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proffered his willingness to assign it to the tenant. As shown by the undisputed facts which we have stated, with indifference both to her own interest and the interest of the landlord, the tenant neither acted for herself by accepting the offer, nor gave any notification whatever to the landlord on the subject. Cohen, as the agent of the Kanns, learned of the existence of the irredeemable tax sale and of the person who held the certificate. He purchased it by the authority of and for the benefit of his principals, the Kanns. By the express terms of the statute under which the certificate was issued it was assignable. Granting that the purchase was made in order to aid the Kanns in obtaining a lease of the property, in the absence of any legal duty owing by them to the tenant, we fail to perceive how the motive of Cohen or his principals could operate to make the otherwise lawful action constructively wrongful. The tenant, by whose negligent default the sale of the property had been occasioned, certainly had no exclusive pre-emptive right to the purchase of the certificate, which would operate to render its purchase by anyone else in his own interest void. After the purchase of the certificate by Cohen, what was the position of the landlord? On the one hand confronted by the assertion of the tenant that the outstanding tax title was void, that she had a right to be relieved from the forfeiture caused by the nonpayment of the

she offered to condone the forfeiture, provided the tenant commenced proceedings to have the outstanding tax title declared invalid, and also secured the landlord from loss in the event that such tax title should be sustained, which offer was declined, on grounds substantially asserting that the risk resulting from the default of the tenant should be borne by the owner, and not by the tenant.

The decree of the court below is reversed and the cause remanded with instructions to dismiss the bill for want of equity.

Reversed.

The CHIEF JUSTICE and Mr. Justice Harlan dissent.

JACOB NEWMAN and Salmon O. Levinson, Surviving Partners of the Firm of Newman, Northrop, & Levinson, Plffs. in Err.,

V.

HARRY B. GATES.

Error to state court-decision of Federal question by highest state court.

There has been no decision of the

Federal question in the highest court of the state in which a decision in the suit could be had, which is essential to sustain a writ of error from the Supreme Court of the United States, where the highest state court dismissed an appeal in the suit because of a defect in the parties to such appeal.*

[No. 137.]

tax, and was entitled to continue in pos-
session under the lease, and, on the other,
with an offer on the part of the holder of
the tax title to quitclaim the same, and Argued December 14, 17, 1906.
thus avoid testing its validity, if only a
lease was made which would be advanta-

geous.

January 7, 1907.

Decided

N ERROR to the Supreme Court of the
State of Indiana to

When it is again borne in mind that of review a a judgthis situation was brought about by the ment dismissing, for a defect in parties, an neglect of the tenant to perform his cove- appeal from a judgment of the Marion nant to pay the taxes, and by his pro- County Superior Court in favor of defendcrastination in respect to acquiring the tax ant in an action on a foreign judgment, such certificate which had been previously offered action having been removed into the Suto him, we can conceive of no principle of preme Court for decision after the Appelequity preventing the landlord from taking late Court of that state had reversed the a course not forbidden by law, which was judgment below and ordered the cause renot only most conducive to her own inter-manded for a new trial. Dismissed for est, but which besides obviated the danger want of jurisdiction. of submitting her title to a contest concerning the validity of a tax sale. But, if an equitable principle could be conceived of which prevented the landlord from so acting under the circumstances stated, that principle would be inapplicable to the case before us, when one of the undisputed facts to which we have already called attention is considered. That fact is this: Before the landlord irrevocably determined to avail of the forfeiture and thus avoid the risk to herself concerning the outstanding tax title,

See same case below, 165 Ind. 171, 72 N. E. 638.

Statement by Mr. Justice White:

Jacob Newman, George Northrop, Jr., and S. O. Levinson commenced this action in the superior court of Marion county, Indiana, against the defendant in error, Harry B. Gates. Recovery of the sum of $1,400, was sought upon a judgment obtained by Newman and his coplaintiffs against Gates in the circuit court of Cook county, Illinois.

*Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, § 1048.

