Gray in Audubon v. Shufeldt, 181 U. S. | by his discharge in bankruptcy, and if not, 575, 45 L. ed. 1009, 21 Sup. Ct. Rep. 735.

In Walker v. Walker, 155 N. Y. 77, 49 N. E. 663, and Livingston v. Livingston, 173 N. Y. 377, 61 L. R. A. 800, 93 Am. St. Rep. 600, 66 N. E. 123, the effect of the holdings is that a judgment for alimony, in the absence of reservation, is a fixed and unalterable determination of the amount to be contributed to the wife's support after the decree, and is beyond the power of the court to change even under the authority of subsequent legislation. These cases do not modify the grounds upon which alimony is awarded, and recognize that an alimony decree is a provision for the support of the wife, settled and determined by the judgment of the

court.

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 fulfilment thereof should be so 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 [32 Stat. at L. 797, chap. 487], excepting from the operation of a discharge in bank

In the case of Dunbar v. Dunbar, decided by this court at the October term, 1902 (190 U. S. 340, 47 L. ed. 1084, 23 Sup. Ct. Rep. 757), it was held that a contract made after divorce between husband and wife, by which the former agreed to pay the latter a certain sum of money annually for her support during her life, or so long as she remained unmarried, and also to pay a certain sum of money to her annually for the support of the minor children of the marriage, whose custody was award-ruptcy a decree for alimony due or to beed to the mother, was not discharged by a subsequent proceeding and discharge in bankruptcy. It was further held that the sum agreed to be paid for the support of the minor children was but a recognition of the liability of the father for their support, and that the fact that the annual instalments were made payable to the wife made no difference in the character of the obligation. Of this feature of the contract the court, speaking by Mr. Justice Peckham, said:

come 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. 8. 340, 47 L. ed. 1084, 23 Sup. Ct. Rep. 757, 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 with a view to settling the law upon this subject, and to put at rest the controversies which had arisen

"In relation to that part of the husband's contract to pay for the support of his minor children until they respectively become of age, we also think that it was not of a nature to be proved in bankruptcy. At common law, a father is bound to sup-from the conflicting decisions of the courts, port his legitimate children, and the obligation continues during their minority. We may assume this obligation to exist in all the states. In this case the decree of the court provided that the children should remain in the custody of 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. 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

both state and Federal, upon this question. Indeed, in view of the construction of the act in this court in Audubon v. Shufeldt, 181 U. S. 575, 45 L. ed. 1009, 21 Sup. Ct. Rep. 735, it may be said to be merely declaratory of the true meaning and sense of the statute. United States v. Freeman, 3 How. 556, 11 L. ed. 724; Bailey v. Clark, 21 Wall. 284, 288, 22 L. ed. 651, 653; Cope v. Cope, 137 U. S. 682, 688, 34 L. ed. 832, 834, 11 Sup. Ct. Rep. 222. 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

220

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 PEOPLE OF THE STATE OF ILLINOIS. judgment was rendered in favor of the

passing upon because it regarded the objec-deed in evidence, subject to this objection. tion waived by failure to cite authorities or advance argument in support thereof, cannot 'Upon appeal to the supreme court of Illi

nois, of this deed and other evidence in ment was made, and such fact may be the case that court said: proved by the introduction in evidence of the proper assessment book or roll, or other competent proof."

"Conceding that the deed, if it stood alone, would overcome the prima facie case made by the plaintiff, the tax records of It is the contention of the plaintiff in Cook county for the year 1898, offered in error in this court that this statute is unevidence by the people, tended to prove constitutional, permitting assessment of ownership in the defendant. The items in those who may not be the owners of the the tax warrant for the year 1897 on this property assessed, and consequently a vioproperty were charged to him and merged lation of the protection guaranteed by the into a judgment. He appeared in the 14th Amendment to the Constitution of county court and objected to the validity the United States. The adverse holding of the tax, but judgment was rendered in the state court upon this proposition is against him as owner. This was subse- the decision upon a Federal right which, it quent to the date of the deed. His remedy is asserted, gives jurisdiction to review the as to that tax, if levied unjustly against judgment in this court. The motion to him, was by appeal. Biggins v. People, dismiss raises the question whether this 106 Ill. 270. As to that tax he clearly objection was properly reserved in the could not, in this proceeding, attack the state court. Upon the constitutionality of validity of the former judgment. More- this act the supreme court of Illinois said: over, after the date of the deed he received "It is also said that the foregoing secthe rents accruing from the property and tion of the statute, under which the action deposited the money so received to his per- is brought, is unconstitutional; but no ausonal account. Notwithstanding the at- thorities are cited or argument advanced tempted explanation of that transaction, in support of that assertion. The point, if we think the weight of the evidence it can be so considered, has therefore been is that he continued, after the pretended conveyance, to deal with the premises as his own.

