Court and expressly passed upon, or the judgment rendered could not have been given without deciding it.2 Where, however, the case falls within the third class, the Supreme Court has no jurisdiction unless the claim of Federal right was especially set up in the State Court. 513. How Claim of Right Must Be Specifically Set Up. In the Supreme Court the defendant in error frequently objects that his adversary did not, in the Court below, specifically set up the Federal claim. The authorities declare that the record itself must affirmatively show that such claim was so made. If the plaintiff in error, has in the regular pleadings in the case set up his Federal right as a ground of action or defense, it is, of course, sufficient. The pleadings may be silent on the question, if the opinion of the Court below shows that it was raised and decided. Originally this would not have been enough. The opinion of the lower Court was technically not a part of the record,1 and section 25 of the Judiciary Act expressly provided that the Supreme Court should consider no error except it appeared on the "face of the record." That phrase had a definite meaning at common law. It did not have the same significance where the procedure was under the civil law. Accordingly, at a comparatively carly date the Supreme Court was constrained to hold that, under the Louisiana practice, the opinion of a Court of that State was part of the record. The adoption of the Code practice in many States and other statutory changes in their methods of judicial procedure, increased the difficulty of determining with precision what was and what was not technically a part of the record. Section 25 was revised in 1867.3 The express requirement that the error complained of must appear on the face of the record was omitted. The Supreme Court thereupon embraced the opportunity to hold that in future it would, if necessary, examine 2 Harding vs. Illinois, 196 U. S. 86. 1 Williams vs. Norris, 12 Wheat. 117. 'Grand Gulf R. R. & Bank. Co. vs. Marshall, 12 How. 167. $14 Stat. 386. the opinion of the State Court to see whether the claim of Federal right had been there set up.1 As is stated in the opinion in the case last cited, the Supreme Court had long been in the habit of looking to a certificate of the presiding judge of the State Court, to aid it in determining what had been actually passed upon by that Court. Where such certificate is given, it is presumed to have been granted by the order of the State Court and to form part of its record. The effect of such certificate is, however, quite limited. If it does not otherwise appear from the record that the Federal claim is necessarily drawn in question, the Supreme Court will not take jurisdiction." This result will follow, although the Supreme Court has been careful to say that such certificate is always regarded with respect. The claim of Federal right must be specifically set up or claimed at the proper time and in the proper way. What is the proper way and the proper time depends to a large extent upon the practice in the State Court or upon what the State Court in the particular case did. After a State Court has announced its final decision the parties are not entitled as of right to a rehearing, and the denial of one does not necessarily involve any decision upen the claim of Federal right set up for the first time in the petition for rehearing,1 but if the State Court does see fit actually to pass upon such question, the substantial requirement that there shall have been a determination below on the specific point is met.2 Sometimes a case is fought out in the State Courts without any Federal question being raised at all. After the final decision of the State tribunals has been rendered, it may occur to the defeated party that there was a Federal question involved. He tries to prolong the litigation. He applies to the Supreme Court for a writ of error. Among his assign 'Murdock vs. City of Memphis, 20 Wall. 590. Armstrong vs. Treasurer of Athens County, 16 Peters, 285. * Railroad Company vs. Rock, 4 Wall. 180. Powell vs. Brunswick County, 150 U. S. 439. 1 Pim vs. St. Louis, 165 U. S. 273. 2 Mallett vs. North Carolina, 181 U. S. 592. ments of error he sets up the denial of the alleged Federal right. It is too late for him to do so. He must have claimed that right before the decision of which he complains.3 514. The Supreme Court Has Jurisdiction Only When the State Court Has Denied the Federal Right. The sole purpose of section 25 of the Judiciary Act as also of the various statutes which, from time to time, have replaced it, is to protect Federal jurisdiction from encroachment by the States. The defeated party below is entitled to a writ of error only when a Federal right relied on by him has been denied. Of late years a very respectable body of opinion has come to believe that this limitation should be stricken from the law. Sometimes a State Court decides that some State legislation is invalid as being contrary to the Constitution of the United States, as, for example, when the Court of Appeals of New York in