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§ 424. No re-examination of facts upon writ of error from supreme court to state court.-The judiciary act, in incorporating in the federal system of judicial remedies the commonlaw writ of error as a procedure for the exercise of appellate judicial power, thereby adopted the common-law incidents of that writ, including the rule that it removes from the inferior to the superior court for review questions of law only; 14 and, therefore, upon a writ of error from the supreme court to a state court, it is the settled rule that the supreme court cannot re-examine the evidence, and has no jurisdiction to review the conclusions of fact found by the state court, and this rule applies to suits in equity as well as to actions at common law.15

§ 425. Classification of cases in which the supreme court has jurisdiction to review the final judgments and decrees of state courts. There are, under the federal judiciary act,10 three classes of cases 17 in which the supreme court has jurisdiction to review, upon writ of error, the final judgments and decrees of state courts, namely:

(1) Where is drawn in question the validity of a treaty, or statute of, or authority exercised under, the United States, and the decision is against their validity.18

chen v. Randolph, 93 U. S. 86-92 (23:810); Nations v. Johnson, 24 How. 195-207 (16:628).

14 Generes v. Campbell, 11 Wall. 193 (20:110); Payne v. Niles, 20 How. 219 (15:895); United States v. Dashiel, 3 Wall. 618 (18:268).

15 Dower v. Richards, 151 U. S. 658-673 (38:305); Cohens v. Virginia, 6 Wheat. 264 (5:257); Verden v. Coleman, 22 How. 192 (16: 336); Egan v. Hart, 164 U. S. 180 (41:680); Chicago, Burlington & Quincy Railroad Co. v. Chicago, 166 U. S. 226-263 (41:979); Bartlett v. Lockwood, 160 U. S. 368 (40:460); Stanley v. Schwalby, 162 U. S. 278 (40:968); Clipper Min. Co. v. Eli Min. Co., 194 U. S. 220-235 (48: 944); Adams v. Church, 193 U. S. 510-517 (48:767); Thayer V. Spratt, 189 U. S. 346-354 (47:

845); Western Union Telegraph Co. v. Call Pub. Co., 181 U. S. 92-104 (45:763); Atchison, Topeka & Santa Fe Railroad Co. v. Matthews, 174 U. S. 96-125 (43:907); Hedrick v. Atchison, Topeka & Santa Fe Railroad Co., 167 U. S. 673, 681 (42:320).

16 U. S. Rev. Stat. sec. 709.

17 Columbia Water Power Co. v. Columbia Electric Street Ry., Light & Power Co., 172 U. S. 475– 493 (43:521); Mutual Life Ins. Co. v. McGrew, 188 U. S. 291-313 (47: 480).

18 Miller v. Cornwall Railroad Co., 168 U. S. 131-135 (42:409); Baltimore & Potomac R. Co. v. Hopkins, 130 U. S. 210-226 (32: 908); Stanley v. Schwalby, 162 U. S. 255-283 (40:960).

(2) Where is drawn in question the validity of a statute of, or 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.19

(3) Or where any title, right, privilege or immunity is claimed under the constitution, or any treaty or statute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege or immunity specially set up and claimed by either party under such constitution, statute, commission or authority.20

§ 426. The jurisdiction of the supreme court must appear from the face of the record.-The jurisdiction of the supreme court of the United States to re-examine, upon writ of error, the final judgment or decree of a state court, cannot arise by mere inference, but must appear by positive and direct averment, or by clear and necessary intendment, from the face of the transcript of the record of the state court annexed to and returned with the writ of error. It must appear upon the face of that record that some one of the federal questions mentioned in section seven hundred and nine of the revised statutes was raised by the plaintiff in error in the state court and decided there against him, before the supreme court can take jurisdiction of the cause. A definite issue as to the validity of a treaty, or statute of, or authority exercised under the United States, or as to the validity of a statute of, or authority exercised under, a state, or as to the possession of some title, right, privilege or immunity under the constitution, or a treaty or

19 Schollenberger V. Pennsylvania, 171 U. S. 1-30 (43:49); Brown v. Maryland, 12 Wheat. 419 (6:678); Leisy v. Hardin, 135 U. S. 100 (34:128); Columbia Water Power Co. v. Columbia Electric Street Ry., Light & Power Co., 172 U. S. 475-493 (43:521); Gibbons v. Ogden, 9 Wheat. 1-240 (6:23); McCulloch v. Maryland, 4 Wheat. 316437 (4:579); Dartmouth College v. Woodward, 4 Wheat. 518-714 (4:629); McCulloch v. Virginia, 172 U. S. 102-133 (43:382); Miller v. Cornwall Railroad Co., 168 U. S.

