A judgment estops not only as to every | Appx. and 26 L. ed. 301; Lyon v. Perin & ground of recovery or defense actually pre- G. Mfg. Co. 125 U. S. 698, 31 L. ed. 839, 8 sented in the action, but also as to every Sup. Ct. Rep. 1024; Last Chance Min. Co. ground which might have been presented v. Tyler Min. Co. 157 U. S. 683, 39 L. ed. under the pleadings. 859, 15 Sup. Ct. Rep. 733; Hubbell v. United States, 171 U. S. 203, 43 L. ed. 136, 18 Sup. Ct. Rep. 828; Baker v. Cummings, 181 U. S. 117, 125, 45 L. ed. 776, 780, 21 Sup. Ct. Rep. 578; Barber v. Kendall, 158 N. Y. 401, 53 N. E. 1; Goebel v. Iffla, 111 N. Y. 170, 18 N. E. 649; Reich v. Cochran, 151 N. Y. 127, 37 L.R.A. 805, 56 Am. St. Rep. 607, 45 N. E. 367; Dowell v. Applegate, 152 U. S. 327, 38 L. ed. 463, 14 Sup. Ct. Rep. 611. Dowell v. Applegate, 152 U. S. 327, 339, 340, 38 L. ed. 463, 467, 468, 14 Sup. Ct. Rep. 611; National Foundry & Pipe Works v. Oconto Water Supply Co. 183 U. S. 216, 233–237, 46 L. ed. 157, 169, 170, 22 Sup. Ct. Rep. 111. A dismissal of the bill absolutely, and without words of restriction, is presumed to be upon the merits, and is conclusive upon all the material issues presented by the pleadings, whether the dismissal be by default, before taking of depositions, or after a hearing on depositions. Durant v. Essex Co. 7 Wall. 107, 19 L. ed. 154; Leary v. Long, 131 U. S. ccxviii. erty was sought to be taken without due process of law, and in conflict with the 14th Amendment to the Federal Constitution, raises a Federal question. Bellingham Bay & B. C. R. Co. v. New Whatcom, 172 U. S. 314, 43 L. ed. 460, 19 Sup. Ct. Rep. 205. A claim in a state court that property is taken without due process of law when condemned under a special statute for the abolition of grade crossings, because it authorizes an increase in the number of tracks, and requires the city to pay a portion of the expense incurred for that purpose, which, it is contended, would amount to a donation to a railroad corporation, in violation of the state Constitution, raises a Federal question for the purpose of a writ of error from the Supreme Court of the United States to a state court. Wheeler v. New York, N. H. & H. R. Co. 178 U. S. 321, 44 L. ed. 1085, 20 Sup. Ct. Rep. 949. But where a state statute providing for condemnation proceedings has been con strued by the state courts as requiring notice, no Federal question with respect to due process of law can be based upon the objection that such statute allows condemnation without notice. Baltimore Traction Co. v. Baltimore Belt R. Co. 151 U. S. 137, 38 L. ed. 102, 14 Sup. Ct. Rep. 294. Where the Supreme Court of the United States can see that there has been no taking of property, it will dismiss a writ of error to a state court which is sought to be sustained because of a decision adverse to the contention that property has been taken without due process of law. Yesler v. Washington Harbor Line, 146 U. S. 646, 36 L. ed. 1119, 13 Sup. Ct. Rep. 190; Taylor v. Beckham, 178 U. S. 548, 44 L. ed. 1187, 20 Sup. Ct. Rep. 890, 1009; New Orleans v. New Orleans Waterworks Co. 142 U. S. 79, 35 L. ed. 943, 12 Sup. Ct. Rep. 142. It is rather difficult to see why the question whether there has been a taking of property within the meaning of the dueprocess-of-law clause is not as much a Federal question as the further question as to Where there is a dismissal of the complaint it is presumed that the judgment of dismissal is upon the merits, and covers every question put in issue by the pleadings. Hubbell v. United States, 171 U. S. 203, the constitutionality of the procedure. Perhaps the best explanation of these decisions is the one suggested in div. IV. e, 5, in the note appended to Apex Trans. Co. v. Garbade, 62 L.R.A. 513, on What adjudications of state courts can be brought up for review in the Supreme Court of the United States by writ of error to those courts; viz., that, as the judgment below was not to be disturbed, it was of little importance whether that result was reached by dismissal or affirmance. The question must be a real and substantial one (see note to Offield v. New York, N. H. R. & H. R. Co. post, p. 231), and it must not be merely an abstract one. Hence the objection that persons may be deprived of their rights without due process of law, under the Massachusetts Torrens act for land registration, because it provided for adjudicating the rights of certain classes of persons who are notified only by posting notices, registered letters, or by publication, and