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the wife, and the contract to contribute a certain sum yearly for the support of each child during his minority was simply a contract to do that which the law obliged him to do; that is, to support his minor children. The contract was a recognition of such liability on his part. We think it was not the intention of Congress, in passing a bankruptcy act, to provide for the release of the father from his obligation to support his children by his discharge in bankruptcy, and if not, then we see no reason why his contract to do that which the law obliged him to do should be discharged in that way. As his discharge would not in any event terminate his obligation to support his children during their minority, we see no reason why his written contract acknowledging such obligation and agreeing to pay a certain sum (which may be presumed to have been a reasonable one) in fulfillment thereof should be discharged. It is true his promise is to pay to the mother, but on this branch of the contract it is for the purpose of supporting his two minor children, and he simply makes her his agent for that purpose."

We think this language is equally applicable to the present case in that aspect of the decree which provides for the support of the minor children. The obligation continues after the discharge in bankruptcy as well as before, and is no more than the duty devolved by the law upon the husband to support his children, and is not a debt in any just sense.

It is urged that the amendment of the law made by the act of February 5, 1903, excepting from the operation of a discharge in bankruptcy a decree for alimony due or to become due, or for the maintenance and support of the wife and minor children, is a legislative recognition of the fact that, prior to the passage of the amendment, judgments for alimony would be discharged. In Dunbar v. Dunbar, 190 U. S. 340, cited supra, it was said that this amendment, while it did not apply to prior cases, may be referred to for the purpose of showing the legislative trend in the direction of not discharging an obligation of the bankrupt for the support and maintenance of wife and children. The amendment may also have been passed

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with a view to settling the law upon this subject and to put at rest the controversies which had arisen from the conflicting decisions of the courts, both State and Federal, upon this question. Indeed, in view of the construction of the act in this court in Audubon v. Shufeldt, supra, it may be said to be merely declaratory of the true meaning and sense of the statute. United States v. Freeman, 3 How. 556; Bailey v. Clark, 21 Wall. 284, 288; Cope v. Cope, 137 U. S. 682, 688. The bankruptcy law should receive such an interpretation as will effectuate its beneficent purposes and not make it an instrument to deprive dependent wife and children of the support and maintenance due them from the husband and father, which it has ever been the purpose of the law to enforce. Systems of bankruptcy are designed to relieve the honest debtor from the weight of indebtedness which has become oppressive and to permit him to have a fresh start in business or commercial life, freed from the obligation and responsibilities which may have resulted from business misfortunes. Unless positively required by direct enactment the courts should not presume a design upon the part of Congress in relieving the unfortunate debtor to make the law a means of avoiding enforcement of the obligation, moral and legal, devolved upon the husband to support his wife and to maintain and educate his children. While it is true in this case the obligation has become fixed by an unalterable decree, so far as the amount to be contributed by the husband for the support is concerned, looking beneath the judgment for the foundation upon which it rests we find it was not decreed for any debt of the bankrupt, but was only a means designed by the law for carrying into effect and making available to the wife and children the right which the law gives them as against the husband and father.

We find no error in the judgment of the Supreme Court of the State of New York, and the same is


Argument for Plaintiff in Error.

196 U. S.



No. 61. Submitted November 10, 1904. Decided December 19, 1904.

This court has no general power to review or correct the decisions of the highest state court and in cases of this kind exercises a statutory jurisdiction to protect alleged violations, in state decisions, of certain rights arising under Federal authority; and if the question is not properly reserved in the state court the deficiency cannot be supplied in either the petition for rehearing after judgment or the assignment of errors in this court, or by the certification of the briefs which are not a part of the record by the clerk of the state Supreme Court.

This court will not reverse the judgment of a state court holding an alleged Federal constitutional objection waived, where the record discloses that no authority was cited or argument advanced in its support and it is clear that the decision was based upon other than Federal grounds and the constitutional question was not decided.

THE facts are stated in the opinion.

Mr. William H. Barnum for plaintiff in error:

The prohibitions of the Fourteenth Amendment refer to all the instrumentalities of the State, to its judicial as well as to its executive and legislative authorities. Chicago, Burlington & Quincy R. R. Co. v. Chicago, 166 U. S. 226, 233; Ex parte Virginia, 100 U. S. 339, 346; Yick Wo v. Hopkins, 118 U. S.


