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Argument for Plaintiff in Error.

196 U. S.

HARDING v. ILLINOIS.

ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS.

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. 356.

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

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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 suifered 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 vioration 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; $8 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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196 U. 8.

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.

VOL. CXCVI-6

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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