The questions, in order to

general law thus reviewable. be reviewable, however, must be sufficiently open to doubt to show that the claim is bona fide and with some color of merit, and not a bare assertion of an obviously unfounded one."

The effect of a proceeding to review the decision of the state courts under this section is simply to bring up federal questions of law. Even in a chancery case only questions of law are reviewable, for the statute provides that the decisions of the state courts are reviewable only by writ of error, and it could not have been the intention to give a general review of all questions of law and fact involved in the case so taken up.8

The classes of questions reviewable, as has been seen, subdivide into three. The first of these is where the validity of a treaty or statute or authority exercised under the United States is questioned in the state court; but such a federal statute or authority must be actually drawn in question, and no review lies from a mere decision of a state court construing a federal statute. Hence there are many

5 Grame v. Mutual Assur. Co., 112 U. S. 273, 5 Sup. Ct. 150, 28 L. Ed. 716. Nor were questions of pleading involving no denial of a federal right. Brinkmeier v. Missouri Pac. R. Co., 224 U. S. 268, 32 Sup. Ct. 412, 56 L. Ed. 758. See "Courts," Dec. Dig. (Key-No.) § 394; Cent. Dig. §§ 1049-1077.

6 Wabash R. Co. v. Flannigan, 192 U. S. 29, 24 Sup. Ct. 224, 48 L. Ed. 328; Gring v. Ives, 222 U. S. 365, 32 Sup. Ct. 167, 56 L. Ed. 235; Deming v. Carlisle Packing Co., 226 U. S. 102, 33 Sup. Ct. 80, 57 L. Ed. -. See "Courts," Dec. Dig. (Key-No.) § 394; Cent. Dig. §§ 10491077.

7 Chapman & D. Land Co. v. Bigelow, 206 U. S. 41, 27 Sup. Ct. 679, 51 L. Ed. 953. See "Courts," Dec. Dig. (Key-No.) § 399; Cent. Dig. §§ 1089-1090.

8 EGAN v. HART, 165 U. S. 188, 17 Sup. Ct. 300, 41 L. Ed. 680; Earling v. Ernigh, 218 U. S. 27, 30 Sup. Ct. 672, 54 L. Ed. 915. But it may be necessary to look into questions of fact to ascertain the federal question involved. Cedar Rapids Gaslight Co. v. City of Cedar Rapids, 223 U. S. 655, 32 Sup. Ct. 389, 56 L. Ed. 594. See "Courts," Dec. Dig. (Key-No.) § 399; Cent. Dig. §§ 1089–1090.

9 Kennard v. Nebraska, 186 U. S. 304, 22 Sup. Ct. 879, 46 L. Ed.

federal questions upon which the state courts can pass, and over which the federal courts have no right of review, such as questions of mere construction, not appearing on the face of the plaintiff's pleading, in which case, as has been seen, no right of removal exists, or questions so appearing in cases involving less than three thousand dollars, or proceedings not amounting to suits, in which cases, also, no right of removal exists.

The second of these classes is where a state statute is questioned in the state court as repugnant to the federal Constitution or laws, and the court sustains the state statute. This is a very common class of jurisdiction. One of the most frequent instances of its exercise is where state laws are alleged to violate the constitutional provisions against impairing the obligation of contracts—a provision applying not simply to the acts of the state legislature, but also to the acts of any subordinate legislative body, like a municipality, but not the acts of executive or judicial offiAnother instance is the question whether the taking of property under a state statute constitutes a taking for public use, or deprives the party of his property without due process of law.11 The third class, under the statute, is where a title, right, privilege, or immunity is claimed under the federal Constitution or laws, or a commission or authority exercised under the United States, and the decision is against the right specially set up or claimed by

cers.10

1175. See "Courts," Dec. Dig. (Key-No.) § 394; Cent. Dig. §§ 1049– 1077.

10 Williams v. Louisiana, 103 U. S. 637, 26 L. Ed. 595; Citizens' Bank v. Parker, 192 U. S. 73, 24 Sup. Ct. 181, 48 L. Ed. 346; Grand Rapids & I. R. Co. v. Osborn, 193 U. S. 17, 24 Sup. Ct. 310, 48 L. Ed. 598; Bacon v. Texas, 163 U. S. 207, 16 Sup. Ct. 1023, 41 L. Ed. 132; State of Louisiana ex rel. Hubert v. New Orleans, 215 U. S. 170, 30 Sup. Ct. 40, 54 L. Ed. 144. See "Courts," Dec. Dig. (Key-No.) § 394; Cent. Dig. §§ 1049–1077.

11 Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 17 Sup. Ct. 56, 41 L. Ed. 369. See "Courts," Dec. Dig. (Key-No.) § 394; Cent. Dig. §§ 1049-1077.

either party. This also is a very common exercise of the jurisdiction. It cannot be invoked, however, where both parties set up title through a common source to the United States.12 It covers, however, not simply questions of validity or supremacy of the federal Constitution or laws, but also authority exercised under the United States-in this respect being wider than the clause conferring jurisdiction on the trial courts of the United States by removal, where only questions under the Constitution or laws give the right. The question whether a proceeding in a state court put the accused twice in jeopardy, contrary to the provisions of the federal Constitution, raises such a question. The question as to the effect of a sale under the bankrupt law is such a question.15 So, also, the question whether a party is entitled to a removal of his case from the state court under the provisions of the removal act.16 So rights or causes of action claimed under the national banking law.17 So, too, the question whether a carrier

13

12 California ex rel. Hastings v. Jackson, 112 U. S. 233, 5 Sup. Ct. 113, 28 L. Ed. 712. See "Courts," Dec. Dig. (Key-No.) § 394; Cent. Dig. 88 1049–1077.