It is sufficient if it appears from the record that a right claimed under the Federal Constitution was specially set up or claimed in the state court in such manner as to bring it to the attention of the court. The right may be asserted by pleadings, or on motion to set aside verdict and grant a new trial, stating, as grounds therefor, that the several rulings of the court in excluding proper evidence for the defendant, the statute under which the proceedings were instituted, the verdict and the judgment based upon it were all contrary to the

196 U. S.

Argument for Plaintiff in Error.

constitutional provisions of the Fourteenth Amendment and when the trial court overruled the motion for new trial, on such grounds and entered judgment, it necessarily held adversely to the claims of Federal rights designated in said stated grounds. Chicago, Burlington & Quincy R. R. Co. v. Chicago, 166 U. S. 231.

Due process of law implies the right of the person affected, not only to be present before the tribunal which pronounces judgment, but also to be heard by testimony in proof of any fact which would be a protection to him and his property, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved. The law of the land requires an opportunity for trial; and there can be no trial if only one party is suffered to produce his proofs. Cooley Const. Lim. 368, 369; Zeigler v. South &c. Ala. Ry. Co., 58 Alabama, 594; Calhoun v. Fletcher, 63 Alabama, 574; State v. Billings, 55 Minnesota, 475; Hovey v. Elliott, 167 U. S. 414; Windsor v. McVeigh, 93 U. S. 274; McVeigh v. United States, 11 Wall. 267.

Plaintiff in error is deprived of his property without due process of law by the judgment in this case, because he was denied the right to prove by evidence offered in rebuttal that he never reacquired, owned, was interested in, or possessed of, the property involved after he conveyed it away by the deed of June, 1896.

As there was no averment in the declaration, nor any evidence whatever that plaintiff in error owned the property in any year from 1879 to 1896, or that it was assessed in his name during any one of those seventeen years, and as it was proved by the record that forfeitures covering those years make up all of the judgment affirmed, except about $125 of taxes of 1890, not due when this suit was begun, the entry and affirmance of the judgment without pleadings or proofs are severally denials of due process of law whereby plaintiff in error is deprived of his property in violation of the several provisions of the Fourteenth Amendment.

Argument for Plaintiff in Error.

196 U. S.

Any act of the legislature or action of the courts which arbitrarily takes away the property of A and gives it to B, or makes one person liable for the debts or acts of another, deprives him of due process of law. Camp v. Rogers, 44 Connecticut, 291; Loan Association v. Topeka, 20 Wall. 663; C., B. & Q. R. R. Co. v. Chicago, 166 U. S. 237.

The only persons personally liable under section 230 for taxes assessed from 1879 to 1896, were those owning the property in those several years at the times of such assessments. Biggins v. The People, 96 Illinois, 381; The People v. Winkelman, 95 Illinois, 412; Greenwood v. Town of La Salle, 137 Illinois, 230; § 230, ch. 120, Rev. Stat. Illinois, 3 Starr & Curtis Stat., 3501, 3502; §§ 58 and 59 of same chapter, 3 Starr & Curtis Stat. 3425, 3426.

The judgment therefore makes the plaintiff in error liable for the debts and neglects of other persons. The rights of plaintiff in error under the provisions of the Fourteenth Amendment are violated by the judgment as entered and affirmed, and by § 230, as construed, administered and enforced thereby.

The action of the state court in basing its decision, opinion and judgment upon an issue and point in no way raised or hinted at in the pleadings or the proof or in the contentions of the parties, namely, that the general deed of June 10, 1896, was colorable and dishonest, deprived plaintiff in error of all right and opportunity to be heard in pleadings and proof on such issue and was a taking of his property without due process of law in violation of his constitutional rights.

This action of the state court, while at the same time ignoring or sanctioning the rejection by the trial court of the repeated offers of plaintiff in error to prove upon the trial that he had not reacquired any right, title, interest or possession of the property after making the deed and holding him liable for taxes assessed against the same and forfeitures thereon during the years 1897-1900, when he is shown to have had no interest in the lot, was a deprivation without due process of

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