the famous Ives case held that the Workmen's Compensation Act of that State was void because it deprived the employers of their property without due process of law, or without such process of law, took from them the liberty of contract. There are many who think that the Supreme Court of the United States would have held otherwise, and that it is highly desirable that on all such questions it shall be possible to obtain the decision of the highest tribunal of the land. The law, however, still remains that a Supreme Court review can be invoked only when the State Court has refused to admit some Federal right which the plaintiff in error has set up. 515. Plaintiff in Error is Not Entitled to a Writ From Supreme Court Until He Has Carried the Case to the Highest Court of the State to Which He Can Take it. In accordance with the salutary rule that Federal interference in State affairs shall be carried no further than the exigencies of the situation require, a litigant will not be allowed to take his case to the Supreme Court, until he has Appleby vs. City of Buffalo, 221 U. S. 524. exhausted all the means open to him, to secure what he believes to be his Federal rights in the Courts of the State itself. Every State judge is as much bound by his oath of office to regard the Constitution of the United States and the laws and treaties made under it as the supreme law of the land, as is any Federal judicial officer. So long as the highest tribunal in the State, to which the question under the State laws and practice may be carried, has not spoken, the presumption is that, when it does speak, it will be to vindicate the Federal right. On the other hand, the right of review would be in large part ineffective, if it could be exercised only after a decision on the question by the highest Court existing in the State. In many States, the decision of Courts inferior to the highest is final in certain kinds of litigation or upon certain questions. The writ of error in the great case of Cohens vs. Virginia was issued to the Quarterly Sessions Court for the Borough of Norfolk, a Court which was composed of the Mayor, Recorder and Aldermen of that borough. The defendants, plaintiffs in error above, were there charged with selling tickets of a lottery not authorized by the law of Virginia, which then prohibited any traffic in lottery tickets not of its own creation. The defendants pleaded that Congress had incorporated the City of Washington and empowered it, among other things, to authorize the drawing of lotteries for effecting any important improvements which its ordinary funds or revenues would not accomplish, and that the tickets they were charged with selling were issued by the corporation of the City of Washington in pursuance of the authority there given. The Court decided that the plea was bad. The defendants were convicted and fined. They prayed an appeal to the next superior Court of law of Norfolk County. The prayer was refused on the ground that the decision of the Quarterly Sessions Court was final in such cases. 516. Rule in Cases in Which a Higher State Court May or May Not Allow an Appeal From a Lower.Under the laws and practices of a number of the States, as, for example, in Virginia, a defeated litigant in a lower Court is not entitled, as of right, to a writ of error, from, or an appeal to, the highest Court of the State. If he wishes either, he must ask for it. It may be allowed or refused. Before he can carry the case to the Supreme Court of the United States, he must have sought its allowance.1 If it has been denied him he can sue out the writ of error to the trial Court, for that, under the circumstances, will be the highest Court of the State from which he can obtain a decision. It may be added that there are cases in which, although there has been a decision upon the question in the highest Court of the State, the writ of error may issue to the lower Court. Whether it should or should not depends upon whether or not under the State practice, the record of the case remains in the lower or in the higher Court. The writ should regularly issue to the Court in which the record is,3 although, of course, the petition for it and the record must show that the highest Court of the State has given its decision. 517. The Supreme Court Has Jurisdiction to Pass On the Federal Question Only.-It was quite clear from section 25 of the Judicial Act as originally enacted, that the Supreme Court could pass only on the Federal question involved. After passage of the Act of 18671 it was strongly contended that this rule had been changed; it was said that, thereafter, whenever a Federal question was in controversy, the Supreme Court had jurisdiction, and, having taken jurisdiction, was bound to pass upon all the issues in the case. That is the rule where the original jurisdiction of a District Court is invoked on the ground that the case arises 1 Fisher vs. Perkins, 122 U. S. 523. 2 Western Union Tel. Co. vs. Crovo, 220 U. S. 364. 'Norfolk Turnpike Co. vs. Virginia, 225 U. S. 264; Wedding vs. Meyler. 192 U. S. 573. 114 Stat. 386. |