Argument for Plaintiff in Error.

This court has frequently taken jurisdiction where the judgment of a sister State is pleaded as res adjudicata in the state court, although no specification in so many words was made in the pleading that such judgment violates the faith and credit clause of the Constitution, Art. IV.

That is, the pleading was a sufficient compliance with the clause in § 709, "specially set up or claimed." Bell v. Bell, 181 U. S. 175; Sweringen v. St. Louis, 185 U. S. 45.

The answer shows that the courts of Hawaii subsequently determined in the action of Carter v. Mutual Life Insurance Co., 10 Hawaii, 117, 570, that the decree referred to did operate upon the interest of Mrs. McGrew in this very policy of insurance, and that the administrator of her former husband's estate was entitled to recover upon it.

The California court refused to follow the Hawaiian laws and judges, and decided that Mrs. McGrew did not lose her beneficial interest by the divorce proceedings.

Thus the company would be compelled to pay the same policy twice, though paid for but once, notwithstanding the treaty, and Constitution properly prevent it. This treaty was "as much a part of the law of every State as its own local laws and constitution." Hauenstein v. Lynham, 100 U. S. 483, 490; Hickie v. Starke, 1 Pet. 98; Murray v. Charleston, 96 U. S. 442; Capital City Dairy Company v. Ohio, 183 U. S. 238; Green Bay &c. Canal Co. v. Patten Paper Company, 172 U. S. 58, 68; Roby v. Colehour, 146 U. S. 153, 159; Bridge Proprietors v. Hoboken Co., 1 Wall. 116. The decision of the alleged Federal question was necessary to the judgment rendered, and hence gives jurisdiction. Brooks v. Missouri, 124 U. S. 394, 400; Armstrong v. Treasurer of Athens County, 16 Peters, 281, 285; Eureka Lake Company v. Yuba County, 116 U. S. 410, 415; Arrowsmith v. Harmoning, 118 U. S. 194; Furman v. Nichol, 8 Wall. 44, 56; Hickie v. Starke, 1 Peters, 94; Martin v. Hunter's Lessee, 1 Wheat. 305, 355; Craig v. State of Missouri, 4 Peters, 410. The record shows a "complete" right under a treaty, and that the judgment of the court is in violation of that treaty. Mayor &c. v. De Armas, 9 Peters, 224; Crowell v. Randell, 10 Peters, 368.

Argument for Plaintiff in Error.

The findings of the trial court and the admitted statement of facts upon which the case was tried, deal wholly with these Hawaiian judgments and Hawaiian law.

The following cases do not sustain contention of defendant in error: Parmelee v. Lawrence, 78 U. S. 38; Brooks v. Missouri, 124 U. S. 394; Baldwin v. Kansas, 129 U. S. 57; Brown v. Massachusetts, 144 U. S. 579; Oxley Stave Co. v. Butler Co., 166 U. S. 653; Water Co. v. Electric Co., 172 U. S. 488; Chapin v. Fye, 179 U. S. 129.

II. The Federal questions were, therefore, necessarily involved in the Supreme Court of California on appeal, and were fully presented there by counsel.

The rights of the insurance company under the treaty, and the errors of the trial court in its rulings thereon, were fully called to the attention of the appellate court in California, and specially set up and claimed there, and were there argued by counsel for both parties and were considered by the court. New York Central Railroad Co. v. New York, 186 U. S. 269, 273.

The record shows not only that the state appellate court could not escape deciding this treaty question, but it also shows that the treaty question was presented to the trial court and passed on by it when it decided such evidence to be immaterial and excluded it.

III. The treaty and constitutional point in question were involved in the decision of the Supreme Court of California and apply to this case. Tullock v. Mulvane, 184 U. S. 497. Raising the question on appeal is sufficient. Sweringen v. St. Louis, 185 U. S. 45; Mutual Life v. Cohen, 179 U. S. 262.

This court further has jurisdiction to determine whether the Supreme Court of California should not have applied section 1, article IV of the United States Constitution in regard to full faith and credit. Keokuk &c. Bridge Co. v. Illinois, 175 U. S. 633; Dewey v. Des Moines, 173 U. S. 193.

When the company claimed the protection of the treaty it claimed the protection of the Constitution. When the Constitution was extended to Hawaii while the California court had the case under advisement, the constitutional points were added to the treaty points, by operation of law, for the California

Argument for Plaintiff in Error.

court was bound to take judicial notice of the Constitution as the supreme law. Pleading was a sufficient compliance with the clause in § 709, "specially set up or claimed." Bell v. Bell, 181 U. S. 175; Bridge Proprietors v. Hoboken Co., 1 Wall. 116, 142. The record shows that the public acts of Hawaii had an effect there not given them by the California court. Lloyd v. Matthews, 155 U. S. 227.

IV. The opinion of the Supreme Court of California impliedly referred to the Federal question. This point, taken in connection with the others showing that the Federal question was sufficiently claimed and set up is conclusive against the motion to dismiss.

A treaty and constitutional right may be denied as well by evading a direct decision thereon as by positive action. Chapman v. Goodnow, 123 U. S. 540, 548; Des Moines Nav. Co. v. Iowa Homestead Co., 123 U. S. 552, 555.

