SMITHSONIAN INSTITUTION and Melville W. Fuller, as Chancellor of said Smithsonian Institution, Plffs. in Err., v. GAMALIEL C. ST. JOHN, as Executor and Trustee under the Last Will and Testament of Wallace C. Andrews, Deceased, et al.

It is difficult to spell out from the record in this case the decision of any question arising under the Constitution and laws of the United States. Neither in the pleadings nor in the opinions is there a direct reference to any special provision of the Federal Constitution. It is true that, after the decision by the court of appeals, an affidavit was filed by one of the counsel for plaintiffs in error in support of a petition for a rehearing, stating that, in the brief, as well as upon the oral argument in that court, a Federal question (describing it) had been presented and discussed, which petition was denied by the court of appeals in these words:

'Ordered, that the said motion be and the same hereby is denied, with $10 costs, no Federal question having been raised in this court.'

It is unnecessary to determine whether this of itself is sufficient to give jurisdiction to this court. The language of the court of appeals may be construed as denying that any such matter was brought to its attention as stated in the affidavit, or as holding that it presented no Federal question. Mallett v. North Carolina, 181 U. S. 589, 45 L. ed. 1015, 21 Sup. Ct. Rep. 730; Missouri, K. & T. R. Co. v. Elliott, 184 U. S. 530, 46 L. ed. 673, 22 Sup. Ct. Rep. 446; Leigh v. Green, 193 U. S. 79, 48 L. ed. 623, 24 Sup. Ct. Rep. 390; McKay v. Kalyton, 204 U. S. 458, 51 L. ed. 566, 27 Sup. Ct. Rep. 346.

Counsel further contend that there was necessarily involved in the decision of the case the determination of a question arising under the Constitution and laws of the United States, and that hence this court has jurisdiction of this writ of error, even if the question was not formally referred to by counsel or the state courts. Chapman v. Goodnow (Chapman v. Crane) 123 U. S. 540-548, 31 L. ed. 235-238, 8 Sup. Ct. Rep. 211; Des Moines Nav. & R. Co. v. Iowa Homestead Co. 123 U. S. 552, 31 L. ed. 202, 8 Sup. Ct. Rep. 217; McCullough v. Virginia, 172 U. S. 102, 117, 43 L. ed. 382, 387, 19 Sup. Ct. Rep. 134; Missouri, K. & T. R. Co. v. Elliott, 184 U. S. 530, 534, 46 L. ed. 673, 676, 22 Sup. Ct. Rep. 446; Rogers v. Alabama, 192 U. S. 226, 230, 48 L. ed. 417, 418, 24 Sup. Ct. Rep. 257, 258, in which last case it is said:

'It is a necessary and well-settled rule that the exercise of jurisdiction by this court to protect constitutional rights cannot be declined when it is plain that the fair result of a decision is to deny the rights. . . . There can be no doubt that, if full faith and credit were denied to a judgment rendered in another state upon a suggestion of want of jurisdiction, without evidence to warrant the finding, this court would enforce the constitutional requirement. See German Sav. & L. Soc. v. Dormitzer, 192 U. S. 125, 48 L. ed. 373, 24 Sup. Ct. Rep. 221.'

The question upon which counsel rely arises upon article 4, § 1, of the Federal Constitution, which reads:

'Full faith and credit shall be given each state to the public acts, records, and judicial proceedings of every other state; and the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.'

It is not pretended that any judgment of the state of Ohio was disregarded by the courts of New York, but it is contended that full force and effect was not given to the Constitution of the state of Ohio. This duty is as obligatory as the similar duty in respect to the judicial proceedings of that state. South Ottawa v. Perkins, 94 U. S. 260, 268, 24 L. ed. 154, 157; Chicago & A. R. Co. v. Wiggins Ferry Co. 119 U. S. 615, 622, 30 L. ed. 519, 522, 7 Sup. Ct. Rep. 398, 401, in which Mr. Chief Justice Waite said:

'Without doubt the constitutional requirement, art, 4, § 1, that 'full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state,' implies that the public acts of every state shall be given the same effect by the courts of another state that they have by law and usage at home. This is clearly the logical result of the principles announced as early as 1813 in Mills v. Duryee, 7 Cranch, 481, 3 L. ed. 411, and steadily adhered to ever since.' Hancock Nat. Bank v. Farnum, 176 U. S. 640, 642, 44 L. ed. 619, 620, 20 Sup. Ct. Rep. 506.

