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one who enters upon lawful business by the invitation, either expressed or implied, of the proprietor, is well settled. The former enters at his own risk." These decisions are in accord with the entire current of authority, both English and American. Thus, in 1 Thomp. Neg. § 946, it is said: “As a gen

16 L. R. A. 557, 31 N. E. 644; Sterger v. Van Sicklen, 132 N. Y. 499, 16 L. R. A. 640, 28 Am. St. Rep. 594, 30 N. E. 987.

remove it by the person who put it there; | out any enticement or inducement, and to and there was some complaint also in the year 1900, but for some months before the injury nothing appears to have been said about it. Appellant did not put the wire there, but found it on the house when it took charge, but there was evidence of notice by the owner that the wire should be removed after this. There was some con-eral rule, the owner of private grounds is flict in the evidence, but this is as strong a under no obligation to keep them in a safe statement of the facts as the proof for ap- condition for the benefit of trespassers, inpellee warrants. In Pittsburgh, Ft. W. & truders, idlers, bare licensees, or others who C. R. Co. v. Bingham, 29 Ohio St. 364, 23 come upon them, not by any invitation, exAm. Rep. 751, the deceased, being out of em- press or implied, but for their own purposes, ployment, went to the passenger station of their pleasure, or to gratify their curiosity, the railway for pastime and as a place of however innocent or laudable their purpose safety during a storm. The house was neg- may be." In §§ 947-952 many illustrations ligently constructed, and by reason of this of this principle are given. To same effect, negligence fell during the storm, killing the see note to Godley v. Hagerty, 59 Am. Dec. deceased. The action was brought to recov-736; also note to Zoebisch v. Tarbell, 87 er for his death. The court, after pointing Am. Dec. 667; Hart v. Cole, 156 Mass. 475, out that actionable negligence exists only where he whose act causes the injury owes to the injured party a duty, and referring to many cases applying this principle, held that the plaintiff could not recover. It said: "It is doubtless true that a railroad company, by erecting station-houses and opening them to the public, impliedly licenses all persons to enter. But it is equally true that such license is revocable at the pleasure of the company as to all persons who are not there on business connected with the road, or with its servants or agents. An implied license to enter a depot creates no additional duty upon the part of the company as respects the safety of the building entered. Its only effect is to make that lawful which, without it, would be unlawful. Wood v. Leadbitter, 13 Mees. & W. It is a waiver or relinquishment of the right to treat him who has entered as a tiespasser." In Lary v. Cleveland, C. C. & I. R. Co. 78 Ind. 323, 41 Am. Rep. 572, some boys took refuge in an old freight house in a storm, and one of them was injured by the falling of part of the house. The court, after showing that the railroad company owed him no duty, applied the principle that, where there is no duty to the person injured, there is no actionable negligence. In Severy v. Nickerson, 120 Mass. 306, 21 Am. Rep. 514, a longshoreman, after loading ice on a vessel, went on it after finishing his work merely to gratify his curiosity, and while there fell down an open hatchway, negligently left open, and broke his leg. It was held that the owner of the vessel owed him no duty, and that he assumed all the risks of the place. The court said: "The distinction which exists between the obligation which is due by the owners of premises to a mere licensee, who enters thereon with

838.

.

If it be conceded that the deceased was not technically a trespasser, but a licensee, still he was a bare licensee. He had no business at the store. He went under the porch to get out of the rain, and remained there entirely for his own convenience. Under the above authorities, the owner of the property was under no liability to him to keep it safe. If the telephone company had owned both the building and the wire, it would not have been under any responsibil ity to the deceased for his injury, although he was under its porch by its implied consent, as he was there as a bare licensee, for his own convenience. If the telephone company would not be responsible if it owned both the wire and the building, it is certainly under no greater responsibility when it owned only the wire. If it had put its own wire negligently on its own building, and thus endangered its being struck by lightning, it would be responsible to those it invited to the building in a dangerous condi tion, but it would not be responsible to those merely using it for their own convenience as a shelter in a time of storm. When it put its wire negligently on another person's building, and was negligent in securing it, it violated its duty to him, but it violated no duty to those to whom neither he nor it were under any obligation. We therefore conclude, for the reasons stated, the plaintiff made out no cause of action against appellant. This conclusion makes it unnecessary for us to consider the other questions discussed.

