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the Federal question appears in the record in the state court and was decided, or the decision thereof was necessarily involved in the case, the fact that it was not specially set up will not preclude the right of review here. Columbia Water Power Co. v. Columbia Street Railway &c. Co., 172 U. S. 475, and cases cited on p. 488. Nevertheless, it is equally well settled that the right of review, dependent upon the adverse decision of a Federal question, exists only in those cases wherein a decision of the question involved was brought in some proper manner to the attention of the court and decided, or it appears that the judgment rendered could not have been given without deciding it. Fowler v. Lamson, 164 U. S. 252; Clarke v. McDade, 165 U. S. 168, 172. In one of the latest utterances of this court upon the question under consideration, Capital City Dairy Co. v. Ohio, 183 U. S. 238, 248, Mr. Justice White, delivering the opinion of the court, said:

“It is well settled that this court, on error to a state court, cannot consider an alleged Federal question, when it appears that the Federal right thus relied upon had not been by adequate specification called to the attention of the state court and had not been by it considered, not being necessarily involved in the determination of the cause. Green Bay & Miss. Canal Co. v. Patten Paper Co., 172 U. S. 52, 67; Oxley Stave Co. v. Butler Co., 166 U. S. 648, 654, 655, and cases cited. Now, the only possible support to the claim that a Federal question on the subject under consideration was raised below, was the general statement in the answer to which we have already adverted, that “this proceeding is in violation of the Constitution of the United States.' Nowhere does it appear that at any time was any specification made as to the particular clause of the Constitution relied upon to establish that the granting of relief by quo warranto would be repugnant to that Constitution, nor is there anything in the record which could give rise even to a remote inference that the mind of the state court was directed to or considered this question. On the contrary, it is apparent from the record that such a contention was not

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raised in the state court. Thus, although at the request of the defendant below, the plaintiff in error here, the state court certified as to the existence of the Federal questions which had been called to its attention and which it had decided, no reference was made in the certificate to the claim of Federal right we are now considering."

The only authority called to the attention of this court by counsel for plaintiff in error as supporting the view that a Federal question was properly raised in this case is Chicago, Burlington & Quincy R. R. Co. v. Chicago, 166 U. S. 226, in which case it was contended that a statute of the State of Illinois, under which condemnation proceedings were had, was in violation of the Fourteenth Amendment to the Constitution of the United States. In that case it was distinctly asserted, in the motion for a new trial in the trial court, that the statute and rulings of the court and the verdict and judgment based thereon were contrary to the Fourteenth Amendment, declaring that no State should deprive any person of life, liberty or property without due process of law nor deny to any person within its limits the equal protection of the laws. In the assignment of errors in the Supreme Court of the State it was distinctly reasserted that these Federal rights had been denied by the proceedings in the trial court, and it was held in this court that while the Supreme Court of Illinois did not in its opinion expressly refer to the Federal constitutional rights asserted, the same were necessarily included in the judgment of the court and therefore the case was reviewable here. But how stands the present case? It is distinctly stated by the Supreme Court of Illinois (whose judgment is alone reviewable here), in the passage above quoted from its opinion, that no authorities were cited nor argument advanced in support of the assertion that the statute was unconstitutional, and that the point, if it could otherwise be considered, was deemed to be waived. If we look to the motion for a new trial, referred to in general terms in the assignment of errors when the case was taken to the Supreme Court of Illinois, we find the only

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reference to a Federal constitutional question to be in paragraphs 26 and 27, above quoted from the motion for new trial in the court of original jurisdiction. Paragraph 26 simply states that the statute is contrary to the Constitution of the United States, without calling attention to the provision of that instrument whose protection is denied to the plaintiff in error, and is clearly insufficient. Farney v. Towle, 1 Black, 350. Paragraph 27 alleges that the statute takes the property without due process of law, and is therefore unconstitutional. If this vague objection ($ 27) may be taken as asserting a claim of right under the Federal Constitution, yet in the Supreme Court of Illinois, so far as the record discloses, there was neither authority cited nor argument advanced in support of the constitutional objection. There is nothing to prevent a party from waiving a Federal right of this character if he chooses to do so, either in express terms or as a necessary implication from his manner of proceeding in the cause. It is clear from the opinion cited that the state court based its decision upon other than Federal grounds and did not decide the constitutional question sought to be made here.