for the registration of dealings with the land after the original registration, cannot be raised, so as to give jurisdiction on writ of error from the Supreme Court of the United States, by a person who is not affected by those provisions because he has had the requisite notice. Tyler v. Registration Ct. Judges, 179 U. S. 405, 45 L. ed. 252, 21 Sup. Ct. Rep. 206. A taxpayer who admits that his own tax is correct cannot, on the ground that he will be deprived of his property without due process of law, and denied the equal protection of the laws, contrary to the 14th Amendment of the Constitution of the United States, have a writ of error from the United States Supreme Court to review a construction by the supreme court of the state of the statutes thereof, as exempting, in whole or in part, certain corporations from the payment of taxes. Missouri v. Dockery, 191 U. S. 165, 48 L. ed. 133, 63 L. R.A. 571, 24 Sup. Ct. Rep. 53. A decree of the state court requiring defendants to vacate certain lands, and en 209, 43 L. ed. 136, 138, 18 Sup. Ct. Rep. 828; | in the question whether proceedings under Last Chance Min. Co. v. Tyler Min. Co. it were in conflict with United States laws 157 U. S. 683, 691, 692, 39 L. ed. 859, 863, and Constitution. 15 Sup. Ct. Rep. 733. The Supreme Court must ascertain for itself what questions of law were presented by the record, and whether the court of appeals, in order to reverse the order of the appellate division, and grant final judgment, did not disregard and misinterpret the law of its own state, and also whether it did not, to reach that end, rely, in whole or in part, upon conclusions con trary to those determined by the former judgment. Louisville Gas Co. v. Citizens' Gaslight Co. 115 U. S. 683, 29 L. ed. 510, 8 Sup. Ct. Rep. 265. So, a question of the proper interpretation of a state ordinance was held involved Yick Wo v. Hopkins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064. To ascertain what was really decided, resort may be had to the pleadings and to the opinion of the court. National Foundry & Pipe Works v. Oconto Water Supply Co. 183 U. S. 217-234, 46 L. ed. 158-169, 22 Sup. Ct. Rep. 111; Baker v. Cummings, supra. Even though the United States circuit court had not jurisdiction of the alleged infringement of the common-law trademark, nevertheless its judgment is conclusive thereon upon the parties before it, and could not be questioned by them, or either of them, collaterally, or otherwise than on writ of error or appeal. manner of their observance was a denial of due process of law. French v. Taylor, 199 U. S. 274, 50 L. ed. 189, 26 Sup. Ct. Rep. 76. joining them from further mining thereon,, which was the relief prayed in a bill proceeding on the theory that the corporation holding a mining lease under which defend- A general statement that the decision of ants justified their occupation as its agents a court was against the constitutional was no longer in existence, is not review- rights of a party or against the 14th able in the Federal Supreme Court as in- Amendment, or that it is without due volving a denial of the claim that, in pro-process of law, particularly when these obceeding to determine the case without mak-jections appear only in specifications of ing the corporation a party defendant, it error, so called, will not raise a Federal will be deprived of its property without question. Clarke v. McDade, 165 U. S. 168, due process of law, since, not being a party, 41 L. ed. 673, 17 Sup. Ct. Rep. 284. the rights of the corporation are not affected by such decree. Iron Cliffs Co. v. Negaunee Iron Co. 197 U. S. 463, 49 L. ed. 836, 25 Sup. Ct. Rep. 474. The question must be adequately presented to, and be decided by, the state court, or the Federal Supreme Court will be without jurisdiction. Constitution of the United States forbidding a state to deprive any person of his property without due process of law. F. G. Oxley Stave Co. v. Butler County, 166 U. S. 648, 41 L. ed. 1149, 17 Sup. Ct. Rep. 709. A general allegation in a suit to vacate a decree that such decree was passed against some persons who were at the time dead, and against others who were necessary parties, but had no notice of the proceedings, does not, within the meaning of U. S. Rev. Stat. § 709, U. S. Comp. Stat. 1901, p. 575, specially set up a right or imA judgment of a state court in condemna-munity under the 14th Amendment of the tion proceedings is not reviewable in the Supreme Court of the United States on the theory that a