duct fairs by failure to exercise those privileges, nevertheless respondent has other privileges conferred by its charter which are not contrary to any law of this State or to the policy of the State, and which have not been lost by nonuser, among which privileges is the right to conduct horse races for prizes or purses or at pleasure, and which the judgment of this court deprives respondent of without respondent having in any manner lost the right so to do, and in this respect also the judgment deprives the respondent of its property without due process of law, contrary to the guarantees of the Fourteenth Amendment to the Constitution of the United States, which respondent here invokes."

The motion for a rehearing was granted, and upon a reconsideration of the cause the motion for judgment on the pleadings was again sustained upon the ground of nonuser of the corporation franchises, and judgment was entered ousting the corporation of all of its franchises and charter rights, and adjudging that the same be forfeited to the State and the corporation dissolved. 200 Missouri, 34. A motion for a rehearing having been filed and overruled, the cause was brought here by writ of error.

and stock, and the said State of Missouri thereby intended to and did waive any other or further exercise of such franchise on the part of respondent.

Further answering the allegations of non-user from June 16, 1905, to the date of the filing of this information, to wit, July 28, 1905, respondent states that the franchise of giving exhibitions of agricultural products and stock is not one which can be exercised continuously and at all times from the beginning to the end of the year, but is one, owing to its peculiar character, which can only be exercised during the harvest season of each year. For these reasons respondent was not required to exercise such franchise between the above specified dates, but respondent further avers that it has in good faith endeavored at all times to exercise the franchises granted to it by its articles of incorporation in the manner and for the purposes intended by such grants, and that such is its purpose in the future, and respondent intends in every way to comply with and perform according to law all the obligations which it assumed upon the grant of the aforesaid franchises to it by the State of Missouri, and respondent again specifically denies each and every charge, allegation or assertion of a contrary purpose on its part, contained in the information filed herein.

Wherefore, respondent prays that it be hence discharged with its costs.

Argument for Plaintiff in Error.

210 U.S.

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 con

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210 U. S.

Argument for Defendant in Error.

siders 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 con

tained 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.

MR. JUSTICE WHITE, after making the foregoing statement, delivered the opinion of the court.

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: