proffered his willingness to assign it to she offered to condone the forfeiture, prothe tenant. As shown by the undisputed vided the tenant commenced proceedings to facts which we have stated, with indiffer- have the outstanding tax title declared inence both to her own interest and the intervalid, and also secured the landlord from est of the landlord, the tenant neither acted loss in the event that such tax title should for herself by accepting the offer, nor gave be sustained, which offer was declined, on any notification whatever to the landlord grounds substantially asserting that the on the subject. Cohen, as the agent of the risk resulting from the default of the tenKanns, learned of the existence of the irre- ant should be borne by the owner, and not deemable tax sale and of the person who held by the tenant. the certificate. He purchased it by the au- The decree of the court below is reversed thority of and for the benefit of his princi- and the cause remanded with instructions pals, the Kanns. By the express terms of to dismiss the bill for want of equity. the statute under which the certificate was

Reversed. issued it was assignable. · Granting that the purchase was made in order to aid the The CHIEF JUSTICE and Mr. Justice HarKanns in obtaining a lease of the property, lan dissent. in the absence of any legal duty owing by them to the tenant, we fail to perceive how the motive of Cohen or his principals could JACOB NEWMAN and Salmon 0. Levinson, operate to make the otherwise lawful action Surviving Partners of the Firm of Newconstructively wrongful. The tenant, by man, Northrop, & Levinson, Plffs. in Err., whose negligent default the sale of the

V. property had been occasioned, certainly had

HARRY B. GATES. no exclusive pre-emptive right to the purchase of the certificate, which would operate Error to state court-decision of Federal

question by highest state court. to render its purchase by anyone else in his

There has been no decision of the own interest void. After the purchase of Federal question in the highest court of the the certificate by Cohen, what was the posi-state in which a decision in the suit could tion of the landlord? On the one hand con- be had, which is essential to sustain a writ fronted by the assertion of the tenant that of error from the Supreme Court of the the outstanding tax title was void, that United States, where the highest state court she had a right to be relieved from the dismissed an appeal in the suit because of a forfeiture caused by the nonpayment of the defect in the parties to such appeal.* tax, and was entitled to continue in possession under the lease, and, on the other,

[No. 137.) with an offer on the part of the holder of

Decided the tax title to quitclaim the same, and | Argued December 14, 17, 1906. thus avoid testing its validity, if only a

January 7, 1907. lease was made which would be advantageous. When it is again borne in mind that I NERROR to the Supreme Court of the

State of Indiana to review a judg. this situation was brought about by the ment dismissing, for a defect in parties, an neglect of the tenant to perform his cove-appeal from a judgment of the Marion nant to pay the taxes, and by his pro- County Superior Court in favor of defendcrastination in respect to acquiring the tax ant in an action on a foreign judgment, such certificate which had been previously offered action having been removed into the Suto him, we can conceive of no principle of preme Court for decision after the Appelequity preventing the landlord from taking late Court of that state had reversed the a course not forbidden by law, which was judgment below and ordered the cause renot only most conducive to her own inter- | manded for a new trial. Dismissed for est, but which besides obviated the danger want of jurisdiction. of submitting her title to a contest concern

See same case below, 165 Ind. 171, 72 N. ing the validity of a tax sale. But, if an E. 638.

. equitable principle could be conceived of which prevented the landlord from so act.

Statement by Mr. Justice White: ing under the circumstances stated, that

Jacob Newman, George Northrop, Jr., and principle would be inapplicable to the cases. 0. Levinson commenced this action in the before us, when one of the undisputed facts superior court of Marion county, Indiana, to which we have already called attention against the defendant in error, Harry B. is considered. That fact is this: Before the Gates. Recovery of the sum of $1,400, was landlord irrevocably determined to avail of sought upon a judgment obtained by Newthe forfeiture and thus avoid the risk to

man and his coplaintiffs against Gates in herself concerning the outstanding tax title, the circuit court of Cook county, Illinois.

*Ed. Note.-For cases in point, see vol. 13, Cent Dig. Courts, g 1048.

