[175 U.S. 32, 33] Mr. J. Culbert Palmer for plaintiff in error.
Mr. Emmet R. Olcott for defendant in error.
Mr. Justice Gray delivered the opinion of the court:
This was a proceeding commenced September 27, 1895, in the surrogate's court, by the comptroller of the city and county of New York, for the taxation of property of John F. Houdayer, deceased, under the statute of New York of 1892, chap. 399, entitled 'An Act in Relation to Texable Transfers of Property,' the material provisions of which were as follows:
The case, as stated by the court of appeals, was this: 'On May 21, 1895, John F. Houdayer died intestate at Trenton, New Jersey, where he had resided for a number of years. In 1876 he opened an account with the Farmers' Loan & Trust Company of the city of New York as trustee under the will of Edward Husson, deceased, in which he made deposits from time to time of moneys belonging to the trust estate, as well as moneys belonging to himself. This continued as an open running account until his death, when the balance on hand was the sum of $73,715, of which $2,000 belonged to him as trustee, and the remainder to himself as individual. The appraiser deducted $3,500 for the payment of debts and expenses, and included $68,215 in the appraisal, which was affirmed by the surrogate, but reversed by the supreme court.' 150 N. Y. 37, 34 L. R. A. 235, 44 N. E. 718, 3 App. Div. 474, 38 N. Y. Supp. 323.
On October 6, 1896, the court of appeals reversed the order of the supreme court, and affirmed the order of the surrogate.
On April 4, 1898, the administrator of Houdayer sued out a writ of error from this court, as against the comptroller, and assigned the following errors:
But the difficulty which lies at the threshold of the consideration of this writ of error is that none of the points taken in the assignment of errors appear by the record to have been made in any of the courts of the state.
The only statements of the grounds of the administrator's objections to the proceedings below are these two: 1st. His affidavit filed before the appraiser appointed by the surrogate, averring 'that he objects to such proceedings, and opposes a levy of any such tax upon such amount so on deposit, and claims that said deposit is exempt under the laws and not subject to taxation.' 2d. His appeal to the surrogate from the formal order of assessment, taken 'on the ground that the deposit in the Farmers' Loan & Trust Company of $71,715, standing at the time of the decedent's death in his name as trustee, was a chose in action belonging to a nonresident decedent, and not property within this state subject to taxation under the provisions of the act in relation to taxable transfers of property; that the situs of the claim of the decedent against such deposit was at the domicil of the decedent, and not at the domicil of the said depository, and such property being the property of a nonresident decedent, [175 U.S. 32, 36] and situated out of this state, the same does not fall within the purview of said act.'
Both these statements clearly refer to the laws of New York, and not to the Constitution of the United States. And the opinion of the supreme court, as well as that of the court of appeals, turns upon the question whether the sum due from the Farmers' Loan & Trust Company of the city of New York to the intestate at the time of his death was 'property within the state,' within the meaning of the statute of 1892
No mention of the Constitution of the United States, or of any provision thereof, by the plaintiff in error, or by the court, is to be found at any stage of the case while it was pending in the courts of the state of New York; and it is impossible, upon this record, to avoid the conclusion that it never occurred to the plaintiff in error to raise a Federal question until after the case had been finally decided against him in the highest court of the state.
In order to give this court jurisdiction of a writ of error to review a judgment which the highest court of a state has rendered in favor of the validity of a statute of or an authority exercised under a state, the validity of the statute or authority must have been 'drawn in question . . . on the ground of their being repugnant to the Constitution, laws, or treaties of the United States.' When no such ground has been presented to or considered by the courts of the state, it cannot be said that those courts have disregarded the Constitution of the United States, and this court has no jurisdiction. Rev. Stat. 709; Murdock v. Memphis, 20 Wall. 590, 633, 634, 22 L. ed. 429, 433, 444; Levy v. Superior Court of San Francisco, 167 U.S. 175 , 42 L. ed. 126, 17 Sup. Ct. Rep. 769; Miller v. Cornwall R. Co. 168 U.S. 131 , 42 L. ed. 409, 18 Sup. Ct. Rep 34; Columbia Water Power Co. v. Columbia Electric Street Railway, light, & P. Co. 172 U.S. 475, 488 , 43 S. L. ed. 521, 526, 19 Sup. Ct. Rep. 247, and cases there cited.
Writ of error dismissed for want of jurisdiction.