Where certain facts from which a federal question might arise
were argued in the state court, but their federal character was not
indicated, they cannot be made the basis of a writ of error.
Where a petition to transfer the case to the supreme court of
the state, which contains a mere suggestion of the violation of a
federal right without any reference to the Constitution of the
United States, is denied without opinion, this Court may infer that
the petition was denied because the constitutional point was not
made in the courts below, and if it was considered, the burden to
show it is on the plaintiff in error.
Page 196 U. S. 129
It is too late to set up a federal question for the first time
in the petition for writ of error to this Court.
Because plaintiff in error relied solely for title upon a decree
of foreclosure and sale in a federal court, it does not necessarily
follow that a federal question was set up and decided adversely, no
statute, state or federal, or authority thereunder being called in
question.
This was a suit in the nature of a bill in equity instituted in
the circuit court for Pulaski County, by the railroad company to
quiet its title to certain land, and for an injunction. The case
was tried before a jury, and a verdict returned for the defendants,
under instruction of the court.
Both parties claimed title through the Louisville, New Albany
& Chicago Railway Company, plaintiff in error, which was also
plaintiff below, through certain mortgages given by the New Albany
company in 1886, 1890, and 1894, which were foreclosed in the
United States circuit court, and through which foreclosure and
subsequent sale its title became vested; defendants, through a
judgment recovered by McGuire September 24, 1896, in the Circuit
Court of White County, against the New Albany company for
$2,416.30, upon which an execution was issued October 16, 1897, to
the sheriff of Pulaski County, and a levy made upon the real estate
in dispute. A sale was made November 13, 1897, to the defendant
Hathaway, to whom a deed was executed by the sheriff November 23,
1898.
It was insisted by the plaintiff railroad company that the
property in controversy was a part of the ground appurtenant to its
station at Francesville, Indiana, and that the foreclosure and sale
of the property of the New Albany road, through which it obtained
its title, carried with it the title to the premises in dispute.
The judgment of McGuire was obtained after the execution of the
mortgages through which the plaintiff claimed its title. Defendants
insisted that the disputed property was not embraced within the
mortgages under the after-acquired property clause inserted
therein, because entirely foreign to the operation of the railroad,
and therefore could not have been embraced within the foreclosure
and sale.
Page 196 U. S. 130
The appellate court of Indiana sustained their contention, held
that the trial court was right in instructing the jury to return a
verdict for the appellees, and affirmed its judgment. 31 Ind.App.
110. The supreme court denied a petition for review.
MR. JUSTICE BROWN delivered the opinion of the Court.
Motion is made to dismiss this writ of error upon two grounds:
(1) that the supposed federal question was not set up and claimed
until too late; (2) that there is no federal question in the
case.
The motion must be sustained upon the first ground. The federal
question not put forward by the plaintiff in that the
Page 196 U. S. 131
appellate court failed to give full faith and credit to the
foreclosure decree made by the circuit court of the United States
and the sale in pursuance thereof, in refusing to hold that the
mortgages foreclosed by said decree covered and included in their
description of the property therein conveyed the real estate in
controversy. This question, however, never seems to have been
presented either to the court of first instance or to the court of
appellate jurisdiction. It is true the question was argued at
length as to what was intended to be covered by the description in
the mortgages and by the foreclosure and sale, but the federal
character of this question was not indicated until after a petition
for a rehearing in the appellate court had been overruled.
Plaintiff then filed in the supreme court of the state a petition
for the transfer of the cause to that court, and, as grounds for
such transfer, insisted that the appellate court erred in holding
that the property in controversy was after-acquired property not
used for railway purposes, and on this account was not within the
mortgages upon which appellant's title was based, and that the
court thereby "refused to give due effect to the judgment of the
federal court."
This petition appears to have been denied by the supreme court
without an opinion. Doubtless, if that court had proceeded to pass
upon this as a federal question, we should have held it sufficient,
but it will be observed that the petition contained a mere
suggestion of a violation of a federal right, not the distinct
presentation of a federal question, and that no reference was made
to the Constitution of the United States.
Oxley Stave Co. v.
Butler County, 166 U. S. 648. We
are left to infer that the petition was denied because the point of
constitutionality was not made in either of the courts below. The
rule seems to be settled in Indiana, as in many other states, that
the matter assigned in the supreme court of the state as error must
have been properly presented in the court below and there
adjudicated.
Coleman v. Dobbins, 8 Ind. 156, 164;
Priddy v. Dodd, 4 Ind. 84;
Wesley v. Milford,
41
Page 196 U. S. 132
Ind. 415;
Selking v. Jones, 52 Ind. 409;
Russell v.
Harrison, 49 Ind. 97. This is also the practice in this Court.
Cornell v. Green, 163 U. S. 75,
163 U. S. 80;
Ansbro v. United States, 159 U. S. 695;
Pine River Logging Co. v. United States, 186 U.
S. 279,
186 U. S. 289.
If the supreme court did in fact consider the federal question, the
burden was upon the plaintiff to show it. There is no presumption
that the court considered such question. Under such circumstances,
we decline to review the constitutional question here. This was
expressly held in
Jacobi v. Alabama, 187 U.
S. 133;
Layton v. Missouri, 187 U.
S. 356;
Spies v. Illinois, 123 U.
S. 131.
True, the federal question was set up at length in the petition
filed in the appellate court for a writ of error from this Court,
but that was clearly too late.
Fowler v. Lamson,
164 U. S. 252;
Missouri Pacific Co. v. Fitzgerald, 160
U. S. 566,
160 U. S. 575;
Ansbro v. United States, 159 U. S. 695.
In this connection, the plaintiff in error urges upon us the
proposition that, as it relied solely upon a title derived by a
foreclosure and sale in a federal court, the state court must
necessarily have considered and decided that question, and that, in
such cases, the federal Constitution need not be specially set up
and claimed. This argument would necessarily not apply to the
supreme court of the state, which, as above indicated, might have
held, and probably did hold, that the federal question, not having
been suggested in the court below, could not be made available on
appeal. The appellate court did not discuss it. There are doubtless
a few cases which hold that, where the validity of a treaty or
statute or authority of the United States is raised, and the
decision is against it, or the validity of a state statute is drawn
in question, and the decision is in favor of its validity, and the
federal question appears in the record and was decided, or such
decision was necessarily involved in the case, the fact that it was
not specifically set up and claimed is not conclusive against a
review of such question here.
Columbia Water Power Company v.
Street Railway Co., 172 U. S. 475,
172 U. S. 488.
But as the validity of
Page 196 U. S. 133
no statute, state or federal, or authority thereunder, was
called in question here, this rule does not apply. The true and
rational rule stated by this Court in
Bridge
Proprietors v. Hoboken Co., 1 Wall. 116,
68 U. S. 145,
is clearly applicable:
"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."
This case is the not infrequent one of an attempt to clutch at
the jurisdiction of this Court as an afterthought, when all other
resources of litigation have been exhausted.
The federal question, if any such existed -- as to which we
express no opinion -- was not set up or claimed at the proper time,
and
The writ of error must therefore be dismissed.
