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East, 316, there was another question of as safety, was necessary to his recovery, was great difficulty, to wit, whether, in a clear not touched. Yet the right to recover is case of average loss, the plaintiff could re-affirmed in that case, and it does not appear cover as for a total loss, or recover any- that any proof to that effect had been offered thing, without evidence to determine the or required beyond the loss of the goods on average. Of the four judges who sat, two which the profit was expected. But the audecided against the plaintiff, upon the one thority amounts to no more than an implicaground, and two upon the other.

tion.

"We must now dispose of the question upon reason and principle; and here it seems difficult to perceive why, if profit be a mere excrescence of the principle, as some judges have said, or an incident to or identified with it, as others have said, the loss of the cargo should not carry with it the loss of the profits. This rule has convenience and certainty to recommend it, of which this case presents a striking illustration. Here was a voyage of many thousand miles to be performed, the final profits of which must have been determined by a statement of accounts passing through several changes, some of which might have resulted in loss, some in gain; and in each case the good or ill fortune of the adventure turning on the gain or loss of a day in the voyage. What human calculation or human imagination could have furnished testimony on a fact so speculative and fortuitous? To have required testimony to it would have been subjecting the rights of the plaintiff to mere mockery."

"In the second case, that of Eyre v. Glover, 16 East, 218, although the point was touched upon in argument, yet the court neither expressly affirm nor deny it; it was not the leading question in the cause; and, at last, [623]judgment is renderd for *plaintiff, without requiring sucn proof. But the case of Mumford v. Hallett, 1 Johns. 439, goes further. It was a case of insurance on profits, in which there was no evidence given that profits would have been made upon an arrival, nor was any other loss proved than as incident to the loss of the goods. On that state of facts, Livingston, Justice, who delivered the opinion of the court, remarks, 'It does not follow that a profit will be made, if the cargo arrived, yet its loss would give a right to recover on such a policy.' There are other questions in the case; but after all settled, this principle was essential to the plaintiff's right to recover. In the case of Fosdick v. Norwich W. Ins. Co. [3 Day, 108], decided in the supreme court of errors of Connecticut, the question was moved in argument that to justify a recovery the plain-been disturbed in this court, and is the tiff must show that profits would have accrued upon safe arrival of the goods; but the language of the court, in expressing their decision, is not so explicit as to enable us to determine whether it was intended to apply as well to the proof of loss as to the insurable interest. Yet the right of the plaintiff to recover being affirmed in that case, without other proof than the loss of the goods, it would seem to be an authority for the doctrine that no other was necessary.

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The conclusion thus reached has never

prevalent doctrine in the United States.
The American rule and the reason for it are
thus stated in 2 Phillips on Insurance, 30:

.

"Under a policy on the profits of a cargo on a voyage from Philadelphia to the Mediterranean, and thence to South America, the ship and cargo were destroyed by fire at Gibraltar. It was held that the assured was entitled to recover the whole amount of the valuation against the underwriters, without proving that there would "The report furnishes no other proof of have been any ultimate profit on the voyage loss of profits than what was implied in the if it had been pursued without interruption loss of the cargo in which the insured had Pet. 222, 7 L. ed. 659. And this is the prevaor disaster. Patapsco Ins. Co. v. Coulter, 3 an interest. And on the question of insur-lent doctrine in the *United States. able interest, which was the main question in the cause, the Chief Justice asks "if profits are anything more than an excrescence upon the value of goods, beyond the prime cost.'

"As to the American cases, Mr. Phillips quotes that of Loomis v. Shaw (if I understand his language as he meant to use it) as going farther than the case warrants. 2 Johns. Cas. 36. The court waives the question now under consideration by suggesting that the defendant had waived it by an act of his own.

"In the case of Abbott v. Sebor, 3 Johns. Cas. 39, 2 Am. Dec. 139, which was a motion for a new trial, the decision turned chiefly on the question, whether the court had misdirected the jury in instructing them that [624]the plaintiff must recover the whole sum insured on profits, or nothing-that is, that he could not recover for an average loss. The question, if proof that profits would have been made, had the vessel arrived in

The profit, then, which is the subject of a
policy upon this interest, is the excess of the
value of the subject at the port of destina-
tion over its value at the shipping port. It
is only in case of loss that the policy is of
any avail to the assured, and he wishes that
it may avail him in a total as well as partial
loss. In the latter case, the loss may be ad
justed, under an open policy, on the English
doctrine, by ascertaining how much less the
profit is than it would have been if the goods
had arrived sound.