L

the new trial the court held that certain of the issues made by the counterclaim and reply had been litigated in the Illinois action and that the Illinois judgment was res judicata as to such issues, but submitted to the jury the question of the alleged neglect of plaintiffs in failing in the insolvency proceedings to procure an order charging the trust estate with the fees in question and the compensation earned by defendant as trustee. And the court left it to the jury to determine, upon a preponder

The defendant filed an answer in two para- | trial whether in fact such matters had been
graphs, but, as the defenses therein asserted theretofore litigated and determined. On
were ultimately abandoned, they need not
be detailed. A counterclaim was also filed,
in which it was alleged that the plaintiffs
were, and for more than two years had
been, attorneys at law engaged in the prac-
tice of their profession at Chicago, Illinois,
under the firm name of Newman & North-
rop; that the Illinois judgment sued upon
was founded upon a claim for legal services
rendered to the defendant; that the services
had been rendered in advising the defend-
ant, as trustee, in and about the manage-
ment of the property and assets of a corpo-ance of evidence, whether or not it was the
ration known as the American Motor Com-
pany while in course of administration in
insolvency proceedings, and that the de-
fendant had sustained damage to the extent
of $2,000 by reason of a breach of duty al-
leged to have been committed by the plain-
tiffs in the course of their employment in
failing to obtain an order of the court in
the insolvency proceedings relieving the de-
fendant from personal liability for attor-
ney's fees, and providing for payment of
his compensation, etc. It was also charged
that the plaintiffs had been guilty of a
breach or neglect of duty in connection with
a sale of the trust property in the in-
solvency proceedings, whereby defendant
had sustained damages in the sum of $2,500.
A reply was filed to the counterclaim, in
two paragraphs, one embracing a general
denial and the other setting up the Illinois
judgment as res judicata as to all the mat-
ters embraced in the counterclaim.

law of Illinois that the failure of plaintiffs to procure such an order-if they did so fail-was a matter which was adjudicated in the Illinois action, whether evidence was introduced on such point or not, and the jury was instructed that, if such was the law of Illinois, recovery could not be had upon the counterclaim.

The second trial resulted in a verdict of $181.74 for the defendant Gates, that being the sum found to be due him in excess of the amount of the judgment sued upon. After the entry of judgment and before the taking of an appeal, George W. Northrop, Jr., one of the original plaintiffs, died. An appeal, however, was taken to the appellate court of Indiana by Jacob Newman and S. O. Levinson, describing themselves as surviving partners of the firm of Newman, Northrop, & Levinson. The personal representative of the deceased partner was not made a party to the appeal. The appellate In due course the case came on for trial court of Indiana overruled an objection to and the plaintiffs recovered a judgment for the sufficiency of the appeal and on the the amount of their claim. The case was merits reversed the judgment and ordered taken to the appellate court of Indiana. the cause remanded for a new trial. On the That court reversed the judgment and re- petition of the defendant Gates the supreme manded the case for a new trial (18 Ind. court of Indiana removed the cause into App. 392, 46 N. E. 654), and far want of that court for decision and subsequently authority a petition for a writ of certiorari dismissed the appeal, holding that, on acwas denied by the supreme court of Indiana count of the omission to make the personal (150 Ind. 59, 49 N. E. 826). In the opinion representative of George W. Northrop, Jr., a of the appellate court, as also in a dissent- coappellant, the appeal could not be deing opinion, the character of the counter-termined upon the merits. 165 Ind. 171, 72 claim and the question whether, as respects N. E. 638. A petition for a rehearing havthe matters therein set forth, the Illinois ing been denied, the cause was brought judgment was res judicata, were considered here. at great length. Following an inspection of the record of the Illinois action the court held that the counterclaim stated matters which constituted something more than a mere defense to the claim asserted in the Illinois action, that it could not be said that, under the plea of the general issue, interposed by the defendant in that action, the matters averred in the counterclaim were necessarily adjudicated, and that it was a question to be determined upon the

Messrs. Charles Martindale and S. S. Gregory for plaintiffs in error.

