William R. Day

“ If we look to the motion for a new trial, referred to in general terms in the assignment of errors when the case was taken to the supreme court of Illinois, we find the only reference to a Federal constitutional question to be in paragraphs 26 and 27, above quoted, from the motion for new trial in the court of original jurisdiction. Paragraph 26 simply states that the statute is contrary to the Constitution of the United States, without calling attention to the provision of that instrument whose protection is denied to the plaintiff in error, and is clearly insufficient. ”

“ Paragraph 27 alleges that the statute takes the property without due process of law, and is therefore unconstitutional. If this vague objection (§ 27) may be taken as asserting a claim of right under the Federal Constitution, yet, in the supreme court of Illinois, so far as the record discloses, there was neither authority cited nor argument advanced in support of the constitutional objection. ”

“ There is nothing to prevent a party from waiving a Federal right of this character if he chooses to do so, either in express terms or as a necessary implication from his manner of proceeding in the cause. It is clear from the opinion cited that the state court based its decision upon other than Federal grounds, and did not decide the constitutional question sought to be made here. ”