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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 If we may look to the motion filed in given without deciding it. Fowler v. Lamthe trial court we find some thirty points son, 164 U. S. 252, 41 L. ed. 424, 17 Sup. assigned as grounds for a new trial. Those Ct. Rep. 112; Clarke v. McDade, 165 U. S. which may have application to Federal 168–172, 41 L. ed. 673, 674, 17 Sup. Ct. constitutional questions are found in para- Rep. 284. In one of the latest utterances graphs 26 and 27, which are:

of this court upon the question under con“26. The statute under which this ac- sideration (Capital City Dairy Co. v. Ohio, tion is prosecuted is contrary to the Con- 183 U. S. 238,248, 46 L. ed. 171-176, 22 stitution of the United States.

Sup. Ct. Rep. 120–124), Mr. Justice White, “27. This proceeding under said statute delivering the opinion of the court, said: is a taking of property without due proc- “It is settled that this court, on error ess of law, and otherwise unconstitution to a state court, cannot consider an alleged al.”

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

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 Fed. in 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 ad-tended that a statute of the state of Illiverse decision of a Federal question exists nois, under which condemnation proceedonly in those cases wherein a decision of ings were had, was in violation of the 14th the question involved was brought, in some Amendment to the Constitution of the proper manner, to the attention of the United States. In that case it was dis

V.

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 con- brought here. But in this case the state trary to the 14th Amendment, declaring court expressly disclaims decision of the that no state should deprive any person of constitutional question, because it was not life, liberty, or property without due proc- presented by proper proceedings. Our ess of law nor deny to any person within view of this record is that, in so holding, its limits the equal protection of the laws. the state court did not err to the prejudice In the assignment of errors in the supreme of the plaintiff in error. court of the state it was distinctly reas- Writ of error dismissed. serted that these Federal rights had been denied by the proceedings in the trial court, and it was held in this court that

(196 U. S. 47)

MARTHA I. HUNT, Piff. in Err., while the supreme court of Illinois did not, in its opinion, expressly refer to the Federal constitutional rights asserted, the same SPRINGFIELD FIRE & MARINE INwere necessarily included in the judgment

SURANCE COMPANY. of the court, and therefore the case was reviewable here. But how stands the

pres

Insurance-condition against chattel mortent case? It is distinctly stated by the

gage. supreme court of Illinois (whose judgment is alone reviewable here) in the passage

A condition in a policy of fire insurance for

the unconditional and sole ownership of the above quoted from its opinion, that no au- property by the Insured, and for the nones. thorities were cited nor argument ad- istence of any chattel mortgage thereon, was vanced in support of the assertion that the broken where certain trust deeds of the statute was unconstitutional, and that the

property had been executed to secure pay

ment of money, whose legal effect is practi. point, if it could otherwise be considered,

cally the same as that of a chattel mortgage was deemed to be waived. If we look to

with power of sale. the motion for a new trial, referred to in general terms in the assignment of errors

[No. 65.] 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

cember 19, 1904. to be in paragraphs 26 and 27, above quoted, from the motion for new trial in IN

N ERROR to the Court of Appeals of the court of original jurisdiction. Para- the District of Columbia to review a graph 26 simply states that the statute judgment which affirmed a judgment of is contrary to the Constitution of the the Supreme Court of the District in favor United States, without calling attention to of defendant in an action on a policy of the provision of that instrument whose insurance. Affirmed. protection is denied to the plaintiff in er- See same case below, 20 App. D. C. 48. ror, and is clearly insufficient. Farney v. Towle, 1 Black, 350, 17 L. ed. 216. Para- Statement by Mr. Justice Brown: graph 27 alleges that the statute takes the This was an action to recover on a polproperty without due process of law, and icy of insurance upon household furniture is therefore unconstitutional. If this and ornaments. vague objection (§ 27) may be taken as Defense: That it was provided that the asserting a claim of right under the Fed policy should be void if the interest of the eral Constitution, yet in the supreme insured was other than the unconditional court of Illinois, so far as the record dis- and sole ownership of the property incloses, there was neither authority cited sured, or if the "said property should be nor argument advanced in support of the or become encumbered by a chattel mortconstitutional objection. There is nothing gage,” when in fact it was subject, at the to prevent a party from waiving a Federal time the policy was written, to three trust right of this character if he chooses to do deeds to secure the payment of various 80, either in express terms or as a neces- sums of money. Plaintiff demurred to the sary implication from his manner of pro- pleas setting up this defense. The court ceeding in the cause. It is clear from the overruled the demurrer, entered judgment opinion cited thạt the state court based for the defendant, which was affirmed by its decision upon other