Judgment reversed, and cause remanded for further proceedings consistent herewith.

SUPREME COURT OF THE UNITED STATES.

John D. HOOKER et al., Plffs. in Err.,

1.

บ.

City of LOS ANGELES.

(188 U. S. 314.)

A decision of a state court adverse to the claim that, under Mexican and Spanish grants confirmed and patented under the act of Congress of March 3, 1851 (9 Stat. at L. 631, chap. 41), the owners of the land were entitled to riparian rights and subterranean waters, involves no Federal question reviewable in the Supreme Court of the United States, where the validity of such act was not drawn in question.

2. The construction by a state court of a law of the state as authorizing the

NOTE--What the record must show respecting

court to try and determine in a condemnation proceeding an adverse claim of the plaintiff therein to an interest in the property sought to be condemned is conclusive on the Supreme Court of the United States on writ of error to that court.

3. A judgment of a state court in condemnation proceedings is not reviewable in the Supreme Court of the United States on the theory that a question respecting due process of law was decided thereby, where there is nothing in the record which adequately shows that the state court was led to suppose that any claim was made under the Constitution of the United States, or that any ruling involved a decision against a right set up under that instrument.

(February 23, 1903.)

Oral assertion in argument before the Suthe presentation and decision of a Fcd- preme Court of the United States that in the eral question in order to confer juris-oral argument in the state court a Federal diction on the Supreme Court of the United States of a writ of error to a state court.

I. Introduction, 471.
II. The general rules, 471.
III.

Presentation as affected by the class to
which the Federal question belongs, 472.
IV. The decision of the Federal question, 474.
V. Effect of certificate of state court, 477.
VI. Conclusion, 478.

I. Introduction.

It is to the record alone as sent up to the Supreme Court of the United States that such court can resort for the purpose of ascertaining whether the judgment of the state court sought to be reviewed is within its appellate jurisdiction. Inglee v. Coolidge, 2 Wheat. 363, 4 L. ed. 261; Walker v. Villavaso, 6 Wall. 124, 18 L. ed. 853; Armstrong v. Athens County, 16 Pet. 281, 10 L. ed. 965; Parmelee v. Lawrence, 11 Wail. 36, 20 L. ed. 48; Michigan C. R. Co. v. Southern R. Co. 19 How. 378, 15 L. ed. 689; Edwards v. Elliott, 21 Wall. 532, 22 L. ed. 487; Goodenough Horseshoe Mfg. Co. v. Rhode Island Horseshoe Co. 153 U. S. 635 and 24 L. ed. 368, 14 Sup. Ct. Rep. 1180; Spies v. Illinois, 123 U. S. 131, 31 L. ed. 80, 8 Sup. Ct. Rep. 21; Fisher v. Cockerell, 5 Pet. 248, 8 L. ed. 114; Medberry v. Ohio, 24 How. 413, 16 L. ed. 739. (The question what is the record for this purpose has been discussed in a note to Home for Incurables v. New York, ante, 329.

This being so, it is obvious that this record must show a compliance with all the requirements respecting the time and manner of the presentation of the Federal question to the state court and the decision of that court upon such question, which have been pointed out in the note to Mutual L. Ins. Co. v. McGrew (U. S.) ante, 33. The reader is therefore referred to the cases cited in such note in support of the various propositions there laid down as being at least indirect authorities as to the showing which the record must make respecting such presentation and decision.

The failure of the record to show jurisdiction is fatal.

question was presented cannot cure the failure of the record to show that such question was presented in the state court. Zadig v. Baldwin, 166 U. S. 485, 41 L. ed. 1087, 17 Sup. Ct. Rep. 639.

