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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:
motion to set aside the finding and grant | court, and decided, or it appears that the a new trial." judgment rendered could not have been given without deciding it. Fowler v. Lamson, 164 U. S. 252, 41 L. ed. 424, 17 Sup. Ct. Rep. 112; Clarke v. McDade, 165 U. S. 168-172, 41 L. ed. 673, 674, 17 Sup. Ct. Rep. 284. In one of the latest utterances of this court upon the question under consideration (Capital City Dairy Co. v. Ohio, 183 U. S. 238-248, 46 L. ed. 171-176, 22 Sup. Ct. Rep. 120-124), Mr. Justice White, delivering the opinion of the court, said:
"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."
"It is settled that this court, on error to a state court, cannot consider an alleged Federal question when it appears that the The assertion that a judgment rests Federal right thus relied upon had not upon an unconstitutional state statute, the been, by adequate specification, called to validity of which has been drawn in ques- the attention of the state court, and had tion and sustained, presents one of a class not been by it considered, not being necesof cases which may be reviewed here. In sarily involved in the determination of the the analysis of § 709 of the Revised Stat- cause. Green Bay & M. Canal Co. v. Patutes of the United States (U. S. Comp. ten Paper Co. 172 U. S. 58, 67, 43 L. ed. Stat. 1901, p. 575) in Columbia Water 364, 368, 19 Sup., Ct. Rep. 97; F. G. Oxley Power Co. V. Columbia Electric Street Stave Co. v. Butler County, 166 U. S. 648, R. Light & P. Co. 172 U. S. 475-488, 43 654, 655, 41 L. ed. 1149, 1151, 1152, 17 L. ed. 521-526, 19 Sup. Ct. Rep. 247-252, Sup. Ct. Rep. 709, and cases cited. Now, it was pointed out that cases of the char- the only possible support to the claim that acter of the one now under consideration a Federal question on the subject under come within the second class of those pro- consideration was raised below was the vided for in the section: "Where is drawn general statement in the answer to which in question the validity of a statute of, or we have already adverted, that 'this proan authority exercised under, any state on ceeding is in violation of the Constitution the ground of their being repugnant to the of the United States.' Nowhere does it Constitution, treaties, or laws of the Unit-appear that at any time was any specified States, and the decision is in favor of cation made as to the particular clause of their validity."
the Constitution relied upon to establish It has been frequently held that in cases that the granting of relief by quo warranto coming within this class less particularity would be repugnant to that Constitution, is required in asserting the Federal right nor is there anything in the record which than in cases in the third class, wherein a could give rise even to a remote inference right, title, privilege, or immunity is that the mind of the state court was diclaimed under the United States, and the rected to or considered this question. On decision is against such right, title, privi- the contrary, it is apparent from the reclege, or immunity. In the latter class the ord that such a contention was not raised statute requires such right or privilege to in the state court. Thus, although at the be "specially set up and claimed." Under request of the defendant below (the plainthe second class it may be said to be the tiff in error here) the state court certified result of the rulings in this court that if as to the existence of the Federal questions the Federal question appears in the record which had been called to its attention and in the state court and was decided, or the which it had decided, no reference was decision thereof was necessarily involved made in the certificate to the claim of Fedin the case, the fact that it was not special-eral right we are now considering." ly set up will not preclude the right of The only authority called to the atten. review here. Columbia Water Power Co. tion of this court by counsel for plaintiff v. Columbia Electric Street R. Light & in error as supporting the view that a P. Co. 172 U. S. 475, 43 L. ed. 521, 19 Sup. Federal question was properly raised in Ct. Rep. 247, and cases cited on p. 488, this case is Chicago, B. & Q. R. Co. v. ChiL. ed. p. 526, Sup. Ct. Rep. p. 252. Never-cago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. theless, it is equally well settled that the Ct. Rep. 587, in which case it was conright 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
tended that a statute of the state of Illinois, under which condemnation proceedings were had, was in violation of the 14th Amendment to the Constitution of the United States.
