[1*5] 'HOME FOR INCURABLES, Plff. in Err.,

v.

CITY OF NEW YORK.

(See S. C. Reporter’s ed. 155-158.)

Error to state court — Federal question — certificate of judge of state court.

viewed in the Supreme Court of the United States on the ground that it denied a right, title, privilege, or immunity secured by the Federal Constitution, where it does not ap¬ pear on the face of the record that such right, title, privilege, or immunity was spe¬ cially set up or claimed in the state court.

est state court that a Federal question was involved is not properly a part of the rec¬ ord, and is insufficient in itself to confer jurisdiction on the Supreme Court of the United States to review a Judgment of the state court or to determine Federal questions which do not appear from the record to have been brought to the attention of that court.

[No. 86.]

Argued and Submitted November 12, 1902.

Decided December 1, 1902.

IN ERROR to the Supreme Court of the State of New York to review a judg¬ ment of that court affirmed by the Appel¬ late Division of the Supreme Court and by the Court of Appeals. Dismissed for want of jurisdiction.

Note. — On writs of error frofh United States

Supreme Court to state courts — see notes to Hamblin v. Western Land Co. 37 L. ed. U. S. 267 ; Kipley v. Illinois ex rel. Akin, 42 L. ed. U. S. 998 ; and Re Buchanan, 39 L. ed. U. S.

187 U. S.

See same case below in Appellate Divi¬ sion, 56 App. Div. 625, 68 N. Y. Supp. 1140, and in Court of Appeals, 166 N. Y. 602, 59 N. E. 1123.

Statement by Mr. Justice Harlan:

The plaintiff in error, the Home for In¬ curables, filed its petition in the supreme court for the city and county of New York, alleging that at the date of the confirmation of a certain assessment for a sewer in East 184th street from Vanderbilt avenue west to Washington avenue, etc., it was the owner of certain lots affected thereby in ward number 1, block number 3,064, the 24th ward of the city of New York;

That on the 22d of January, 1900, that assessment was confirmed by operation of law and the title thereof duly entered, with date of entry and of confirmation, in the record of titles of assessments confirmed, whereby such assessment became a lien upon such lots; and.

That the assessment, together with an in¬ terest certificate certified by the comptrol¬ ler of the city of New York to the board of assessors, was irregular, excessive, and voidable, for reasons set forth in the peti¬ tion.

•The petition alleged, among other things,

that “so much of the act of the legislature of the state of New York, known as § 868 of the New York city consolidation act of 1882, as purports to authorize and direct the making of such interest certificate and the assessment of the amount thereof here¬ in, is in violation of the Constitution of the state of New York in that said portion of said act authorizes the taking of private property without just compensation, and said portion of said act purports to author¬ ize an unlawful exercise of the power of taxation.”

The petitioner prayed that the assess¬ ment be vacated or reduced, and that the lien or liens created thereby or by any subse¬ quent proceeding be canceled and discharged or reduced so far as the same affected the above lots.

The case was heard upon the stipulation of facte in the supreme court and the relief asked by the petitioner was denied. Upon appeal to the appellate division of the su¬ preme court the action of the court of origi¬ nal jurisdiction was confirmed. The case was then carried to the court of appeals of the state, and the judgment of the lower court was affirmed.

Upon writ of error to this court, it has been assigned for error that the judgment of the state court was in violation of the provisions of the 14th Amendment of the Constitution of the United States ; also, that the judgment deprived the home of the equal protection of the law and of its prop¬ erty without due process of law.

The record contains a certificate by the chief judge of the court of appeals of New York to the effect that in this proceeding the Home for Incurables claimed in the courts of the state that “the imposition of all or a part of the assessment on its land as set forth in the record herein was in vio-

150-158

Supreme Court or the United States.

Oct. Term,

lation of the statutes and Constitution of the state of New York and of the provisions of the 14th Amendment of the Constitution of the United States, and constituted a tak¬ ing of property without due process of law, that the respondent in this proceeding con- teiided that the said assessment was neither in whole nor in part in violation of the statutes and Constitution of the state of New York or of the Constitution of the 1 157]United States, and also *that the said Home for Incurables had no remedy by petition to correct any errors in the said assessment; that this court decided that the said Home for Incurables did have a remedy by peti¬ tion in the manner and form of the pro¬ ceeding adopted by it to correct any errors in the said assessment, but that the assess¬ ment complained of was valid and without error as to each and every part thereof.”

