it had at common law, but is to be construed liberally, and in the light of the state system of procedure, and the means and methods afforded by it to litigants for the raising and presentation of issues of law and fact and their preservation upon the record.28

26

A federal question may be raised and presented by the issue joined upon a bill and answer in chancery; 29 by an "agreed case;" 30 by a special verdict; 31 by a demurrer to an indictment and judgment thereon against the defendant; 32 by request or prayer for an instruction to the jury; 33 by motion to set aside. a judgment; 34 by motion in arrest of judgment; 35 by motion to set aside the verdict of the jury and grant a new trial; by motion to set aside a judgment rendered against the plaintiff on a demurrer to his declaration, although the question was not so set up in the declaration as to be decided in passing on the demurrer; 37 by motion for new trial in the trial court, followed by assignments of error in the state supreme court; by motion to quash an indictment upon the ground of constitutional invalidity in the selection and organization of the grand jury which found and returned it, when the defendant has had no opportunity to challenge the grand array; 39 by motion to quash the panel upon the ground of constitutional in

Lawrence, 11 Wall. 36-39 (20:48); Sweringen v. St. Louis, 185 U. S. 38-47 (46:795).

28 Murdock v. Memphis, 20 Wall. 590-642 (22:429); Armstrong v. Treasurer of Athens County, 16 Pet. 281-290 (10:965); Crescent City Live Stock Landing and Slaughter House Company v. Butchers Union, 120 U. S. 141-160 (30:614); Moore v. Mississippi, 21 Wall. 636-640 (22:653).

29 Gibbons v. Ogden, 9 Wheat. 1240 (6:23); Murdock v. Memphis, 20 Wall. 590-642 (22:429).

30 Fairfax v. Hunter, 7 Cranch. 603-632 (3:453); Cohens v. Virginia, 6 Wheat. 264-448 (5:252); McCulloch v. Maryland, 4 Wheat. 316-473 (4:579).

31 Dartmouth College v. Woodward, 4 Wheat. 518-714 (4:629).

38

32 Brown v. Maryland, 12 Wheat. 419 (6:678).

33 National Mutual Building & Loan Assn. v. Brahan, 193 U. S. 635-651 (48:823).

34 Manley v. Parker, 187 U. S. 547-553 (47:296).

35 Consolidated Coal Co. v. Illinois, 185 U. S. 203-212 (46:872). 360 Chicago, Burlington & Quincy Railroad Company v. Chicago, 166 U. S. 226-263 (41:979).

37 Meyer v. Richmond, 172 U. S. 82-101 (43:374).

38 San Jose Land & Water Company v. San Jose Ranch Co., 189 U. S. 177-185 (47:765).

39 Rogers v. Alabama, 192 U. S. 226-231 (49:417); Carter v. Texas, 177 U. S. 442-449 (44:839); Neal v. Delaware, 103 U. S. 370-409 (26:576).

40

validity in its selection and organization; " by a petition filed by a person indicted in the state court to remove the cause to a federal circuit court for trial, upon the ground that the defendant is by the laws of the state denied equality of civil rights; by reserving exceptions to the action of the trial court in admitting evidence to the jury over the objection of the party, or the rejection of evidence, an exception being duly reserved. 42

41

§ 430. Degree of certainty required in setting up the federal question. The language of section seven hundred and nine, U. S. Revised Statutes, which defines the jurisdiction of the supreme court to review, upon writ of error, the final judgments and decrees of state courts, requires a greater degree of certainty, in setting up a federal right under the third class of cases therein mentioned, than in the first and second classes. It requires that the "title, right, privilege, or immunity" be "specially set up or claimed that is, "unmistakably" set up and claimed.42a And the rule is firmly established, that the jurisdiction of the supreme court to re-examine the final judgment of a state court, under the third division of section seven hundred and nine of the revised statutes cannot arise from mere inference, but only from averments so distinct and positive as to place it beyond question that the party carrying the case to the supreme court from the state court intended to assert a federal right. The statutory requirement is not met unless the party unmistakably declares that he invokes, for the protection of his rights, the constitution, or some treaty, statute, commission, or authority of the United States. 43