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The defendant filed an answer in two para- | trial whether in fact such matters had been
graphs, but, as the defenses therein asserted theretofore litigated and determined. On
were ultimately abandoned, they need not the new trial the court held that certain
be detailed. A counterclaim was also filed, of the issues made by the counterclaim and
in which it was alleged that the plaintiffs reply had been litigated in the Illinois
were, and for more than two years had action and that the Illinois judgment was
been, attorneys at law engaged in the prac. res judicata as to such issues, but submitted
tice of their profession at Chicago, Illinois, to the jury the question of the alleged
under the firm name of Newman & North- neglect of plaintiffs in failing in the in-
rop; that the Illinois judgment sued upon solvency proceedings to procure an order
was founded upon a claim for legal services charging the trust estate with the fees in
rendered to the defendant; that the services question and the compensation earned by
had been rendered in advising the defend- defendant as trustee. And the court left it
ant, as trustee, in and about the manage to the jury to determine, upon a preponder-
ment of the property and assets of a corpo- ance of evidence, whether or not it was the
ration known as the American Motor Com- law of Illinois that the failure of plaintiffs
pany while in course of administration in to procure such an order—if they did so
insolvency proceedings, and that the de- fail-was a matter which was adjudicated
fendant had sustained damage to the extent in the Illinois action, whether evidence was
of $2,000 by reason of a breach of duty al- | introduced on such point or not, and the
leged to have been committed by the plain- jury was instructed that, if such was the
tiffs in the course of their employment in law of Illinois, recovery could not be had
failing to obtain an order of the court in upon the counterclaim.
the insolvency proceedings relieving the de- The second trial resulted in a verdict of
fendant from personal liability for attor- $181.74 for the defendant Gates, that being
ney's fees, and providing for payment of the sum found to be due him in excess of
his compensation, etc. It was also charged the amount of the judgment sued upon.
that the plaintiffs had been guilty of a After the entry of judgment and before the
breach or neglect of duty in connection with taking of an appeal, George W. Northrop,
a sale of the trust property in the in- Jr., one of the original plaintiffs, died. An
solvency proceedings, whereby defendant appeal, however, was taken to the appel-
had sustained damages in the sum of $2,500. late court of Indiana by Jacob Newman and
A reply was filed to the counterclaim, in S. 0. Levinson, describing themselves as
two paragraphs, one embracing a general surviving partners of the firm of Newman,
denial and the other setting up the Illinois Northrop, & Levinson. The personal repre-
judgment as res judicata as to all the mat- sentative of the deceased partner was not
ters embraced in the counterclaim.

made a party to the appeal. The appellate
In due course the case came on for trial court of Indiana overruled an objection to
and the plaintiffs recovered a judgment for the sufficiency of the appeal and on the
the amount of their claim. The case was merits reversed the judgment and ordered
taken to the appellate court of Indiana. the cause remanded for a new trial. On the
That court reversed the judgment and re- petition of the defendant Gates the supreme
manded the case for a new trial (18 Ind. court of Indiana removed the cause into
App. 392, 46 N. E. 654), and far want of that court for decision and subsequently
authority a petition for a writ of certiorari dismissed the appeal, holding that, on ac-
was denied by the supreme court of Indiana count of the omission to make the personal
(150 Ind. 59, 49 N. E. 826). In the opinion representative of George W. Northrop, Jr., a
of the appellate court, as also in a dissent-coappellant, the appeal could not be de-
ing opinion, the character of the counter-termined upon the merits. 165 Ind. 171, 72
claim and the question whether, as respects N. E. 638. A petition for a rehearing hav-
the matters therein set forth, the Illinois ing been denied, the cause was brought.
judgment was res judicata, were considered here.
at great length. Following an inspection of
the record of the Illinois action the court Messrs. Charles Martindale and S. S.
held that the counterclaim stated matters Gregory for plaintiffs in error.
which constituted something more than a Messrs. Edward E. Gates, Albert Baker,
mere defense to the claim asserted in the Edward Daniels, and Lewis C. Walker for
Illinois action, that it could not be said defendant in error.
that, under the plea of the general issue,
interposed by the defendant in that action, Mr. Justice White, after making the fore-
the matters averred in the counterclaim going statement, delivered the opinion of
were necessarily adjudicated, and that it the court:
was a question to be determined upon the A motion has been filed to dismiss the

