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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. Bulter 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 Indiana, 156, 164; Priddy v. Dodd, 4 Indiana, 84; Wesley v. Milford, 41

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Indiana, 413; Selking v. Jones, 52 Indiana, 409; Russell v. Harrison, 49 Indiana, 97. This is also the practice in this court. Cornell v. Green, 163 U. S. 75, 80; Ansbro v. United States, 159 U. S. 695; Pine River Logging Co. v. United States, 186 U. S. 279, 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. 556, 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 specially 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, 488. But as the validity of

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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, 143, 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.

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No. 67. Argued December 2, 1904.-Decided January 3, 1905.

The writ of error in O'Neil v. Vermont, 144 U. S. 344, was dismissed be

cause it did not appear that the commerce clause of the Constitution was relied on in, was called to the attention of, or passed on by, the state court, and the case is inapposite where it appears that the protection of commerce clause was properly set up, relied upon in, and denied by, the

state court. Bowman v. Chicago, 125 U. S. 465, Leisy v. Hardin, 135 U. S. 100, Rhodes

v. Iowa, 170 U. S. 412, Vance v. Vandercook Co. No. 1, 170 U. S. 438,
rest on the broad principle of the freedom of commerce between the States,
of the right of citizens of one State to freely contract to receive and send
merchandise from and to another State, and on the want of power of
State to destroy contracts concerning interstate commerce valid in the

States where made.
The right of the parties thereto to make a contract, valid in the State where

made, for the sale and purchase of merchandise and in so doing to fix the


Argument for Plaintiff in Error.

196 U.S.


time when, and condition on which, completed title shall pass is beyond

question. Without passing on the questions whether the property in a C. O. D. ship

ment is at the risk of buyer or seller and when the sale is completed, a package of intoxicating liquor received by an express company in one State to be carried to another State, and there delivered to the consignee C. 0. D. for price of the package and the expressage, is interstate commerce and is under the protection of the commerce clause of the Federal Constitution and cannot, prior to its actual delivery to the consignee, be confiscated under prohibitory liquor laws of the State.

The American Express Company received at Rock Island, Illinois, on or about March 29, 1900, four boxes of merchandise to be carried to Tama, Iowa, to be there delivered to four different persons, one of the packages being consigned to each. The shipment was C. 0. D., three dollars to be collected on each package, exclusive of thirty-five cents for carriage on each. On March 31 the merchandise reached Tama, and on that day was seized in the hands of the express agent. This was based on an information before a justice of the peace, charging that the packages contained intoxicating liquor held by the express company for sale. The express company and its agent answered, setting up the receipt of the packages in Illinois, not for sale in Iowa, but for carriage and delivery to the consignees. An agreed statement of facts was stipulated admitting the receipt, the carriage, and the holding of the packages as above stated. The seizure was sustained. Appeal was taken to a District Court. The express company and its agent amended their answer, specially setting up the commerce clause of the Constitution of the United States. There was judgment in favor of the express company, and the State of Iowa appealed to the Supreme Court and obtained a reversal. 118 Iowa, 447. This writ of error was prosecuted.

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Mr. Lewis Cass Ledyard for plaintiff in error:

Plaintiff in error relies on the principles fairly established as to the right of shippers sending goods from one State to another free from state interference in Leisy v. Hardin, 135 U. S. 100, 110; Bowman v Chicago &c. Ry., 125 U. S. 465;

196 U. S.

Argument for Plaintiff in Error.

Rhodes v. Iowa, 170 U. S. 412; Vance v. Vandercook Co., 170 U. S. 438, 444; In re Rahrer, 140 U. S. 545.

The effect of the propositions established in these cases is to exempt from state regulation or interference, a shipment of liquors imported into a State, until the contract of shipment or the act of interstate transportation is fully performed and consummated by delivery to the consignee. Such delivery marks the first point of time at which the goods become subjected to state control, as being commingled in the general mass of property within the State, and then only is there a subject upon which the police power of the State can operate.

The seizure of the liquors in the present case took place before that time and while the goods were still in the possession of the interstate carrier engaged in the act of interstate transportation. They were, therefore, clearly exempt from seizure or interference or regulation by the State under the propositions above stated.

O'Neil v. Vermont, 144 U.S. 323, was not decided on Federal grounds but the writ of error was dismissed because not properly taken to the state court. While the position taken by the state court in this case that the technical property in the goods remained in the consignor, and that the express company was their agent with authority to transfer the title to the consignee upon payment of the purchase price, is of little importance, it is opposed by the great weight of authority. In such a case, the sale is complete upon a delivery of the goods to the carrier, who becomes the agent of the consignee for the purpose of accepting a delivery and transporting the goods to him, and the agent of the consignor for the purpose of the collection of the purchase price. Commonwealth v. Russell, 11 Kentucky, 576; State v. Cairns (Kansas), 68 Pac. Rep. 621; James v. Commonwealth, 42 S. W. Rep. 1107; Commonwealth v. Fleming, 130 Pa. St. 138; State v. Flanagan, 38 W. Va. 53; Pilgreen v. State, 71 Alabama, 368; Higgins v. Murray, 73 N. Y.

At the time of the seizure, the carrier in the present case was

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