Resort cannot be had to judicial knowledge to supply the failure of the record to present a controversy as to the possession of a Federal right. Mutual L. Ins. Co. v. McGrew, 188 U. S. 291, 47 L. ed. 480, 23 Sup. Ct. Rep. 375, ante, 33.

And the Supreme Court of the United States cannot indulge in presumptions to supply the omission from the record of material averments which would show that a Federal question so arose as to give it jurisdiction to review a state judgment. Downham v. Alexandria, 10 Wall. 173, 19 L. ed. 929.

The failure to question the jurisdiction will not relieve the Supreme Court of the United States from its duty to ascertain, in the first instance, whether the record presents a case in which it is authorized by law to revise the judgment or decree of a state court. Armstrong v. Athens County, 16 Pet. 281, 10 L. ed. 965; M'Kinney v. Carroll, 12 Pet. 66, 9 L. ed. 1002. The nature of the controversy usually denominated a Federal question has been discussed in a note to Apex Transp. Co. v. Garbade, 62 L. R. A. 513.

II. The general rules.

In determining whether the record shows a case for the exercise by the Supreme Court of the United States of its appellate jurisdiction over state courts, that court is not at liberty to resort to forced inferences and conjectural reasonings, or possible, or even probable, suppositions of the points raised in and decided by the state courts. Ocean Ins. Co. v. Polleys, 13 Pet. 157, 10 L. ed. 105.

It must appear on the face of the record that a Federal question did arise in the state court, and that it was decided. Ibid.; Taylor v. Morton, 2 Black, 481, 17 L. ed. 277; Day v. Gallup, 2 Wall. 97, 17 L. ed. 855; Hurley v. Street, 14 Wall. 85, 20 L. ed. 786; Caperton v. Bowyer, 14 Wall. 216, 20 L. ed. 882; Marshall v. Knott, 131 U. S., Appx. ccv.; Gray v. Coan, 154 U. S. 589, 38 L. ed. 1088, 14 Sup. Ct. Rep. 1168:

ERROR to the Supreme Court of the State | plaint, for the purpose of enabling the city

Statement by Fuller, J.:

of California to review a judgment "to construct and maintain thereon the affirming a judgment of the Superior Court 'headworks' of its projected system for supfor Los Angeles County in favor of the plying water to its inhabitants for private City of Los Angeles in a condemnation pro- and municipal purposes." All questions exceeding. Dismissed. cept the amount of compensation to be awarded were by stipulation tried by the court. The jury returned a verdict awarding $23,000 as the value "of an estate in fee simple in the lands described in the complaint, including all their elements of value, subject to the paramount right of the city of Los Angeles to take from the Los Angeles river, from time to time, all the water that may be needed at such time for the use of the inhabitants of said city, and for all municipal and public uses and purposes therein," and $2,000 as damages to the re

This is a writ of error to the supreme court of the state of California to review a judgment of that court affirming the judgment of the superior court of the county of Los Angeles, California, in favor of the city of Los Angeles, and against Hooker and Pomeroy. The city brought suit against Hooker and Pomeroy, to condemn all their "estate, right, title, and interest" in and to certain tracts of land, described in the com

Clark v. Pennsylvania, 128 U. S. 395, 32 L. ed. 487, 9 Sup. Ct. Rep. 2, 113.

It is not enough that the record shows that a Federal question might have been in the case, and might have been decided. It must be demonstrable that the question did exist, and that the decision was made. Crowell v. Randell, 10 Pet. 368, 9 L. ed. 458; Ocean Ins. Co. v. Polleys, 13 Pet. 157, 10 L. ed. 105; Coons v. Gallaher, 15 Pet. 18, 10 L. ed. 645; Grand Gulf R. & Bkg. Co. v. Marshall, 12 How. 165, 13 L. ed. 938; Hagar v. California, 154 U. S. 639, and 24 L. ed. 1044, 14 Sup. Ct. Rep. 1186; Endowment & Benev. Asso. v. Kansas, 120 U. S. 103, 30 L. ed. 593, 7 Sup. Ct. Rep. 499; The Victory, 6 Wall. 382, 18 L. ed. 848; Brown v. Colorado, 106 U. S. 95, 27 L. ed. 132, 1 Sup. Ct. Rep. 175; Detroit City R. Co v. Guthard, 114 U. S. 133, 29 L. ed. 118, 5 Sup. Ct. Rep. 811.

