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196 U.S.

Argument for Plaintiff in Error.

law of his rights secured to him by the Fourteenth Amendment.

As the making and delivery of the deed were duly proved and undisputed, and its validity and effect as a conveyance were upheld by the trial court, and as no issue was presented relating to its character or effect, the decision of the state court adjudging that the deed was merely colorable, not made for an honest purpose and invalid and inoperative as a conveyance of title, was and is a taking of property without due process of law.

The deed to the Chicago Real Estate, Loan & Trust Company carried to the grantee all title and interest of plaintiff in error in or to the lot. Frey v. Clifford, 44 California, 335; Pettigrew v. Dobblaur, 63 California, 396; Field v. Huston, 21 Maine, 8; Bird v. Bird, 40 Maine, 398; Fitzgerald v. Libby, 142 Massachusetts, 235; 7 N. E. Rep. 917; Harmon v. James, 15 Mississippi (7 Smedes & M.), 111; 45 Am. Dec. 296; First National Bank v. Hughes, 10 Mo. App. 7; Brown v. Warren, 16 Nevada, 228; Brown v. Wood, 6 Rich. Eq. 155; Sally v. Gunter, 13 Rich. Law, 72; Harvey v. Edens, 69 Texas, 420; Smith v. Westall, 76 Texas, 509; Brigham v. Thompson, 12 Tex. Civ. App. 562; Barnes v. Bartlett, 47 Indiana, 98; Patterson v. Snell, 67 Maine, 559; Stewart v. Cage, 59 Mississippi, 558; Barton's Lessee v. Morris' Heirs, 15 Ohio, 408.

The Supreme Court of Illinois erred in its opinion and judgment that the point in relation to the constitutionality of the statute had been waived by plaintiff in error, and was clearly mistaken as to the supposed facts recited in its opinion as tending to prove ownership in defendant subsequent to the date of the deed. The items in the tax warrant for 1897 on this lot were not charged to defendant and merged into a judgment. No judgment is shown by the record either against the lot or against him as owner. He did not appear and object to the tax as owner and it was error and denial of due process of law to refuse, as the trial court did, to allow him and his witnesses to prove that he did not.


Opinion of the Court.

196 U, S.

Mr. Robert S. Iles for defendant in error.

MR. JUSTICE Day delivered the opinion of the court.

This case was submitted on briefs, together with motion to dismiss or affirm. In support of the motion to dismiss the position taken is that no Federal question was properly raised in the state court, and therefore none is reviewable here.

The case was commenced in the Circuit Court of Cook County, Illinois, to recover taxes for the years 1897, 1898, 1899 and 1900, on a block of land in the Elston Addition to the city of Chicago. At the trial a jury was waived and, upon hearing, a judgment was rendered in favor of the plaintiff for the sum of $2,123.05. An inspection of the record shows that the principal controversy was over the effect of a deed made by Harding, the plaintiff in error, to the Chicago Real Estate Loan and Trust Company, dated June 10, 1896, and recorded July 2 of the same year, which conveyed, for the consideration of five dollars, "all interest in the following described real estate to wit: Any and all lands, of every kind and description, claimed or owned by me in the State of Illinois, and all lots and lands, of every description, in the city of Chicago, in which I have any right, title or interest whatsoever, situated in the State of Illinois,' etc. It was the contention of the State that this deed was too general in its terms to convey specific property, and was therefore insufficient notice to the taxing officer of Cook County that the ownership of the property had changed. The trial court admitted this deed in evidence subject to this objection. Upon appeal to the Supreme Court of Illinois, of this deed and other evidence in the case that court said:

“Conceding that the deed, if it stood alone, would overcome the prima facie case made by the plaintiff, the tax records of Cook County for the year 1898, offered in evidence by the People, tended to prove ownership in the defendant. The items in the tax warrant for the year 1897 on this property were charged to him and merged into a judgment. He ap

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peared in the county court and objected to the validity of the tax, but the judgment was rendered against him as owner. This was subsequent to the date of the deed. His remedy as to that tax, if levied unjustly against him, was by appeal. Biggins v. People, 106 Illinois, 270. As to that tax he clearly could not, in this proceeding, attack the validity of the former judgment. Moreover, after the date of the deed he received the rents accruing from the property and deposited the money so received to his personal account. Notwithstanding the attempted explanation of that transaction, we think the weight of the evidence is that he continued, after the pretended conveyance, to deal with the premises as his own.