than Federal the court of appeals. 20 App. D. C. 48. grounds, and did not decide the constitutional question sought to be made here. Messrs. John C. Gittings and D. W.

If the question was necessarily decided, '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 opin- The legal effect of the two instruments ion of the court:

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 Platt v. Union P. R. Co. 99 U. S. 48-57, in the policy for the unconditional owner- 25 L. ed. 424-427; Palmer v. Gurnsey, 7 ship of the property by the plaintiff, and Wend. 248; Eaton v.

v. Whiting, 3 Pick. for the nonexistence of any chattel mort- 484; Wheeler & W. Mfg. Co. v. Howard, 28 gage thereon, was broken by certain trust Fed. 741;Bartlett v. Teah, 1 McCrary, 176, deeds to secure the payment of money in 1 Fed. 768; Southern P. R. Co. v. Doyle, each case.

8 Sawy. 60, 11 Fed. 253; McLane v. PasPlaintiff relies upon the familiar prin- chal, 47 Tex. 365. ciple of law that the conditions of a policy There may be cases under particular of insurance, prepared, as they are, by the statutes recognizing a difference between company, and virtually thrust upon the in- them in reference to the application of the sured, frequently without his knowledge, recording laws, as appears to be the case must be construed strictly, and, while the in Maryland (Charles v. Clagett, 3 Md. legal effect of a chattel mortgage and of a 82), but in their essential features and in deed of trust to secure the payment of their methods of enforcement they are money may be practically the same, they practically identical. Both are transfers are in law different instruments; and that conditioned upon the payment of a sum of a condition against one is not broken by money; both are enforceable in the same the existence of the other. We recognize manner, and the difference between them the rule laid down by this court in Thomp- is one of name rather than substance. The son v. Phenix Ins. Co. 136 U. S. 287, 34 provision in the policy is one for the proL. ed. 408, 10 Sup. Ct. Rep. 1019, that in tection of the insurer, who is entitled, if case of attempted forfeiture, if the policy he insists upon it in his questions, to be be fairly susceptible of two constructions, apprised of any fact which qualifies or the one will be adopted which is more limits the interest of the insured in the favorable to the insured. This rule was property, and would naturally tend to direiterated in McMaster V. New York L. minish the precautions he might take Ins. Co. 183 U. S. 25, 46 L. ed. 64, 22 Sup. against its destruction by fire. Ct. Rep. 10, but we cannot recognize it as In passing upon the identity of the two applicable to this case.

instruments in this case we may properly A deed of trust and chattel mortgage refer to the further provision of the policy with power of sale are practically one and that the interest of the insured must be the same instrument as understood in this an unconditional and sole ownership. District. In the language of Mr. Justice While the breach of this condition is not Morris, in speaking of mortgages of real specifically urged in the briefs, we may estate in Middleton v. Parke, 3 App. D. treat it as explanatory of the other conC. 149:

dition against the existence of a chattel "The deed of trust is the only form of mortgage. The

company evidently inmortgage that has been in general use in tended by this provision to protect itself the District of Columbia for many years. against conditional transfers of every kind. The common-law mortgage is practically The contract of the company is a personal unknown with us; and everyone under one with the insured, and it is not bound stands that, when a mortgage of real es- to accept any other person to whom the tate here is spoken of, the deed of trust is latter may transfer the property. what is intended.