"But in case of a total loss by the ship
never arriving, it is very difficult to say what
the profits would have been had the ship
arrived. since it is not possible to determine
when she would have arrived; and if this
difficulty is got over by assuming some prob-
able time, there must be often a long delay
in hearing from a distant port of destination,
and learning the state of the markets. The
prompt return of his capital to the assured in
case of loss, which is a very important con-

[625]

2.

sideration in insuring, requires a valuation | 1.
of the profits, in preference to an open policy
subject to an adjustment upon the English
doctrine of determining the amount by the
state of the market at the port of destina-
tion. The same difficulty does not arise in
case of a loss on goods, which is adjusted on
the invoice value. There does not appear to
be any way of avoiding this difficulty but by
a valuation, and this is felt in practice, since
policies on profits are usually valued."

3.

4.

Findings of fact by the courts below cannot be reviewed by the Supreme Court of the United States on writ of error to a state court.

A state tax on the capital stock of a bridge company consolidated from corporations of different states, which maintains

an

interstate bridge, is not a tax on a franchise conferred by the Federal government, although the corporation has authority under an act of Congress to construct the bridge.

Interstate commerce is not taxed by taxing the capital stock of a bridge company which owns an interstate bridge, but does not transact any interstate business over it.

A Federal question not specially set up or claimed in a state court cannot be considered on writ of error from the Supreme Court of the United States to the state court, merely because another Federal question not connected with it was raised in the state court.

Agreeing, as we do, with the view of the
evidence taken by the district court, to wit,
that none of the sugar ever came to the libel-
lant in the ordinary course of the voyage, or
through any delivery to the libellant as con-
signee by the carrier, but only through a
delivery by the insurer of cargo, after a
practical abandonment to the latter, and
through a settlement by the insurer as upon
a total loss, in which the sugar was re-
ceived by the libellant upon an equitable
basis in part payment, and as the equiva-
lent of the value in cash, as any other prop- Submitted
erty might have been received, the legal con-
clusion that we reach is that the libellant is

entitled to recover the amount of the profits
as valued in the policy.

The appellees claim that they took no part [626]in the settlement between the cargo insurers and the libellant, and the doctrine of res inter alios is invoked.

But they had knowledge of the prior insurance, and were bound to know that, in case of disaster, there was the right to abandon. There is evidence that they were informed of what was going on between the other parties concerned. They do not impugn, by allegation or evidence, the fairness and good faith of that transaction, nor do they claim that it was conducted with a view to prejudice

them.

They plant their defense solely on the proposition of fact that a sound portion of the cargo reached the port of destination in due course, and was there delivered to the libellant as consignee a proposition of fact, as we have seen, not sustained but refuted by

the evidence.

Accordingly, the decree of the Circuit Court of Appeals must be reversed, with cests, and the decree of the District Court for the Southern District of New York is

affirmed.

[No. 26.]

November 15, 1899. Decided
January 8, 1900.

State of Illinois to review a decision sustaining a tax on an interstate bridge company. Affirmed.

ERROR to the Supreme Court of the

See same case below, 176 Ill. 267, 52 N. E. 117.

The facts are stated in the opinion. Messrs. W. D. Davidge and W. D. Davidge, Jr., submitted the cause for plaintiff in error:

Per

A tax upon the valuation of the capital stock of a corporation is necessarily a tax upon its property and assets, including its franchises and especially its business. haps the most important element in such valuation is the business and profits resulting therefrom.

Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 29 L. ed. 158, 1 Inters. Com. Rep. 382, 5 Sup. Ct. Rep. 826; Bank Tax Case, 2 Wall. 200, sub nom. New York ex rel. Bank of Commonwealth v. New York City & County Tax & A. Comrs. 17 L. ed. 793; State Railroad Tax Cases, 92 U. S. 575, sub nom. Taylor v. Secor, 23 L. ed. 663; Pullman's Palace Car Co. v. Central Transp. Co. 171 U. S. 138, 43 L. ed. 108, 18 Sup. Ct. Rep. 808; Com. v. Standard Oil Co. 101 Pa. 119.

It is submitted that the business thus

KEOKUK & HAMILTON BRIDGE COM- taxed was interstate commerce.
PANY, Plff. in Err.,

v.

