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Statutes.

Public Statutes. 1881, p. 229, chap. 126. Divorce

961 Chap. 127, 21. Provision

unborn 1886, p. 99, chap. 69. Extension of city

child

934 limits..

631 Chap. 192, $$ 7-9. Foreclosing mortgage. . 739 1887, p. 130, chap. 99. Extension of city limits. . 632

Revised Lars. 1889, p. 145, chap. 107. Divorce

960 Chap. 198, $1. Mortgage of personal prop1891, p. 85, chap. 43. Banking act

144

erty

739 1897, p. 487, chap. 267. Changing corpo.

rate boundaries of
cities
631

Michigan.
General Statutes, 1868.

Constitution.
Chap. 23, art. 16, $ 128. Savings banks... 144

Art. 7, $ 5. Residence of electors.

278 Chap. 8o. Divorce and alimony

961 General Statutes, 1901.

Public Laws. $724. Extension of city limits..

1863, 632

p. 651, No. 304. Water-power manu$ 1052. Extension of city limits.

386 631

factories $ 2021. Crimes and punishment act

28.3

Compiled Laws, 1897. $ 2659. Statement and bond of contestor.. 281

5638. $ 4771. Competent witnesses

Disposition of diseased animals.. 745 273 $ 6280. Air brakes on steam cars.

750 Chap. 115. Changing corporate boundaries

$$ 6425, 6447. Street railways.

748 of cities

631 $$ 7896, 7897. Changes of boundary. 632

Howell's Statutes. $$ 7899, 7900. Changes of boundary.

632

Vol. 2, chap. 309. Poor debtor's act... 210 Code of Civil Procedure. $ 647. Divorce and alimony

961

Minnesota.
Kentucky.

Statutes.
Constitution.

1897, chap. 257. Riparian rights on mean-
dered lakes

298 $ 163. Taking streets by private corporation

638 $ 164. Granting franchise or privilege. 638

Mississippi. $ 171. Annual tax

655 $ 181. Taxation

656

Code, 1892.
Statutes, 1903.
$ 2543. Rents

619 Art. 5, chap. 32. Railroads

642 768, subs. 5. Railroads

642

Missouri. $ 842a. Electric railroads

642 $ 2332. 'Obstructions to bringing suit.... 198

Constitution, 1865.
Civil Code.

Art. 4, $ 27. Forbidding passage of special 194. Grounds of attachment

209

laws

318 227. Attachments against garnishees... 209

Constitution, 1875.
Maine.

Art. 2, $ 4. Object of constitutional gov.
ernment

780 Revised Statutes.

Art. 2, § 20. Compensation for property

taken
Law of the road ......... 670 Art. 4, $ 53. Special legislation

780 Chap. 19, 8 2.

318 Art. Maryland. 9, $$ 20-25. St. Louis

782 Art. 10, $ 18. State board of equalization. 573 stalutes.

311

Art. 12, Š 7. Corporations 1890, p. 408, chap. 370. Regulation of

Statutes.
streets of Baltimore 733 1871-72, p. 15. Bridge companies..

308 1892, p. 535, chap. 387. Telegraph and tel- 1891, p. 75. Foreign corporations

309 ephone companies .. 732 1895, p. 121. Right of railroads to build 1894, p. 260, chap. 207. Telegraph and tel

toll-bridges

318 ephone companies.. 732 1901, p. 232. State board of equalization.. 573 1898, p. 244, chap. 123. Regulation of streets of Baltimore 735

General Statutes, 1865.
Code of Public General Laws.

Chap. 66. Condemnation proceedings 308

Chap. 69, pp. 370, 371, S 16-18. Bridge Art. 23, $$ 232a-232f. Telegraph and tel

companies

308 ephone companies. . 732 Art. 35, $ 6. Comparison of disputed writ

Revised Statutes, 1879.
ing
446 88 953-955. Bridge companies

308 Art. 75, 8S 82-132. Proof of allegations of plea

436

Revised Statutes, 1889. Code of Public General Laws, 1903. $82803-2805. Bridge companies

308 88 334-339. Telegraph and telephone com

Revised Statutes, 1899. panies

732

Chap. 12, arts. 2, 4. Regulation of transCode of Public Local Laws.

portation charges 777

$8 1024-1026. Foreign private corporaAr. 4, $ 819a. Regulation of streets of

tions

313 Baltimore

735

§ 1035. Powers of railroad corporations. . 309 Massachusetts.

