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    LEVY v. SUPERIOR COURT OF CITY AND COUNTY OF SAN FRANCISCO, 167 U.S. 175 (1897)

    U.S. Supreme Court

    LEVY v. SUPERIOR COURT OF CITY AND COUNTY OF SAN FRANCISCO, 167 U.S. 175 (1897)

    167 U.S. 175

    LEVY
    v.
    SUPERIOR COURT OF CITY AND COUNTY OF SAN FRANCISCO.
    No. 294.

    May 10, 1897

    William A. Maury, for plaintiff in error.

    Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

    The plaintiff in error filed in the supreme court of the state of California a petition praying, for the reasons therein stated, that a writ of prohibition be granted against the superior court of the city and county of San Francisco and the judge thereof, commanding that court and judge to refrain from trying or examining further into the allegations and issues of fact in a certain pending proceeding therein [167 U.S. 175, 176]   relating to the estate of Morris Hoeflich, deceased. An alternative writ of prohibition having been issued in accordance with the prayer of the petition, the defendants filed an answer as well as a demurrer upon the ground that the facts stated in the petition did not entitle the plaintiff to a writ of prohibition.

    Upon final hearing the writ was denied. From that order the present writ of error was prosecuted.

    From the opinion of the supreme court of California it appears that the proceedings in the superior court of San Francisco, which were called in question by the application for the writ of prohibition, were taken under and in pursuance to sections 1459 and 1460 of the Civil Code of Procedure of that state. The opinion says:

    It appears, also, from the opinion of the supreme court of the state, that the petitioner relied largely in support of his position upon Boyd v. U. S., 116 U.S. 616 , 6 Sup. Ct. 524, and Counselman v. Hitchcock, 142 U.S. 547 , 12 Sup. Ct. 195.

    This writ of error must be dismissed for want of jurisdiction it this court to re-examine the final judgment of the supreme court of California. The plaintiff claimed in the state court that certain provisions of the state enactment referred to were repugnant to the constitution of California. But he did not, in the state court, draw in question any statute of the state upon the ground that it was repugnant to the constitution of the United States, nor specially set up or claim in that court any right title, privilege, or immunity under the constitution of the United States. Rev. St. 709. He insists, in this court, that the enforcement of the above statutory provisions was a denial of the equal protection of the laws,-a denial forbidden by the fourteenth amendment of the constitution of the United States. But the record does not show that he made any such claim in the state court. The reference in the opinion of that court to the cases of Boyd v. U. S. and Counselman v. Hitchcock was for the purpose of ascertaining the proper construction of certain provisions of the constitution of California, not as defining rights asserted by the plaintiff under the constitution of the United States. From the pleadings in the cause the state court had no reason to suppose that the plaintiff specially claimed that the statute in question deprived him of any right secured by the constitution of the United States. We said in F. G. Oxley Stave Co. v. Butler Co., 167 U.S. 648 , 17 Sup. Ct. 709, that 'the jurisdiction of this court to re-examine the final judgment of a state court cannot arise from inference, but only from averments so distinct [167 U.S. 175, 178]   and positive as to place it beyond question that the party bringing a case here from such court intended to assert a federal right.' See, also, Louisville & N. R. Co. v. City of Louisville, 168 U.S. 709 , 17 Sup. Ct. 725. If the plaintiff intended to claim that the statute in question was repugnant to the constitution of the United States, he should have so declared.

    Writ of error dismissed.

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