On the other hand, it is settled that the mere construction by a state court of the statute of another state, without questioning its validity, does not deny to it the full faith and credit demanded by the constitutional provision. Glenn v. Garth, 147 U. S. 360, 37 L. ed. 203, 13 Sup. Ct. Rep. 350; Lloyd v. Matthews, 155 U. S. 222, 39 L. ed. 128, 15 Sup. Ct. Rep. 70; Banholzer v. New York L. Ins. Co. 178 U. S. 402, 44 L. ed. 1124, 20 Sup. Ct. Rep. 972; Johnson v. New York L. Ins. Co. 187 U. S. 491, 47 L. ed. 273, 23 Sup. Ct. Rep. 194; Finney v. Guy, 189 U. S. 335, 47 L. ed. 839, 23 Sup. Ct. Rep. 558; Allen v. Alleghany Co. 196 U. S. 458, 49 L. ed. 551, 25 Sup. Ct. Rep. 311.

In the light of these decisions we pass to consider the particular question presented. Sections 1 and 2 of article 13 of the Ohio Constitution read:

'Sec. 1. The general assembly shall pass no special act conferring corporate powers.

'Sec. 2. Corporations may be formed under general laws; but all such laws may, from time to time, be altered or repealed.'

By § 3235, vol. 2, Bates's Anno. Stat. (Ohio) 6th ed. p. 1836, it is provided: 'Corporations may be formed in the manner provided in this chapter for any purpose for which individuals may lawfully associate themselves, except for carrying on professional business;' and immediately following this section are those naming the conditions and methods of incorporation. After the death of the testator, and on March 19, 1902, the general assembly of the state of Ohio passed an act (Laws 1902, p. 61), the 1st section of which is as follows:

'Sec. 1. Whenever, by the last will and testament of any person which has heretofore been, or shall hereafter be, duly admitted testament of any person which has heretofore been, or shall hereafter be, duly admitted may devise or bequeath, his or her property, or any portion thereof, for charitable uses within this state, or for the establishment and maintenance of any industrial or educational within this state, or for the establishment and maintenance of any industrial or educational in any such will and testament, it has been, or may be, provided that the executor or executors thereof shall organize a corporation under the laws of this state for the purpose of receiving the property so devised or bequeathed, and carrying out the charitable purposes in such will expressed, or establishing and maintaining the institution or school therein provided for, and such will further provides for the management of such corporation by a board of trustees or directors, consisting, in part, of officials of this state, of the county in which such charities are to be administered or such institution or school located, the officials of any municipal incorporation in said county, and the member of Congress for the district of which said county forms a part, or any of such officials, and names any other person or persons to be associated with said officials or any of them, and provides for the appointment of a successor or successors to the person or persons so appointed, to act with such officials in any manner specified in said will, such executor or executors, or his or their successors in office, and the persons hereinafter named, may constitute themselves a body corporate, with the general powers of benevolent incorporations.'

The 2d section requires that a copy of the will or testament, for the carrying out of the provisions of which the corporation is organized, shall be set forth in the articles of incorporation. Thereafter the Andrews Institute for Girls was incorporated, containing, as required by § 2, the will of the testator. Now it is contended by counsel for the plaintiffs in error that this act was a special act, conferring corporate powers, and that therefore it and the incorporation made under it was in conflict with the Constitution of Ohio. It is not suggested that there has been any decision of the courts of Ohio in reference to the validity of the act or subsequent incorporation of the Andrews Institute, but it is insisted that it is so obvious that the act is a special act, conferring corporate powers, inasmuch as the terms of the will of an individual are the basis of the act and the incorporation, that the courts of New York could not have given force and effect to the prohibitions of the Constitution of Ohio. Nevertheless, whether rightly or wrongly, the New York courts held that there was no violation of the Constitution of Ohio, the court of appeals saying in its opinion:

'At the death of the testator the general statutes of Ohio provided that corporations might be formed for any purpose for which individuals might lawfully associate themselves, except for carrying on professional business. 2 Bates's Anno. Stat. (Ohio) 6th ed. p. 1836.