317 $ 1060. . Power of eminent doniain. $8 1113-1115. Duty of initial carrier. 776

312 Bill of Rights.

$ 1266. Appointment of commissioners.

Chap. 12, art. 9. Manufacturing and busiArt. 12. Deprivation of property immunity

ness companies ...

316 or privilege ....... 343 $$ 1315, 1316. Foreign corporations. 317 Statutes.

308 1351-1353. Bridge companies $ 6433. Factories

361 1994, chap, 52, 8 73.

w of ap. $9344. State board of equalization. 173 plication to policy. 838 $ 9356. Power of assessment

573

Montana.

Art. 1, $ 9. Lotteries

410

Art. 2, 3. Acquiring residence for voting

Statutes.

purposes

278

Art. 5, $ 9. Civil service

181

1871-72, p. 80, $ 251. Amending execution 328

1899, March 2, p. 145. Judicial sales

329

Statutes.

1897, March 1, p. 241. Conduct of trial... 322 1840, p. 59, chap. 80. Insurance

351

Code of Civil Procedure.

1872, P, 1793, chap. 746. License to prac-

tise medicine

191

§ 635.

Service of summons

328 1873, p. 861, chap. 549. Excise law

342

$ 774. Amendments by the court

3271 1880, chap 36.

$ 778. Immaterial errors disregarded... 327

Comparison of handwrit-

ing:

177

| 1080. Conduct of trial...

322 1880, p. 723, chap. 513. License to prac-

1211. Form and contents of writ of exe-

tise medicine

191

cution

327 | 1880, p. 763, chap. 542. Taxation of cor-

$$ 2340-2346. Will contest

322

porations

89

13120. Proof of fact by witness

324 1881, p. 481, chap. 361. Taxation of cor-

i$ 3379, 3380. Rules of evidence

324

porations

89

Political Code.

1881, chap. 676. Penal Code.

191

1887, p. 853, chap. 647. Licensing and

$$ 3034, 3035. Quarantining sheep for in-

registration of phy.

spection

483

sicians

191

1888, chap. 555. Comparison of handwrit-

Nebraska.

ing

177

1893, pp. 1541-1547. Public health law 191

Constitution.

1896, p. 855, chap. 908. Tax law 88, 890

1897, p. 2025, chap. 690. Insurance law. 352

Art. 1, $ 3. Due process of law.... 342 1899, p. 1590, chap. 712. Special franchise

Statutes.

tax act

890

1901, p. 316, chap. 132. Taxation of trust

1893, p. 164, chap. 24. Railroad trans-

companies

portation

752 1901, p. 1115. Sentencing convict to state

Compiled Statutes.

prison

411

1901, p. 1319, chap. 535. Taxation of trust

Chap. 32, $ 14. Mortgage

798

companies

91

Code of Civil Procedure.

Van Schaack's Lares.

$267. Notice of application for receiver .. 796

Chaps. 1201, 1224. Town meetings

889

Chaps. 1419, 1448, 1454. Town meetings.

889

Nevada.

Chaps. 1459, 1460, 1499. Town meetings.. 889

Constitution.

Chaps. 1536, 1562.

889

Town meetings
Art. 1. & 2. Government in the hands of

Livingston & Smith's Laus.

the people

339

Art. 4, $ 20. Passage of local or special Chaps. 43, 654. Town meetings...

889

laws

339

Revised Statutes.

Art. 10. Equal taxation

339

Statutes.