If the question was necessarily decided, notwithstanding the failure or refusal of the state court to expressly and in terms pass upon the matter, the case might be brought here. But in this case the state court expressly disclaims decision of the constitutional question, because it was not presented by proper proceedings. Our view of this record is that in so holding the state court did not err to the prejudice of the plaintiff in error.

Writ of error dismissed.

196 U. S.

Statement of the Case.




No. 93. Argued December 9, 1904.-Decided January 3, 1905.

Under $ 5 of the judiciary act of March 3, 1891, the question of jurisdiction

to be certified is the jurisdiction of the Circuit Court as a court of the United States and not in respect of its general authority as a judicial

tribunal. The certificate of the lower court is an absolute prerequisite to the exercise

of power here unless the record clearly and unequivocally shows that the court sends up for consideration the single and definite question of its

jurisdiction as a court of the United States. When a case has been removed into the Circuit Court of the United States

on the ground of diversity of citizenship, that court is entitled to pass on all questions arising, including the question of jurisdiction over the subject matter in the state courts or the sufficiency of mesne process to

authorize the recovery of personal judgment. The right to remove for diversity of citizenship, as given by a constitutional

act of Congress, cannot be taken away or abridged by state statutes and the case being removed the Circuit Court has power to so deal with the controversy that the party will lose nothing by his choice of tribunals.

MERRIT B. ATWATER, a citizen of Wisconsin, and William C. Atwater, a citizen of Illinois, were partners, and in 1898 Merrit B. died testate, having appointed Louis A. Pradt, likewise a citizen of Wisconsin, his executor. The will was duly admitted to probate in Wisconsin, and Pradt duly qualified as executor, and has been and is acting as such. William C. Atwater was one of the legatees under the will.

The Atwater Land and Lumber Company was a corporation of Wisconsin, engaged in buying, owning, holding and selling real estate in Kentucky, and Merrit B. Atwater, at the time of his death, owned stock in that corporation, on which a dividend was declared August 30, 1901, which amounted to $4,757.37. W. C. Atwater was not a stockholder at the time of the declaration of the dividend, and had not been since 1893.

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Courtney, a citizen of Kentucky, brought suit in the Circuit Court of Powell County, Kentucky, against Pradt, executor, and William C. Atwater, and procured a general order of attachment, under which the sheriff summoned the company to answer as garnishee by delivery of a copy of the attachment to the person designated by the company as its agent upon whom process could be executed, as required by the statutes of Kentucky in that behalf. There was no personal service on Pradt, executor, or on William C. Atwater, but a warning order was entered pursuant to statute.

Pradt, as executor, and William C. Atwater, filed their petition and bond in the state court for the removal of the cause to the Circuit Court of the United States for the Eastern District of Kentucky on the ground of diversity of citizenship, and it was removed accordingly. Pradt, executor, and William C. Atwater, entering their appearance in the Circuit Court for that purpose only, moved the court to dismiss the case “for want of jurisdiction to try same.” On the same day, Pradt, executor, filed a special demurrer, assigning as causes, inter alia, that the court had no jurisdiction of the person, or of the subject matter. And on that day plaintiff moved to remand, no reasons being given. The Circuit Court overruled the motion to remand, sustained the motion to dismiss and the demurrer, and entered judgment dismissing the suit for want of jurisdiction. Two opinions were delivered, because further argument was permitted, and both are in the record. No certificate of the question of jurisdiction was applied for or granted; but an appeal was allowed to this court, which was argued in due course, together with a motion to dismiss.

Mr. William Bullitt Dixon and Mr. Alexander Pope Humphrey for appellant.

Mr. Neal Brown and Mr. Louis A. Pradt, with whom Mr. Edwin C. Brandenburg and Mr. R. D. Hill were on the brief, for appellees.

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