But the general rule deducible from the adjudicated cases, as to the first and second classes of cases mentioned in the statute is, that, if the federal question appears in the record and was decided, or such decision was necessarily involved in the case,

40 Neal v. Delaware, 103 U. S. 370-409 (26:567); Strauder V. West Virginia, 100 U. S. 303-312 (25:664).

41 Strauder v. West Virginia, 100 U. S. 303-312 (25:664).

42 Thompson v. Missouri 171 U. S. 380-388 (43:204); Haddock v. Haddock, 201 U. S. 562-633 (50:

42a Oxley Stave Co. v. Butler County, 166 U. S. 648-660 (41: 1149); Yazoo & Mississippi Valley Railroad Co. v. Adams, 180 U. S. 1-25 (45:395).

43 Michigan Sugar Co. v. Dix, 185 U. S. 112-114 (46:829); Mutual Life Ins Co. v. McGrew, 188 U. S. 291-313 (47:480).

and the case could not have been decided without deciding such question, then the fact that it was not specially set up or claimed will not defeat the jurisdiction of the supreme court."

§ 431. Same-Federal question must be called to attention of state court.-While it is true that, as a result of the language of the statute, less particularity is required in asserting federal rights of the first and second class, than of the third class, yet it is well settled that the right of review by the supreme court dependent upon the adverse decision of a federal question exists only in those cases where it appears from the record that the federal right relied upon has been brought by adequate specification to the attention of the state court and adversely decided by it, or unless it appears from the record that the judgment rendered could not have been given without deciding the federal question upon which the jurisdiction of the supreme court is invoked. It must appear from the record (1) that the federal right was called to the attention of the state court by adequate specification and decided by it, or (2) that the judgment rendered necessarily involved its determination.45

§ 432. The opinion of the state court is part of the record— Certificate of the presiding judge. The second section of the 8th supreme court rule, as modified in 1873, is as follows:

"In all cases brought to this court, by writ of error or appeal, to review any judgment or decree, the clerk of the court by which such judgment or decree was rendered shall annex to and transmit with the record a copy of the opinion or opinions filed in the case."

This provision of the rule embraces opinions of the state courts on writs of error to review their final judgments, and make such opinions part of the record. While the certificate of the presiding judge of the state court as to the exist

44 Columbia Water Power Co. v. Columbia Electric Street Railway, Light Power Co., 172 U. S. 475493 (43:521), and authorities cited.

45 Harding v. Illinois, 196 U. S. 78-88 (49:394); Capital City Dairy Co. v. Ohio, 183 U. S. 238-248 (46: 171); Green Bay & M. Canal Co. v.

Patten Paper Co., 172 U. S. 58-67 (43:364).

46 Murdock v. Memphis, 20 Wall. 590 (22:429); Sayward v. Denny, 158 U. S. 180 (39:941); United States v. Taylor, 147 U. S. 695 (37: 335); Gross v. United States Mortgage Co., 108 U. S. 477-490 (27: 795).

ence of the state of case upon which the jurisdiction of the supreme court may be invoked is always regarded with respect, it cannot confer jurisdiction upon the court to re-examine the judgment of the court below; the office of such certificate, as it respects the federal question, is to make more certain and specific what is too general and indefinite in the record, but it is incompetent to originate the question.47

§ 433. Neither petition for writ of error nor assignment of errors forms part of record.-It is well settled that neither the petition for writ of error, nor the assignment of errors therewith returned, upon a writ of error from the federal supreme court to a state court, forms any part of the record upon which action can be taken in the supreme court, nor can they supply deficiencies in the record of the state court, if any exist. 18

§ 434. The supreme court must determine its own jurisdiction. The question whether a title, right, privilege or immunity, claimed under the constitution or laws of the United States, was distinctly and sufficiently pleaded and brought to the notice of the state court, or whether any federal question arises upon the record, is itself a federal question, in the decision of which the federal supreme court, on writ of error, is not concluded by the view taken by the highest court of the state; but the supreme court is by the constitution vested with the exclusive power to determine for itself, and it is made its duty to so determine, the question of its own jurisdiction in all cases carried before it upon writ of error to the state courts. The

47 Parmelee V. Lawrence, 11 Wall. 36 (20:48); Powell v. Supervisors of Brunswick County, 150 U. S. 433-442 (37:1134); Fullerton v. Texas, 196 U. S. 192-194 (49:443); Allen v. Arguimbau, 198 U. S. 149156 (49:990); Marvin v. Front, 199 U. S. 212; Henkel v. Cincinnati, 177 U. S. 170-171 (44:720); Dibble v. Bellingham Bay Land Co., 163 U. S. 63-74 (41:72); Lawler v. Walker, 14 How. 149; R. R. Co. v. Rock, 4 Wall. 177 (18:381).