Vol. 2 (1st ed.), p. 138. Defining *mar-

riage"

94

1893, March 10, p. 81. Revocation of busi-

Vol. 2 (1st ed.), p. 142. Annulment of mar-

ness licenses

339

riage

94

1893, p. 189, $ 20. Charter of Reno. 339 Vol. 2, p. 408, $$ 87, 88. Competent wit.

ness,

185

New Jersey.

Vol. 2 (3d ed.), pp 2737-2739, $$ 74-83.

Prisons

411

Constitution, 1875.

Code of Civil Procedure.

Art. 4, § 7, 11. Prohibiting local or spe-

cial laws

486 $ 445. Allowing party to defend..

113

Statutes.

829. Testimony by interested witnesses. 167

1022. Trial of issue of fact....

113

1894 (P. L. 506). General school law... 489 $ 1743, subdiv. 4. Annulment of marriage 94

1893 (P. L. 114). General school law. 489 $ 1750. Annulment of marriage.

94

1895 (P. L, 503). General school law, 489 Š 2473. Presumption of jurisdiction.

109

1900 (P. L. 206, 207). Granting referen- $ 2481. Powers of surrogate

112

dum to municipality 490 $ 2514, subd. 11. Defining “person inter-

1900 (P. L. 217, 98 85, 86). Electing board

ested"

101

of education

490 88 2518-2523. Service of citation.

108

1902 (P. L. 69). General school law 486 $2568, 2569. Appeal

113

1903, March 2 (P. L. 22). School districts 492 $$ 2576, 2386. Appeal

113

General Statutes.

$ 2726, subd. 1. Judicial settlement of ac-

count

101

Pp. 3055-3067. General school law...... 489 $ 2727. Judicial settlement of account. 101

82742. Effect of judicial settlement of ac-

New York.

count

106

Bill of Rights.

Code of Criminal Procedure.

$11. Unreasonable searches and seizures. 409

$ 279. Charging crime in separate counts 363

$ 390. Reasonable doubt of degree of guilt 366

Constitution, 1777.

Penal Code.

$26. Appointment of sheriffs and

oners

889 8 36. Acquittal bars indictment

366

$ 29. Eligible officers

889 / $ 172. Defining "suicide"

330

Constitution, 1821.

173. Suicide ; forfeiture

3.50

183. Murder in first degree.

361

Art. 4, $ 15. Election of county officers... 889 Š 184. Murder in the second degree.

366

Constitution 1846.

$ 193. Manslaughter, second degree. 366

$ 288. Omitting to provide for child. 189

Art. 10, ; 2. Election of county officers.. 889 Š 289. Endangering life or health of child 190

Constitution.

336. Gambling apparatus in certain

places

410

Art. 1. & 3. Religious freedom

192 88 3440, 3446. Policy playing.

410

Art. 1, $ 6. Compelling person to witness $ 6870 Sentencing convicts to state pris-

against himself 409

411

on.

.... 872

..... 880

North Carolina.

1788, Dec. 30. Confirmation of compact... 879 Constitution.

Hening's Statute. Art. 4, § 22. Courts are always open..... 502 Vol. 12, p. 564. Grant of Northwest TerArt. 7, $ 7. Incurring indebtedness

ritory

878 Private Acts.

Vol. 12, p. 780. Confirmation of compact.. 879 1901, p. 594, chap. 216. Incurring expense

Revised Code, 1819. for water and light Vol. 1, p. 59. Compact between Virginia * plants 872

and Kentucky Code.

Code, 1849. $$ 18, 19. Service of process

503 Chap. 1, § 2, Compact between Virginia $ 641. Common law in force

501

and Kentucky

880 $ 1246, subsec. 10. Proof of handwriting of deceased 967

Code, 1860. § 1251. Evidence of registered deed. 965 Chap. 1, $ 2. Jurisdiction over river..... 883 1367. Exemption of witnesses from arrest..

502

Code, 1887. $ 1735. Exemption of juror from arrest. 502

$ 2328. Penalty for refusal to receive

Provision for unborn child...... 933 $ 1964. freight

831 $ 1967. Penalty for unshipped freight... 831

Washington. $$ 3800, 3821. Cities and towns.