131-135 (42:409); Baltimore & Potomac Railroad Co. v. Hopkins, 130 U. S. 210-226 (32:908).

20 Oxley Stave Co. V. Butler County, 166 U. S. 648-660 (41: 1149); Maxwell v. Newbold, 18 How. 511 (15:506); Crowell v. Randell, 10 Pet. 368 (9:458); Hoyt v. Thompson, 1 Black, 578 (17: 65); Miller v. Texas, 153 U. S. 535 (38:812); Morrison v. Watson, 154 U. S. 111 (38:927); Mutual Life Ins. Co. v. McGrew, 188 U. S. 291-313 (47:480).

statute of, or commission held or authority exercised under the United States, must be distinctly deducible from the record. before the state court can be held to have disposed of a federal question by its judgment. And the determination of the existence of the jurisdiction devolves upon the court itself, and that it must do from the face of the record.21

§ 427. When the federal question should be raised.-When should the federal question be raised, in order to give the federal supreme court jurisdiction to re-examine the final judgment of the state court? The answer to this question depends, in every case, very largely upon the procedure of the state in which the case originates, and from whose courts it is removed to the supreme court. The language of the judiciary act is "that a final judgment or decree in any suit, in the highest court of law or equity of a state in which a decision in the suit could be had," when the requisite federal question is involved, "may be re-examined and reversed or affirmed in the supreme court of the United States upon a writ of error." Each state establishes its own judicial system, with its own forms of procedure. These differ materially in different states, not only as to the jurisdiction of their courts, original and appellate, but also as to the time and manner of raising and presenting questions of law, state or federal, in the progress of a case, and whether the judgments of the courts of original jurisdiction will be revised upon questions raised and presented for the first time in the appellate courts, or whether the revising court is confined to questions raised in the trial court, and, if new questions may be presented in the appellate court, when and in what manner they should be raised and presented. It was not intended that the exercise of the appellate jurisdiction of the federal supreme court should interfere with the set

21 Powell V. Supervisors of Brunswick County, 150 U. S. 433442 (37:1134); Oxley Stave Co. v. Butler County, 166 U. S. 648-660 (41:1149); Mutual Life Ins. Co. v. McGrew, 188 U. S. 291-313 (47: 480); Sayward v. Denny, 158 U. S. 180-186 (39:941); Murdock Memphis, 20 Wall. 590-642 (22: 429); Gross v. United States Mort

V.

gage Co., 108 U. S. 477-490 (27: 795); Leiper v. State of Texas, 139 U. S. 462-468 (35:225); Ex parte Spies, 123 U. S. 131-182 (31:80); Columbia Water Power Co. v. Columbia Electric Street Ry., Light & Power Co., 172 U. S. 475-493 (43:521); Michigan Sugar Co. v. Dix, 185 U. S. 112-114 (46:829).

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tled judicial procedure of the state courts; but to take the case after the state courts have discharged their duty in relation to it, and if, upon the record as there made, a federal question appears, to affirm or reverse the judgment according to law. It is, therefore, established as a fundamental principle, that the federal supreme court, in deciding whether the federal question was seasonably and properly raised, will give due consideration and full effect to the settled judicial procedure of the state from which the case comes, in so far as it may be done consistently with the limitations placed upon its own jurisdiction.22 In consonance with this principle, the decisions have established the following rule upon the subject, namely:-The proper time to raise the federal question is in the trial court and before its judgment is made final, if that be required by the state procedure, and in accordance with which the appellate courts of the state will not revise the judgment of the trial court upon questions not therein raised; 23 but if, according to the state procedure, the judgment of the trial court will be revised by the state appellate court upon questions raised for the first time in such appellate court, then the federal question may be raised in the state appellate court at any time before its decision and judgment are made final, even upon a petition for a rehearing, if the court will entertain the petition, grant the rehearing, and consider and decide the federal question presented therein, and cause its action in the premises to affirmatively appear from its record and proceedings.24

22 Crossley v. New Orleans, 108 U. S. 105 (27:667); Gross v. United States Mortgage Co., 108 U. S. 477 (27:795); R. R. Co. v. Marshall, 12 How. 165; Cousin v. Labatut, 19 How. 202 (15:601); Murdock v. Memphis, 20 Wall. 590-642 (22: 429).

