Argument for Defendants in Error.

214 U. S.

Hammond v. Conn. Life Ins. Co., 150 U. S. 633; Mo. Pac. Ry. Co. v. Fitzgerald, 160 U. S. 556; Harrison v. Morton, 171 U. S. 38; Leathe v. Thomas, 207 U. S. 93; Arkansas So. R. R. Co. v. German Bank, 207 U. S. 270; Vandalia R. R. Co. v. South Bend, 207 U. S. 359; Elder v. Wood, 208 U. S. 226, 233.

Assuming that a Federal question was involved in this case, no Federal question was raised by plaintiffs in error prior to their motion for a reargument; and as the Federal question was not considered and acted upon by the Court of Appeals upon that motion, the raising of the Federal question came too late. McMillan v. Ferrum Mining Co., 197 U. S. 343; Disconto Gesellschaft v. Umbreit, 208 U. S. 570; Paraiso v. United States, 207 U. S. 368; Harding v. Illinois, 196 U. S. 78, 84.

No Federal question is involved in this case.

The courts of New York nowhere denied or questioned the validity of the constitutional provision of Ohio, but recognized its existence and force in their opinions, admitted it in evidence and expressly found it as a matter of fact.

It is only when the power to enact a statute, as it is by its terms or is made to read by construction, is fairly open to denial and denied, that the validity of such statute is drawn in question. Balt. & Pot. R. R. Co. v. Hopkins, 130 U. S. 210, 224; United States v. Lynch, 137 U. S., 280, 285.

When in the courts of a State the validity of a statute of another State is not drawn in question, but only its construction, no Federal question arises. Allen v. Alleghany Co., 196 U. S. 458; Glenn v. Garth, 147 U. S. 360. See also: Johnson v. New York Life Ins. Co., 187 U. S. 491; Hamblin v. Western Land Co., 147 U. S. 531; New Orleans Water Works Co. v. Louisiana, 185 U. S. 336; Sawyer v. Piper, 189 U. S. 154; Lloyd v. Matthews, 155 U. S. 222, 228.

In addition to the above, the following separate briefs were filed herein: By Mr. Harold Nathan in behalf of defendants in error Norman C. Andrews et al.; by Mr. Henry M. Earle in behalf of defendant in error Edith A. Logan; by Mr. Virgil P.

Kline, Mr. Henry Wollman and Mr. Sheldon H. Tolles on behalf of the Andrews Institute for Girls; and by Mr. William S. Jackson, Attorney-General of the State of New York. Mr. Edward R. O'Malley, who succeeded Mr. Jackson as AttorneyGeneral of the State of New York, also filed a brief herein.

MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court.

It is difficult to spell out from the record in this case the decision of any question arising under the Constitution and laws of the United States. Neither in the pleadings nor in the opinions is there a direct reference to any special provision of the Federal Constitution. It is true that after the decision by the Court of Appeals an affidavit was filed by one of the counsel for plaintiffs in error in support of a petition for a rehearing, stating that in the brief, as well as upon the oral argument in that court, a Federal question (describing it) had been presented and discussed, which petition was denied by the Court of Appeals in these words:

"Ordered, that the said motion be and the same hereby is denied, with ten dollars costs, no Federal question having been raised in this court."

It is unnecessary to determine whether this of itself is sufficient to give jurisdiction to this court. The language of the Court of Appeals may be construed as denying that any such matter was brought to its attention as stated in the affidavit, or as holding that it presented no Federal question. Mallett v. North Carolina, 181 U. S. 589; M., K. & T. Ry. Co. v. Elliott, 184 U. S. 530; Leigh v. Green, 193 U. S. 79; McKay v. Kalyton, 204 U. S. 458.

Counsel further contend that there was necessarily involved in the decision of the case the determination of a question arising under the Constitution and laws of the United States, and that hence this court has jurisdiction of this writ of error, even if the question was not formally referred to by counsel

or the state courts. Chapman v. Goodnow, 123 U. S. 540–548; Navigation Company v. Homestead Company, 123 U. S. 552; McCullough v. Virginia, 172 U. S. 102, 117; M., K. & T. Ry. Co. v. Elliott, 184 U. S. 530, 534; Rogers v. Alabama, 192 U. S. 226, 230, in which last case it is said:

"It is a necessary and well-settled rule that the exercise of jurisdiction by this court to protect constitutional rights cannot be declined when it is plain that the fair result of a decision is to deny the rights. There can be no doubt that if full faith and credit were denied to a judgment rendered in another State upon a suggestion of want of jurisdiction, without evidence to warrant the finding, this court would enforce the constitutional requirement. See German Savings Society v. Dormitzer, ante, p. 125."

The question upon which counsel rely arises upon Article IV, § 1, of the Federal Constitution, which reads:

"Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof."

It is not pretended that any judgment of the State of Ohio was disregarded by the courts of New York, but it is contended that full force and effect was not given to the constitution of the State of Ohio. This duty is as obligatory as the similar duty in respect to the judicial proceedings of that State. Town of South Ottawa v. Perkins, 94 U. S. 260, 268; Chicago & Alton Railroad Company v. Wiggins Ferry Company, 119 U. S. 615, 622, in which Mr. Chief Justice Waite said:

"Without doubt the constitutional requirement, art. IV, sec. 1, that 'full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State,' implies that the public acts of every State shall be given the same effect by the courts of another State that they have by law and usage at home. This is clearly the logical result of the principles announced as early as 1813 in Mills

v. Duryee, 7 Cranch, 481, and steadily adhered to ever since." Hancock National Bank v. Farnum, 176 U. S. 640, 642.

On the other hand, it is settled that the mere construction by a state court of the statute of another State, without questioning its validity, does not deny to it the full faith and credit demanded by the constitutional provision. Glenn v. Garth, 147 U. S. 360; Lloyd v. Matthews, 155 U. S. 222; Banholzer v. New York Life Insurance Company, 178 U. S. 402; Johnson v. New York Life Insurance Company, 187 U. S. 491; Finney v. Guy, 189 U. S. 335; Allen v. Alleghany Company, 196 U. S. 458.

In the light of these decisions we pass to consider the particular question presented. Sections 1 and 2 of article 13 of the Ohio constitution read:

"SEC. 1. The general assembly shall pass no special act conferring corporate powers.

"SEC. 2. Corporations may be formed under general laws; but all such laws may, from time to time, be altered or repealed."

By § 3235, 2 Bates's Ann. Ohio Statutes (6th ed.), p. 1836, it is provided: "Corporations may be formed in the manner provided in this chapter for any purpose for which individuals may lawfully associate themselves, except for carrying on professional business;" and immediately following this section are those naming the conditions and methods of incorporation. After the death of the testator, and on March 19, 1902, the general assembly of the State of Ohio passed an act (Laws 1902, p. 61), the first section of which is as follows:

"SEC. 1. Whenever, by the last will and testament of any person which has heretofore been, or shall hereafter be, duly admitted to probate in this State or elsewhere, any decedent has devised or bequeathed, or may devise or bequeath, his or her property, or any portion thereof, for charitable uses within this State, or for the establishment and maintenance of any industrial or educational school or institution to be located at any place within this State; and whenever, in any

such will and testament it has been, or may be, provided that the executor or executors thereof shall organize a corporation under the laws of this State for the purpose of receiving the property so devised or bequeathed, and carrying out the charitable purposes in such will expressed, or establishing and maintaining the institution or school therein provided for, and such will further provides for the management of such corporation by a board of trustees or directors, consisting, in part, of officials of this State, of the county in which such charities are to be administered or such institution or school located, the officials of any municipal incorporation in said county, and the member of Congress for the district of which said county forms a part, or any of such officials, and names any other person or persons to be associated with said officials or any of them, and provides for the appointment of a successor or successors to the person or persons so appointed to act with such officials in any manner specified in said will, such executor or executors, or his or their successors in office, and the persons hereinafter named, may constitute themselves a body corporate, with the general powers of benevolent incorporations."

The second section requires that a copy of the will or testament, for the carrying out of the provisions of which the corporation is organized, shall be set forth in the articles of incorporation. Thereafter the Andrews Institute for Girls was incorporated, containing, as required by § 2, the will of the testator. Now it is contended by counsel for the plaintiffs in error that this act was a special act conferring corporate powers, and that therefore it and the incorporation made under it was in conflict with the constitution of Ohio. It is not suggested that there has been any decision of the courts of Ohio in reference to the validity of the act or subsequent incorporation of the Andrews Institute, but it is insisted that it is so obvious that the act is a special act conferring corporate powers, inasmuch as the terms of the will of an individual are the basis of the act and the incorporation that the courts of