Argued April 29, 30, 1908. Decided June 1, 1908.
Even if the state court erred in a proceeding over which it has exclusive jurisdiction such error would not afford a basis for reviewing its judgment in this court. The mere assertion by plaintiff in error that the judgment of the state court deprived him of his property by unequal enforcement of the law in violation of Federal immunities specially set up does not create a Federal question where there is no ground for such a contention, and the state court followed its conception of the rules of pleading as expounded in its previous decisions. Where the asserted Federal questions are so plainly devoid of merit as not to constitute a basis for the writ of error the writ will be dismissed. Whether a Missouri corporation has forfeited its charter by nonuser and misuser under the law of the State does not involve a Federal question, and a proceeding regularly brought by the Attorney General in the nature of quo warranto constitutes due process of law. New Orleans Waterworks v. Louisiana, 185 U.S. 336. Writ of error to review, 200 Mo. 34, dismissed.
Mr. Thomas Bond, with whom Mr. Henry W. Bond was on the brief, for plaintiff in error:
Where a Federal question appears in the record and was decided, or where a decision of such a question was necessarily involved in the case, it is not necessary that the particular section of the Federal Constitution violated be specifically pointed out in the state court, in order to confer jurisdiction upon this court. Murray v. Charleston, 96 U.S. 432; Columbia Water Power Co. v. Columbia Electric Co., 172 U.S. 475, 488; Bridge Proprietors v. Hoboken L. I. Co., 1 Wall. 116; Furman v. Nichol, 8 Wall. 44; Spencer v. Merchant, 125 U.S. 345; F.G. Oxley Stave Co. v. Butler County, 166 U.S. 648, 657.
Where jurisdiction is predicated upon the third class of controversies mentioned in § 709, Rev. Stat., it is not necessary that the Federal right, title, privilege or immunity claimed to be denied by the state court be raised in the state court by pointing out the particular section of the Constitution claimed to be violated, or that it be set up by any particular form of words, but the requirement of the statute is complied with if the record shows that the attention of the state court was called to the right, title, privilege or immunity claimed. Green Bay Canal Co. v. Patten Paper Co., 172 U.S. 58, 68; Dewey v. Des Moines, 173 U.S. 193, 199; San Jose Land Water Co. v. Ranch Co., 189 U.S. 175; 180; Williams v. Bruffy, 96 U.S. 176; Harris v. Dennie, 3 Pet. 292; Eureka Canal Co. v. Yuba Co., 116 U.S. 410.
The Federal rights, titles, privileges and immunities claimed by plaintiff in error herein and denied by the judgment of the Supreme Court of Missouri ousting it of all of its franchises for alleged nonuse, were specially and specifically set up, claimed, and called to the attention of the state court on the motion for rehearing, and it was on the points raised on such motion that this cause was last submitted and was finally considered and decided by the court.
Federal questions raised in a motion for rehearing are not raised too late if the state court sustains said motion, or considers the Federal questions therein presented. Mallett v. North Carolina, 181 U.S. 589, 592; Mutual Life Ins. Co. v. McGrew, 188 U.S. 291, 308.
The constitutional rights, privileges and immunities set up by plaintiff in error in its motion for a rehearing filed after the entry of the first judgment of ouster were necessarily denied by the Supreme Court of Missouri in its final judgment ousting plaintiff in error of its corporate existence because of an alleged nonuser of certain of its corporate franchises. Detroit c. Ry. Co. v. Osborn, 189 U.S. 383; Kaukauna W.P. Co. v. Green Bay Miss. Canal Co., 142 U.S. 254.
Mr. John Kennish, with whom Mr. Herbert S. Hadley, Attorney General of the State of Missouri, was on the brief, for defendant in error:
Questions relating to matters of pleading and practice under the laws of the State involve no Federal question. Taylor on Juris. Proc. of the U.S. Supreme Court, p. 393; Vista County v. Iowa Falls S.C.R. Co., 112 U.S. 177; Iowa C.R. Co. v. Iowa, 160 U.S. 394; Nat. F'dry Co. v. Oconto Water Supply Co., 183 U.S. 216.
The Supreme Court cannot review the decision of the state court resting upon the defense of estoppel. Taylor, supra, 404; Michigan v. Flint Pere Marquette R.R. Co., 152 U.S. 363; Sherman v. Grinell; 144 U.S. 198; Israel v. Arthur, 152 U.S. 355; Weyerhaueser v. Minn., 176 U.S. 550.
In the first motion for a rehearing but two of the grounds thereof sought to raise a Federal question as to the charge of nonuser of franchises. In the first ground it was claimed that the judgment of the court was cruel and unusual punishment and violative of the Eighth Amendment to the Constitution of the United States; and in the third ground of said motion it was claimed that the judgment adjudges the respondent guilty without a hearing, thereby also violating the Fourteenth Amendment.
The first ten Amendments to the Federal Constitution contained no restrictions of the powers of the State, but were intended to operate solely on the Federal Government. Brown v. New Jersey, 175 U.S. 172; Barron v. Baltimore, 7 Pet. 243; Fox v. Ohio, 5 How. 410; Twitchell v. Commonwealth, 7 Wall, 321; United States v. Cruikshank, 92 U.S. 542, 552; Spies v. Illinois, 123 U.S. 131; Davis v. Texas, 139 U.S. 651.
Parties having been fully heard in the regular course of judicial proceedings, an erroneous decision of the state court does not deprive the unsuccessful party of his property without due process of law. Taylor, supra, 412; Central Land Co. v. Laidley, 150 U.S. 112; Walker v. Sauvinet, 92 U.S. 90; Head v. Amoskeag Co., 113 U.S. 9; Morley v. Lake Shore R.R., 146 U.S. 162; Bergman v. Becker, 157 U.S. 655.