Any uncertainty as to this rule which might be caused by the statement of Mr. Chief Justice Marshall in Miller v. Nicholls, 4 Wheat. 311, 4 L. ed. 578, that the record need not in terms show a misconstruction of an act of Congress, or that an act of Congress was drawn in question in order to give the Supreme Court of the United States jurisdiction to review the judgment of a state court if the record showed that an act of Congress was applicable to the case, must be deemed removed by Crowell v. Randell, 10 Pet. 368, 9 L. ed. 458, supra, where, after a careful review of previous decisions, including Miller v. Nicholls, the court announced the doctrine as stated above. "This rule," said Mr. Chief Justice Taney, in Maxwell v. Newbold, 18 How. 511, 15 L. ed. 506, "has been uniformly adhered to since the decision of that case. think it the true one, and the only one consistent with the spirit and language of the section referred to [act September 24, 1789, § 25], which so carefully and plainly limits the authority which it confers upon this court over the judgments of state tribunals."

We

It must affirmatively appear from the record that an inferior state court is the highest court in the state in which a decision could be had, before the Supreme Court of the United States can review its judgment on the theory that such is the case; and, where an appeal to a higher state court could be allowed, the record must show an application for such allowance and a refusal thereof. It will not be presumed that an appeal would not have been granted if applied

for.

Fisher v. Perkins, 122 U. S. 522, 30 L. ed. 1192, 7 Sup. Ct. Rep. 1227.*

Nor will the Supreme Court of the United States assume, for the purpose of sustaining its jurisdiction to review the judgment of an inferior state court, that the highest court of the state might not have taken jurisdiction because no question within its jurisdiction was necessarily involved, where it has not so decided, or had any opportunity to do so. Mullen v. Western Union Beef Co. 173 U. S. 116, 43 L. ed. 635, 19 Sup. Ct. Rep. 404.

And the supreme judicial court of Massachusetts, in Fleming v. Clark, 94 Mass. 191, in justification of its refusal to discharge on habeas corpus a person imprisoned under a sentence of the Superior Court to which a writ of error had been issued by a justice of the Supreme Court of the United States, said that it presumed that the writ would be dismissed by that court for want of jurisdiction, as there had been no decision in the case by the highest state court, and the record on which the jurisdictional facts must appear showed no attempt to obtain any decision, though counsel had agreed in writing on the argument upon the writ of habeas corpus that the superior court had refused to allow exceptions because the questions involved had been decided by the supreme judicial court in another case.

III.

Presentation as affected by the class to which the Federal question belongs.

The discussion of this question can be but little more than a repetition of the rules laid down in div. II. of the note to Mutual L. Ins. Co. V. McGrew, ante, 33. Restating the propositions there laid down, but with especial reference to the showing the record must make, it is obvious:

First, that, where the case is one arising under the first two clauses of the controlling section of the Federal statutes, no affirmative showing in the record that the Federal question was in terms raised is essential, if the record shows that such a question must necessarily have been involved. The following cases apply this rule where the validity of a state statute with reference to the Federal Constitution was the ground on which was based the right to review the judgment of the state court: Satterlee v. Matthewson, 2 Pet. 380, 7 L. ed. 458; Willson v. Black Bird Creek Marsh Co. 2 Pet.

maining portion of the tract of which that | proceedings in the trial court, or in the suland formed a part. Judgment was rendered thereon for the amount so found, and costs. The case was carried to the supreme court, and the judgment affirmed. 124 Cal. 597, 57 Pac. 585.

