strued so as to injure parties using water powers at other places in the river, and who are not represented in the present controversy.

to the jurisdiction because the petition con-
tained no averment that the suit could have
been maintained "by the assignors of the
claims or certificates sued upon." The *cir-[192]
cuit court overruled the exception, and the
cause subsequently went to judgment.

We are not ready to presume that the authorities of the United States will either permit or make changes in the places where the By the eleventh section of the judiciary act surplus waters are to be used by the Green of 1789, it was expressly provided that the Bay & Mississippi Canal Company, so as to circuit courts could not take cognizance of deprive other parties of the water powers a suit to recover the contents of any promisthey have been using for so many years, un-sory note or other chose in action in favor of less such changes are found to be necessary an assignee, unless a suit might have been and proper in the regulation and delivery of prosecuted in such court to recover the said the surplus waters created by the public im- contents if no assignment had been, except in provement. But such questions are not now cases of foreign bills of exchange. The act before us. of March 3, 1875 (18 Stat. at L. 470, chap. 137), provided: "Nor shall any circuit or district court have cognizance of any suit founded on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in cases of promissory notes negotiable by the law merchant and bills of exchange." The restriction was thus removed as to "promissory notes negotiable by the law merchant," and jurisdiction in such suits made to depend on the citizenship of the parties as in other cases. Tredway v. Sanger, 107 U. S. 323 [27: 582].

While the courts of the state may legitimately take cognizance of controversies between the riparian owners, concerning the use and apportionment of the waters flowing in the non-navigable parts of the stream, they cannot interfere, by mandatory injunction or otherwise, with the control of the surplus water power incidentally created by the dam and canal now owned and operated by

the United States.

The petition for a rehearing is denied.

[191] CITY OF NEW ORLEANS, Piff. in Err.,

v.

MARY QUINLAN.

(See S. C. Reporter's ed. 191–193.)

By the first section of the act of March 3, 1887 (24 Stat. at L. 552, chap. 373), as corrected by the act of August 13, 1888 (25 Stat. at L. 433, chap. 866), the provision was made to read as follows: "Nor shall any circuit or district court have cognizance of

Certificates of indebtedness, when suable in any suit, except upon foreign bills of ex

Federal courts.

change, to recover the contents of any promissory note or other chose in action in favor if such instrument be payable to bearer and of any assignee, or of any subsequent hoider be not made by any corporation, unless such suit might have been prosecuted in such court to recover the said contents if no asassignment or transfer had been made."

Certificates of indebtedness made by a city and
payable to bearer, being made by a corpora-
tion, although not negotiable, are not subject
to the restriction of the act of August 13,
1888, that an assignee of a chose in action
cannot sue in a Federal court unless the
signor could sue in such court.

[No. 343.]

These certificates were payable to bearer and made by a corporation; they were transferable by delivery; they were not negotiable

Submitted December 19, 1898. Decided Feb- under the law merchant, but that was imma

ruary 27, 1899.

ERROR to the Circuit Court of the I United States District of Louisiana to review a judgment of that court in favor of Mary Quinlan, plaintiff, against the City of New Orleans for the recovery of the amount of certain certificates made by the city and payable to bearer. Affirmed.

terial; they were payable to any person hold-
ing them in good faith, not by virtue of any
assignment of the promise, but by an origi

er to the bearer. Thompson v. Perrine, 106 U.
S. 589 [27: 298]. They were therefore not
subject to the restriction, and the circuit
court had jurisdiction. In New Orleans v.[193]
Benjamin, 153 U. S. 411 [38: 764], where
the question was somewhat considered, the
instruments sued on were not payable to

The facts are stated in the opinion.
Messrs. Samuel L. Gilmore and W. B. bearer.
Sommerville for plaintiff in error.

In Newgass v. New Orleans, 33 Fed. Rep.
Mr. Charles Louque for defendant in er- 196, District Judge Billings construed the

ror.

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

This was an action brought in the circuit court of the United States for the eastern district of Louisiana by Mary Quinlan, a citizen of the state of New York, against the city of New Orleans, to recover on a number of certificates owned by her, made by the city, and payable to bearer. Defendant excepted

provision thus: "The circuit court shall have no jurisdiction over suits for the recovery of the contents of promissory notes or other choses in action brought in favor of assignees or transferees except over-First, suits upon foreign bills of exchange; second, suits that might have been prosecuted in such court to recover the said contents if no assignment or transfer had been made; third, suits upon choses in action payable to bearer and made by a corporation." This decision

was rendered several months prior to the passage of the act of August 13, 1888, and has been followed by the circuit courts in many subsequent cases. The same conclusion was reached by Mr. Justice Miller in Wilson v. Knox County, 43 Fed. Rep. 481, and Newgass v. New Orleans was cited with approval. We think the construction obviously correct, and that the case before us was properly disposed of.