872

Constitution.
Pennsylvania.

Art. 1, $ 16. Compensation for property
Constitution.

taken

822

Art. 1, $ 22. Rights of accused persons... 813 Art. 1. Declaration of rights 538 Art. 2, $ 28. Special legislation

824 Statutes.

Statutes. 1872 (P. L. 1175). Mechanics' and trades

1899, p. 41. Regulation of bicycles ..... 818 unions

538 1876 (P. L. 45). Mechanics and trades

1899, p. 255, chap. 130. Condemnation of

logging roads and unions 538 waterways

821 1891 (P. L. 300). Mechanics' and trades unions

538 Ballinger's Annotated Codes & Statutes. $ 4730. Definition of "jury".

813 Rhode Island. $ 4983. Definition of "actual bias"

813 4988. Public Statutes, 1882.

813 Challenging jurors 5001. Juror as witness.

813 Chap. 184, § 10. Executors to give bond.. 235 6802. Prosecution by information

812 6832. Filing information

812 Tennessee.

7042 Definition of "manslaughter" $ 7068. Causing abortion

906 Statutes. 1777, chap 23. Establishment of grist

West Virginia. mill

586 1897, p. 120, chap. 10. Prohibiting undue

Constitution.
preferences

152
Art. 1, § 1. Law of the land

883
Texas.
Art. 2, $ 1. West Virginia territory

883 Code of Criminal Procedure. Art. 4, 5. Oath of aflirmation

945 Art. 723. Reversal of judgment on appeal 666

Code, 1899.
Vermont.

Chap. 1, $ 2. Jurisdiction over the
Ohio

881
Laws.
Chap. 7, $ 15. Valid judgment

946 1900, No. 94, p. 66. Requiring license from

Chap. 44, § 15. Ferrying from another peddlers 179

state

883 Statutes.

Chap. 112, 8 11. Oath of judge.

Chap. 125, 88 14, 15. Plea in abatement. 897 Chap 198. Peddlers

.179 Chap. 125, § 16. Plea in abatement.... 901 $ 4732. Penalty for peddling without 11- Chap. 125, $ 40. Verification of pleading.. 942 cense

179 $ 4733. Soldiers exempt from paying 11cense 179

Wisconsin.
Virginia.

Revised Statutes, 1898.
Statutes.

$ 2286. Provision for unborn child..... 1781. Jan. 2. Grant of Northwest Terri- $ 2829. Immaterial errors disregarded... 327 tory

878

2830. Amendments by the court....... 327 63 L. R. A.

906

945

935

LAWYERS' REPORTS

ANNOTATED.

! SUPREME COURT OF THE UNITED STATES.

MUTUAL LIFE INSURANCE COMPANY of a right or claim under the treaty with of New York, Piff. in Err.,

Hawaii, which is essential, under U. S. Rev.
Stat. $ 709 (U. S. Comp. Stat. 1901, p. 575),

to confer jurisdiction on the Supreme Court Alphonsine MCGREW.

of the United States to review a judgment

of a state court adverse to such right or (188 U. S. 291.)

ciaim.

3. A decision of a state court cannot 1. A Federal question first raised in a be reviewed in the Supreme Court of the

petition for rehearing in the highest United States as a denial of full faith and state court is raised too late to confer juris- credit to an Hawaiian judgment, where the diction upon the Supreme Court of the

Federal right did not exist when judgment United States, where such petition was de- of the trial court was rendered because the nied without opinion.

Hawaiian islands had not then been annexed 2. An arerment in an answer in a suit to the United States, and such contention

by a divorced wife on a policy of insurance was not brought to the attention of the highon her former husband's life, that, by virtue est state court in any form. of the Hawaiian laws and the decree of divorce thereunder, all her rights in such pol

(White, J., dissents.) icy had passed to and become the property of her husband, is not the special assertion

(February 23, 1903.) NOTE.-110u and when questions must be must be made to appear on the record in order

raised and decided in a state court in order to sustain the exercise of this jurisdiction. to make a case for a worit of error from the

II. Presentation of the Federal question to the Supreme Court of the United States.

state court. I. Scope of note, 33.

a. How raised. II. Presentation of the Federal question to the state court.