48 Butler v. Gage, 138 U. S. 52-61 (34:869); Leeper v. Texas, 139 U.

S. 462-468 (35:225); Sayward v. Denny, 158 U. S. 180-186 (39:941); Warfield v. Chaffe, 91 U. S. 690 (23:383); Wabash Railroad Company v. Flannigan, 192 U. S. 29-38 (48:328); Harding v. Illinois, 196 U. S. 78-88 (49:394); Simmerman v. Nebraska, 116 U. S. 54-55 (29: 535); Johnson v. New York Life Ins. Co., 187 U. S. 491-496 (47: 273); Telluride Power Transmission Co. v. Rio Grande Western Ry. Co., 187 U. S. 569-585 (47: 307).

highest function of the supreme court of the United States is to maintain the supremacy of the federal constitution, laws and treaties; and, to execute this power, it must of necessity, determine its own jurisdiction in all cases where that jurisdiction is invoked. Otherwise, it would be within the power of the state courts to defeat that jurisdiction altogether."

§ 435. To give the supreme court jurisdiction the federal question must have been decided adversely to the plaintiff in error. It is settled law that, to maintain the jurisdiction of the federal supreme court to re-examine, on writ of error, the final judgment or decree of a state court, it must affirmatively appear from the record, not only that a federal question was raised and presented for decision by the state court, and within the time and manner required by the state procedure, but that its decision was necessary to the determination of the cause, and that it was actually decided adversely to the plaintiff in error, or that the judgment as rendered could not have been given without deciding it.50

$436. Extent of the jurisdiction of the supreme court on writ of error to a state court-What questions may be reviewed. The federal supreme court, upon writ of error to a state court, has jurisdiction to review federal questions only, and those only which are of a controlling character; and where

49 Carter v. Texas, 177 U. S. 442449 (48:839); Neal v. Delaware, 103 U. S. 370 (26:567); Mitchell v. Clark, 110 U. S. 633 (28:279); Boyd v. Nebraska, 143 U. S. 135 (36:103); Newport Light Co. v. Newport, 151 U. S. 527 (38:259); Rogers v. Alabama, 192 U. S. 226231 (48:417); Powell v. Supervisors of Brunswick County, 150 U. S. 433-442 (38:1134).

50 Murdock v. Memphis, 20 Wall. 590-642 (22:429); Harrison V. Morton, 171 U. S. 38-47 (43:63); Eustis v. Bolles, 150 U. S. 361-370 (37:1111); Cook County v. Calumet & C. Canal & D. Co., 138 U. S. 635 (34:1110); Walter A. Wood Mowing and Reaping Machine Co. v. Skinner, 139 U. S. 293-297 (35:

193); De Saussure v. Gaillard, 127 U. S. 216-234 (32:125); Brown v. Atwell, 92 U. S. 327 (23:511); Citizens Bank v. Board of Liquidation, 98 U. S. 140 (25:114); Chouteau v. Gibson, 111 U. S. 200 (28:400); Adams County v. Burlington & M. R. R. Co., 112 U. S. 123 (28:678); Detroit City R. Co. v. Guthard, 114 U. S. 133 (29:118); New Orleans Waterworks Co. V. Louisiana Sugar Refining Co., 125 U. S. 18 (31:607); Johnson v. Risk, 137 U. S. 300-309 (34:683); Blountv. Walker, 134 U. S. 607-614 (33:1036); Morrow v. Brinkley, 129 U. S. 178 181 (32:654); Kansas Endowment & Benev. Assn. v. Kansas, 120 U. S. 103 (30:593); Church v. Kelsey, 121 U. S. 282 (30:960).