It is true that the act of March 3, 1887, was evidently intended to restrict the jurisdiction of the circuit courts, but the plain meaning of the provision cannot be disregarded because in this instance that intention may not have been carried out.

Judgment affirmed.

C. P. DEWEY, Plff. in Err.,

บ.

CITY OF DES MOINES and Others.

(See S. C. Reporter's ed. 193-205.)

Federal question-how raised-assessment against a nonresident of the state-action in state court.

1. An assignment of error which relates solely to the validity of a provision in a state Judgment imposing a personal liability against a nonresident of the state over whom the court had acquired no jurisdiction, for the deficiency arising on the tax sale of property, does not raise a Federal question as to the validity of the assessment upon the property. 2. It is not enough that there may be somewhere hidden in the record a question which, If raised, would be of a Federal nature, where that question was not raised in or decided by

the state court.

8. A state statute authorizing an assessment to be levied upon property for a local improvement, and imposing upon che lotowner, who is a nonresident of the state, a personal llability to pay such assessment, is a statute which the state has no power to enact, as to enforce such personal liability would be a taking of property without due process of law

and a violation of the Federal Constitution. 4. By resorting to the state court to obtain relief from such assessment and from such per

not

sonal liability, such nonresident does thereby consent or render himself lable to a judgment against him providing for any personal liability.

[No. 122.]

Argued January 11, 12, 1899. Decided ruary 27, 1899.

tractor's lien on plaintiff's property. Re-
versed, and cause remanded to the Supreme
Court of Iowa for further proceedings.
See same case below, 101 Iowa, 416.

*Statement by Mr. Justice Peckham: The petition in this case was filed by the[194] plaintiff in error to set aside certain assessments upon his lots in Des Moines, in the state of Iowa, which had been imposed thereon for the purpose of paying for the paving of the street upon which the lots abutted, and to obtain a judgment enjoining proceedings *towards their sale, and adjudging that[195] there was no personal liability to pay the excess of the assessment above the amount realized upon the sale of the lots.

The petition alleged that the petitioner was at all times during the proceedings mentioned a resident of Chicago, in the state of Illinois, and that he had no actual notice of any of the proceedings looking towards the paving of the street upon which his lots abutted; that the street was paved under the direction of the common council, which decided upon its necessity, and the expense was by the provisions of the Iowa statute assessed upon the abutting property, and the lotowner made personally liable for its payment; that the expense of the improvement was greater than the value of the lots assessed, and the common council knew it would be greater when the paving was ordered.

Various other facts were set up touching the invalidity of the assessment upon the lots, but no allegation was made attacking its validity by reason of any violation of the Federal Constitution. Under stipulation of the parties various allegations of fraud upon the part of the members of the common council, which had been included in the petition, were withdrawn, and the allegations of the petition as thus amended were not denied.

The contractor who did the work of pav. ing the street was made a party to this proceeding, and he set up a counterclaim asking that the certificates given him by the city in payment for his services, and which by statute were made a lien upon the lots abutting upon the street, might be foreclosed and the lots sold, and a personal judgment pursuant to the same statute rendered against the plaintiff in error.

By stipulation certain motions which were made to strike out allegations in the petition were treated as demurrers to the petition, and the case was thus placed at issue.

Upon the trial the district court of Polk Feb-county gave judgment dismissing the petition, with costs, and in favor of the contractor on his counterclaim, foreclosing the lien of the latter, and ordering the sale of

N ERROR to the Supreme Court of the

that court affirming the judgment of the District Court of Polk County, which dis missed with costs an action brought by C. P. Dewey, a nonresident of the state, to set aside certain assessments upon his property for the paving of a street, and to enjoin proceedings for the sale, and to procure a judgment that there was no personal liability, but upheld and foreclosed a con

the issue of a personal or general execution against the plaintiff in error to collect any[1 balance remaining unpaid after sale of the lots.

Plaintiff took the case to the state supreme court, and there made an assignment of errors, one of which is as follows:

"The court erred in holding and deciding that plaintiff was personally liable to said

This is a very different question from that embraced in the assignment of errors and argued in the supreme court of the state.

