raised in the state court proceedings. This federal question must be more than a formal one. It must not be so absolutely devoid of merit as to be frivolous. Nor can it be so explicitly foreclosed by prior decisions of the Supreme Court as to leave no room for real controversy. Equitable Life Assurance Society v. Brown, 187 U. S. 308, 311. A federal issue not meeting these standards is deemed insubstantial and is cause for dismissal of an appeal or denial of a petition for writ of certiorari. Zucht v. King, 260 U. S. 174. See pp. 214-16, infra.

The jurisdictional requirement relative to the raising of a substantial federal question is formalized in the various subsections of $1257. Thus it is necessary, in an appeal under subsections (1) and (2), that the validity of a federal treaty or statute or of a state statute have been "drawn in question." For purposes of certiorari under subsection (3), the validity of such a treaty or statute must have been "drawn in question" or a federal title, right, privilege or immunity must have been "specially set up or claimed." These phrases, "drawn in question" and "specially set up or claimed," are substantially identical in nature, both of them referring to the raising of a substantial federal question in the correct manner. And the proper method of raising the federal question is dependent upon the particular state practice, at least as long as the litigant thereby has a reasonable opportunity to have such an issue heard and determined. See Central Union Co. v. Edwardsville, 269 U. S. 190, 194-5; Pennsylvania R. Co. v. Illinois Brick Co., 297 U. S. 447, 462-3; Parker v. Illinois, 333 U. S. 571, 574-5.

Framing the federal question

In framing the federal question for presentation to the state court, the litigant is not bound to follow any particular form of words or phrases. It is essential only that he bring the federal claim and the grounds therefor to the state court's at

tention with fair precision. And "if the record as a whole shows either expressly or by clear intendment that this was done, the claim is to be regarded as having been adequately presented." New York ex rel. Bryant v. Zimmerman, 278 U. S. 63, 67.

But while there is no precise method for raising a federal question, there are certain requirements of particularity which must be met however the question is raised. As stated in Oxley Stave Co. v. Butler County, 166 U. S. 648, 655, "the jurisdiction of this court to re-examine the final judgment of a state court cannot arise from mere inference, but only from averments so distinct and positive as to place it beyond question that the party bringing a case here from such court intended to assert a Federal right."

997

Thus care must be taken to make reference to the particular clause of the federal Constitution or the particular treaty or statute relied upon, as well as the rights claimed thereunder. The Supreme Court will not take cognizance of a claim grounded upon a mere reference to the "Constitution of the United States,' or the "Constitution and laws of the United States," or "due process of law." It has also been held in several relatively early cases that a reference to the Fifth or Seventh Amendment is insufficient to support a claim that the due process clause of the Fourteenth Amendment has been violated.1o It may be doubted, however, whether the Court today would consider insufficient a mistaken reference to one of the first ten Amendments, such as the First or the Fourth, in lieu of a proper reference to the Fourteenth Amendment.

'Herndon v. Georgia, 295 U. S. 441, 442-3; Harding v. Illinois, 196 U. S. 78, 88; Capital City Dairy Co. v. Ohio, 183 U. S. 238, 248. 8 Oxley Stave Co. v. Butler County, 166 U. S. 648.

9 Bowe v. Scott, 233 U. S. 658, 664-5.

10 Chapin v. Fye, 179 U. S. 127, 129-130; Winous Point Shooting Club v. Caspersen, 193 U. S. 188. The Chapin case has been cited by the Court as late as 1934 in Chubb v. Washington, 293 U. S. 520; the Winous Point case does not appear to have been cited subsequently.

Moreover, "it is well settled in this court that it must be made to appear that some provision of the Federal, as distinguished from the state, Constitution was relied upon, and that such provision must be set forth." New York Central & H. R. Co. v. New York, 186 U. S. 269, 273. Hence if the claim is made that a state statute is "unconstitutional" or that it denies "constitutional rights," it will be assumed that reference is being made to the state constitution and rights thereunder rather than to the federal Constitution. New York ex rel. Bryant v. Zimmerman, 278 U. S. 63, 67-8. If the state constitution has a due process clause, a claim that "due process" has been violated will be deemed to relate to that clause. Bowe v. Scott, 233 U. S. 658, 664-5. The particular state statute, the validity of which is drawn in question, must also be clearly identified. Yazoo & M.V.R. Co. v. Adams, 180 U. S. 41, 45, 48.11

