Argument for Plaintiff in Error.

The Constitution of the United States protected the company on account of the divorce decree. Civil Code, Hawaii, section 1331.

The Constitution of the United States required full faith and credit to be given to the decree in the divorce action in Hawaii. Laing v. Rigney, 160 U. S. 544; Lynde v. Lynde, 181 U, S. 186; Bullock v. Bullock, 57 New Jersey Law Reports, 508. The statute in question is not a penal statute in an international sense within the meaning of Huntington v. Attrill, 146 U. S.

657.

In the last case Mr. Justice Gray states that the question whether a statute of one State, which in some aspects may be called penal, is a penal law in the international sense, so that it cannot be enforced in the courts of another State, depends upon the question whether its purpose is to punish an offence against the public justice of the State, or to afford a private remedy to a person injured by the wrongful act. Boston M. R. R. Co. v. Hurd, 108 Fed. Rep. 116, 119; Wisconsin v. Þelican Ins. Co., 127 U. S. 265.

The Supreme Court of California was bound always by the treaty and after 1898 by the Constitution of the United States. 31 Stat. 143.

The Supreme Court of California was bound to take notice of the change in the operation of the supreme law of the land effected by the annexation of Hawaii and the extension of the Constitution thereto. Pugh v. McCormick, 14 Wallace, 361; Fairfax v. IIunter, 7 Cranch, 603, 627; United States v. Peggy, 1 Cranch, 103; Whitehead v. Waison, 19 La. Ann. 68; Stutsman Co. v. Wallace, 142 U. S. 293; Price v. Nesbitt, 29 Maryland, 264; Turner v. Bryan, 83 Maryland, 374; Ferry v. Campbell, 110 Iowa, 290.

This question is important in view of recent past and possible future annexations. But the question has been already decided. Armstrong v. Carson's Executors, 2 Dallas, 302.

The attempted change of domicil by Alphonsine could not deprive the Ilawaiian court of jurisdiction over the contingent interest in the policy any more than it could change the grounds for the divorce itself. Jurisdiction once acquired cannot be

Argument for Defendant in Error.

ousted by subsequent events. Koppel v. Heinrichs, 1 Barb. 450; Tindall v. Meeker, 1 Scamm. 137; Hard v. Shipman, 6 Barb. 631; Upton v. N. J. So. R. R., 25 N. J. Eq. 375. The actual physical location of the goods was not changed.

The treaty should be construed liberally. The Pizarro, 2 Wheaton, 227; United States v. Chong Sam, 47 Fed. Rep. 885; The Friendschaft, 3 Wheat. 114; The Venus, 8 Cranch, 252; State v. Blackmo, 6 Blackf. (Ind.) 489; Case v. Clarke, 5 Mason, 70; Poppenhauser v. India Rubber Co., 14 Fed. Rep. 707; Burnham v. Rangeley, 4 Fed. Cas. 775.

While this is not the case of a double payment to identically the same person, yet the principle that a construction requiring a double payment should not be adopted applies. American Central Ins. Co. v. Hettler, 37 Nebraska, 853; Jardin v. Madeiros, 9 Hawaii, 503; Kolb v. Swann, 68 Maryland, 521; Matter of Howard, 26 N. Y. Misc. 233; Haggerty v. Amory, 89 Massachusetts, 462, and cases cited.

VII. The laws and judges of Hawaii had the final decision of this controversy, and the Hawaiian proceedings and statutes were entitled to full faith and credit in California. Hancock Bank v. Farnum, 176 U. S. 643.

Titles, rights, privileges or immunities claimed under the Constitution, laws or treaties of the United States have been. placed under the final guardianship of this court, on whatever question of law the same might depend. The United States Supreme Court will not compel this insurance company to pay a second time to the wife of the deceased the amount of this policy, when it has already paid the amount thereof for the benefit of the son of the deceased on judgments based on Hawaiian law which the proper rules of international law, the treaty with the United States and the Constitution of the United States say shall be final.

Mr. J. Hubley Ashton for defendant in error. Mr. Richard Bayne and Mr. H. G. Platt were on the brief.

I. There is no Federal question in this case, because plaintiff in error did not claim in or for itself any right under the treaty. Plaintiff in error here does not claim in or for itself

Argument for Defendant in Error.

any right under the treaty with Hawaii, or any right which is protected by that treaty, but only that a third person has a right under that treaty, or which is protected thereby, and that, by virtue of such alleged right, such third person, and not the defendant in error, is the owner of, and entitled to the subject matter of this action, to wit, said policy of insurance and the money due thereon; and therefore, that said third person and not the defendant in error, is entitled to have and recover the amount of said policy from plaintiff in error. Hence, plaintiff in error is not asserting a right in itself under the treaty, but in a third person; which, if established, might be a defence in the state court, but presents no Federal question. Owings v. Norwood, 5 Cranch, 344; Verden v. Coleman, 1 Black, 472; Henderson v. Tennessee, 10 How. 323; Hale v. Gaines, 22 How. 160; Giles v. Little, 134 U. S. 650; Tyler v. Judges, 179 U. S. 407.