It is objected on the part of the defendant in error that, as this is a review of a judgment of a state court, this second question cannot be raised here, because it was not raised in the courts below and was not decided by either of them.

Des Moines Brick Manufacturing Company | tution as amounting to a taking of property for so much of said special tax or assessment without due process of law. as could not or would not be realized by a sale of the sixty lots in question on special execution, and in ordering and adjudging that a general execution should issue against plaintiff and in favor of said Des Moines Brick Manufacturing Company for the balance of such tax or assessment; and, further, that as plaintiff was at all times a nonresident of the state of Iowa, and had no personal notice or knowledge of the assessment proceedings, that the imposition of a personal liability against him in excess of the value of all the lots was not due process of law, and was in contravention of the provisions on that subject of the Fourteenth Amendment to the Constitution of the United States, as well as in contravention of the provisions of the Constitution of the state of Iowa on the same subject."

The supreme court affirmed the judgment of the district court, and plaintiff brought the case here by writ of error.

Messrs. Andrew E. Harvey and Amasa Cobb for plaintiff in error.

Mr. N. T. Guernsey for defendant in er

ror.

06] *Mr. Justice Peckham, after stating the facts, delivered the opinion of the court:

The only one of the assignments of error made in the state supreme court, which has reference to any Federal question, is the one set forth in the statement of facts, and it will be seen that such assignment relates solely to the validity of the provision for the personal liability imposed upon plaintiff in error by the judgment of the district court. 107]* None of the other assignments of error involves any Federal question.

Reference to the opinion of the supreme court of the state shows that it was not therein discussed or decided. If the question were only an enlargement of the one mentioned in the assignment of errors, or if it were so connected with *it in substance as[198] to form but another ground or reason for alleging the invalidity of the personal judg ment, we should have no hesitation in holding the assignment sufficient to permit the question to be now raised and argued.

Parties are not confined here to the same arguments which were advanced in the courts below upon a Federal question there discussed. Having, however, raised only one Federal question in the court below, can a party come into this court from a state court and argue the question thus raised, and also another not connected with it, and which was not raised in any of the courts below, and does not necessarily arise on the record, although an inspection of the record shows the existence of facts upon which the question might have been raised?

The two questions, the one as to the invalidity of the personal judgment, and the other as to the invalidity of the assessment upon the lots, are not in anywise necessarily connected, any more than that they both arise out of the proceedings in paving the street and in levying the assessment. The In the brief for plaintiff in error in this assessment upon the lots might be valid, court it is said that the "counsel for plain- while the provision for a personal judgment tiff in error in the state court seem to have might be void, each depending upon different relied upon one single proposition only as principles; and the question as to the invainvolving a Federal question, to wit: As lidity of the personal judgment night, as in plaintiff was at all times a nonresident of this case, be raised and argued without in the state of Iowa, and had no personal no- any manner touching the question as to the tice or knowledge of the assessment proceed-invalidity of the assessment upon the lots. ings, the imposition of the personal liability against him in excess of the value of all the lots was not due process of law, and was in contravention of the provisions upon that subject of the Fourteenth Amendment of the Constitution of the United States."

The counsel, however, does not confine himself in this court solely to a discussion of the Federal question which was contained in the assignment of error above set forth, and which was argued in the court below, regarding the validity of a personal judgment; but counsel claims the further right to attack the validity of the assessment upon the lots themselves, because, as he asserts, it was laid without regard to any question of benefits, and that it exceeds the actual value of the property assessed, and that, even if permitted by the statute of Iowa, such an assessment constitutes a taking, under the guise of taxation, of private property for public use without just compensation, and is therefore void under the Federal Consti

In Oxley Stave Company v. Butler County, 166 U. S. 648 [41: 1149], it was held that the Federal question must be specially taken or claimed in the state court; that 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 that such intention must be declared in some unmistakable manner, and unless he do so this court is without jurisdiction to re-examine the final judgment of the state court upon that matter. See also Levy v. Supe rior Court of San Francisco, 167 U. S. 175 [42: 126]; Kipley v. Illinois, 170 U. S. 182 [42: 998]. 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. Bridge Proprietors v. Hoboken Land & Improv[199] Company, 1 Wall. 116, 143 [17: 571,576]. In the case at bar no claim was made in the

state court that the assessment upon the lots was invalid as in violation of any provision of the Federal Constitution.

a party who never set it up or in any way alluded to it. Nor can it be said that the nee essary effect in law of a judgment which is silent upon the question is the denial of a claim or right which might have been involved therein, but which in fact was never in any way set up or spoken of.