PEOPLE OF THE STATE OF ILLINOIS.

(See S. C. Reporter's ed. 626-635.)

Writ of error to state court-review of find.
ings of fact-state tax on capital stock of
bridge company-tax on franchise or in-
terstate commerce-necessity of specifi-
cally raising Federal question.

NOTE.-A8 to jurisdiction as to taxation of
bridge over river forming boundary of state or
its division,-see Chicago & A. R. Co. v. People
er rel. Windmiller (Ill.) 29 L. R. A. 69, and
note.

Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 29 L. ed. 158, 1 Inters. Com. Rep. 382, 5 Sup. Ct. Rep. 826; Covington & C. Bridge Co. v. Kentucky, 154 U. S. 204, 38 L. ed. 962, 4 Inters. Com. Rep. 649, 14 Sup. Ct. Rep. 1087.

The decision in Covington & C. Bridge Co. v. Kentucky, 154 U. S. 204, 38 L. ed. 962, 4 Inters. Com. Rep. 649, 14 Sup. Ct. Rep. 1087, holding a bridge to be an instrument of com

notes to Rothermel v. Meyerle, 9 L. R. A. 366; Bangor v. Smith (Me.) 13 L. R. A. 686; Board of Assessors v. Pullman's Palace Car Co. 8 C. C. A. 492; McCanna & F. Co. v. Citizens' Trust & Surety Co. 24 C. C. A. 13; Pittsburg & S.

As to state taxes as affecting commerce,-see Coal Co. v. Bates, 39 L. ed. U. S. 538.

merce, was not overruled by Henderson Bridge Co. v. Kentucky, 166 U. S. 150, 41 L. ed. 953, 17 Sup. Ct. Rep. 532. What is carrying on business of transportation between state and state is a matter of fact, and in the latter case it was found as a fact that the Henderson Bridge Company did not itself carry on such business. In the present case the bridge company was itself engaged in the business of transporting persons and property from shore to shore, and that surely

is interstate commerce.

The franchises of the company are not only derived from Illinois and Iowa, but also from the Federal government. It is only necessary to read the act to be convinced that the bridge was intended to be an instrument of commerce, and indeed made such both in respect of transportation and as a commercial agency in navigation.

Pensacola Teleg. Co. v. Western U. Teleg. Co. 96 U. S. 1, 24 L. ed. 708.

Mr. Edward C. Akin submitted the cause for defendant in error (Mr. O. F. Berry was with him on the brief):

States have a right to tax the instruments of interstate commerce as other property of like description is taxed within their jurisdiction. Thus, an interstate bridge across a river is an instrument of commerce, and the portion lying within a state may be taxed by that state like other property of the same kind wholly within the state.

ed. 953, 17 Sup. Ct. Rep. 532.

While no state can impose any taxes or burdens upon the privilege of doing business of interstate commerce, yet it has the unquestionable right to tax the instrumentalities engaged in such commerce.

Marye v. Baltimore & O. R. Co. 127 U. S. 117, 32 L. ed. 94, 8 Sup. Ct. Rep. 1037; Pull U. S. 18, 35 L. ed. 613, 3 Inters. Com. Rep. man's Palace Car Co. v. Pennsylvania, 141 595, 11 Sup. Ct. Rep. 876; Cleveland, C. C. & St. L. R. Co. v. Backus, 154 U. S. 439, 38 L. ed. 1041, 4 Inters. Com. Rep. 677, 14 Sup. Ct. Rep. 1122; Henderson Bridge Co. v. Kentucky, 166 U. S. 150, 41 L. ed. 953, 17 Sup. Ct. Rep. 532.

Supreme Court, the bridge across the Missis-
sippi river is an instrument of interstate
commerce, and each state may tax the part
lying within its jurisdiction as it taxes its
other property.

*Mr. Chief Justice Fuller delivered the[627]| opinion of the court:

This is a writ of error to review the judgment of the supreme court of Illinois affirming a judgment of the county court of Hancock county, in that state, for delinquent taxes assessed against the Keokuk & Hamilton Bridge Company for the year 1894.