The deed of The conditions of the policy in this case trust is here used as the equivalent of a were broken by the trust deeds, and the mortgage; and so the term is universally judgment of the court below is, therefore, used by the community. Indeed, while a affirmed. mortgage is not necessarily, perhaps, a

(196 U. S. 64) deed of trust, a deed of trust to secure the

T. B. LEE, Jr., Piff. in Err., loan of money is necessarily a mortgage." It was said by this court in Shillaber v.

H. S. ROBINSON. 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

state Constitution. person to whom the conveyance is made 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

v.

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. tax. 9, § 10, of the state Constitution of April 16, Counsel other than those representing 1868, against issuing scrip except for the re- the parties was permitted to file a brief demption of an "evidence of indebtedness

as amicus curiæ, and urged that this was previously issued," where neither statute

But the circuit court purported to be an adjustment of a claim a collusive suit. against the state, permitted by art. 14, § 4, of held that it was not (122 Fed. 1010), and that Constitution.

we accept the finding for the purposes of

disposing of the case. [No. 81.]

The revenue bond scrip was issued under

an act of March 2, 1872, entitled "An Act Argued December 6, 9, 1904. Decided De- to Relieve the State of South Carolina of cember 19, 1904.

All Liability for Its Guaranty of the Bonds

of the Blue Ridge Railroad Company, by IN N ERROR to the Circuit Court of the Providing for the Securing and Destruc

United States for the District of South tion of the Same.” This act purported to Carolina to review a judgment in favor of authorize the issue to

issue to the amount of plaintiff in an action to recover land $1,800,000, "which revenue bond scrip shall bought by the purchaser at a tax sale, in be signed by the state treasurer, and shall which the defense was set up of a tender express that the sum mentioned therein is which included revenue bond scrip of that due by the state of South Carolina to the state. Affirmed.

bearer thereof, and that the same will be See same case below, 122 Fed. 1012.

received in payment of taxes and all other The facts are stated in the opinion. dues to the state, except special tax levied Mr. William H. Lyles for plaintiff in to pay interest on the public debt.”

But error.

the supreme court of the state held that Mr. D. W. Robinson for defendant in the scrip constituted bills of credit within error.

the prohibition of the Constitution of the Mr. William Elliott, Jr., as

as amicus United States, article 1, § 10. State es curiæ.

rel. Shiver v. Comptroller General, 4 S.

C. N. S. 185. The pledge of the state's Mr. Justice Holmes delivered the opin- credit and the provisions for the redempion of the court:

tion of the scrip were repealed by the legisThis is action to

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 Caro- taxes since 1873. lina, against Lee, a citizen and resident of We are of opinion that the issue of the South Carolina, on the ground that Robin- scrip was forbidden by the Constitution of son had purchased the land at a tax sale. the state. When the scrip was issued, the The value of the land is alleged and found Constitution of South Carolina, ratified on to be more than $2,000. The defense is April 16, 1868, in article 9, § 10, provided that a tender was made of the amount of as follows: "No scrip, certificate, or other the taxes before the sale. This tender in evidence of state indebtedness shall be iscluded, as a part of it, revenue bond scrip sued except for the redemption of stock, of the state of South Carolina for $5, pur- bonds, or other evidence of indebtedness porting on its face to be receivable in pay- previously issued, or for such debts as are ment of taxes, and the question is whether expressly authorized in this Constitution.” the tender was good; or, more precisely, There was also a further provision that whether the bond scrip was receivable for "any debt contracted by the state shall be taxes under the Constitution of the United by loan on state bonds, of amounts not less States and the Constitution and laws of than $50 each, on interest payable within South Carolina. The circuit court held twenty years after the final passage of the the tender bad, on the double ground that law authorizing such debt.” the issue of the scrip was in contravention The guaranty from which the scrip was of the Constitution of the state and that to relieve the state was a guaranty of the scrip was a bill of credit within the bonds of the Blue Ridge Railroad Comprohibition of article 1, § 10, of the Con- pany, which was indorsed upon them by stitution of the United States. 122 Fed. authority of an act approved September 1012. Judgment was given for the plain- 15, 1868. The state long had favored this tiff, Robinson, and this writ of error was road, and had held its stock. It had aubrought, setting up that the contract'thorized the guaranty of bonds in 1852,

an

recover

sued.