No question of a Federal nature claimed under the Constitution of the United States can be said to have been made by the mere allegation "that the amount of said tax is greater than the reasonable market value of said lots, whether considered singly or together; the assessment against each partieular lot being greater in amount than the value of such particular lot, and the aggre gate assessment being greater in amount than the reasonable market value of all of said lots taken together; and that said defendants are seeking to enforce, as against plaintiff, not merely a sale of said lots, but also to compel plaintiff to pay the full amount of said tax regardless of whatever sum said lots may be sold for, and regardless of the actual value of the same." There is nothing else in the record which can be said to raise this Federal right or claim.

Nor does the record herein show by clear and necessary intendment that the Federal question must have been directly involved so that the state court could not have given judgment without deciding it. In such case it has been held that the Federal question sufficiently appears. Green Bay & M. Canal Company v. Patten Paper Company, 172 U. S. 58, 68 [ante, 364], and cases cited. In substance the validity of the statute or the right under the Constitution must have been drawn in question. Powell v. Brunswick County, 150 U. S. 433 [37: 1134]; Sayward v. Denny, 158 U. S. 180 [39: 941]. The latest decision to this effect is Capital National Bank of Lincoln v. First National Bank of Cadiz, 172 U. S. 425 [ante, 502]. 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 the case before the state court which at least would call its attention to the Federal question as one that was relied on by the party, and then, if the decision of the court, while not noticing the question, was such that the judgment was by its necessary effect a denial of the right claimed or referred to, it would be sufficient. It must appear from the record that the right set up or claimed was denied by the judgment or that such was its necessary effect in law. Roby v. Colehour, 146 U. Š. 153, 159 [36: 922, 924]; Chicago, It is asserted in the petition that the deB. & Q. Railroad Company v. Chicago, 166 fendant Dillworth, the treasurer of Holt U. S. 226, 231 [41: 979, 983]; Green Bay & county, is attempting to enforce the assessM. Canal Company v. Patten Paper Comment levied by the common council, and that pany, and Bank of Lincoln v. Bank of Cadiz,

supra.

In all these cases it did appear from the record that the rights were set up or claimed in such a way as to bring the subject to the attention of the state court. It is not enough that there may be somewhere hidden in the record a question which, if raised, would be of a Federal nature. Hamilton Mfg. Company v. Massachusetts, 6 Wall. 632 [18: 904]. In order to be available in this court some claim or right must have been asserted [200]*in the court below by which it would appear that the party asserting the right founded it in some degree upon the Constitution or laws or treaties of the United States. In such case, if the court below denied the right claimed, it would be enough; or if it did not in terms deny such right, if the necessary effect of its judgment was to deny it, then it would be enough. But the denial, whether express or implied, must be of some right or claim founded upon the Constitution or the laws or treaties of the United States, which had in some manner been brought to the attention of the court below. The record shows nothing of the kind in this case.

A claim or right which has never been made or asserted cannot be said to have been denied by a judgment which does not refer to it. Hamilton Company v. Massachusetts, supra. A point that was never raised cannot be said to have been decided adversely to

Upon these facts we are compelled to hold that we are confined to a discussion of the only Federal question which this *record pre-[201 sents, viz., the validity of the personal judg ment against the plaintiff in error. The assignment of error above set out is broad enough to raise the question, not only as to the sufficiency of notice, but as to the validity of such a judgment against a nonresident.

he claims plaintiff in error is personally liable for the taxes and interest, and will enforce payment thereof unless restrained, and that plaintiff's personal property is liable to be illegally seized for the payment of the tax. These allegations are substantially admitted by the answers of the defendants, except as to the illegality of the possible seizure of plaintiff's personal property. By filing the counterclaim the contractor makes a direct attempt to enforce, not only the lien upon the lots, but the personal liability of the lotowner. Thus a nonresident, simply because he was the owner of property on a street in a city in the state of Iowa, finds himself by the provisions of the state statute, and without the service of any process upon him, laid under a personal obligation to pay a tax assessed by the common council or by the board of public works and city engineer under the statute, upon his property abutting upon the street, for the purpose of paying the expenses incurred in paving the street, which expenses are greater than the benefit the lots have received by virtue of the improvement. The plaintiff, prior to the imposition of that assessment, had never submitted himself to the jurisdiction of the state of Iowa, and the only jurisdiction that state had in the assessment proceedings was over the real property belonging to him and abutting on the street to be improved. An