23 Mutual Life Ins. Co. v. McGrew, 188 U. S. 291-313 (47:480); Morrison v. Watson, 154 U. S. 111115 (38:927); Ex parte Spies, 123 U. S. 131-180 (31:80); Miller v. Texas, 153 U. S. 535-539 (38:812); Jacobi v. Alabama, 187 U. S. 133136 (47:106); Layton v. Missouri,

187 U. S. 356-361 (47:214); Erie Railroad v. Purdy, 185 U. S. 148154 (46:847); Chicago, Indianapolis & Louisville Ry. Co. v. McGuire, 196 U. S. 128-133 (49:413); McMullen v. Ferrum Min. Co., 197 U. S. 343-348 (49:784); French v. Fuller, 199 U. S. 274.

24 Mallett v. North Carolina, 181 U. S. 589-601 (45:1015); Sweringen v. St. Louis, 185 U. S. 38-47 (46:795); Pim v. St Louis, 165 U. S. 273-274 (41:714); Leigh v. Green, 193 U. S. 79-93 (48:623); Fullerton v. Texas, 196 U. S. 192194 (49:443).

§ 428. Same-Discretion of state court as to when federal question may be raised.-If, by the local procedure, a federal question may be presented in the supreme court of the state upon a petition for a rehearing, but the court has plenary discretion as to allowing such question to be raised at such time and in such manner, and actually exercises that discretion and refuses to entertain and decide it, the supreme court cannot. take jurisdiction in such a case.25 But a state court cannot,. under the pretext of enforcing its local procedure, unreasonably and arbitrarily prevent a party from claiming a federal right, when that claim is seasonably made.26

§ 429. The federal question must be raised and presented in the proper way. The language of the authorities is, that the federal question must be raised and presented, not only at the proper time, but in the proper way. What is the proper way, manner, method or procedure to raise and present the question? There is no rule applicable to all cases; but the way or method is as varied as the incidents of judicial procedure in the progress of a cause from its commencement to final decree. In the light of the adjudicated cases, it may be affirmed that, in order to give the federal supreme court jurisdiction, upon writ of error, to re-examine the final judgment or decree of a state court, the federal question must be raised and presented by some allegation, issue, claim, contention, offer, tender, request, prayer, objection, exception, or other legal proceeding in the progress of the suit, duly made and entered of record in accordance with the requirements of the judicial procedure of the state where the suit arises; 27 and the word "record," in this connection, is not to be given the restricted meaning which

25 Fullerton v. Texas, 196 U. S. 192-194 (49:443); Western Electric Supply Co. v. Abbeville Electric Light & Power Co., 197 U. S. 299-303 (49:765).

26 Rogers v. Alabama, 192 U. S. 223-231 (48:419).

27 Mutual Life Ins. Co. v. McGrew, 188 U. S. 291-313 (47:480); Gibbons v. Ogden, 9 Wheat. 1-240 (6:23); Dartmouth College V. Woodward, 4 Wheat. 518-714 (4: 629); McCulloch v. Maryland, 4

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Wheat. 316-437 (4:579); Cohens v. Virginia, 6 Wheat. 264-448 (5: 257); Brown v. Maryland, Wheat. 419 (6:678); Fairfax v. Hunter, 7 Cranch. 603-632 (3:453); San Jose Land & Water Co. v. San Jose Ranch Co., 189 U. S. 177-185 (47:765); Manley v. Park, 187 U. S. 547 (47:296); St. Louis Consol. Coal Co. v. Illinois, 185 U. S. 203. (46:872); Yazoo & Mississippi Valley Railroad Co. v. Adams, 180 U. S. 1-25 (45:395); Parmalee V..

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