The Keokuk & Hamilton Bridge Company was incorporated by an act of the general assembly of the state of Illinois in 1857, with power to build, maintain, and use a bridge for railroad and other purposes over the Mississippi river from or near the town of Hamilton, in the county of Hancock, to Keokuk, in the state of lowa, and was authorized to connect the bridge by railroad or otherwise with any railroad or railroads terminating thereat or approximately thereto, and to consolidate with any railroad or other company or companies in Illinois or any other state. A similar corporation was organized under the laws of the state of Iowa, and the two corporations consolidated with the main office at Keokuk.

etc.

The board of review denied the relief

Authority to construct and maintain the bridge was granted the two companies by the Covington & C. Bridge Co. v. Kentucky, act of Congress of July 25, 1866. 14 Stat. 154 U. S. 204, 38 L. ed. 962, 4 Inters. Com. at L. 244, chap. 246. Rep. 649, 14 Sup. Ct. Rep. 1087; Henderson *The record discloses that the company ob-[628] Bridge Co. v. Kentucky, 166 U. S. 150, 41 L.jected to the assessment of its tangible property as made by the assessor of the township in which the Illinois end of the bridge was situated, and applied to the township board of review for a reduction, protesting that the property was overvalued; "that the Fourteenth Amendment to the Constitution of the United States has been violated, in that equal justice and protection to property of the assessor lies partly in the state of Iowa the said bridge company has been denied;" "that the property assessed and described by and is not subject to taxation in Illinois;" asked, and the bridge company appealed to which also refused to change the assessment. the board of supervisors of Hancock county, The collector of Hancock county then applied to the county court, at its May term, 1895, for judgment on the delinquent tax list, including the assessment against the bridge company. to which the company filed its objections.rehearsing the proceedings which had been theretofore taken, the objections made, Western U. Teleg. Co. v. Atty. Gen. of and the evidence adduced. Before a hearing Massachusetts, 125 U. S. 530, 31 L. ed. 790, on these objections was had, the parties stip8 Sup. Ct. Rep. 961; Massachusetts v. West-ulated that the collector might "insert in his ern U. Teleg. Co. 141 U. S. 40, 35 L. ed 628, application for judgment the capital stock 11 Sup. Ct. Rep. 889; Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18, 35 L. ed. 613, 3 Inters. Com. Rep. 595, 11 Sup. Ct. Rep. 876; Maine v. Grand Trunk R. Co. 142 U. S. 217, 35 L. ed. 994, 3 Inters. Com. Rep. 807, 12 Sup. Ct. Rep. 121, 163; Western U. Teleg. Co. v. Taggart, 163 U. S. 1, 41 L. ed. 49, 16 Sup. Ct. Rep. 1054.

Thus, the property of railroads, telegraph, and sleeping car companies engaged in interstate commerce may be taxed in the several states through which their lines of business run without violating any Federal restrictions of law.

tax for the year 1894 levied by the state
board of equalization against said company,"
which was done.

The bridge company thereupon filed its ob-
jections to any judgment for the capital
stock tax, as follows:

"Objections by 'the Keokuk & Hamilton Bridge Company' to judgment against its

Under these decisions of the United States bridge and approach.

"The original objections filed to said May | fendant (appellant) as though all was loterm covering the application as there made. cated in Illinois:" that the judgment was "The application was amended in June by against the evidence as to the length of the adding claims for capital stock tax of 1894, bridge in Illinois: and that the court ignored $1,029.90. the act of Congress fixing the western bound"This objection is to the proposed judg-ary of Illinois. ment against said property for said claimed In the opinion of the supreme court of tax on the capital stock of said company-Illinois, Keokuk & H. Bridge Co. v. People "1st. Because said bridge company is a ex rel. Atchison, 167 Ill. 15, 47 N. E. 313, it consolidated corporation of the states of is said: "The grounds of reversal are, first, Illinois and Iowa, one half in each of said the assessments were fraudulently made; states, and its entire business is that of inter-second, the whole of the capital stock is asstate commerce, and any tax thereon is a tax sessed in this state, whereas an undivided [629] upon such *interstate commerce, and is half of it is taxable in Iowa; third, the judg without authority of law and void. ment is upon an assessment upon a part of appellant's bridge, not in the state of Illinois, but in the state of Iowa. The facts upon which the first two grounds are based are substantially the same as those upon which similar objections were urged in cases between the same parties in 145 Ill. 596, 34 N. E. 482, and 161 Ill. 132, 43 N. E. 691, and 514, 44 N. E. 206, and are disposed of adversely to appellant by those decisions."

