at of application to policy. 838 § 9344. § 9356. State board of equalization. Power of assessment 573 573 LAWYERS' REPORTS ANNOTATED. SUPREME COURT OF THE UNITED STATES. MUTUAL LIFE INSURANCE COMPANY of New York, Piff. in Err., 1. 2. v. Alphonsine MCGREW. (188 U. S. 291.) A Federal question first raised in a petition for rehearing in the highest state court is raised too late to confer jurisdiction upon the Supreme Court of the United States, where such petition was denied without opinion. An averment in an answer in a suit by a divorced wife on a policy of insurance on her former husband's life, that, by virtue of the Hawaiian laws and the decree of divorce thereunder, all her rights in such policy had passed to and become the property of her husband, is not the special assertion NOTE. HOW and when questions must be raised and decided in a state court in order to make a case for a writ of error from the Supreme Court of the United States. IV. Conclusion, 58. I. Scope of note. 3. of a right or claim under the treaty with Hawaii, which is essential, under U. S. Rev. Stat. § 709 (U. S. Comp. Stat. 1901, p. 575), to confer jurisdiction on the Supreme Court of the United States to review a judgment of a state court adverse to such right or claim. A decision of a state court cannot be reviewed in the Supreme Court of the United States as a denial of full faith and credit to an Hawaiian judgment, where the Federal right did not exist when judgment of the trial court was rendered because the Hawaiian islands had not then been annexed to the United States, and such contention was not brought to the attention of the highest state court in any form. (White, J., dissents.) (February 23, 1903.) must be made to appear on the record in order a. How raised. 1. The general rules. It is only in the third class of cases enumerated in the statute conferring this jurisdiction that the Federal question must be specially set up or claimed. 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; Yazoo & M. Valley R. Co. v. Adams, 180 U. S. 1, 45 L. ed. 395, 21 Sup. Ct. Rep. 240. Hence, when the question is as to the validity, under the Federal Constitution, of a state statute, very little importance has been attached to the inquiry whether the question was formally raised. Murray v. Charleston, 96 U. S. 432, 24 L. ed. 760. In such cases the special clause of the Federal Constitution supposed to render the statute invalid need not be specifically pointed The nature of the controversy essential to out. Proprietors of Bridges v. Hoboken Land confer jurisdiction on the Supreme Court of the & Improv. Co. 1 Wall. 116, 17 L. ed. 571; FurUnited States of a writ of error to a state man v. Nichol, 8 Wall. 44, 19 L. ed. 370; court has been discussed in a note to Apex Spencer v. Merchant, 125 U. S. 345, 31 L. ed. Transp. Co. v. Garbade, 62 L. R. A. 513. It is 763. 8 Sup. Ct. Rep. 921; Murray v. Charleston, the intention to consider in the present note 96 U. S. 432, 24 L. ed. 760. Contra, Farney only the time and manner of the presentation v. Towle, 1 Black, 350, 17 L. ed. 216, where of such a controversy to the state court, and the court ruled that the attention of the state the decision of that court upon it, leaving for court must be called to the particular clause future discussion the question how the pres of the Federal Constitution relied upon to inentation and decision of such a controversy validate the statute. E RROR to the Supreme Court of the State of California to review a judgment which affirmed a judgment of the Superior Court for the City and County of San Francisco in favor of plaintiff in a suit on a policy of life insurance. Dismissed. Statement by Fuller, Ch. J.: and in the amended answer to the complaint the recovery of a decree of divorce was averred, and it was alleged "that, under and by virtue of the Hawaiian law in force at the time said decree of divorce was granted and now in force, it is provided: 'When a divorce is decreed for the adultery or other offense amounting thereto, of the wife, the This is a writ of error to revise the judg-husband shall hold her personal estate forment of the supreme court of the state of California, affirming a judgment of the superior court of the city and county of San Francisco in favor of Alphonsine McGrew and against the Mutual Life Insurance Company of New York. 132 Cal. 85, 64 Pac. 103. The action was brought on a policy of insurance payable to Alphonsine C. McGrew, Though the formal raising of this question is not essential, it must necessarily have been involved in the cause. Yazoo & M. Valley R. Co. v. Adams, 180 U. S. 