MR. CHIEF JUSTICE FULLER, after making the foregoing statement, delivered the opinion of the court.
While it appears from the proceedings on the trial and the grounds assigned for the motion for new trial that the unconstitutionality of the act was relied on in defence, the record does not show that it was contended in the trial court that the act was in contravention of the Constitution of the United States; and it is settled that the objection in the state courts that an act of the State is "unconstitutional and void," relates only to the power of the state legislature under the state constitution. Miller v. Cornwall Railroad Company, 168 U.S. 131; Jacobi v. Alabama, ante, p. 133.
In the Supreme Court of Missouri, Division No. 2, Layton filed his statement and brief, which brief contained an assignment of errors, as required by the rules of that court. Four
The Supreme Court, however, did not in terms pass on the question whether the act was in contravention of the Constitution of the United States, and on the contrary said that its constitutionality was assailed on two grounds, namely: that it violated the provisions of section 28 of article 4 of the constitution of Missouri, providing that no bill "shall contain more than one subject, which shall be clearly expressed;" and that it conflicted with sections 4 and 30 of article 2 of that constitution, providing "that all persons have a natural right to life, liberty and the enjoyment of the gains of their own industry; that to give security to these things is the principal office of government . . .;" and "that no person shall be deprived of life, liberty or property without due process of law."
It was held that when an act of the legislature is attacked as unconstitutional because invading the right of the citizen to use his faculties in the production of an article for sale for food or drink, the rule of construction that legislative acts should not be declared void "unless the violation of the constitution is so manifest as to leave no room for reasonable doubt," required the test of constitutionality to be that "if it be an article so universally conceded to be wholesome and innocuous that the court may take judicial notice of it, the legislature, under the constitution, has no right to absolutely prohibit it; but if there is a dispute as to the fact of its wholesomeness for food or drink, then the legislature can either regulate or prohibit it;" and the validity of the act was sustained.
After judgment was entered affirming the judgment of the trial court, defendant moved that the cause be transferred to the court in banc, and the motion was denied.
By the constitution of Missouri, the Supreme Court was divided into two divisions, Division No. 1, consisting of four judges, and Division No. 2, consisting of three judges, the latter having exclusive cognizance of all criminal causes; and it was provided that cases, in certain circumstances, among others when a Federal question was involved, on the application of the losing party, should be transferred to a full bench for decision. Duncan v. Missouri, 152 U.S. 377; Moore v. Missouri, 159 U.S. 673, 679. And see Railway Company v. Elliott, 184 U.S. 530, as to exclusive appellate jurisdiction of state Supreme Court over cases involving constitutional questions.
It thus appears that the Supreme Court, not only by declining to consider the contention in the brief and argument in respect of the Fourteenth Amendment, but by denying the motion to transfer the cause, was of opinion that the validity of the statute was not so drawn in question for repugnancy to the Constitution of the United States as to require decision as to its validity in that view.
The rules of the court provided: "The brief filed by appellant shall distinctly and separately allege the errors committed by the inferior court, and no reference will be permitted at the argument to the errors not thus specified, unless for good cause shown the court shall otherwise direct." Rule 15, cl. 3, 160 Missouri, Appendix, iv.
By rule of Division No. 2, in criminal cases, printed statements containing assignment of errors and brief of points of argument were required, or, in prosecutions in forma pauperis, the same in typewriting. 160 Missouri, Appendix, vi.
And it has been repeatedly laid down by the Supreme Court of Missouri in disposing of questions of jurisdiction as between itself and intermediate courts of appeal that: "The appellate jurisdiction of the Supreme Court contemplates a review only of the matters submitted to, and examined and determined by the trial court. Hence it is well settled that this court has no jurisdiction of an appeal, on the ground that a constitutional question is involved, unless the question was raised in and submitted to the trial court." Browning v. Powers, 142 Missouri, 322; Bennett v. Railway Co., 105 Missouri, 645; Shewalter v. Railway Company, 152 Missouri, 551.
As we observed in Jacobi's case, p. 133, ante, we cannot interfere with the action of the highest court of a State in adhering to the usual course of its judgments, and we have frequently ruled that this court cannot review the final judgments of the state courts on the ground that the validity of state enactments under the Constitution of the United States had been adjudged where those courts "did nothing more than decline to pass upon the Federal question because not raised in the trial court as required by the state practice." Erie Railroad Company v. Purdy, 185 U.S. 148, 154.
This case falls within that rule, and the writ of error is