Messrs. Edward E. Gates, Albert Baker, Edward Daniels, and Lewis C. Walker for defendant in error.

Mr. Justice White, after making the foregoing statement, delivered the opinion of the court:

A motion has been filed to dismiss the

writ of error or to affirm, and we proceed at | on the first appeal that the action of the once to its consideration. Several grounds trial court, in refusing to admit evidence in are urged in argument in support of the motion, but we do not find it necessary to do more than consider an objection based upon the absence of a Federal question. The errors assigned are as follows: "The supreme court of Indiana erred in affirmative cause of action in favor of the holding and deciding:

"1. That the counterclaim set up by appellee Gates, the defendant in the trial court, based upon a breach of the same contract of hiring, which was the basis of the action of the appellants against the appellee Gates in the circuit court of Cook county, Illinois, was not adjudicated by the judgment in the circuit court of Cook county, Illinois, and by so deciding denied to the judgment of the circuit court of Cook county, Illinois, the force and effect which it has between the parties in the state of Illinois, wherein it was rendered, and denies full faith and credit to said judgment, contrary to and in violation of article 4, § 1, of the Constitution of the United States.

"2. That the appellee's counterclaim being | valid, and not merged and adjudicated by the judgment of the circuit court of Cook county, Illinois, it was of a nature which survived against the personal representatives of a member of the partnership of Newman, Northrop, & Levinson, and that the personal representatives of the deceased partner were necessary parties to the appeal, and, not having been made parties, that neither the appellate court of the state of Indiana, nor the supreme court of the state of Indiana, has jurisdiction to determine the appeal, and the same must be dismissed, and judgment of dismissal was so rendered. Which final judgment of the supreme court necessarily involved the adjudication of the claim of the appellants to the protection of article 4, § 1, of the Constitution of the United States, "that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings, of every other state,' which adjudication was adverse to appellants' claim under said provision of the Constitution of the United States."

support of the counterclaim, because the Illinois judgment constituted res judicata, was error. It had further decided that the counterclaim was "based upon a breach of contract," and constituted an independent,

defendant, and that whether the questions therein involved were in fact adjudicated in the Illinois action was a question for the jury. As a result of this ruling evidence was introduced at the subsequent trial to establish what were the questions litigated and determined in the Illinois action and the extent to which, by the laws of Illinois, the judgment in that case possessed conclusive force.

Now, in the opinion delivered by the supreme court of Indiana, on dismissing the appeal, the court did not discuss or in any wise refer to the scope and conclusive effect of the Illinois judgment. Undoubtedly, the court, in view of the law of the case as declared on the first appeal, treated the counterclaim as containing allegations of actionable breaches of duty which might have formed the subject of an independent action, and it is likewise evident that the court was of opinion that the plaintiffs were bound to perfect their appeal from the judgment upon the counterclaim, upon the hypothesis that the counterclaim set forth a valid cause of action against three individuals, viz., the plaintiffs in the main action. But substantially the court only considered and disposed of a preliminary question as to its authority to pass upon the controverted questions contained in the record before it. It found that there were in the counterclaim averments which it had been held early in the litigation required to be submitted to a jury, that the record exhibited a recovery upon the counterclaim against three persons, and that one of such persons had died after the rendition of judgment against him and his associates. Construing the statutes of Indiana, the court held that the cause of action asserted in the counterclaim survived the death of the party deceased, against whom a reThese assignments plainly import that covery had been had, that such cause of the supreme court of Indiana, on dismissing action could have been revived against the the appeal, considered and decided a ques- personal representative of the deceased, and tion which had been submitted to the jury that the personal representative was a on the trial; viz., whether the matters al- necessary party appellant, and, not having leged in the counterclaim as the basis for been made a coappellant and served with a recovery over against the plaintiffs had notice of the appeal, the court was without or had not been concluded by the Illinois jurisdiction to pass upon the errors assigned judgment sued upon by the plaintiffs. We upon the appeal. To give effect to the asdo not so construe the opinion and decision signments of error we should be obliged to of the court. make the impossible ruling that, despite the The appellate court of Indiana had held overruling of a demurrer to the counter