"In the light of all the evidence in the case it is very clear that the conveyance of June 10, 1896, was merely colorable, and not executed with the honest purpose of conveying the absolute ownership of the property to the grantee." 202 II. 122, 66

N. E. 962.

Much of the elaborate brief of the counsel for plaintiff in error is devoted to a discussion of alleged errors of the supreme court of Illinois in deciding questions which, it is alleged, were not properly made, or in failing to give due weight to matters of evidence in the record. This court has no general power to review or correct the decisions of the highest state court, and in cases if this character exercises a statutory jurisdiction to protect alleged violations, in state decisions, of certain rights arising under Federal authority. Central Land Co. v. Laidley, 159 U. S. 103, 40 L. ed. 91, 16 Sup. Ct. Rep. 80; Marchant v. Pennsylvania R. Co. 153 U. S. 380, 38 L. ed. 751, 14 Sup. Ct. Rep. 894.

The proceeding was brought under 230, chapter 120, 3 Starr & C. Anno. Stat. of Illinois, 3501. This section provides:

waived."

In the petition for allowance of a writ of error, and the assignment of errors in this court, it is alleged that the supreme court of the state erred in holding that the constitutional objection had been waived And the plaintiff in error appears to have put upon file here, without leave, the briefs and petition for rehearing below, in which it is insisted there is sufficient to show that the constitutional objection was not abandoned. But neither the petition for a rehearing or petition for writ of error in the state court after judgment, or assignments of error in this court, can supply deficiencies in the record of the state court, if any exist. Simmerman v. Nebraska, 116 U. S. 54, 29 L. ed. 535, 6 Sup. Ct. Rep. 333. Nor does the certification of the briefs by the clerk of the state supreme court, which are no part of the record, help the matter. Zadig v. Baldwin, 166 U. S. 485, 41 L. ed. 1087, 17 Sup. Ct. Rep. 639. We are to try the case upon the duly certified record, legally made in the state court, and upon which its decision rests. Powell v. Brunswick County, 150 U. S. 433, 439, 37 L. ed. 1134, 1136, 14 Sup. Ct. Rep. 166.

An examination of the record discloses that the assignment of errors in the supreme court of Illinois does not directly raise the point under consideration. It is referred to in the following language of the assignment of errors:

"In any such suit or trial for forfeited taxes, the fact that real estate or personal property is assessed to a person, firm, or corporation shall be prima facie evidence that such person, firm, or corporation was "The finding and judgment of the court the owner thereof, and liable for the taxes were erroneous for the several reasons for the year or years for which the assess-stated in the points filed in support of the

25 S. C.-12.

98

If we may look to the motion filed in the trial court we find some thirty points assigned as grounds for a new trial. Those which may have application to Federal constitutional questions are found in paragraphs 26 and 27, which are:

motion to set aside the finding and grant court, and decided, or it appears that the a new trial." judgment rendered could not have been given without deciding it. Fowler v. Lamson, 164 U. S. 252, 41 L. ed. 424, 17 Sup. Ct. Rep. 112; Clarke v. McDade, 165 U. S. 168-172, 41 L. ed. 673, 674, 17 Sup. Ct. Rep. 284. 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, 46 L. ed. 171-176, 22 Sup. Ct. Rep. 120-124), Mr. Justice White, delivering the opinion of the court, said:

"26. The statute under which this action is prosecuted is contrary to the Constitution of the United States.

"27. This proceeding under said statute is a taking of property without due process of law, and otherwise unconstitutional."