Raising the Federal question for the first time in the appellate state court, if it be there considered, or necessarily involved in the decision, gives the right of review in this court. Missouri, Kansas, etc. Ry. Co. v. Elliott, 184 U. S. 530; Mallett v. North Carolina, 181 U. S. 589, 592; Erie R. R. Company v. Purdy, 185 U. S. 148; Maxwell v. Newbold, 18 How. 511, 516.

If the mind of the state court is directed to the fact that a right protected by the treaty is relied upon, it is sufficient. Eastern Building Assn. v. Welling, 181 U. S. 47.

V. The Federal question was presented a second time to the Supreme Court in the petition for rehearing which was denied, and such decision necessarily involved a second consideration of the Federal question by the state court.

This brief determination "motion denied" is not equivalent to "motion dismissed" without consideration but it involves judicial action on the merits of the matter presented. Chapman v. Goodnow, 123 U. S. 548; Michigan Sugar Co. v. Michigan, 185 U. S. 113; Rothschild v. Knight, 184 U. S. 339, 341; King v. Cross, 175 U. S. 396; Chicago, Rock Island & Pacific v. Sturm, 174 U. S. 710.

VI. Questions arose among several claimants, namely, Henri G. McGrew by his guardian, Charles L. Carter, Alphonsine Mc

Argument for Plaintiff in Error.

Grew, J. O. Carter, administrator of the estate of Heuri G. McGrew, deceased, as to which of them said policy belonged to, and the same were decided finally by the laws and judges of Hawaii, wherein the said policy was.

The decisions were that the policy belonged to Henri McGrew and his estate and the California court was bound under the treaty by the law as laid down by the Hawaiian judges and their decisions, and under the Constitution of the United States was bound to give full faith and credit to the divorce decree, the public act of Hawaii in regard to the effect of such decree, and the judgment in the administrator's action.

The general object of this particular clause of the treaty involved in this action was to provide that the laws and judges of the land wherein the goods were, were to decide finally to whom they belonged in any controversy as to their ownership. The broad scope of the treaty was that if any question arose in the courts of either country where the goods were between subjects or citizens of the respective countries, the decision of the courts of that country, whichever it might be, should be final.

The laws and judges of Hawaii had under the treaty power to decide finally to whom the policy belonged, because that was the land wherein the goods were. The policy was covered by the word "goods" in the treaty.

A liberal and not a restrictive construction of the rights to be claimed under it should be followed. Shanks v. Dupont, 3 Pet. 242; Hauenstein v. Lynham, 100 U. S. 483, 487, and cases cited; Tucker v. Alexandroff, 183 U. S. 437.

The term "goods" is by no means limited to strictly tangible movables such as ordinary chattels, but in many cases it has been held to include such choses in action as policies, bonds, etc. Dowdel v. Hamm, 2 Watts, 61, 65; Tisdale v. Harris, 20 Pickering, 9; Greenwood v. Law, 25 Atl. Rep. 134; Terhune v. Bray's Ex., 16 N. J. Law, 53. Kirtland v. Hotchkiss, 100 U. S. 491, 498, distinguished.

The situs of the goods was in Hawaii, either because their actual location was there, or because they were enforceable there against the debtor, the Mutual Life. Equitable Life v. Brown, 187 U. S. 308; N. E. Life v. Woodworth, 111 U. S.

Argument for Plaintiff in Error.

138; Sulz v. M. R. F. L. Assn., 145 N. Y. 563; Wyman v. Halstead, 109 U. S. 654; Holland's Jurisprudence, 9th ed. 391; Wharton's Conflict of Laws, §§ 305-307. It is evident that the treaty selected not the lex domicilii but the lex loci rei sita, and the United States had power by the treaty to declare that the law of the domicil should not govern, and it is merely a question of what was the intention. Eidman v. Martinez, 184 U. S. 578, 581; Cross v. United States Trust Co., 131 N. Y. 330; Ennis v. Smith, 14 How. 400, 424; Dammert v. Osborn, 141 N. Y. 564. Serious encroachments have been made upon the ancient maxim. Green v. Van Buskirk, 5 Wall. 307; S. C., 7 Wall. 139; Hervey v. Rhode Island Locomotive Works, 93 U. S. 664; Walworth v. Harris, 129 U. S. 355; Security Trust Company v. Dodd, 173 U. S. 624, and cases there cited. "The same principle has been applied not only to tangible property but to credits and effects." Tappan v. Merchants' National Bank, 19 Wall. 490; Savings Society v. Multnomah Co., 169 U. S. 421; New Orleans v. Stempel, 175 U. S. 309; Bristol v. Washington Co., 177 U. S. 133; Mager v. Grima, 8 How. 490; Story's Conflict of Laws, §§ 379, 385; Minor, Conflict of Laws, § 121, et seq.; Wharton, Conflict of Laws, §§ 299, 309,

311.

The treaty has removed the danger of any collision between independent systems of law.

The administrator's action was within the treaty and the goods were in Hawaii. On the death of Henri McGrew, Carter, administrator, a subject or citizen of Hawaii, and the Mutual Life Insurance Company, a subject or citizen of the United States, were parties to a controversy as to whom the policy belonged to, it having already been decided in the divorce case, and the Hawaiian court decided that Alphonsine was a necessary party to the later suit.

The instant the Constitution of the United States went into effect, the Supreme Court of California was bound by it to give full faith and credit to the divorce decree and public acts of Hawaii and the judgment in the administrator's action, as well as by the treaty. Ex parte Edwards, 13 Hawaii, 32, 38; Ex parte Ah Oi, 13 Hawaii, 556.