1. The jeneral rules. a. Hou raised.

It is only in the third class of cases enu1. The general rules, 33.

merated in the statute conferring this jurisdic2. Illustrative cases, 35.

tion that the Federal question must be speb. When presented in time, 39.

cially set or claimed. III. The decision of the Federal question by Power Co. v. Columbia Electric Street R. Light

Columbia Water the state court.

& P. Co. 172 U. S. 475, 43 L. ed. 521, 19 Sup. a. Necessity of decision, 42.

Ct. Rep. 247; Yazoo & M. Valley R. Co. v. b. Essential requisites to decision.

Adams, 180 U. S. 1, 45 L. ed. 395, 21 Sup. Ct. 1. In general, 42.

Rep. 240. 2. Application of the rules to differ

Hence, when the question is as to the valident Federal questions, 44. c. Nature of decision as affecting right statute, very little importance has been al

ity, under the Federal Constitution, of a state of rerieu, 33.

tached to the inquiry whether the question d. Decision need not be erroneou8, 56.

was formally raised. Murray v. Charleston, e. Decision must be controlling, 56.

96 U. S. 432, 24 L. ed. 760. IV. Conclusion, 58.

In such cases the special clause of the Fed. I. Scope of note.

eral Constitution supposed to render the stat

ute 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. 132, 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. J of the Federal Constitution relied upon to inentation and decision of such a controversy validate the statute.

up

of

State of California to review a judg. the recovery of a decree of divorce was ment which affirmed a judgment of the Su- averred, and it was alleged “that, under and perior Court for the City and County of San by virtue of the Hawaiian law in force at Francisco in favor of plaintiff in a suit on the time said decree of divorce was granted a policy of life insurance. Dismissed. and now in force, it is provided: “When a

divorce is decreed for the adultery or other Statement by Fuller, Ch. J.:

offense aniounting thereto, of the wife, the This is a writ of error to revise the judg- husband shall hold her personal estate forinent of the supreme court of the state of ever, and he shall hold her real estate so California, affirming a judgment of the su- long as they shall live; and if he shall surperior court of the city and county of San vive her, and there shall be issue of the Francisco in favor of Alphonsine McGrew marriage born alive, he shall hold her real and against the Mutual Life Insurance estate for the term of his own life, as a tenCompany of New York. 132 Cal. 85, 64 ant by the curtesy: provided that the court Pac. 103.

may make such reasonable provision for the The action was brought on a policy of in- divorced wife out of any real estate that surance payable to Alphonsine C. McGrew, may have belonged to her as it may deem

Though the formal raising of this question is first category of cases specified in U. S. Rev. not essential, it must necessarily have been in- Stat. $ 709 (U. S. Comp. Stat. 1901, p. 575), volved in the cause. Yazoo & M. Valley R. by setting up a general right under such statCo. v. Adams, 180 U. S. 41, 45 L. ed. 415, 21 ute, but that the case fell more properly withSup. Ct. Rep. 256 ; Atty. Gen. Federal in the 3d clause of that section as one wherein Street Meeting-House, 1 Black, 262, 17 L. ed. a title or right is claimed under a statute of 61 ; Endowment & Benev. Asso. v. Kansas, 120 the United States, and that to confer jurisdicU. S. 103, 30 L. ed. 593, 7 Sup. Ct. Rep. 449. tion such title or right must have been spe