"It is settled that this court, on error to a state court, cannot consider an alleged Federal question when it appears that the The assertion that a judgment rests Federal right thus relied upon had not upon an unconstitutional state statute, the been, by adequate specification, called to validity of which has been drawn in ques- the attention of the state court, and had tion and sustained, presents one of a class not been by it considered, not being necesof cases which may be reviewed here. In sarily involved in the determination of the the analysis of § 709 of the Revised Stat- cause. Green Bay & M. Canal Co. v. Patutes of the United States (U. S. Comp. ten Paper Co. 172 U. S. 58, 67, 43 L. ed. Stat. 1901, p. 575) in Columbia Water 364, 368, 19 Sup. Ct. Rep. 97; F. G. Oxley Power Co. v. Columbia Electric Street Stave Co. v. Butler County, 166 U. S. 648, R. Light & P. Co. 172 U. S. 475-488, 43 654, 655, 41 L. ed. 1149, 1151, 1152, 17 L. ed. 521-526, 19 Sup. Ct. Rep. 247-252, Sup. Ct. Rep. 709, and cases cited. Now, it was pointed out that cases of the char- the only possible support to the claim that acter of the one now under consideration a Federal question on the subject under come within the second class of those pro- consideration was raised below was the vided for in the section: "Where is drawn general statement in the answer to which in question the validity of a statute of, or we have already adverted, that 'this proan authority exercised under, any state on ceeding is in violation of the Constitution the ground of their being repugnant to the of the United States.' Nowhere does it Constitution, treaties, or laws of the Unit-appear that at any time was any specifi ed States, and the decision is in favor of cation made as to the particular clause of their validity."

the Constitution relied upon to establish It has been frequently held that in cases that the granting of relief by quo warranto coming within this class less particularity would be repugnant to that Constitution, is required in asserting the Federal right nor is there anything in the record which than in cases in the third class, wherein a could give rise even to a remote inference right, title, privilege, or immunity is that the mind of the state court was diclaimed under the United States, and the rected to or considered this question. On decision is against such right, title, privi- the contrary, it is apparent from the reclege, or immunity. In the latter class the ord that such a contention was not raised statute requires such right or privilege to in the state court. Thus, although at the be "specially set up and claimed." Under request of the defendant below (the plainthe second class it may be said to be the tiff in error here) the state court certified result of the rulings in this court that if as to the existence of the Federal questions the Federal question appears in the record which had been called to its attention and in the state court and was decided, or the which it had decided, no reference was decision thereof was necessarily involved made in the certificate to the claim of Fed. in the case, the fact that it was not special-eral right we are now considering." ly set up will not preclude the right of The only authority called to the atten. review here. Columbia Water Power Co. v. Columbia Electric Street R. Light & P. Co. 172 U. S. 475, 43 L. ed. 521, 19 Sup. Ct. Rep. 247, and cases cited on p. 488, L. ed. p. 526, Sup. Ct. Rep. p. 252. 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

tion 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, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 587, 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 14th Amendment to the Constitution of the United States. In that case it was dis

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. 47)

MARTHA I. HUNT, Plff. in Err.,

v.

SPRINGFIELD FIRE & MARINE IN-
SURANCE COMPANY.

tinctly asserted, in the motion for a new | notwithstanding the failure or refusal of trial in the trial court, that the statute the state court to expressly and in terms and rulings of the court, and the verdict pass upon the matter, the case might be and judgment based thereon, were contrary to the 14th 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 *refer- Argued December 1, 2, 1904. Decided Do ence to a Federal constitutional question to be in paragraphs 26 and 27, above

Insurance

condition against chattel mortgage.

A condition in a policy of fire insurance for the unconditional and sole ownership of the property by the Insured, and for the nonexistence of any chattel mortgage thereon, was broken where certain trust deeds of the property had been executed to secure payment of money, whose legal effect is practically the same as that of a chattel mortgage with power of sale.

[No. 65.]

cember 19, 1904.

judgment which affirmed a judgment of the Supreme Court of the District in favor of defendant in an action on a policy of insurance. Affirmed.

See same case below, 20 App. D. C. 48.

Statement by Mr. Justice Brown: This was an action to recover on a policy of insurance upon household furniture and ornaments.

quoted, from the motion for new trial in IN ERROR to the Court of Appeals of the court of original jurisdiction. Para- the District of Columbia to review a graph 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, 17 L. ed. 216. 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 pro-pleas setting up this defense. The court ceeding 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,

Defense: That it was provided that the policy should be void if the interest of the insured was other than the unconditional and sole ownership of the property insured, or if the "said property should be or become encumbered by a chattel mortgage," when in fact it was subject, at the time the policy was written, to three trust deeds to secure the payment of various sums of money. Plaintiff demurred to the

overruled the demurrer, entered judgment for the defendant, which was affirmed by the court of appeals. 20 App. D. C. 48.

Messrs. John C. Gittings and D. W. Baker for plaintiff in error.