II. This writ should be dismissed for want of jurisdiction in this court to entertain it, because no Federal question was specially set up or claimed in the California courts. Water Power Co. v. Columbia, 172 U. S. 488; Yazoo v. Adams, 180 U. S. 14. These cases disposed of the contention of plaintiff in error that a Federal question under clause 3 of § 709 can be raised by inference or implication. Oxley Stave Co. v. Butler Co., 166 U. S. 655; Green Bay v. Patten Paper Co., 172 U. S. 67.

A right, title, privilege or immunity under the Constitution or laws of the United States, or under a treaty, must be especially set up or claimed at the proper time and in the proper way, i. e.,specially set up in the trial court. Spies v. Illinois, 123 U. S. 181; Baldwin v. Kansas, 129 U. S. 57; Miller v. Texas, 153 U. S. 538; Parmalee v. Lawrence, 11 Wall. 39.

It cannot be first set up in the argument in the state Supreme Court. Oxley Stave Co. v. Butler Co., 166 U. S. 655; Maxwell v. Newbold, 18 How. 516. This court did not mean that such a question can be presented to the state Supreme Court only in the oral or printed arguments. Baldwin v. Kansas, 129 U. S. 57; Zadig v. Baldwin, 166 U. S. 488; Sayward v. Denny, 158 U. S. 183; Parmalee v. Lawrence, 11 Wall. 49; Gulf, etc., R. R. Co. v. Hewes, 183 U. S. 66; Loeb v. Columbia, 179 U. S. 485; VOL. CLXXXVI:I-20

Argument for Defendant in Error.

Capital Bank v. Cadiz, 172 U. S. 431; Mallett v. North Carolina, 181 U. S. 592. Also by analogy, under § 5 of the judiciary act of March 3, 1891, W. U. Tel. Co. v. Ann Arbor, 178 U. S. 243; Ansbro v. United States, 159 U. S. 697; Muse v. Arlington, 168 U. S. 435.

The writ of error must be dismissed, unless it is shown that the particular Federal question relied upon, to wit, a right under the treaty, was specially set up or claimed at the proper time, and in the proper way, or that this case is one of the rare exceptions to the rule laid down in Water Power Co. v. Columbia, supra. This court has repeatedly held that it will take jurisdiction only when a Federal question was actually raised and decided, not when it simply might have been raised. Maxwell v. Newbold, 18 How. 511; Crowel v. Randell, 10 Pet. 368, 398; Brown v. Colorado, 106 U. S. 639; Hagar v. California, 15± U. S. 639; Chouteau v. Gibson, 111 U. S. 200. Bell v. Bell, 181 U. S. 175, and other cases on brief of plaintiff in error distinguished.

III. No Federal question was involved in the decision of the California court, nor is any Federal question apparent in the record. It not only does not appear from the record that the treaty in question was in any way involved in the decision, but on the contrary, it appears from the record that it was not so involved.

It was intended to protect only the citizens of the United States and the subjects of the Hawaiian kingdom in disputes between such citizens on the one side and such subjects on the other side, whereas the record shows or attempts to show that both the defendant in error and her husband (the only claimants to this policy of insurance) were both citizens of the Republic of Hawaii (successor to the kingdom of Hawaii) at the time of the beginning of the divorce proceedings.

The policy of insurance is not covered by the terms of the treaty. The term "goods" was clearly not intended to cover intangible property, such as a policy of insurance, as it cannot be said to be in any land, but must be in the owner thereof, whereas a horse, a piano, a barrel of sugar, necessarily has a corporeal situs, which may be different from the situs of its owner.

Opinion of the Court.

16 Am. & Eng. Ency. of Law, 843; People v. Eastman, 25 California, 604; Estate of Fair, 128 California, 612; Kirtland v. Hotchkiss, 100 U. S. 498. N. E. Life v. Woodworth, 111 U. S. 138, distinguished. The decision of the state court that the domicil of the defendant in error at the time of the divorce was in California, though a non-Federal question, is in line with the decisions of this court. Anderson v. Watt, 138 U. S. 706; Cheever v. Wilson, 19 Wall. 108, 123, 124. Mutual Life v. Cohen, 179 U. S. 262; Huntington v. Attrill, 146 U. S. 664, distinguished.

MR. CHIEF JUSTICE FULLER, after making the foregoing statement, delivered the opinion of the court.

Appellate jurisdiction was conferred on this court by the twenty-fifth section of the judiciary act of 1789, over final judgments and decrees in any suit in the highest court of law or equity of a State in which a decision in the suit could be had, in three classes of cases: The first class was where the validity of a treaty or statute of, or an authority exercised under, the United States, was drawn in question, and the decision was against their validity; the second was where 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, was drawn in question, and the decision was in favor of their validity; and the third was "or where is drawn in question the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission." 1 Stat. 73, 85, c. 20, § 25.

By the second section of the act of February 5, 1867, 14 Stat. 385, 386, c. 28, the original twenty-fifth section was reenacted with certain changes, and, among others, the words just quoted were made to read: "Or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of or commission held, or authority exercised under the United States, and the decision is against the title, right, priv