13 Carson v. Dunham, 121 U. S. 421, 427, 7 Sup. Ct. 1030, 30 L. Ed. 992. See "Courts," Dec. Dig. (Key-No.) § 394; Cent. Dig. §§ 1049-1077.

14 Keerl v. State of Montana, 213 U. S. 135, 29 Sup. Ct. 469, 53 L. Ed. 734. See "Courts," Dec. Dig. (Key-No.) § 394; Cent. Dig. §§ 1049-1077.

15 Factors' & Traders' Ins. Co. v. Murphy, 111 U. S. 738, 4 Sup. Ct. 679, 28 L. Ed. 582; New Orleans, S. F. & L. R. Co. v. Delamore, 114 U. S. 501, 5 Sup. Ct. 1009, 29 L. Ed. 244. So the denial of the right of a trustee in bankruptcy to recover assets of the estate. Rector v. City Deposit Bank Co., 200 U. S. 405, 26 Sup. Ct. 289, 50 L. Ed. 527. Compare Corbett v. Craven, 215 U. S. 125, 30 Sup. Ct. 64, 54 L. Ed. 122. So the refusal of a state court to give effect to a discharge. Zavelo v. Reeves, 227 U. S. 625, 33 Sup. Ct. 365, 57 L. Ed. See "Courts," Dec. Dig. (Key-No.) § 394; Cent. Dig. §§ 10491077.

16 SOUTHERN RY. CO. v. ALLISON, 190 U. S. 326, 23 Sup. Ct. 713, 47 L. Ed. 1078. See "Courts," Dec. Dig. (Key-No.) § 394; Cent. Dig. 88 1049-1077.

17 McCormick v. Market Nat. Bank, 165 U. S. 538, 17 Sup. Ct. 433,

who pays duties on imports exacted under a federal statute has a lien against the owner of the goods for reimbursement.18

SAME-HOW A FEDERAL QUESTION MUST BE RAISED OR SHOWN BY THE RECORD

192. In order to avail of the right to review the action of a state court on a federal question, it must be raised in the state court in the manner in which a question of that nature should be raised by the state practice, and the record must show this.

If, for instance, it arises in connection with a question of evidence, and the party in the state court does not seasonably object or take a proper bill of exceptions to the action of the state court, where a bill of exceptions is necessary, and therefore the state Supreme Court decides that the question cannot be considered, because not properly raised, the benefit of the question is lost.19 It need not necessarily appear in the pleadings, and in fact there are many questions which could not be made to appear by the pleadings, but it must certainly appear somewhere in the record that the point was made and insisted upon. On this subject Chief Justice Fuller has said:

"As the validity of no treaty or statute of, or authority exercised under, the United States, nor of a statute of, or authority exercised under, any state, was drawn in question,

41 L. Ed. 817; Talbot v. First Nat. Bank, 185 U. S. 172, 22 Sup. Ct. 612, 46 L. Ed. 857. See "Courts," Dec. Dig. (Key-No.) § 394; Cent. Dig. 88 1049-1077.

18 Wabash R. Co. v. Pearce, 192 U. S. 179, 24 Sup. Ct. 231, 48 L. Ed. 397. See "Courts," Dec. Dig. (Key-No.) § 394; Cent. Dig. §§ 1049-1077.

19 Mutual Life Ins. Co. v. McGrew, 188 U. S. 291, 23 Sup. Ct. 375, 47 L. Ed. 480, 63 L. R. A. 33; Thomas v. Iowa, 209 U. S. 258, 28 Sup. Ct. 487, 52 L. Ed. 782; St. Louis, I. M. & S. R. Co. v. Taylor, 210 U. S. 281, 28 Sup. Ct. 616, 52 L. Ed. 1061. See "Courts," Dec. Dig. (Key-No.) § 396; Cent. Dig. § 1080.

it is essential to the maintenance of our jurisdiction that it should appear that some title, right, privilege, or immunity under the Constitution or laws of the United States was specially set up or claimed in the state court, and that the decision of the highest court of the state in which such decision could be had was against the title, right, privilege, or immunity so set up or claimed, and in that regard certain propositions must be regarded as settled:

"(1) That the certificate of the presiding judge of the state court as to the existence of grounds upon which our interposition might be successfully invoked, while always regarded with respect, cannot confer jurisdiction upon this court to re-examine the judgment below.

"(2) That the title, right, privilege, or immunity must be specially set up or claimed at the proper time and in the proper way.

"(3) That such claim cannot be recognized as properly made when made for the first time in a petition for rehearing after judgment.

"(4) That the petition for the writ of error forms no part of the record upon which action is taken here.

"(5) Nor do the arguments of counsel, though the opinions of the state courts are now made such by rule.

"(6) The right on which the party relies must have been called to the attention of the court in some proper way, and the decision of the court must have been against the right claimed.

“(7) Or at all events it must appear from the record by clear and necessary intendment that the federal question was directly involved, so that the state court could not have given judgment without deciding it; that is, a definite issue as to the decision of the right must be distinctly deducible by the record before the state court can be held to have disposed of such federal question by its decision." 20

20 SAYWARD v. DENNY, 158 U. S. 180, 15 Sup. Ct. 777, 39 L. Ed. 941; Hulbert v. Chicago, 202 U. S. 275, 26 Sup. Ct. 617, 50 L. Ed. 1026. See "Courts," Dec. Dig. (Key-No.) § 398; Cent. Dig. §§ 1085