Mr. John M. Perry submitted the cause for plaintiff in error:

The practice prescribed by the state stat¬ ute rendered it proper to raise the Federal question by allegations at the hearing. If an opinion had been rendered, this court could have examined that.

Gross v. United States Mortg. Co. 108 U.

N. Y. Ct. App. Rule IV.

The Federal question having, under the state practice, been properly raised on the argument, the certificate of the judge to that effect did not originate that question, but reduced to record form that which had been at the foundation of the case from its first presentation to the lowest state court.

Johnson v. Risk, 137 U. S. 300, 34 I., ed. 683, 11 Sup. Ct. Rep. Ill; Parmelee v. Law¬ rence, 11 Wall. 36, 20 L. ed. 48; Meyer v. Richmond, 172 U. S. 82, 43 L. ed. 374, 19 Sup. Ct. Rep. 106; Columbia Water Power Co. v. Columbia Electric Street R. Light d P. Co. 172 U. S. 475, 43 L. ed. 521, 19 Sup. Ct. Rep. 247 ; Kaukauna Water Power Go. v. Green Bay d M. Canal Co. 142 U. S. 254, 35 L. ed. 1004, 12 Sup. Ct. Rep. 173.

The Federal question was necessarily in¬ volved in the disposition of this case by the state courts.

Columbia Water Power Co. v. Columbia Electric Street R. Light d P. Co. 172 U. S. 475, 43 L. ed. 521, 19 Sup. Ct. Rep. 247; Kaukauna Water Power Co. v. Green Bay d M. Canal Co. 142 U. S. 254, 35 L. ed. 1004. 12 Sup. Ct. Rep. 173.

Mr. George L. Sterling argued the cause, and, with Messrs. George L. Rives and Theodore Connoly, filed a brief for de¬ fendant in error:

The court will be governed by the record itself, and not by the assignments of error or the certificate of the presiding justice of the state court, in determining what ques¬ tions were before that court.

Parmelee v. Lawrence, 11 Wall. 36, 20 L. ed. 48; Klinger v. Missouri, 13 Wall. 257, 20 L. ed. 635; Murdock v. Memphis, 20 Wall. 590, 22 L. ed. 429; Miller v. Cornwall R. Co. 168 U. S. 134, 42 L. ed. 410, 18 Sup. Ct. Rep. 34; Jolmson v. Risk, 137 U. S. 300, 118

34 L. ed. 683, 11 Sup. Ct. Rep. Ill; Roby ▼. Colehour, 146 U. S. 153, 36 L; ed. 922, 1»

Sup. Ct. Rep. 47 ; East is v. Bolles, 150 U. S.

301, 37 L. ed. 1111, 14 Sup. Ct. Rep. 131?

Powell v. Brunswick County, 150 U. S. 433,

37 L. ed. 1134, 14 Sup: Ct. Rep. ICO; Dibble v. Bellingham Bay Land Co. 163 U. S. 63,

41 L. ed. 72, 16 Sup. Ct. Rep. 939; Zadig v. Baldwin, 166 U. S. 485, 41 L. ed. 1087, 17 Sup. Ct. Rep. 639; F. G. Oxley Stove Co. t.

Butler County, 166 U. S. 648, 41 L. ed. 1149,

17 Sup. Ct. Rep. 709; Yazoo d M. Valley R.

Co. v. Adams, 180 U. S. 41, 45 L. ed. 415, 21 Sup. Ct. Rep. 256; Michigan Sugar Co. v. Michigan, 185 U. S. 112, 46 L. ed. 829, 22 Sup. Ct. Rep. 581 ; New York C. d H. R. R.

Co. v. New York, 186 U. S. 269, 46 L. ed.

1158, 22 Sup. Ct. Rep. 916.