Where the case arises under the 3d clause cially set up and claimed. of the jurisdictional statute, the right, title, Among the "rare exceptions" to this rule privilege, or iminunity must be specially set which the court, in Columbia Water Power Co. up or claimed. Chicago & N. W. R. Co. v. Chi- v. Columbia Electric Street R. Light & P. Co. cago, 164 U. S. 434, 41 L. ed. 511, 17 Sup. Ct. 172 U. S. 475, 43 L. ed. 521, 19 Sup. Ct. Rep. Rep. 129; Schuyler Nat. Bank v. Bullong, 150 247, thought might possibly exist may propU. S. 85, 37 L. ed. 1008, 13 Sup. Ct. Rep. 24; erly be included those cases in which the court Manning v. French, 133 U. S. 186, 33 L. ed. seems to have lost sight of the distinction. 582, 10 Sup. Ct. Rep. 258 ; Worthy v. Moore Williams v. Bruffy, 96 U. S. 176, 24 L. ed. County, 9 Wall. 611, 19 L. ed. 565 ; Johnson v. 716, seems such a case. Here the fact that an New York L. Ins. Co. 187 U. S. 491, 47 L. ed. immunity under the Federal Constitution was 273, 23 Sup. Ct. Rep. 194 ; Sayward v. Denny, not in terms specially stated in the pleadings 158 U. S. 180, 39 L. ed. 941, 15 Sup. Ct. Rep. was not regarded as material because the ques777; Morrison v. Watson, 154 U. S. 111, 38 tion was necessarily involved in the decision. L. ed. 927, 14 Sup. Ct. Rep. 995; French v. To the same effect are Harris v. Dennie, 3 Pet. Hopkins, 124 U. S. 524, 31 L. ed. 536, 8 Sup. 292, 7 L. ed. 683, and Eureka Lake & Y. Canal (t. Rep. 589; California Powder Works v. Co. y. Yuba County Super. Ct. 116 U. S. 410, Davis, 151 U. S. 389, 38 L. ed. 206, 14 Sup. 29 L. ed. 671, 6 Sup. Ct. Rep. 429, where the (t. Rep. 350 ; Onondaga Nation y. Thacher, court seems to have applied to cases which in 189 U. S. 306, 47 L. ed. 826, 23 Sup. Ct. Rep. fact belonged to the third class the rule which 636.

it has so often said was appropriate only for “It is true,” said Mr. Justice Brown in Bolln cases arising under the 1st or 2d clause of v. Nebraska, 176 U. S. 83, 44 L. ed. 382, 20 the jurisdictional section. Sup. Ct. Rep. 287, "that this court has some- The general rule, however, has been too often times held that, if a Federal question appear asserted to warrant the practitioner in relying in the record and was decided, or such deci. upon these apparent departures. sion was necessarily involved in the case, and No particular form of words or phrases is that such case could not have been determined necessary to comply with the requirement that without deciding such question, the fact that the Federal right be specially set up or claimed. it was not specially set up and claimed is not Green Bay & M. Canal Co. v. Patten Paper Co. conclusive against a review here; but such 172 C. S. 58, 43 L. ed. 364, 19 Sup. Ct. Rep. cases have us-ally, if not always, arisen under 97; Dewey v. Des Moines, 173 U. S. 193, 43 L. the 1st or 2d clauses of $ 709 (U. S. Comp. ed. 663, 19 Sup. Ct. Rep. 379. Stat. 1901, p. 575), and have involved the But averments to present such a question validity of a treaty, statute, or authority ex- must be so distinct and positive as to place it ercised under the United States, or the validity beyond question that the party bringing a case of a statute or authority exercised under a from the state court intended to assert a Fedstate, where such statute or authority is al- eral right. Michigan Sugar ('0. v. Michigan, 185 leged to be repugnant to the Constitution or U. S. 112, 46 L. ed. 829, 22 Sup. Ct. Rep. 581; F. the laws of the United States."

G. Oxley Stave Co. Ý Butler County, 166 U. S. This distinction was recognized in Telluride 648, 41 L. ed. 1149, 17 Sup. Ct. Rep. 709. "The Power Transmission Co. v. Rio Grande West- words 'specially set up or claimed' imply," said ern R. Co. 175 U. S. 639, 44 L. ed. 305, 20 Sup. Mr. Justice Harlan. in the case last cited, (t. Rep. 245, where the court said that the chat, if a party intends to invoke for the provalidity of a Federal statute was not drawn in tection of his rights the Constitution of the question. So as to present a case within the United States, or some treaty, statute, commis

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