In that case it was dis
brought here. But in this case the state
(196 U. S. 47) MARTHA I. HUNT, Piff. in Err.,
FIRE & MARINE INSURANCE COMPANY.
condition against chattel mortgage.
the unconditional and sole ownership of the property by the Insured, and for the nonexistence of any chattel mortgage thereon, was broken where certain trust deeds of the property had been executed to secure payment of money, whose legal effect is practically the same as that of a chattel mortgage with power of sale.
tinctly asserted, in the motion for a new | notwithstanding the failure or refusal of trial in the trial court, that the statute the state court to expressly and in terms and rulings of the court, and the verdict pass upon the matter, the case might be and judgment based thereon, were contrary to the 14th 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 A condition in a policy of fire insurance for is alone reviewable here) in the passage above quoted from its opinion, that no authorities were cited 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 refer- Argued December 1, 2, 1904. Decided Deence 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. graph 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, 17 L. ed. 216. Paragraph 27 alleges that the statute takes the property without due process of law, and is therefore unconstitutional. If this vague objection (§ 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 upon other than Federal grounds, and did not decide the constitutional question sought to be made here.
If the question was necessarily decided,
cember 19, 1904.
IN ERROR to the Court of Appeals of
the District of Columbia to review a judgment which affirmed a judgment of the Supreme Court of the District in favor of defendant in an action on a policy of insurance. Affirmed.
See same case below, 20 App. D. C. 48.
Statement by Mr. Justice Brown: This was an action to recover on a policy of insurance upon household furniture and ornaments.
Defense: That it was provided that the policy should be void if the interest of the insured was other than the unconditional and sole ownership of the property insured, or if the "said property should be or become encumbered by a chattel mortgage," when in fact it was subject, at the time the policy was written, to three trust deeds to secure the payment of various sums of money. Plaintiff demurred to the pleas setting up this defense. The court overruled the demurrer, entered judgment for the defendant, which was affirmed by the court of appeals. 20 App. D. C. 48.
Messrs. John C. Gittings and D. W. Baker for plaintiff in error.
Mr. Andrew B. Duvall for defendant may be foreclosed by sale in pursuance of in error. the terms in which the power is conferred, or by suit in chancery."
Mr. Justice Brown delivered the opinion of the court:
The legal effect of the two instruments has been recognized as practically the same
The sole question presented by the rec-in several cases in this and other courts. ord in this case is whether the provision in the policy for the unconditional ownership of the property by the plaintiff, and for the nonexistence of any chattel mortgage thereon, was broken by certain trust deeds to secure the payment of money in each case.
Plaintiff relies upon the familiar principle of law that the conditions of a policy of insurance, prepared, as they are, by the company, and virtually thrust upon the insured, frequently without his knowledge, must be construed strictly, and, while the legal effect of a chattel mortgage and of a deed of trust to secure the payment of money may be practically the same, they are in law different instruments; and that a condition against one is not broken by the existence of the other. We recognize the rule laid down by this court in Thompson v. Phenix Ins. Co. 136 U. S. 287, 34 L. ed. 408, 10 Sup. Ct. Rep. 1019, that in case of attempted forfeiture, if the policy be fairly susceptible of two constructions, the one will be adopted which is more favorable to the insured. This rule was reiterated in McMaster v. New York L. Ins. Co. 183 U. S. 25, 46 L. ed. 64, 22 Sup. Ct. Rep. 10, but we cannot recognize it as applicable to this case.
A deed of trust and chattel mortgage with power of sale are practically one and the same instrument as understood in this District. In the language of Mr. Justice Morris, in speaking of mortgages of real estate in Middleton v. Parke, 3 App. D. C. 149:
Platt v. Union P. R. Co. 99 U. S. 48-57, 25 L. ed. 424-427; Palmer v. Gurnsey, 7 Wend. 248; Eaton v. Whiting, 3 Pick. 484; Wheeler & W. Mfg. Co. v. Howard, 28 Fed. 741;Bartlett v. Teah, 1 McCrary, 176, 1 Fed. 768; Southern P. R. Co. v. Doyle, 8 Sawy. 60, 11 Fed. 253; McLane v. Paschal, 47 Tex. 365.
There may be cases under particular statutes recognizing a difference between them in reference to the application of the recording laws, as appears to be the case in Maryland (Charles v. Clagett, 3 Md. 82), but in their essential features and in their methods of enforcement they are practically identical. Both are transfers conditioned upon the payment of a sum of money; both are enforceable in the same manner, and the difference between them is one of name rather than substance. The provision in the policy is one for the protection of the insurer, who is entitled, if he insists upon it in his questions, to be apprised of any fact which qualifies or limits the interest of the insured in the property, and would naturally tend to diminish the precautions he might take against its destruction by fire.
In passing upon the identity of the two instruments in this case we may properly refer to the further provision of the policy that the interest of the insured must be an unconditional and sole ownership. While the breach of this condition is not specifically urged in the briefs, we may treat it as explanatory of the other condition against the existence of a chattel mortgage. The company evidently intended by this provision to protect itself against conditional transfers of every kind. The contract of the company is a personal one with the insured, and it is not bound to accept any other person to whom the latter may transfer the property.