Messrs. J. S. Chapman, John Garber, R. H. F. Variel, and J. G. North for plaintiffs in error.

Messrs. John F. Dillon, J. R. Scott, W. B. Matthews, Henry T. Lee, Harry Hubbard, and John M. Dillon for defendant in error.

preme court, that any statute of California was asserted to be in conflict with the Constitution, or any law or treaty of the United States, or that any right was claimed by plaintiffs in error under the Constitution, or any treaty or statute of the United States.

The city alleged in its complaint that the Los Angeles river was a non-navigable stream, rising a few miles to the north and northwest of the city, and fed by streams rising to the surface in or near the bed of the river; that that bed was composed of sandy soil, into which the water sank and formed subterranean streams flowing be

Fuller, Ch. J., delivered the opinion of neath the bed and then rising to the surthe court:

We cannot find in the pleadings or other 245, 7 L. ed. 412; Craig v. Missouri, 4 Pet. 410, 7 L. ed. 903; Yazoo & M. Valley R. Co. v. Adams, 180 U. S. 1, 45 L. ed. 395, 21 Sup. Ct. Rep. 240; 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; Kaukauna Water Power Co. v. Green Bay & M. Canal Co. 142 U. S. 254, 35 L. ed. 1004, 12 Sup. Ct. Rep. 173.

In such cases the record need not show that the special clause of the Constitution of the United States supposed to render the statute invalid was specifically pointed out. Satterlee v. Matthewson, 2 Pet. 380, 7 L. ed. 458, supra; Proprietors of Bridges v. Hoboken Land & Improv. Co. 1 Wall. 116, 17 L. ed. 571; Furman v. Nichol, 8 Wall. 44, 19 L. ed. 370; Spencer v. Merchant, 125 U. S. 345, 31 L. ed. 763, 8 Sup. Ct. Rep. 921; Murray v. Charleston, 96 U. S. 432, 24 L. ed. 760. Compare, however, Farney v. Towle, 1 Black, 350, 17 L. ed. 216, where the court seems to have thought that the question whether a state statute was repugnant to the Federal Constitution was not so involved as to confer jurisdiction on the Supreme Court of the United States because the attention of the state court was not called to the particular clause of the Constitution which the statute was claimed to violate.

But the record must show, either by direct averment, or by necessary intendment, that the validity of the state statute was drawn in question as repugnant to the Federal Constitution. Atty. Gen. v. Federal Street MeetingHouse, 1 Black, 262, 17 L. ed. 61.

|

face; that the river flowed through the land sought to be condemned before reaching the and in the proper way. Texas & P. R. Co. v. Southern P. Co. 137 U. S. 48, 34 L. ed. 614, 11 Sup. Ct. Rep. 10; California Powder Works v. Davis, 151 U. S. 389, 38 L. ed. 206, 14 Sup. Ct. Rep. 350; French v. Hopkins, 124 U. S. 524, 31 L. ed. 536, 8 Sup. Ct. Rep. 589; Spies v. Illinois, 123 U. S. 131, 31 L. ed. 80, 8 Sup. Ct. Rep. 21; Chappell v. Bradshaw, 128 U. S. 132, 32 L. ed. 369, 9 Sup. Ct. Rep. 40; Leeper v. Texas, 139 U. S. 462, 35 L. ed. 225, 11 Sup. Ct. Rep. 577.

On the authority of this line of decisions, the court, in Eastern Bldg. & L. Asso. v. Welling, 181 U. S. 47, 45 L. ed. 739, 21 Sup. Ct. Rep. 531, refused to look into the record in the state court to see whether a claim of a right protected by the Constitution of the United States was not necessarily involved, saying that the error involved in the argument that the record should be so examined arose from a failure to observe that the particular claim of Federal right asserted was embraced within those required to be "specially set up and claimed."