(196 U. S. 133). and again in 1854, repealing the former | AMERICAN EXPRESS COMPANY and R. act. But the act of 1868 recited that the

M. Coffin, Piffs. in Err., comptroller general of the state had not

V. indorsed any of the bonds issued under the

STATE OF IOWA. act of 1854, and that the conditions imposed upon such indorsement had become Error to state courtdecision on non-Fedimpossible and injudicious. So it might eral ground

commerce C. 0. D. shipbe assumed from the face of the statute of

ments of intoxicating liquorswhen sub1868 that there was no outstanding liabil- ject to seizure under state laro. ity represented by the guaranty under that statute, and we see no ground for doubt 1. A writ of error to review a decision of a that the guaranty must be considered as a state court upholding a seizure, under the new contract, made for the first time, in state laws, of intoxicating liquors shipped substance as well as form, after the Con

C. 0. D. into that state from another state, stitution of 1868 went into effect.

on the ground that the sale was completed in

the former state, will not be dismissed on the The guaranty under the act of 1868 can

theory that its ruling rests upon a non-Fednot be put under the head of "such debts eral ground broad enough to sustain it, where as are expressly authorized in this con- the protection of the commerce clause of the stitution," since it was not in the form re- Federal Constitution was directly invoked

in the state court. quired for debts contracted under the Constitution of 1868. We are of opinion that | 2. Intoxicating liquors shipped c. 0. D. from

one state into another cannot be subjected to it equally little satisfies the other excep- seizure under the laws of the latter state, tion in article 9, § 10, quoted above, of a while in the hands of the express company, contract made for the redemption of an

without infringing the commerce clause of "evidence of indebtedness previously is

the Federal Constitution. Whether the word "previously”

[No. 67.] refers to the date of the Constitution or to the date of issuing the guaranty, the guaranty of 1868 is not and does not purport | Argued December 2, 1904. Decided January to be made for the redemption of a pre

3, 1905. vious evidence of debt.

It is argued that, whether there was a N ERROR to the Supreme Court of the liability or not, the acts before 1868 hav- State of Iowa to review a judgment ing purported to pledge the credit of the which reversed a judgment of the Tama Disstate to secure the bonds of the railroad trict Court, which had reversed a judgment company, as they did, there was color of of a justice's court, sustaining a seizure of liability, and the act of 1868, or, at any intoxicating liquors shipped C. 0. D. into rate, the act of 1872, authorizing the bond the state from Illinois, while in the hands scrip, was the adjustment of a claim of the express company's agent at the place against the state under article 14, § 4, of of delivery. Reversed and remanded for the state Constitution. But the act of further proceedings. 1868 did not purport to be an adjustment. See same case below, 118 Iowa, 447, 92 N. On the contrary, it purported, as we have W. 66. said, to give new aid to the railroad, and to authorize an original issue. The act of Statement by Mr. Justice White: 1872, again, dealt only with the supposed The American Express Company received liability under the act of 1868, and pro-at Rock Island, Illinois, on or about March vided for the satisfaction of that. If that 29, 1900, four boxes of merchandise to be liability did not exist, the statute no more carried to Tama, Iowa, to be there delivcould ratify it than it could call it into ered to four different persons, one of the being. The liability for which scrip could be packages being consigned to each. The shipissued 'was required by the Constitution to ment was C. O. D., $3 to be collected on each be one existing before the issue was made. package, exclusive of 35 cents for carriage Moreover, the act of 1872 did not purport on each. On March 31 the merchandise to be an adjustment of a matter in dis-reached Tama, and on that day was seized pute, or an adjustment in any sense. It in the hands of the express agent. This simply assumed that there was an out- was based on an information before a jusstanding liability, and provided for the tice of the peace, charging that the packages satisfaction of it. The question is not contained intoxicating liquor held by the exwhether payment of the bond scrip would press company for sale. The express combe valid, but whether the bond scrip was pany and its agent answered, setting up the issued under the conditions which the receipt of the packages in Illinois, not for state Constitution imposed.

sale in Iowa, but for carriage and delivery Judgment affirmed.

to the consignees. An agreed statement of

I

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