41, 45 L. ed. 415, 21 Sup. Ct. Rep. 256; Atty. Gen. V. Federal Street Meeting-House, 1 Black, 262, 17 L. ed. 61; Endowment & Benev. Asso. v. Kansas, 120 U. S. 103, 30 L. ed. 593, 7 Sup. Ct. Rep. 449. Where the case arises under the 3d clause of the jurisdictional statute, the right, title, privilege, or immunity must be specially set up or claimed. Chicago & N. W. R. Co. v. Chicago, 164 U. S. 454, 41 L. ed. 511, 17 Sup. Ct. Rep. 129; Schuyler Nat. Bank v. Bullong, 150 U. S. 85, 37 L. ed. 1008, 13 Sup. Ct. Rep. 24; Manning v. French, 133 U. S. 186, 33 L. ed. 582, 10 Sup. Ct. Rep. 258; Worthy v. Moore County, 9 Wall. 611, 19 L. ed. 565; Johnson v. New York L. Ins. Co. 187 U. S. 491, 47 L. ed. 273, 23 Sup. Ct. Rep. 194; Sayward v. Denny, 158 U. S. 180, 39 L. ed. 941, 15 Sup. Ct. Rep. 777; Morrison v. Watson, 154 U. S. 111, 38 L. ed. 927, 14 Sup. Ct. Rep. 995; French v. Hopkins, 124 U. S. 524, 31 L. ed. 536, 8 Sup. Ct. Rep. 589; California Powder Works V. Davis, 151 U. S. 389, 38 L. ed. 206, 14 Sup. Ct. Rep. 350; Onondaga Nation v. Thacher, 189 U. S. 306, 47 L. ed. 826, 23 Sup. Ct. Rep. 636. ever, and he shall hold her real estate so long as they shall live; and if he shall survive her, and there shall be issue of the marriage born alive, he shall hold her real estate for the term of his own life, as a tenant by the curtesy; provided that the court may make such reasonable provision for the divorced wife out of any real estate that may have belonged to her as it may deem first category of cases specified in U. S. Rev. Stat. § 709 (U. S. Comp. Stat. 1901, p. 575), by setting up a general right under such statute, but that the case fell more properly within the 3d clause of that section as one wherein a title or right is claimed under a statute of the United States, and that to confer jurisdiction such title or right must have been specially set up and claimed. Among the "rare exceptions" to this rule which the court, in 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, thought might possibly exist may properly be included those cases in which the court seems to have lost sight of the distinction. Williams v. Bruffy, 96 U. S. 176, 24 L. ed. 716, seems such a case. Here the fact that an immunity under the Federal Constitution was not in terms specially stated in the pleadings was not regarded as material because the question was necessarily involved in the decision. To the same effect are Harris v. Dennie, 3 Pet. 292, 7 L. ed. 683, and Eureka Lake & Y. Canal Co. v. Yuba County Super. Ct. 116 U. S. 410, 29 L. ed. 671, 6 Sup. Ct. Rep. 429, where the court seems to have applied to cases which in fact belonged to the third class the rule which it has so often said was appropriate only for cases arising under the 1st or 2d clause of the jurisdictional section. The general rule, however, has been too often asserted to warrant the practitioner in relying upon these apparent departures. No particular form of words or phrases is necessary to comply with the requirement that the Federal right be specially set up or claimed. Green Bay & M. Canal Co. v. Patten Paper Co. 172 U. S. 58, 43 L. ed. 364, 19 Sup. Ct. Rep. 97; Dewey v. Des Moines, 173 U. S. 193, 43 L. ed. 665, 19 Sup. Ct. Rep. 379. "It is true," said Mr. Justice Brown in Bolln v. Nebraska, 176 U. S. 83, 44 L. ed. 382, 20 Sup. Ct. Rep. 287, "that this court has sometimes held that, if a Federal question appear in the record and was decided, or such decision was necessarily involved in the case, and that such case could not have been determined without deciding such question, the fact that it was not specially set up and claimed is not conclusive against a review here; but such cases have us-ally, if not always, arisen under the 1st or 2d clauses of § 709 (U. S. Comp. Stat. 1901, p. 575), and have involved the validity of a treaty, statute, or authority exercised under the United States, or the validity of a statute or authority exercised under a state, where such statute or authority is al-eral right. Michigan Sugar Co. v. Michigan, 185 leged to be repugnant to the Constitution or the laws of the United States." This distinction was recognized in Telluride Power Transmission Co. v. Rio Grande Western R. Co. 175 U. S. 639, 44 L. ed. 305, 20 Sup. Ct. Rep. 245, where the court said that the validity of a Federal statute was not drawn in question. so as to present a case within the But averments to present such a question must be so distinct and positive as to place it beyond question that the party bringing a case from the state court intended to assert a Fed U. S. 112, 46 L. ed. 829, 22 Sup. Ct. Rep. 581: F. |