When a constitutional right is asserted in a state court without stating whether such right is claimed under the state or Federal Constitution, and which could have been claimed under either, the presumption is that the right was asserted under the state constitution. Porter v. Foeley, 24 How. 420; Jacobi v. Alabama, 187 U.S. 133; Miller v. Cornwall R.R. Co., 168 U.S. 131; Kansas Association v. Kansas, 120 U.S. 103; Kipley v. Illinois, 170 U.S. 182; New York Central R.R. Co. v. New York, 186 U.S. 269.
A Federal question is raised too late when suggested for the first time in the petition for rehearing after judgment in the highest court of the State where such petition is denied without opinion. Taylor, supra, 448; Bushnell v. Crooke Mining Smelting Co., 148 U.S. 273; Turner v. Richardson, 180 U.S. 87; Scudder v. Coler, 175 U.S. 33.
Soon after the filing of the record in this court the Attorney General of Missouri submitted a motion to dismiss the writ of error or to affirm, and the determination of the motion was postponed until the hearing on the merits. The cause having been argued, the motion to dismiss or affirm must now be disposed of.
We are of opinion that the record does not present any Federal question and that the motion to dismiss must be granted.
The Supreme Court of Missouri, in the opinion delivered by it on the rehearing, considered three propositions: First, the effect of the general denial contained in the first paragraph and the plea embodied in the second numbered paragraph of the answer; second, upon what grounds a forfeiture of a corporate franchise might be declared; and, third, whether or not, in addition to ousting the corporation from its franchises, the court could and should "appropriate a part of its substance to the use and benefit of the State." These propositions were determined after an elaborate consideration of the subject and a review of many authorities. It was decided that the plea following the general denial in the answer amounted to a plea of confession and avoidance; that in consequence the general denial first pleaded raised no issue, and hence "the motion for judgment upon the ground of nonuser should be sustained." It was next determined, after declaring that it was the duty of the court to act with great caution in decreeing a forfeiture, that forfeiture of the corporate franchises might be declared "where there is either willful misuse or willful nonuse of the franchise and franchises, which are of the essence of the contract with the State, and those in which the State or public is most interested, then a forfeiture of the whole charter should be and will be declared. When a corporation receives from the State a charter granting certain franchises or rights, there is at least an implied or tacit agreement that it will use the franchises thus granted; that it will use no others, and that it will not misuse those granted. A failure in any substantial particular entitled the State to come in and claim her own, the rights theretofore granted, and this through a judgment of forfeiture in a proceeding like the one at bar." On this branch of the case the court concluded as follows:
"The right to construct and maintain suitable fair grounds in the city and county of St. Louis, and to give exhibitions of agricultural products thereat, is one of the essence of this contract between the State and the respondent. It was and is the franchises in the exercise of which the State and general public have the most interest and concern. A failure to exercise this franchise was a failure to perform the very thing which was of the essence of the contract. That this failure was willful is shown by the length of time of the admitted nonuser as well as by other things made apparent by the pleadings. So far as the State and general public are concerned this right or franchise, so long neglected, was leading and uppermost in interest. No legal excuse is offered for respondent's failure. It would appear, at least by inferences deducible from the pleadings, that respondent was alert in promoting that incidental feature of its charter, gambling upon horse races, and furnishing its gamblers with refreshments, both liquid and solid, but extremely indifferent as to doing the things, moral in character, which it had, by receiving its charter, tacitly agreed to do, and the only things in which the State and the public had any special interest.
"Such a flagrant and willful nonuser of franchises, which are of the very essence of the grant, demand, in our judgment, the forfeiture of all the rights and franchises granted, and we therefore hold that there shall be a judgment decreeing a forfeiture of all the rights and franchises granted to respondent by its charter and a dissolution of said corporation."
As to the third proposition, the court was of opinion that no further fine or punishment than that of ouster should be inflicted.
In substance the contention of plaintiff in error is that the plea, contained in the second paragraph of the answer, merely presented a question of estoppel, which did not waive the prior general denial, and that the judgment of the Supreme Court of Missouri destroyed, "without a trial or a hearing and by an unequal and unjust enforcement of the law, vested property rights both of plaintiff in error and its stockholders, in the face of Federal immunities, which the record shows to have been specially set up and claimed." In effect this is but asserting that the judgment of the Supreme Court of Missouri was so plainly arbitrary and contrary to law as to be an act of mere spoliation. But we fail to perceive the slightest semblance of ground for such a contention. In determining the scope and effect of the allegations of the answer and in reaching the conclusion that the charges of nonuser contained in the information stood as confessed under the pleadings, the Supreme Court of Missouri followed its conception of the rules of pleading, as expounded in many of the previous decisions of that court, and the question of the extent of the power to take from the corporation its charter grant of franchises was determined as a question of general law. The determination of those matters did not involve a Federal question. San Francisco v. Itsell, 133 U.S. 65. Manifestly, the proceeding constituted due process. Caldwell v. Texas, 137 U.S. 692; New Orleans Waterworks v. Louisiana (where the subject of the power of a State to forfeit corporate franchises is considered), 185 U.S. 336, 344. And if the fact was, which we do not intimate is the case, that the court below erred in the conclusions reached by it in respect to the propositions which it determined, the error would not afford a basis for reviewing its judgments in this court. Central Land Co. v. Laidley, 159 U.S. 103, 112, and cases cited; Ballard v. Hunter, 204 U.S. 241, 259; Patterson v. Colorado, 205 U.S. 460.
The asserted Federal questions were so plainly devoid of merit as not to constitute a basis for the writ of error ( Wilson v. North Carolina, 169 U.S. 586, 595), and the writ of error is, therefore,