writ of error or to affirm, and we proceed at on the first appeal that the action of the once to its consideration. Several grounds trial court, in refusing to admit evidence in are urged in argument in support of the support of the counterclaim, because the motion, but we do not find it necessary to Illinois judgment constituted res judicata, do more than consider an objection based was error. It had further decided that the upon the absence of a Federal question. counterclaim was “based upon a breach of

The errors assigned are as follows: contract,” and constituted an independent,

“The supreme court of Indiana erred in affirmative cause of action in favor of the holding and deciding:

defendant, and that whether the questions "1. That the counterclaim set up by ap- therein involved were in fact adjudicated in pellee Gates, the defendant in the trial the Illinois action was a question for the court, based upon a breach of the same con- jury. As a result of this ruling evidence tract of hiring, which was the basis of the was introduced at the subsequent trial to action of the appellants against the ap- establish what were the questions litigated pellee Gates in the circuit court of Cook and determined in the Illinois action and county, Illinois, was not adjudicated by the the extent to which, by the laws of Illinois, judgment in the circuit court of Cook the judgment in that case possessed concounty, Illinois, and by so deciding denied clusive force. to the judgment of the circuit court of Cook

Now, in the opinion delivered by the county, Illinois, the force and effect which it supreme court of Indiana, on dismissing the has between the parties in the state of appeal, the court did not discuss or in any Illinois, wherein it was rendered, and denies wise refer to the scope and conclusive effect full faith and credit to said judgment, con- of the Illinois judgment. Undoubtedly, the trary to and in violation of article 4, § 1, court, in view of the law of the case as deof the Constitution of the United States. clared on the first appeal, treated the

“2. That the appellee's counterclaim being counterclaim as containing allegations of valid, and not merged and adjudicated by actionable breaches of duty which might the judgment of the circuit court of Cook have formed the subject of an independent county, Illinois, it was of a nature which action, and it is likewise evident that the survived against the personal representa court was of opinion that the plaintiffs were tives of a member of the partnership of bound to perfect their appeal from the judgNewman, Northrop, & Levinson, and that ment upon the counterclaim, upon the hy. the personal representatives of the deceased pothesis that the counterclaim set forth a partner were necessary parties to the ap- valid cause of action against three indipeal, and, not having been made parties, viduals, viz., the plaintiffs in the main that neither the appellate court of the state action. But substantially the court only of Indiana, nor the supreme court of the considered and disposed of a preliminary state of Indiana, has jurisdiction to de question as to its authority to pass upon termine the appeal, and the same must be the controverted questions contained in the dismissed, and judgment of dismissal was record before it. It found that there were so rendered. Which final judgment of the in the counterclaim averments which it had supreme court necessarily involved the ad been held early in the litigation required to judication of the claim of the appellants to be submitted to a jury, that the record ex. the protection of article 4, § 1, of the hibited a recovery upon the counterclaim Constitution of the United States, “that full against three persons, and that one of such faith and credit shall be given in each state persons had died after the rendition of to the public acts, records, and judicial pro- judgment against him and his associates. ceedings, of every other state,' which ad- Construing the statutes of Indiana, the judication was adverse to appellants' claim court held that the cause of action asserted under said provision of the Constitution of in the counterclaim survived the death of the United States."

the party deceased, against whom a reThese assignments plainly import that covery had been had, that such cause of the supreme court of Indiana, on dismissing action could have been revived against the the appeal, considered and decided a ques- personal representative of the deceased, and tion which had been submitted to the jury that the personal representative was a on the trial; viz., whether the matters al necessary party appellant, and, not having leged in the counterclaim as the basis for been made a coappellant and served with a recovery over against the plaintiffs had notice of the appeal, the court was without or had not been concluded by the Illinois jurisdiction to pass upon the errors assigned judgment sued upon by the plaintiffs. We upon the appeal. To give effect to the as. do not so construe the opinion and decision signments of error we should be obliged to of the court.