The conditions of the policy in this case were broken by the trust deeds, and the judgment of the court below is, therefore,
"The deed of trust is the only form of mortgage that has been in general use in the District of Columbia for many years. The common-law mortgage is practically unknown with us; and everyone understands that, when a mortgage of real estate here is spoken of, the deed of trust is what is intended. . . The deed of trust is here used as the equivalent of a mortgage; and so the term is universally used by the community. Indeed, while a affirmed. mortgage is not necessarily, perhaps, a deed of trust, a deed of trust to secure the loan of money is necessarily a mortgage." It was said by this court in Shillaber v. Robinson, 97 U. S. 68-78, 24 L. ed. 967970, that, "if there is a power of sale, Revenue bond scrip- validity of, under
whether in the creditor or in some third person to whom the conveyance is made
(196 U. S. 64)
T. B. LEE, Jr., Plff. in Err.,
H. S. ROBINSON.
for that purpose, it is still in effect a mort-The issue of revenue bond scrip under S. C. gage, though in form a deed of trust; and
act of March 2, 1872, to relieve the state of
South Carolina of all liability on its guar- | rights of the defendant under the Constianty indorsed upon railway bonds by author- tution of the United States were impaired ity of the act of September 15, 1868, when, by the laws hereafter mentioned which exas this statute shows on its face, there was no outstanding liability represented by the cluded the reception of the scrip for the
guaranty, comes within the prohibition of art. 9, § 10, of the state Constitution of April 16, 1868, against issuing scrip except for the redemption of an "evidence of indebtedness previously issued," where neither statute purported to be an adjustment of a claim against the state, permitted by art. 14, § 4, of
Counsel other than those representing the parties was permitted to file a brief as amicus curiæ, and urged that this was But the circuit court a collusive suit. held that it was not (122 Fed. 1010), and we accept the finding for the purposes of disposing of the case.
The revenue bond scrip was issued under an act of March 2, 1872, entitled "An Act
Argued December 6, 7, 1904. Decided De- to Relieve the State of South Carolina of
cember 19, 1904.
N ERROR to the Circuit Court of the
All Liability for Its Guaranty of the Bonds of the Blue Ridge Railroad Company, by Providing for the Securing and Destruc
IN United States for the District of South tonding for me, this act purported to
Carolina to review a judgment in favor of
See same case below, 122 Fed. 1012.
Mr. D. W. Robinson for defendant in
William Elliott, Jr., as amicus
Mr. William curiæ.
of the Same."
Mr. Justice Holmes delivered the opin- credit and the ion of the court:
taxes since 1873.
authorize the issue to the amount of $1,800,000, "which revenue bond scrip shall be signed by the state treasurer, and shall express that the sum mentioned therein is due by the state of South Carolina to the bearer thereof, and that the same will be received in payment of taxes and all other dues to the state, except special tax levied to pay interest on the public debt." But the supreme court of the state held that the scrip constituted bills of credit within the prohibition of the Constitution of the United States, article 1, § 10. State ex rel. Shiver v. Comptroller General, 4 S. C. N. S. 185. The pledge of the state's provisions for the redemption of the scrip were repealed by the legisThis is an action to recover land, lature, and, under the fiscal laws of the brought by Robinson, the defendant in er-state, the scrip had not been receivable for ror, a citizen and resident of North Carolina, against Lee, a citizen and resident of South Carolina, on the ground that Robinson had purchased the land at a tax sale. The value of the land is alleged and found to be more than $2,000. The defense is that a tender was made of the amount of the taxes before the sale. This tender included, as a part of it, revenue bond scrip of the state of South Carolina for $5, purporting on its face to be receivable in payment of taxes, and the question is whether the tender was good; or, more precisely, whether the bond scrip was receivable for taxes under the Constitution of the United States and the Constitution and laws of South Carolina. The circuit court held the tender bad, on the double ground that the issue of the scrip was in contravention of the Constitution of the state and that the scrip was a bill of credit within the prohibition of article 1, § 10, of the Constitution of the United States. 122 Fed. 1012. Judgment was given for the plaintiff, Robinson, and this writ of error was brought, setting up that the contract
We are of opinion that the issue of the scrip was forbidden by the Constitution of the state. When the scrip was issued, the Constitution of South Carolina, ratified on April 16, 1868, in article 9, § 10, provided as follows: "No scrip, certificate, or other evidence of state indebtedness shall be issued except for the redemption of stock, bonds, or other evidence of indebtedness previously issued, or for such debts as are expressly authorized in this Constitution." There was also a further provision that "any debt contracted by the state shall be by loan on state bonds, of amounts not less than $50 each, on interest payable within twenty years after the final passage of the law authorizing such debt."