January 7, 1907.

claim by the trial court, and the decision in Argued December 13, 14, 1906.
respect to that pleading made by the ap-
pellate court on the first appeal, a mere in-
spection of the counterclaim so plainly

Decided

N ERROR to the Supreme Court of the

State of Colorado to review a judgment demonstrates that the pleading is destitute of merit that it should be held to have been in favor of the relator in a proceeding in the duty of the state court of last resort to the nature of quo warranto to test the title have treated the pleading as a sham and to to a state office, entered by that court after have disposed of the appeal upon the hy-reversing the judgment of the District Court of the City and County of Denver in that pothesis that the counterclaim was nonState, which sustained a demurrer to the existent. complaint and entered judgment for the defendant. Dismissed for want of juris

The removal of the cause from the appellate court into the supreme court of Indiana

diction.

See same case below (Colo.) 86 Pac. 250.

while the

defendant

Statement by Mr. Justice White: This was a proceeding, in the nature of quo warranto, brought in a district (state) court of Colorado, to test, as between conCharles S. Elder), the title to the office of flicting claimants (Charles W. Badgley and county treasurer of the city and county of Denver. The relator (Badgley) relied upon a general election held pursuant to the general statutes of Colorado on November 8, 1904, while claimed to be the legal incumbent of the (Elder) office by virtue of his election to the office of treasurer of the city and county of Denver in May, 1904, under authority of the charter of said city and county of Denver. The question presented for decision whether the election held in May, 1904, whether the election held in May, 1904, under the charter, of officers to perform the duties required of county officers in the city and county of Denver, was lawful, or whether such officers should have been voted for under the general statutes of the state at the election held in November, 1904. A

vacated the decision of the former tribunal, and after transfer the case stood in the highest court of Indiana as though it had been appealed to that court directly from the trial court. Oster v. Broe, 161 Ind. 114, 64 N. E. 918. Had the appeal been properly taken it would have been the duty of the supreme court of Indiana to pass upon the questions presented by the record before it, including, it may be, a Federal question, based upon the due faith and credit clause of the Constitution, which, on various occasions, was pressed upon the attention of the trial court. In legal effect, however, the case stands as though no appeal had been prosecuted from the judgment rendered by the trial court. As the jurisdiction of this court to review the judgments or decree of state courts when a Federal question is presented is limited to the review of a final judgment or decree, actually or constructivejudgment or decree, actually or constructively deciding such question, when rendered by the highest court of a state in which a decision in the suit could be had, and as, for the want of a proper appeal, no final judgment or decree in such court has been rendered, it results that the statutory pre-determination of this question made necesrequisite for the exercise in this case of the reviewing power of this court is wanting. Writ of error dismissed.

CHARLES S. ELDER, Plff. in Err.,

V.

was

sary a consideration of certain provisions of article 20 of the state Constitution, providing for the creation, from the old county of Arapahoe and the old city of Denver and other municipalities, of a new entity to be known as the city and county of Denver, and conferring authority to provide in the charter for the appointment or election of officers of such city and county. In particular, a construction was required of a clause providing that "every charter shall

PEOPLE OF THE STATE OF COLORADO on the Information of GEORGE STIDGER, the District Attorney of the Second Judicial District of the State of Colorado, on the Relation of CHARLES W. BADG-designate the officers who shall respectively

LEY.

Error to state court-Federal question.

A contest over a state office, dependent for its solution exclusively upon the application of the Constitution of the state or upon a mere construction of a provision of a state law, involves no possible Federal question which will sustain a writ of error from the Supreme Court of the United States to a state court.*

[No. 132.]

*Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, §§ 1049-1053.

perform the acts and duties required of county officers to be done by the Constitution or the general laws, as far as applicable." The district court sustained a demurrer to the complaint and entered judgment for the defendant. This judgment was reversed by the supreme court of the state, upon the authority of People ex rel. Miller v. Johnson (86 Pac. 233) and judgment was entered in that court in favor of the relator (86 Pac. 250), deciding in effect that the

charter provision under which defendant | of a treaty or statute of, or an authority claimed was repugnant to the Constitution exercised under, the United States, and the of Colorado. The case was then brought here.

decision is against their validity; b. 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 Mr. Henry J. Hersey for defendants in is in favor of their validity; c. "Where any title, right, privilege, privilege, or immunity is claimed under the Constitution, or any

Messrs. Charles R. Brock, Robert H. Elder, and Milton Smith for plaintiff in

error.

error.

Mr. Justice White, after making the fore-treaty or statute of, or commission held or going statement, delivered the opinion of authority exercised exercised under, the United

the court:

The assignments of error are twenty-one in number. All of them rest upon the assumption that the supreme court of Colorado held that article 20 of the state Constitution, particularly §§ 2 and 3, were repugnant to the provision of the Constitution of the United States guaranteeing to every state a republican form of government and to the act of Congress known as the Colorado enabling act, and that by such ruling rights possessed by the people of the state of Colorado and rights vested in the people of the city and county of Denver were invaded. And upon the assumption that such rulings were made all the Federal questions

relied on are based.

On behalf of the defendant in error it is

insisted that the supreme court of Colorado did not decide any question under the Constitution of the United States, but merely disposed of the case before it upon its construction of the meaning of the provision of the state Constitution which was involved and upon the authority of a previous decision rendered by the Colorado court. It is not denied that in the course of the opinion of the supreme court of Colorado it was said that if the article of the state Constitution in question was susceptible of a contrary construction to that affixed to it by the court, it would be repugnant to the guaranty of a republican form of government, etc. This, it is said, was mere obiter, as the court considered and held the provision valid.

If we were to indulge in the hypothesis that the assumptions upon which the assignments of error rest were sustained by the record, and were besides to assume that, at the proper time and in the proper manner, it had been asserted that to hold article 20 invalid would be repugnant to the Constitution of the United States, the case would yet not be within the purview of § 709, Revised Statutes (U. S. Comp. Stat. 1901, p. 575). Under this section the power to review the judgment of a state court exists only in the following classes of cases: a. Where is drawn in question the validity

States."

It is plain that the case is not embraced within subdivision a. Nor can it be said to be embraced within subdivision b, for if we consider that the court below, instead of construing and upholding the constitutional provision in question, actually held it to be invalid because repugnant to the Constitution of the United States, such decision was against, and not in favor of, the validity of the article. Nor is the case embraced within subdivision c, for nowhere in the record does it appear that the plaintiff in error, specially or otherwise, set up or claimed in the courts of Colorado any title, right, privilege, or immunity under the Constitution of the United States.

Indeed, under the circumstances disclosed, if there had been an assertion of a right, title, privilege, or immunity under the Constitution of the United States it would. have been so frivolous as not to afford a basis of jurisdiction, since it is foreclosed that a mere contest over a state office, dependent for its solution exclusively upon the application of the Constitution of a state or upon a mere construction of a provision of a state law, involves no possible Federal question. Taylor v. Beckham, 178 U. S. 548, 44 L. ed. 1187, 20 Sup. Ct. Rep. 890, 1009. Whilst, when a state court has considered a Federal question, that fact may serve to elucidate whether a Federal issue properly arises for consideration by this court, that doctrine has no application to a case where the controversy presented is inherently not Federal, and incapable of presenting a Federal question for decision. Writ of error dismissed.

TOMAS GARROZI, Juana Maria Gonzalez, and Domingo Piazzi, Appts.,

V.

JUANA DASTAS.

Appeal-from district court for Porto Rico.

of the United States from a decree of the 1. An appeal lies to the Supreme Court district court for the district of Porto Rico in a suit brought by a wife to obtain liqui

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