question respecting due process of law was decided thereby, where there is nothing in the record which adequately shows that the state court was led to suppose that any claim was made under the Constitution of the United States, or that any ruling involved a decision against a right set up under that instrument. Hooker v. Los Angeles, 188 U. S. 314, 47 L. ed. 487, 63 L.R.A. 471, 23 Sup. Ct. Rep. 395. A question respecting due process of law is not specially set up or claimed in an eminent domain case, so as to give jurisdiction to the Supreme Court of the United States, by assignments of error in the state court which do not refer in any way to the Federal Constitution, but merely complain of the inadequacy of the damages. Chicago & N. W. R. Co. v. Chicago, 164 U. S. 454, 41 L. ed. 511, 17 Sup. Ct. Rep. 129. A decision of a state court that the formalities required by the tax laws were fully observed does not present a Federal question, where the contention is not that the statutes are unconstitutional, but that the due The decision in the opinion of the highest state court, in reviewing a conviction of crime, of questions respecting process of law, the equal protection of the laws, and cruel and unusual punishment, will not confer jurisdiction on the Supreme Court of the United States of a writ of error to the state court, in the absence of any claim to protection under the Federal Constitution made therein. Howard Fleming, 191 U. S. 126, 48 L. ed. 121, 24 Sup. Ct. Rep. 49. V. The right to trial by jury on the question of waiver of preliminary examination is not claimed as a Federal right in a state court by a plea in abatement to an information, alleging that the prosecution is in contravention of the 14th Amendment to the Federal Constitution, where this allegation evidently referred to prior paragraphs of the plea, which dealt only with the necessity of a prosecution by indictment Dowell v. Applegate, supra; Des Moines | plaintiffs alleged and were required to prove, Nav. & R. Co. v. Iowa Homestead Co. 123 as an essential of their cause of action, the U. S. 552, 31 L. ed. 202, 8 Sup. Ct. Rep. 217; former judgment beween the same parties Riverdale Cotton Mills v. Alabama & G. in the United States circuit court. Mfg. Co. 198 U. S. 188, 197, 198, 49 L. ed. 1008, 1015, 1016, 25 Sup. Ct. Rep. 629. The question whether a state court has given due effect to a judgment of a court of the United States is a question arising under the Constitution and laws of the United States. Crescent City L. S. L. & S. H. Co. v. Butchers' Union S. H. & L. S. L. Co. 120 U. S. 141, 30 L. ed. 614, 7 Sup. Ct. Rep. 472; Deposit Bank v. Frankfort, 191 U. S. 499-515, 520, 48 L. ed. 276-282, 284, 24 Sup. Ct. Rep. 154; National Foundry & Pipe Works v. Oconto Water Supply Co. 183 U. S. 217, 233, 46 L. ed. 158, 169, 22 Sup. Ct. Rep. 111; Tullock v. Mulvane, 184 U. S. 497, 507, 508, 46 L. ed. 657, 664, 22 Sup. Ct. Rep. 372; Taylor, Jurisdiction, § 209. There is a Federal question because the to constitute due process of law. Bolln v. Nebraska, 176 U. S. 83, 44 L. ed. 382, 20 Sup. Ct. Rep. 287. No Federal question which will confer jurisdiction on the Supreme Court of the United States of a writ of error to a state court is involved in a contention in the highest state court that, by the judgment of the trial court, private property is taken for public use without just compensation, in violation of the 5th Amendment of the Federal Constitution, since this Amendment operates solely as a restriction upon Federal powers, and not upon those of the several states. Winous Point Shooting Club v. Caspersen, 193 U. S. 189, 48 L. ed. 675, 24 Sup. Ct. Rep. 431. An exception to the denial of a motion for a new trial on the ground that a state statute violates the 5th Amendment to the Federal Constitution, securing due process of law, is not the equivalent of a claim of the benefit of the due-process-oflaw clause of the 14th Amendment. Chapin v. Fye, 179 U. S. 127, 45 L. ed. 119, 21 Sup. Ct. Rep. 71. A Federal question, even if presented by the claim, on a motion for a new trial in a state court, that a state statute takes property without due process of law, which the highest state court expressly refrained from passing upon because it regarded the objection waived by failure to cite authorities or advance argument in support thereof, cannot be deemed necessarily to have been decided by that court, where the record does not show that the question was there raised. Harding v. Illinois, 196 U. S. 