The guaranty from which the scrip was to relieve the state was a guaranty of bonds of the Blue Ridge Railroad Company, which was indorsed upon them by authority of an act approved September 15, 1868. The state long had favored this road, and had held its stock. It had authorized the guaranty of bonds in 1852,
(196 U. S. 133).
M. Coffin, Plffs. in Err.,
STATE OF IOWA.
Error to state court-decision on non-Federal ground-commerce - C. O. D. shipments of intoxicating liquors—when subject to seizure under state law.
and again in 1854, repealing the former | AMERICAN EXPRESS COMPANY and R. act. But the act of 1868 recited that the comptroller general of the state had not indorsed any of the bonds issued under the act of 1854, and that the conditions imposed upon such indorsement had become impossible and injudicious. So it might be assumed from the face of the statute of 1868 that there was no outstanding liability represented by the guaranty under that statute, and we see no ground for doubt that the guaranty must be considered as a new contract, made for the first time, in substance as well as form, after the Constitution of 1868 went into effect.
1. A writ of error to review a decision of a state court upholding a seizure, under the state laws, of intoxicating liquors shipped C. O. D. into that state from another state, on the ground that the sale was completed in the former state, will not be dismissed on the theory that its ruling rests upon a non-Federal ground broad enough to sustain it, where the protection of the commerce clause of the Federal Constitution was directly invoked in the state court.
The guaranty under the act of 1868 cannot be put under the head of "such debts as are expressly authorized in this Constitution," since it was not in the form required for debts contracted under the Constitution of 1868. We are of opinion that 2. Intoxicating liquors shipped C. O. D. from it equally little satisfies the other exception in article 9, § 10, quoted above, of a contract made for the redemption of an "evidence of indebtedness previously issued." Whether the word "previously" refers to the date of the Constitution or to the date of issuing the guaranty, the guar
one state into another cannot be subjected to seizure under the laws of the latter state, while in the hands of the express company, without infringing the commerce clause of the Federal Constitution.
anty of 1868 is not and does not purport Argued December 2, 1904. Decided January to be made for the redemption of a previous evidence of debt.
It is argued that, whether there was a liability or not, the acts before 1868 having purported to pledge the credit of the state to secure the bonds of the railroad company, as they did, there was color of liability, and the act of 1868, or, at any rate, the act of 1872, authorizing the bond scrip, was was the adjustment of a claim against the state under article 14, § 4, of the state Constitution. But the act of 1868 did not purport to be an adjustment. On the contrary, it purported, as we have said, to give new aid to the railroad, and to authorize an original issue. The act of 1872, again, dealt only with the supposed liability under the act of 1868, and provided for the satisfaction of that. If that liability did not exist, the statute no more could ratify it than it could call it into being. The liability for which scrip could be issued was required by the Constitution to be one existing before the issue was made. Moreover, the act of 1872 did not purport to be an adjustment of a matter in dispute, or an adjustment in any sense. It simply assumed that there was an outstanding liability, and provided for the satisfaction of it. The question is not whether payment of the bond scrip would be valid, but whether the bond scrip was issued under the conditions which the state Constitution imposed. Judgment affirmed.
IN ERROR to the Supreme Court of the
State of Iowa to review a judgment which reversed a judgment of the Tama District Court, which had reversed a judgment of a justice's court, sustaining a seizure of intoxicating liquors shipped C. O. D. into the state from Illinois, while in the hands of the express company's agent at the place of delivery. Reversed and remanded for further proceedings.
See same case below, 118 Iowa, 447, 92 N. W. 66.
Statement by Mr. Justice White:
The American Express Company received at Rock Island, Illinois, on or about March 29, 1900, four boxes of merchandise to be carried to Tama, Iowa, to be there delivered to four different persons, one of the packages being consigned to each. The shipment was C. O. D., $3 to be collected on each package, exclusive of 35 cents for carriage on each. On March 31 the merchandise reached Tama, and on that day was seized in the hands of the express agent. This was based on an information before a justice of the peace, charging that the packages contained intoxicating liquor held by the express company for sale. The express company and its agent answered, setting up the receipt of the packages in Illinois, not for sale in Iowa, but for carriage and delivery to the consignees. An agreed statement of