'Subsequent to the death of the testator, and in March, 1902, an act was passed by the general assembly of the state of Ohio entitled, 'An Act to Provide for the Administration of Charitable Trusts in Certain Cases.' If we assume that such act was passed to aid in the incorporation of the Andrews Institute for Girls, it is not necessarily, unconstitutional for that reason. It is not an uncommon thing in any state for questions to arise making it desirable or perhaps necessary for further general legislation to enable persons interested to carry out desired and desirable measures. The fact that such further general statute is passed to aid a particular person for the time being does not make the act a special, as distinguished from a general, one. Whether an act, general in form, is a mere device to evade a wholesome constitutional provision, is largely dependent upon the special circumstances of each case. If the act relates to persons, places, and things as a class, and is neither local nor temporary, the mere fact that its practical effect is special and private does not necessarily prove that it violates constitutional provisions against special legislation. Re New York Elev. R. Co. 70 N. Y. 327-344; Re Church, 92 N. Y. 1; Re Henneberger, 155 N. Y. 420, 426, 42 L.R.A. 132, 50 N. E. 61; People v. Dunn, 157 N. Y. 528, 43 L.R.A. 247, 52 N. E. 572; Kittinger v. Buffalo Traction Co. 160 N. Y. 377, 54 N. E. 1081; People ex rel. Clauson v. Newburgh & S. Pl. Road Co. 86 N. Y. 1; Re New York & L. I. Bridge Co. 148 N. Y. 540, 42 N. E. 1088; Waterloo Woolen Mfg. Co. v. Shanahan, 128 N. Y. 345, 14 L.R.A. 481, 28 N. E. 358; Ferguson v. Ross, 126 N. Y. 459, 27 N. E. 954; Sun Printing & Pub. Asso. v. New York, 152 N. Y. 257, 37 L.R.A. 788, 46 N. E. 499.

'The act so passed by the general assembly of the state of Ohio in 1902 would not seem to be a violation of the Constitution of that state. Platt v. Craig, 66 Ohio St. 75, 63 N. E. 594; State v. Spellmire, 67 Ohio St. 77, 65 N. E. 619; Gentsch v. State, 71 Ohio St. 151, 72 N. E. 900; Cincinnati Street R. Co. v. Horstman, 72 Ohio St. 93, 73 N. E. 1075; State ex rel. Atty. Gen. v. Sherman, 22 Ohio St. 411.

'Subsequent to the death of the testator, and on the 8th day of May, 1902, 'The Andrews Institute for Girls' was incorporated pursuant to the laws of the state of Ohio 'for the purpose of receiving the property devised and bequeathed in and by the wills of Wallace C. Andrews, and Margaret M. St. John Andrews, late of the city and state of New York, to the corporation therein directed to be formed, and for the purpose of carrying out the charitable purposes in such wills expressed, and of establishing and maintaining the institution therein provided for.'

'The articles of incorporation include a complete copy of the will of the testator, and also of the will and codicil of Margaret M. St. John Andrews. They also provide that the corporation shall be located in the town of Willoughby, Ohio, and name as members of the corporation the persons proposed in the will of said testator, together with two other persons in the state of Ohio, which persons so named constitute the board of directors for the administration and management of the property and trust or other funds of the corporation, and for the control and management of said institution. Said act of the general assembly of the state of Ohio among other things provides: 'The attorney general of the state of Ohio shall, in his official capacity, have power to bring proceedings in any court of record, and enforce any such devise or bequest, whenever he deems such action necessary for the protection and carrying out of the purposes named in said last will and testament, without waiting for the organization of such corporation." That there is some foundation for the conclusion reached by the court of appeals is obvious from the opinions of the supreme court of Ohio, cited in the foregoing quotation. It is unnecessary to hold that there was no error in the ruling of the court of appeals. It is enough for the purposes of this case to hold that that court did not question the validity of any provision of the constitution of the state of Ohio, and did not sustain any act or incorporation which it held to be in conflict with such provision. At most, there was simply a matter of error, and not a repudiation of the obligations of the Federal Constitution.

We do not see that any provision of the Federal Constitution has been violated, and the writ of error is dismissed.

The CHIEF JUSTICE did not hear the arguments and took no part in the decision of this case.