"2d. Such claimed capital stock tax is levied upon the whole capital stock, when only one half thereof, if any, is assessable in Illinois.

"3d. The only tax assessable against said property is upon its tangible property in Illinois.

"4th. Said pretended assessment of capital stock is wholly void because not made in the manner required by law nor according to the rules of the state board of equalization."

Considerable evidence was introduced, including the proceedings of the state board of equalization, from which it appeared that the capital stock of the bridge company was returned at $1,000,000; that the total amount of its indebtedness except for current expenses, and excluding from such expenses the amount paid for the purchase or improvement of property, was $1,000,000, with unpaid interest thereon amounting to $900,000; that the assessed valuation of lands and structure was $218.000, and that the state board of equalization placed the valuation for assessment of capital stock at $30,080. The tax on the tangible property was $2,708,61. and on the capital stock, $1,019.17. Judgment was rendered by the county court for those amounts and interest. From this judgment the case was carried on appeal to the supreme court, and there affirmed.

Among the errors assigned in that court were that "the court erred in overruling defendant's (appellant's) objections to the rendition of judgment of the capital stock tax (so-called) and rendering judgment thereon. Among the reasons for said error are the following:

"a. Said capital stock tax is a tax on personal, not on real, property, and is chargealle only at the place of the main office and place of business of defendant (appellant)Keokuk, in the state of Iowa-and is made in violation of the rights of defendant (appellant), contrary to the laws regulating commerce between the states and contrary to the Constitution and laws of the United States.

"b. If any part of said capital stock of de[630]fendant (appellant) *is taxable in Illinois, it can only be that portion thereof that would correspond to the length of the bridge in Illinois as compared to the whole length of bridge, represented by said capital stocknot exceeding one half of said stock-yet the judgment is rendered for the tax assessed against the whole of the capital stock of de

The last point was disposed of on the ground that the county court was justified on the evidence in finding that no part of the bridge assessed was in the state of Iowa.

In Keokuk & H. Bridge Co. v. People, 145 Ill. 596, 34 N. E. 482, it was held that when the middle of a navigable river becomes the boundary line between two states, the middle of the current or channel of commerce will be regarded as the boundary line; that an assessor in Illinois, in assessing a bridge over a navigable river forming the boundary of the state for the purpose of taxation, has no right to assess any part of such bridge that is located beyond such boundary line; and that unless the property has been fraudulently assessed more than its fair cash value, the courts cannot interfere with the action of the assessor. The judgment in that case was reversed because the assessor had assessed several hundred *feet of [631] the bridge as in Hancock county, Illinois, which was located beyond the boundary line of the state.

In Keokuk & H. Bridge Co. v. People ex rel. County Treasurer, 161 111. 132, 43 N. E. 691, it was ruled that in fixing the value for taxation the assessor acts judicially, and the courts cannot revise his assessment on that on an application for judgment for dethe mere ground of erroneous valuation; inquent taxes, it may be shown that the tax is unauthorized by law, or is assessed on property not subject to taxation, or that the property has been fraudulently assessed at too high a rate; that the capital stock of a corporation formed by the consolidation of corporations of different states is properly taxable in one of said states so far as the corporation of that state is concerned; that the kind of property denominated in the revenue law of Illinois "capital stock" does not mean shares of stock, either separate or in the aggregate, but designates the property of the state corporation subject to taxation as a homogeneous unit partaking of the nature of personalty, and subject to the burdens imposed on it by the state of its creation. The judgment was reversed because

the assessment was illegal in including a certain number of feet of the bridge which was located in the state of Iowa.

In Keokuk & H. Bridge Co. v. People, 161 Ill. 514, 44 N. E. 206, the rulings in the prior case so far as involved were affirmed.

The foregoing are the decisions to which reference is made in the opinion of the state supreme court in the case before us.

The errors assigned in this court are in substance that part of the bridge assessed was in the state of Iowa; that the bridge was assessed at more than its value, and not in the same proportion as other property was assessed; that no part of the capital stock was assessable, because a tax on it was in effect a tax on interstate commerce, and was a tax on franchises conferred by the Federal government; and that the whole of the capital stock was assessed, although one half of the bridge was located in the state of Iowa.

