Argued and submitted November 12, 1902. Decided December 1, 1902.
If the jurisdiction of the Supreme Court of the United States is invoked on the ground that the judgment of the State court has denied a right, title, privilege or immunity secured by the Constitution of the United States, it should appear that such right, title, privilege or immunity was specially set up or claimed in the State court. This court cannot acquire jurisdiction to review the final judgment of the highest court of the State by reason of a certificate of the Chief Justice of the State court, not made while the case was before it or under its control, stating that the party seeking the intervention of this court raised Federal questions before the State court. While it has been said in some cases that such a certificate is entitled to great respect, and in other cases that its office is to make that more certain and specific which is too general and indefinite in the record, the certificate is insufficient in itself to give jurisdiction or to authorize this court to determine Federal questions that do not appear in any form from the record to have been brought to the attention of the State court.
Mr. John M. Perry for plaintiff in error.
Mr. George L. Sterling for defendant in error. Mr. George L. Rives and Mr. Theodore Connoly were with him on the brief.
The plaintiff insists here that the State court, by its final judgment, refused to recognize certain rights belonging to it under the Constitution of the United States. But it does not appear on the face of the record that he set up or claimed any such right until the case reached this court. In Parmelee v. Lawrence, 11 Wall. 36, 38, this court — following the previous cases of Lawler v. Walker, 14 How. 149, 152, and Railroad Company v. Rock, 4 Wall. 177 — said it was essential to our jurisdiction in reexamining the judgment of the State court that the alleged conflict between the State law and the Constitution of the United States "appear in the pleadings of the suit, or from the evidence in the course of the trial, in the instructions asked for, or from exceptions taken to the rulings of the court," or "it must be that such a question was necessarily involved in the decision, and that the State court would not have given a judgment without deciding it." Later cases in this court have expressed the additional thought that if the highest court of the State assumes that the record sufficiently presents a question of Federal right and decides against the party claiming such right, we will look no further, and will proceed to a consideration of that question, unless the decision is made to rest, in part, upon some ground of local law, sufficient enough in itself to sustain the judgment, independently of any question of Federal right.
In the case before us, the Home for Incurables has not brought upon the record the fact that it asserted, in the State court, any Federal right whatever. It is entirely consistent with the record that the Home did not, at any time pending the case in the State court, set up or claim any such right. If our jurisdiction is invoked on the ground that the judgment of the State court has denied a right, title, privilege or immunity secured by the Constitution of the United States, it is essential, under existing statutes, that such right, title, privilege or immunity shall have been specially set up or claimed in the State court. Rev. Stat. § 709; Armstrong v. Treasurer of Athens Co., 16 Pet. 281, 285; Railroad Company v. Rock, 4 Wall. 177, 180; Powell v. Brunswick Co., 150 U.S. 433, 439; Roby v. Colehour, 146 U.S. 153, 159; Oxley Stave Co. v. Butler Co., 166 U.S. 648, 654; Levy v. Superior Court of San Francisco, 167 U.S. 175, 177.
It is true that the transcript contains the certificate of the Chief Judge of the Court of Appeals of New York, not appearing to have been by order of that court while the case was before it or under its control, which states that the Home did make in that court, the Federal questions now pressed upon our consideration. But that certificate is not properly a part of the record. While we have said in some cases that such a certificate is entitled to great respect, and, in other cases, that its office is to make that more certain and specific which is too general and indefinite in the record, it is insufficient in itself to give us jurisdiction, or to authorize us to determine Federal questions that do not appear, in any form, from the record, to have been brought to the attention of the State court. Powell v. Brunswick Co., 150 U.S. 433, 439; Newport Light Co. v. Newport, 151 U.S. 527, 537; Yazoo Mississippi Railroad Co. v. Adams, 180 U.S. 41, 47; Felix v. Scharnweber, 125 U.S. 54, 59.
Having no jurisdiction to reexamine the judgment below, the writ of error must be