It should be noted, however, that the Court does not insist upon such preciseness in these jurisdictional allegations where habeas corpus petitions are prepared and pressed by persons unlearned in the law. While a deprivation of a constitutional right will not readily be inferred from vague allegations, the Court is satisfied if the substance of such a person's claim is clear. See Tomkins v. Missouri, 323 U. S. 485, 487; Price v. Johnston, 334 U. S. 266, 292. Thus the Court has held "insignificant" the fact that a prisoner cited the Sixth rather than the Fourteenth Amendment to the Constitution. Gibbs v. Burke, 337 U. S. 773, 779; see also Holiday v. Johnston, 313 U. S. 342, 350. This liberality in testing the sufficiency of the allegations seems to have been confined to habeas corpus cases in which it would be unfair to impose high standards of legal art. In the ordinary case handled by a lawyer, the federal issue must be framed with more preciseness.

11 As to the proper raising of an issue under the full faith and credit clause of the federal Constitution, see Royal Arcanum v. Green, 237 U. S. 531, 540-1; Louisville & N. R. Co. v. Melton, 218 U. S. 36.

Any deficiency in the particularity with which a federal issue is framed is, of course, cured if the highest state court assumes that a specific federal issue is properly before it and then expressly considers and determines that issue. In that event, the Supreme Court does not inquire into the framing of the issue by the litigant in the first instance. Saltonstall v. Saltonstall, 276 U. S. 260, 267-8; Edwards v. Elliott, 21 Wall. 532, 549-51; Charleston Federal Savings & Loan Ass'n v. Alderson, 324 U. S. 182, 185-6.

Where and when federal question should be raised

Once a substantial federal question has been properly framed, it becomes important that it be raised at the proper point in the state court proceeding. This factor is especially significant where the highest state court fails or refuses to pass expressly upon the federal question. In that situation, the party invoking the Supreme Court's jurisdiction has the burden of showing that he properly raised the question so that the state court's failure to deal with it was not for want of proper presentation. If that burden is discharged, and if the federal question was necessary to a determination of the case and no adequate non-federal ground of decision is apparent, the Supreme Court can take jurisdiction over the case. Under those circumstances, the refusal to pass upon the federal question is just as reviewable as an express decision on the point.

Generally, the litigant must follow the state procedures in raising the federal question. Any failure to do so may prove fatal to his chances for Supreme Court review. Thus when required by state practice, the federal question must be raised before the trial court. And it must be presented to the trial court at the point considered appropriate under state procedure. See Hulbert v. Chicago, 202 U. S. 275 (complete failure to raise question at trial court level); Brown v. Massachusetts,

144 U. S. 573, 580 (failure to raise question before verdict held to be fatal); Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 231-2 (proper to raise question in motion for new trial). If this is not done, the Supreme Court will decline to exercise jurisdiction both where the highest state court expressly refuses to decide the federal question for this procedural reason (Pennsylvania R. Co. v. Illinois Brick Co., 297 U. S. 447, 462-3; Erie R. Co. v. Purdy, 185 U. S. 148) and where the highest state court is completely silent on the federal question (Mutual Life Ins. Co. v. McGrew, 188 U. S. 291, 309). In the latter instance, the Court assumes, unless it can affirmatively be shown otherwise, that the silence is due to the procedural deficiency. But the Court itself has the power to examine into the raising of the federal question and if it is convinced that the highest state court's refusal to deal with that question is a mere evasion the Court's jurisdiction can be asserted. See Rogers v. Alabama, 192 U. S. 226, 230-1.

State law may make it improper to raise federal questions for the first time in a trial court after a case has been remanded to it by a state appellate court. In that event, the Supreme Court will consider the federal questions asserted at that juncture as having been raised too late. It will accordingly decline jurisdiction over a judgment of the highest state court refusing to consider the questions on an appeal following the remand. See Union Mutual Life Ins. Co. v. Kirchoff, 169 U. S. 103; Louisville & Nashville R. Co. v. Higdon, 234 U. S. 592, 597-8. And if it is not permissible under state procedure to raise the federal questions for the first time on such a second appeal, the Supreme Court will not review a judgment to that effect. Bonner v. Gorman, 213 U. S. 86, 91. But whenever the highest state court does consider and decide the federal questions, despite any tardiness in their assertion, the Supreme Court will not go behind the action of the court in that respect; it can