1. In Iowa v. Illinois, 147 U. S. 1, 37 L. ed. 55, 13 Sup. Ct. Rep. 239, it was adjudged that the boundary line between the two states was "the middle of the main navigable channel of the Mississippi river." Where [632] that line divided the bridge was a question of fact, and it is not within our province to review the findings of the courts below in regard to the part assessed in Illinois.

2. For the same reason, the contention as to whether the bridge was assessed at more than its value, and not at the same proportion of its value as other property was, need not be considered. Perhaps we may proper ly add that we perceive no adequate ground to question the conclusion that the county court did not err in declining, on the evidence, to set aside the determinations of the boards of review sustaining the action of the

assessor.

3. The tax on the capital stock was not a tax on franchises conferred by the Federal government, but on those conferred by the state, and as such not open to objection. Central P. R. Co. v. California, 162 U. S. 91, 40 L. ed. 903, 16 Sup. Ct. Rep. 766; Henderson Bridge Co. v. Kentucky, 166 U. S. 150, 41 L. ed. 953, 17 Sup. Ct. Rep. 532. Nor was the tax a tax on interstate commerce. This was so ruled in Henderson Bridge Co. v. Kentucky, 166 U. S. 153, 41 L. ed. 954, 17 Sup. Ct. Rep. 533. It was there said:

"The company was chartered by the state of Kentucky to build and operate a bridge, and the state could properly include the franchises it had granted in the valuation of the company's property for taxation. Central P. R. Co. v. California, 162 U. S. 91, 40 L. ed. 903, 16 Sup. Ct. Rep. 766. The regulation of tolls for transportation over the bridge considered in Covington & C. Bridge Co. v. Kentucky, 154 U. S. 204, 38 L. ed. 962, 4 Inters. Com. Rep. 649, 14 Sup. Ct. Rep. 1087, presented an entirely different question.

"Clearly the tax was not a tax on the interstate business carried on over or by means of the bridge, because the bridge company did not transact such business. That business was carried on by the persons and corporations which paid the bridge company tolls for the privilege of using the bridge,

The fact that the tax in question was to some extent affected by the amount of the tolls received, and therefore might be supposed to increase the rate of tolls, is too remcte and incidental to make it a tax on the business transacted." And see Henderson Bridge Co. v. Henderson, 173 U. S. 622, 43 L. ed. 834, 19 Sup. Ct. Rep. 553.

*4. As to the objection that the entire cap-[633) ital stock was assessed by the state board of equalization, it is enough to say that the question that the action of that board was in violation of the Constitution of the United States, except so far as it was claimed to be an interference with interstate commerce, was not raised.

The supreme court of Illinois had repeatedly sustained the assessment on the whole capital stock as being an assessment on the capital stock of the corporation created by the state of Illinois. But in none of the cases in which the question of the validity of such capital stock assessments arose was the point considered that they were contrary to the Constitution of the United States.

In this case, and as to the tangible property, the objection was made that the assessment by the assessor of that tangible property was in contravention of the Fourteenth Amendment. But this was before the township board of review and the board of supervisors, and had no relation to the assessment of capital stock, which by the laws of Illinois was dealt with solely by the board of equalization. In the county court, the objections made in the township board of review and in the board of supervisors as to the tangible property were repeated as to that property, but the objections to the assessment on the capital stock were independent of and distinct from those, and raised no question in respect of the Constitution of the United States except that as to interstate commerce. And this was true as to the assignments of error in the state supreme court.

In Dewey v. Des Moines, 173 U. S. 193, 43 L. ed. 665, 19 Sup. Ct. Rep. 379, it was held that where a Federal question is raised in the state courts, the party who resorts to this court cannot raise another Federal question, not connected with it, which was not raised in any of the courts below.

To justify our taking jurisdiction, the Federal question must be specially set up or claimed in the state court; the party must have the intent to invoke for the protection of his rights the Constitution or some statute or treaty of the United States, and such intention must be declared in some unmistakable manner. F. G. Oxley Stave Co. v.[634] Butler County, 166 U. S. 648, 41 L. ed. 1149, 17 Sup. Ct. Rep. 709. "In other words, the court must be able to see clearly from the whole record that a provision of the Constitution or act of Congress is relied upon by the party who brings the writ of error, and that the right thus claimed by him was denied.

Although no particular form of words is necessary to be used in order that the Federal question may be said to be involved, within the meaning of the cases on this subject, there yet must be something in

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