78, 49 L. ed. 394, 25 Sup. Ct. Rep. 176. A judgment of a state court dismissing a bill to enjoin municipal interference with a toll gate, which rests on the ground that the individual grantee of the franchise of the toll road corporation in a deed executed under legislative authority took only a life Commercial Pub. Co. v. Beckwith, 188 U. S. 567, 569, 47 L. ed. 598, 599, 23 Sup. Ct. Rep. 382. All the proceedings in the United States circuit court in the injunction suit, including the judgments and orders and opinions, were pleaded and in evidence, and a part of the record. There can be no claim or argument that they were not before the court of appeals. Green Bay & M. Canal Co. v. Patten Paper Co. 172 U. S. 58, 66-68, 43 L. ed. 364, 368, 369, 19 Sup. Ct. Rep. 97; Huntington v. Attrill, 146 U. S. 657, 36 L. ed. 1123, 13 Sup. Ct. Rep. 224. A failure or refusal to consider the Federal question is equivalent to a decision against the Federal right involved therein. Des Moines Nav. & R. Co. v. Iowa Homeestate, determines no question as to the impairment of contract obligations, or the deprivation of property without due process of law. Snell v. Chicago, 152 U. S. 191, 38 L. ed. 408, 14 Sup. Ct. Rep. 489. See also note to Mutual L. Ins. Co. v. McGrew, 63 L.R.A. 33, on How and when questions must be raised and decided in a state court in order to make a case for a writ of error from the Supreme Court of the United States. The doctrine of the cases holding that it is for the state courts alone to construe their own laws (see note to Missouri ex rel. Hill v. Dockery, 63 L.R.A. 571, on What questions the Federal Supreme Court will consider in reviewing the judgments of state courts) does not require the Supreme Court of the United States, on writ of error to a state court, to accept that court's construction of a state statute or a statute enacted by the territory before its admission into the Union as a state, when the question is whether such statute provides for the notice required to constitute due process of law. Scott v. McNeal, 154 U. S. 34, 38 L. ed. 896, 14 Sup. Ct. Rep. A similar exception was recognized in Hoadley v. San Francisco (Clark v. San Francisco) 124 U. S. 639, 31 L. ed. 553, 8 Sup. Ct. Rep. 659, where one of the questions involved on a writ of error to a state stead Co. 123 U. S. 552, 31 L ed. 202, 8| mental brief for plaintiffs in error on the Sup. Ct. Rep. 217; Missouri, K. & T. R. Co. question of jurisdiction. v. Elliott, 184 U. S. 531, 46 L. ed. 673, 22 Sup. Ct. Rep. 446. It has been uniformly held that this court will and must ascertain for itself from the record-including the pleadings, the decree, and the opinion-what questions were, in fact, decided or involved in the decision of the court below. If a Federal question appears in the record and was actually decided, or was necessarily involved, in the decision as made by the state court, this court has jurisdiction. Brown v. Atwell, 92 U. S. 327, 23 L. ed. Southern P. R. Co. v. United States, 168 511; Columbia Water Power Co. v. Colum- | U. S. 44, 45, 49-52, 42 L. ed. 375, 377, 378, bia Electric Street R. Light & P. Co. 172 18 Sup. Ct. Rep. 18; Baker v. Cummings, U. S. 475, 488, 489, 43 L. ed. 521, 525, 526, 181 U. S. 117, 45 L. ed. 776, 21 Sup. Ct. 19 Sup. Ct. Rep. 247; Wedding v. Meyler, Rep. 578; National Foundry & Pipe Works 192 U. S. 573, 48 L. ed. 570, 66 L.R.A. 833, v. Oconto Water Supply Co. 183 U. S. 217, 24 Sup. Ct. Rep. 322; Powell v. Brunswick 234, 46 L. ed. 158, 169, 22 Sup. Ct. Rep. County, 150 U. S. 440, 37 L. ed. 1136, 14 111. Sup. Ct. Rep. 166; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 231, 41 L. ed. 979, 982, 17 Sup. Ct. Rep. 581; Kaukauna Water Power Co. v. Green Bay & M. Canal Co. 142 U. S. 254, 35 L. ed. 1004, 12 Sup. Ct. Rep. 173. Mr. Norris Morey also filed a supplecourt was whether property was taken without due process of law by certain state legislation. Errors of state courts in respect to the details of assessments by municipal corporations for street improvements which are claimed not to furnish due process of law cannot be considered by the Supreme Court of the United States on writ of error to the state court. The only inquiry open is whether sufficient provision has been made by law for contesting the assessment by an appropriate proceeding in the ordinary courts of justice. Corry v. Campbell, 154 U. S. 629, Appx. and 24 L. ed. 926, 14 Sup. Ct. Rep. 1183. Mr. Milton A. Fowler argued the cause and filed a brief for defendant in error. Mr. Justice