Simmerman v. Nebraska, 116 U. S.
54. Nor does the certification of the briefs by the
clerk of the state supreme court, which are no part of the record,
help the matter.
Zadig v. Baldwin, 166 U.
S. 485. We are to try the case upon the duly certified
record, legally made in the state court, and upon which its
decision rests.
Powell v. Brunswick County, 150 U.
S. 433,
150 U. S.
439.
An examination of the record discloses that the assignment
Page 196 U. S. 85
of errors in the Supreme Court of Illinois does not directly
raise the point under consideration. It is referred to in the
following language of the assignment of errors:
"The finding and judgment of the court were erroneous for the
several reasons stated in the points filed in support of the motion
to set aside the finding and grant a new trial."
If we may look to the motion filed in the trial court, we find
some thirty points assigned as grounds for a new trial. Those which
may have application to federal constitutional questions are found
in paragraphs 26 and 27, which are:
"26. The statute under which this action is prosecuted is
contrary to the Constitution of the United States."
"27. This proceeding under said statute is a taking of property
without due process of law, and otherwise unconstitutional."
The assertion that a judgment rests upon an unconstitutional
state statute, the validity of which has been drawn in question and
sustained, presents one of a class of cases which may be reviewed
here. In the analysis of section 709 of the Revised Statutes of the
United States in
Columbia Water Power Co. v. Columbia Electric
Street Railway &c. Co., 172 U. S. 475,
172 U. S. 488,
it was pointed out that cases of the character of the one now under
consideration come within the second class of those provided for in
the section:
"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 their validity."
It has been frequently held that, in cases coming within this
class, less particularity is required in asserting the federal
right than in cases in the third class, 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
the latter class. the statute requires such right or privilege to
be "specially set up and claimed." Under the second class, it may
be said to be the result of the rulings in this Court that, if
Page 196 U. S. 86
the federal question appears in the record in the state court
and was decided, or the decision thereof was necessarily involved
in the case, the fact that it was not specially set up will not
preclude the right of review here.
Columbia Water Power Co. v.
Columbia Street Railway &c. Co., 172 U.
S. 475, and cases cited on p.
172 U. S. 488.
Nevertheless, it is equally well settled that the right of review
dependent upon the adverse decision of a federal question exists
only in those cases wherein a decision of the question involved was
brought, in some proper manner, to the attention of the court, and
decided, or it appears that the judgment rendered could not have
been given without deciding it.
Fowler v. Lamson,
164 U. S. 252;
Clarke v. McDade, 165 U. S. 168,
165 U. S. 172.
In one of the latest utterances of this Court upon the question
under consideration,
Capital City Dairy Co. v. Ohio,
183 U. S. 238,
183 U. S. 248,
MR. JUSTICE WHITE, delivering the opinion of the 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.
67;
Oxley Stave Co. v. Butler County,
166 U. S.
648,
166 U. S. 654-655, and cases
cited. Now the only possible support to the claim that a federal
question on the subject under consideration was raised below was
the general statement in the answer to which we have already
adverted, that 'this proceeding is in violation of the Constitution
of the United States.' Nowhere does it appear that at any time was
any specification made as to the particular clause of the
Constitution relied upon to establish that the granting of relief
by
quo warranto would be repugnant to that Constitution,
nor is there anything in the record which could give rise even to a
remote inference that the mind of the state court was directed to
or considered this question. On the contrary, it is apparent from
the record that such a contention was not
Page 196 U. S. 87
raised in the state court. Thus although, at the request of the
defendant below (the plaintiff in error here), the state court
certified as to the existence of the federal questions which had
been called to its attention and which it had decided, no reference
was made in the certificate to the claim of federal right we are
now considering."
The only authority called to the attention of this Court by
counsel for plaintiff in error as supporting the view that a
federal question was properly raised in this case is
Chicago,
Burlington & Quincy R. Co. v. Chicago, 166 U.
S. 226, in which case it was contended that a statute of
the State of Illinois under which condemnation proceedings were had
was in violation of the Fourteenth Amendment to the Constitution of
the United States. In that case, it was distinctly asserted, in the
motion for a new trial in the trial court, that the statute and
rulings of the court, and the verdict and judgment based thereon,
were contrary to the Fourteenth Amendment, declaring that no state
should deprive any person of life, liberty, or property without due
process of law nor deny to any person within its limits the equal
protection of the laws. In the assignment of errors in the supreme
court of the state, it was distinctly reasserted that these federal
rights had been denied by the proceedings in the trial court, and
it was held in this Court that, while the Supreme Court of Illinois
did not, in its opinion, expressly refer to the federal
constitutional rights asserted, the same were necessarily included
in the judgment of the court, and therefore the case was reviewable
here. But how stands the present case? It is distinctly stated by
the Supreme Court of Illinois (whose judgment is alone reviewable
here), in the passage above quoted from its opinion, that no
authorities were cited nor argument advanced in support of the
assertion that the statute was unconstitutional, and that the
point, if it could otherwise be considered, was deemed to be
waived. If we look to the motion for a new trial, referred to in
general terms in the assignment of errors when the case was taken
to the Supreme Court of Illinois, we find the only
Page 196 U. S. 88
reference to a federal constitutional question to be in
paragraphs 26 and 27, above quoted, from the motion for new trial
in the court of original jurisdiction. Paragraph 26 simply states
that the statute is contrary to the Constitution of the United
States, without calling attention to the provision of that
instrument whose protection is denied to the plaintiff in error,
and is clearly insufficient.
Farney v.
Towle, 1 Black 350. Paragraph 27 alleges that the
statute takes the property without due process of law, and is
therefore unconstitutional. If this vague objection (ยง 27) may be
taken as asserting a claim of right under the federal Constitution,
yet, in the Supreme Court of Illinois, so far as the record
discloses, there was neither authority cited nor argument advanced
in support of the constitutional objection. There is nothing to
prevent a party from waiving a federal right of this character if
he chooses to do so, either in express terms or as a necessary
implication from his manner of proceeding in the cause. It is clear
from the opinion cited that the state court based its decision upon
other than federal grounds, and did not decide the constitutional
question sought to be made here.
If the question was necessarily decided, notwithstanding the
failure or refusal of the state court to expressly and in terms
pass upon the matter, the case might be brought here. But in this
case, the state court expressly disclaims decision of the
constitutional question because it was not presented by proper
proceedings. Our view of this record is that, in so holding, the
state court did not err to the prejudice of the plaintiff in
error.
Writ of error dismissed.