make the impossible ruling that, despite the The appellate court of Indiana had held overruling of a demurrer to the counter


claim by the trial court, and the decision in Argued December 13, 14, 1906. Decided respect to that pleading made by the ap

January 7, 1907. pellate court on the first appeal, a mere inspection of the counterclaim so plainly INSERROR to the Supreme Court of the

State of Colorado to review a judgment demonstrates that the pleading is destitute of merit that it should be held to have been in favor of the relator in a proceeding in the duty of the state court of last resort to the nature of quo warranto to test the title have treated the pleading as a sham and to to a state office, entered by that court after have disposed of the appeal upon the hy of the City and County of Denver in that

reversing the judgment of the District Court pothesis that the counterclaim was

State, which sustained a demurrer to the existent.

The removal of the cause from the appel- complaint and entered judgment for the late court into the supreme court of Indiana defendant. Dismissed for want of juris

diction. vacated the decision of the former tribunal, and after transfer the case stood in the

See same case below (Colo.) 86 Pac. 250. highest court of Indiana as though it had

Statement by Mr. Justice White: been appealed to that court directly from the trial court. Oster v. Broe, 161 Ind. 114,

This was a proceeding, in the nature of 64 N. E. 918. Had the appeal been properly quo warranto, brought in a district (state) taken it would have been the duty of the court of Colorado, to test, as between consupreme court of Indiana to pass upon the flicting claimants (Charles W. Badgley and questions presented by the record before it, Charles S. Elder), the title to the office of

county treasurer of the city and county of including, it may be, a Federal question,

Denver. The relator (Badgley) relied upon based upon the due faith and credit clause of the Constitution, which, on various oc

a general election held pursuant to the casions, was pressed upon the attention of general statutes of Colorado on November the trial court. In legal effect, however, the claimed to be the legal incumbent of the

8, 1904, while

while the defendant (Elder) case stands as though no appeal had been office by virtue of his election to the office the trial court. As the jurisdiction of this of treasurer of the city and county of the trial court. As the jurisdiction of this Denver in May, 1904, under authority of the court to review the judgments or decree of charter of said city and county of Denver. state courts when a Federal question is pre: The question presented for decision sented is limited to the review of a final whether the election held in May, 1904, judgment or decree, actually or constructive under the charter, of officers to perform the ly deciding such question, when rendered by the highest court of a state in which a de. I duties required of county officers in the city cision in the suit could be had, and as, for whether such officers should have been voted

and county of Denver, was lawful, or the want of a proper appeal, no final judg. for under the general statutes of the state ment or decree in such court has been ren at the election held in November, 1904. A dered, it results that the statutory pre determination of this question made necesrequisite for the exercise in this case of the reviewing power of this court is wanting.

sary a consideration of certain provisions

of article 20 of the state Constitution, proWrit of error dismissed.

viding for the creation, from the old county of Arapahoe and the old city of Denver and

other municipalities, of a new entity to be CHARLES S. ELDER, Plff. in Err.,

known as the city and county of Denver,

and conferring authority to provide in the PEOPLE OF THE STATE OF COLORADO charter for the appointment or election of

on the Information of GEORGE STID officers of such city and county. In parGER, the District Attorney of the Second ticular, a construction was required of'a Judicial District of the State of Colorado, clause providing that “every charter shall on the Relation of CHARLES W. BADG- designate the officers who shall respectively LEY,

perform the acts and duties required of Error to state court-Federal question.

county officers to be done by the ConstiA contest over a state office, dependent tution or the general laws, as far as apfor its solution exclusively upon the appli- plicable.” The district court sustained a cation of the Constitution of the state or demurrer to the complaint and entered judgupon a mere construction of a provision of ment for the defendant. This judgment was a state law, involves no possible Federal reversed by the supreme court of the state, question which will sustain a writ of error upon the authority of People ex rel. Miller from the Supreme Court of the United States to a state court. *

v. Johnson (86 Pac. 233) and judgment was

entered in that court in favor of the relator [No. 132.]