Mr. Justice Harlan delivered the opin¬ ion of the court:

The plaintiff insists here that the state court, by its final judgment, refused to rec¬ ognize certain rights belonging to it under the Constitution of the United States. But it does not appear on the face of the record that it set up or claimed any such right until the case reached this court. In Par¬ melee v. Lawrence, 11 Wall. 36, 38, 20 L. ed. 48, 49, this court — following the previ¬ ous cases of Latoler v. Walker, 14 How. 152,

14 L. ed. 365, and Mississippi d M. R. Co. v. Rock, 4 Wall. 177, 18 L. ed. 381, — said it was essential to our jurisdiction in re-exam¬ ining the judgment of the state court that the alleged conflict between the state law and the Constitution of the United States “appear in the pleadings of the suit, or from the evidence in the course of the trial, in the instructions asked for, or from excep¬ tions taken to the rulings of the court,” or “it must be that such a question was neces¬ sarily involved in the decision, and that the state court would not have given a judg¬ ment without deciding it.” Later cases in this court have expressed the additional thought that if the highest court of the state assumes that the record sufficiently presents a question of Federal right and de¬ cides against the party claiming such right, we will look no further, and will proceed to a consideration of that question, unless the decision is made to rest, in part, upon some ground of local law, sufficient enough in it¬ self *to sustain the judgment, independently [ 1 58] of nnv question of Federal right.

In tlie case before us, the Home for In¬ curables has not brought upon the record the fact that it asserted, in the state court, any Federal right whatever. It is entirely consistent with the record that the home did not, at any time pending the case in the state court, set up or claim any such right.

If our jurisdiction is invoked on the ground that the judgment of the state court has denied a right, title, privilege, or im¬ munity secured by the Constitution of the United States, it is essential, under existing statutes, that such right, title, privilege, or immunity shall have been specially set up or claimed in the state court. Rev. Stat.

709 [U. S. Comp. Stat. 1901, p. 675] ; Arm-

187 U. 8.

Raub v. Carpenter. 168, 109

strong v. Athens County Treasurer, 16 Pet. 281, 285, 10 L. ed. 965, 966; Mississippi & M. R. Co. v. Rock, 4 Wall. 177, 180, 18 L. ed. 381, 382; Powell v. Brunswick County, 150 U. S. 433, 439, 37 L. ed. 1134, 1136, 14 Sup. Ct. Rep. 166; Roby v. Colehour, 146 U. S. 153, 159, 36 L. ed. 922, 924, 13 Sup. Ct. Rep. 47 ; F. O. Oxley Stave Go. v. Butler County, 166 U. S. 648, 654, 41 L. ed. 1149, 1151, 17 Sup. Ct. Rep. 709; Levy v. San Francisco City & County Super. Ct. 167 U. S. 175, 177, 42 L. ed. 126, 127, 17 Sup. Ct. Rep. 769.

It is true that the transcript contains the certificate of the chief judge of the court of appeals of New York, not appearing to have been by order of that court while the case was before it or under its control, which states that the home did make, in that court, the Federal questions now pressed upon our consideration. But that certifi¬ cate is not properly a part of the record. While we have said in some cases that such a certificate is entitled to great respect, and, in other cases, that its office is to make that more certain and specific which is too gen¬ eral and indefinite in the record, it is in¬ sufficient in itself to give us jurisdiction, or to authorize us to determine Federal questions that do not appear, in any form, from the record, to have been brought to the attention of the state court. Powell v. Brunswick County, 150 U. S. 433, 439, 37 L. ed. 1134, 1136, 14 Sup. Ct. Rep. 166; Neivport Light Co. v. 'Newport, 151 U. S. 527, 537, 38 L. ed. 259, 262, 14 Sup. Ct. Rep. 429; Yazoo & M. Valley R. Co. v. Adams, 180 U. S. 41, 47, 45 L. ed. 418, 21 Sup. Ct. Rep. 256; Felix v. Scharnweber, 125 U. S. 64, 59, 31 L. ed. 687, 8 Sup. Ct. Rep. 759.

Having no jurisdiction to re-examine the judgment below, the writ of error must be dismissed.