Holmes delivered the opinion of the court: This is an action for malicious prosecution, brought by the plaintiffs in error, in the record simply to inquire whether there may or may not be errors in the proceeding. The limit of interference is reached when it appears that no fundamental rights have been disregarded by the state tribunals. Backus v. Fort Street Union Depot Co. 169 U. S. 557, 42 L. ed. 853, 18 Sup. Ct. Rep. 445; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581. In Yick Wo v. Hopkins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064, the question presented on a writ of error to a state court was whether due process of law, or the equal protection of the laws, was denied the Chinese by proceedings under cerOn writ of error to a state court to re- tain municipal ordinances providing that view a judgment in an action in the nature it should be unlawful for any person to enof quo warranto alleged not to constitute gage in the laundry business in wooden due process of law the question before the buildings within the corporate limits "withSupreme Court of the United States is not out having first obtained the consent of the whether the courts below, having jurisdic-board of supervisors." The state court contion of the case and of the parties, have sidered these ordinances as vesting in the followed the law, but whether the law, if board of supervisors a not unusual discrefollowed, would have furnished the protection in granting or withholding their assent tion guaranteed by the Federal Constitution. Irregularities and mere errors in the proceedings must be corrected in the state court. The Supreme Court of the United States will only examine the power of the court below to proceed at all. Kennard v. Louisiana, 92 U. S. 480, 23 L. ed. 478. Proceedings had in the state court under state authority for the appropriation of private property to public purposes may be examined by the Supreme Court of the United States on writ of error to a state court so far as to inquire whether that court prescribed any rule of law in disregard of the owner's right to just compensation. But it is not every error occurring in a state court in the administration of its law concerning condemnation of private property for public purposes that may be reviewed, and the court is not called upon to search to the use of wooden buildings as laun. which the New York court of appeals ordered, Rep. 1024), but it only decided that that In the case at bar the trial court ordered a nonsuit on the ground that the granting of the injunction by the circuit court established probable cause. The principle of the decision in Crescent City L. S. L. & S. H. Co. v. Butchers' Union S. H. & L. S. L. Co. 120 U. S. 141, 30 L. ed. 614, 7 Sup. Ct. Rep. 472, that a final decree of the circuit court has that effect, even if subsequently reversed, was thought to extend to a preliminary decree. See also Deposit Bank v. Frankfort, 191 U. S. 499, 511, 48 L. ed. 276, 280, 24 Sup. Ct. Rep. 154. The [184]decision of the trial court *was reversed by the appellate division. The defendant then took the case to the court of appeals, assenting, as required, that, if the order should be affirmed, judgment absolute should be rendered against him. As we have said, the order was reversed. The ground on which a review is asked here is that the court of appeals by its reasoning implies that it finds probable cause in its own opinion that the decree in the former case was wrong, whereas not to assume it to be correct is to fail to give it the faith and credit required by Rev. Stat. § 905, U. S. Comp. Stat. 1901, p. 677. It is unnecessary to consider whether a court bound by a previous judgment would not be warranted in saying that if the question had come before it in the first instance it would have decided the case the other way, and therefore that there was probable cause for a mistake of law into which it would have fallen itself. A mistaken view of the law may constitute probable cause in some instances, as is shown by the case cited above. Probable cause does not mean sufficient cause. But this last proposition shows that the former decree could not have decided the question now before the court, and therefore that the case is not properly here. The former decree was conclusive on the merits of the suit in which it was ren dered, of course (Lyon v. Perin & G. Mfg. Co. 125 U. S. 698, 31 L. ed. 839, 8 Sup. Ct. suit was brought without sufficient cause. No doubt an opinion may be resorted to |