It must be conceded that the court seems at times to have lost sight of this distinction,especially in some of the earlier cases, and has applied to cases which in fact belonged to the third class enumerated in the jurisdictional statute the rule which it has so often said was appropriate only for cases arising under the 1st or 2d clauses of that section. This is true of Harris v. Dennie, 3 Pet. 292, 7 L. ed. 683, where the question was as to the rights of a United States marshal under the revenue collection act of 1799; and of Eureka Lake & Y. Canal Co. v. Yuba County Super. Ct. 116 U. S. 410, 29 L. ed. 671, 6 Sup. Ct. Rep. 429, where a motion to dismiss a writ of error to a state court was denied, although it did not appear

It must unmistakably appear on the face of the record that the state court knew, or ought to have known, that the validity of a state statute was challenged on account of its repug-affirmatively on the face of the record that the nancy to the Federal, as distinguished from the state, Constitution, in order to confer jurisdiction on the Supreme Court of the United States on that ground. Endowment & Benev. Asso. v. Kansas, 120 U. S. 103, 30 L. ed. 593, 7 Sup. Ct. Rep. 499.

right under the Federal Constitution, relied upon to give jurisdiction, was raised, because it was possible that the decision of such question in was necessarily involved the state court's judgment.

And no exception in favor of this third class Second, that, to give the Supreme Court of is made in Crowell v. Randell, 10 Pet. 368, 9 L. the United States jurisdiction to review a judged. 458, where, after a careful review of the ment of a state court because of its denial of a right, title, privilege, or immunity claimed under the Constitution, or any law or treaty of the United States, it must appear of record that such right, title, privilege, or immunity was specially set up or claimed at the proper time

prior cases, Mr. Justice Story says that it is not necessary that the question should appear on the record to have been raised, and the decision made in direct and positive terms ipsissimis verbis, but that it is sufficient if it appears by clear and necessary intendment that

city; that the city was the owner of the exclusive right to the use of all the water of the river in trust for the public purposes of supplying the inhabitants of the city with water for domestic use, supplying water for the irrigation of land embraced within the pueblo lands of the city, and other municipal uses; that plaintiffs in error were owners of the fee simple of the lands described, subject to the rights of the city to the water of the river; and the prayer was for the condemnation in fee simple of all the estate, right, title, and interest of plaintiffs in error in the land.

The answer of plaintiffs in error denied that the river was fed by springs rising to the surface in or adjoining the bed of the river; admitted that the bed was composed the question must have been raised, and must have been decided in order to have induced the judgment.

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So, in Murray v. Charleston, 96 U. S. 432, 24 L. ed. 760, supra, the language used is broad enough to cover all three classes, although the case was in fact one arising under the second class. The court said: "In questions relating to our jurisdiction, undue importance is often attributed to the inquiry whether the pleadings in the state court expressly assert a right under the Federal Constitution. The true test is not whether the record exhibits an express statement that a Federal question was presented, but whether such a question was decided, and decided adversely to the Federal right. Everywhere in our decisions it has been held that we may review the judgments of a state court when the determination or judgment of that court could not have been given without deciding upon a right or authority claimed to exist under the Constitution, laws, or treaties of the United States, and deciding against that right. Very little importance has been attached to the inquiry whether the Federal question was formally raised."

And in Craig v. Missouri, 4 Pet. 410, 7 L. ed. 903, a case arising under the second clause, Mr. Chief Justice Marshall said: "It is not necessary to state in terms on the record that the Constitution or a treaty or law of the United States has been drawn in question, or the validity of a state law on the ground of its repugnancy to the Constitution. It is sufficient if the record shows that the Constitution or a treaty or law of the United States must have been construed, or that the constitutionality of a state law must have been questioned, and the decision has been in favor of the party claiming under such law."

It is sufficient if it appears from the record that the Federal rights were so specially set up or claimed as to bring them to the attention of the state court. 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.