(86 Pac. 250), deciding in effect that the *Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, $$ 1049-1053.




charter provision under which defendants of a treaty or statute of, or an authority claimed was repugnant to the Constitution exercised under, the United States, and the of Colorado. The case was then brought decision is against their validity; b. Where here.

is drawn in question the validity of a

statute of, or an authority exercised under, Messrs. Charles R. Brock, Robert H. any state, on the ground of their being reElder, and Milton Smith for plaintiff in pugnant to the Constitution, treaties, or error.

laws of the United States, and the decision Mr. Henry J. Hersey for defendants in is in favor of their validity; c. “Where any error.

title, right, privilege, or immunity is

claimed under the Constitution, or any Mr. Justice White, after making the fore-treaty or statute of, or commission held or going statement, delivered the opinion of authority exercised

exercised under, the United the court:

States." The assignments of error are twenty-one It is plain that the case is not embraced in number. All of them rest upon the as- within subdivision a. Nor can it be said to sumption that the supreme court of Colo-be embraced within subdivision b, for if we rado held that article 20 of the state Consti-consider that the court below, instead of tution, particularly $8 2 and 3, were repug- construing and upholding the constitutional nant to the provision of the Constitution of provision in question, actually held it to the United States guaranteeing to every be invalid because repugnant to the Constistate a republican form of government and tution of the United States, such decision to the act of Congress known as the Colo- was against, and not in favor of the rado enabling act, and that by such ruling validity of the article. Nor is the case emrights possessed by the people of the state braced within subdivision c, for nowhere in of Colorado and rights vested in the people the record does it appear that the plaintiff of the city and county of Denver were in- in error, specially or otherwise, set up or vaded. And upon the assumption that such claimed in the courts of Colorado any title, rulings were made all the Federal questions right, privilege, or immunity under the relied on are based.

Constitution of the United States. On behalf of the defendant in error it is Indeed, under the circumstances disclosed, insisted that the supreme court of Colorado if there had been an assertion of a right, did not decide any question under the title, privilege, or immunity under the Constitution of the United States, but Constitution of the United States it would merely disposed of the case before it upon have been so frivolous as not to afford a its construction of the meaning of the pro- basis of jurisdiction, since it is foreclosed vision of the state Constitution which was that a mere contest over a state office, deinvolved and upon the authority of a pendent for its solution exclusively upon previous decision rendered by the Colorado the application of the Constitution of a court. It is not denied that in the course state or upon a mere construction of a proof the opinion of the supreme court of vision of a state law, involves no possible Colorado it was said that if the article of Federal question. Taylor v. Beckham, 178 the state Constitution in question was sus- U. S. 548, 44 L. ed. 1187, 20 Sup. Ct. Rep. ceptible of a contrary construction to that 890, 1009. Whilst, when a state court has affixed to it by the court, it would be re- considered a Federal question, that fact pugnant to the guaranty of a republican may serve to elucidate whether a Federal form of government, etc. This, it is said, issue properly arises for consideration by was mere obiter, as the court considered and this court, that doctrine has no application held the provision valid.

to a case where the controversy presented If we were to indulge in the hypothesis is inherently not Federal, and incapable of that the assumptions upon which the as- presenting a Federal question for decision. signments of error rest were sustained by

Writ of error dismissed. the record, and were besides to assume that, at the proper time and in the proper manner, it had been asserted that to hold article TOMAS GARROZI, Juana Maria Gonzalez, 20 invalid would be repugnant to the Con

and Domingo Piazzi, Appts., stitution of the United States, the case would yet not be within the purview of g

JUANA DASTAS. 709, Revised Statutes (U. S. Comp. Stat. 1901, p. 575). Under this section the power

Appeal—from district court for Porto Rico. to review the judgment of a state court ex

1. An appeal lies to the Supreme Court

of the United States from a decree of the ists only in the following classes of cases: district court for the district of Porto Rico a. Where is drawn in question the validity in a suit brought by a wife to obtain liqui


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