“In the light of all the evidence in the case it is very clear that the conveyance of June 10, 1896, was merely colorable, and not executed with the honest purpose of conveying the absolute ownership of the property to the grantee.” 202 Illinois, 122.

Much of the elaborate brief of the counsel for plaintiff in error is devoted to a discussion of alleged errors of the Supreme Court of Illinois in deciding questions which it is alleged were not properly made or in failing to give due weight to matters of evidence in the record. This court has no general power to review or correct the decisions of the highest state court, and in cases of this character exercises a statutory jurisdiction to protect alleged violations, in state decisions, of certain rights arising under Federal authority. Central Land Co. v. Laidley, 159 U. S. 103; Marchant v. Pennsylvania R. R. Co., 153 U. S. 380.

The proceeding was brought under section 230, chapter 120, 3 Starr & Cur. Stat. of Illinois, 3501. This section provides:

“In any such suit or trial for forfeited taxes, the fact that real estate or personal property is assessed to a person, firm or corporation, shall be prima facie evidence that such person, firm or corporation was the owner thereof, and liable for the taxes for the year or years for which the assessment was made. and such fact may be proved by the introduction in evidence

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of the proper assessment book or roll, or other competent proof.”

It is the contention of the plaintiff in error in this court that this statute is unconstitutional, permitting assessment of those who may not be the owners of the property assessed, and consequently a violation of the protection guaranteed by the Fourteenth Amendment to the Constitution of the United States. The adverse holding in the state court upon this proposition is the decision upon a Federal right which, it is asserted, gives jurisdiction to review the judgment in this court. The motion to dismiss raises the question whether this objection was properly reserved in the state court. Upon the constitutionality of this act the Supreme Court of Illinois said:

"It is also said that the foregoing section of the statute, under which the action is brought, is unconstitutional, but no authorities are cited or argument advanced in support of that assertion. The point, if it can be so considered, has therefore been waived."

In the petition for allowance of a writ of error, and the assignment of errors in this court, it is alleged that the Supreme Court of the State erred in holding that the constitutional objection had been waived. And the plaintiff in error appears to have put upon file here without leave the briefs and petition for rehearing below, in which it is insisted there is sufficient to show that the constitutional objection was not abandoned. But neither the petition for a rehearing or petition for writ of error in the state court after judgment, or assignments of error in this court, can supply deficiencies in the record of the state court, if any exist. Simmerman v. Nebraska, 116 U. S. 54. Nor does the certification of the briefs by the clerk of the state supreme court, which are no part of the record, help the matter. Zadig v. Baldwin, 166 U. S. 485. We are to try the case upon the duly certified record, legally made in the state court, and upon which its decision rests. Powell v. Brunswick County, 150 U. S. 433, 439.

An examination of the record discloses that the assignment

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of errors in the Supreme Court of Illinois does not directly raise the point under consideration. It is referred to in the following language of the assignment of errors:

“The finding and judgment of the court were erroneous for the several reasons stated in the points filed in support of the motion to set aside the finding and grant a new trial."

If we may look to the motion filed in the trial court we find some thirty points assigned as grounds for a new trial. Those which may have application to Federal constitutional questions are found in paragraphs 26 and 27, which are:

“26. The statute under which this action is prosecuted is contrary to the Constitution of the United States.

27. This proceeding under said statute is a taking of property without due process of law and otherwise unconstitutional."

The assertion that a judgment rests upon an unconstitutional state statute, the validity of which has been drawn in question and sustained, presents one of a class of cases which may be reviewed here. In the analysis of section 709 of the Revised Statutes of the United States, in Columbia Water Power Co. v. Columbia Street Railway &c. Co., 172 U. S. 475, 488, it was pointed out that cases of the character of the one now under consideration come within the second class of those provided for in the section: "Where is drawn in question the validity of a statute of, or an 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.”

It has been frequently held that in cases coming within this class less particularity is required in asserting the Federal right than in cases in the third class, wherein a right, title, privilege or immunity is claimed under the United States, and the decision is against such right, title, privilege or immunity. In the latter class the statute requires such right or privilege to be “specially set up and claimed.” Under the second class it may be said to be the result of the rulings in this court that if

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