IV. The decision of the Federal question.

It is not sufficient to show that the state court might have decided the Federal question. It must be apparent in the record that the

of sandy soil, but denied that the waters of the river formed well-defined subterranean streams flowing in channels beneath the bed, or that such subterranean waters rose before reaching the city, or became a part of the surface water of the river; and denied that the city was the owner of any right to the use of all the water of the river, in trust, or otherwise; denied that the city had any right in the water or to the use thereof, other than as a riparian owner of lands through which the river flowed, and rights acquired by appropriation; and denied that the city owned the right to the water of the river to the exclusion of plaintiffs in error. On the contrary, e answer alleged that the lands of plaintiffs in error were riparian lands situated far above

court did so decide. M'Kinney v. Carroll, 12 Pet. 66, 9 L. ed. 1002. See also cases cited supra, II.

The record need not, in terms, show a decision of the Federal question. It is sufficient if it shows that a decision of the question was necessarily involved in the judgment rendered. Craig v. Missouri, 4 Pet. 410, 7 L. ed. 903; Davis v. Packard, 6 Pet. 41, 8 L. ed. 312; Neilson v. Lagow, 12 How. 98, 13 L. ed. 909; Curran v. Arkansas, 15 How. 304, 14 L. ed. 705; Roby v. Colehour, 146 U. S. 153, 36 L. ed, 922, 13 Sup. Ct. Rep. 47.

This is obviously but stating in another form the rule that a decision of a Federal question in terms is not essential to the exercise of this jurisdiction. This rule and its applica tion to special cases have been discussed in div. II. of the note to Mutual L. Ins. Co. v. McGrew, ante, 33.

But the record must show either a decision of such question in express terms, or that its decision was necessarily involved in the judg ment as rendered by the highest state court. Crowell v. Randell, 10 Pet. 368, 9 L. ed. 458; Armstrong v. Athens County, 16 Pet. 281, 10 L. ed. 965; Murdock v. Memphis, 20 Wall. 590, 22 L. ed. 429; Ocean Ins. Co. v. Polleys, 13 Pet. 157, 10 L. ed. 105; Coons v. Gallaher, 15 Pet. 18, 10 L. ed. 645; Mills v. Brown, 16 Pet. 525, 10 L. ed. 1055; Michigan C. R. Co. v. Michigan Southern R. Co. 19 How. 378, 15 L. ed. 689; Christ Church v. Philadelphia County, 20 How. 26, 15 L. ed. 802; Gibson v. Chouteau, 8 Wall. 314, 19 L. ed. 317; Allen v. Tarlton, 154 U. S. 596, and 21 L. ed. 955, 14 Sup. Ct. Rep. 1195; Smith v. Adsit, 16 Wall. 185, 21 L. ed. 310; Bolling v. Lersner, 91 U. S. 594, 23 L. ed. 366; Brown v. Atwell, 92 U. S. 327, 23 L. ed. 511; Hagar v. California, 154 U. S. 639, and 24 L. ed. 1044, 14 Sup. Ct. Rep. 1186; Dugger v. Bocock, 104 U. S. 596, 26 L. ed. 846; Chouteau v. Gibson, 111 U. S. 200, 28 L. ed. 400, 4 Sup. Ct. Rep. 340; Adams County v. Burlington & M. R. Co. 112 U. S. 123, 28 L. ed. 678, 5 Sup. Ct. Rep. 77; Detroit City R. Co. v. Guthard, 114 U. S. 133, 29 L. ed. 118, 5 Sup. Ct. Rep. 811; De Saussure v. Gaillard, 127 U. S. 216, 32 L. ed. 125, 8 Sup. Ct. Rep. 1053; Marrow v. Brinkley, 129 U. S. 178, 32 L. ed. 654, 9 Sup. Ct. Rep. 267; San Francisco v. Itsell, 133 U. S. 65, 33 L. ed. 570, 10 Sup. Ct. Rep. 241; Johnson v. Risk, 137 U. S. 300, 34 L. ed. 683, 11 Sup. Ct.

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