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DIBBLE v. BELLINGHAM BAY LAND COMPANY.

decided: May 4, 1896.

DIBBLE
v.
BELLINGHAM BAY LAND COMPANY.



ERROR TO THE SUPREME COURT OF THE STATE OF WASHINGTON.

Author: Fuller

[ 163 U.S. Page 67]

 MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.

By section two of article XXVII of the constitution of the State, all laws in force in the Territory of Washington not repugnant to that constitution were continued in force until they expired by their own limitation or were altered or repealed by the legislature.

By section five of the territorial act of February 2, 1888, brought forward as section 1447 of the General Statutes, (1 Hill's Statutes and Codes, 506,) it was provided that all powers of attorney theretofore made and executed by any married woman joined with her husband and duly acknowledged and certified, and all powers of attorney theretofore made or executed by husband or wife to the other, authorizing the sale or other disposition of real estate duly acknowledged,

[ 163 U.S. Page 68]

     and all conveyances theretofore and thereafter executed under and by virtue of such powers of attorney and acknowledged and certified as provided, should be valid and binding, but no rights vested in third persons should be affected by anything in the section contained.

Plaintiff in error contends that the validity of that section was drawn in question as repugnant to the Fourteenth Article of Amendment to the Constitution, and its validity sustained in that the Supreme Court of the State held that the power of attorney and deed executed under it were thereby validated.

The certificate of the Chief Justice of that court was to the effect that in the trial by the court below and on the hearing on appeal, "the following question was duly and regularly raised, to wit: Whether the power of attorney alleged to exist and to have been made by Betsy Jones to her husband, Thomas Jones, prior to the 28th day of March, A.D. 1862, and a deed executed under it to Edward Eldridge on the 28th day of March, 1862, which said power of attorney and deed, on the respective dates of the execution thereof, were absolutely void, were made valid and effective by the retrospective portion of section 1447 of volume one of Hill's Code of this State;" and that the section thus applied was in violation of the Fourteenth Amendment; and further that the Supreme Court "did not express any written opinion on the question so raised as aforesaid, except such as is necessarily involved by the decree of this court in the above entitled action, dated on the seventeenth day of September, A.D. 1892, and affirming the whole of the decree of the Superior Court of Whatcom Court, State of Washington, in the above entitled action, entered and filed in the office of the clerk of the said Superior Court on the 20th day of February, A.D. 1892; and such opinion as is expressed by the statement of this court in its written opinion in the above entitled action, that the color of title necessary to support a claim by adverse possession in respondent, the Bellingham Bay Land Company, rests and depends solely upon a warranty deed from the owner, Betsy Jones, executed by her husband, Thomas Jones, by virtue of

[ 163 U.S. Page 69]

     the power of attorney urged and alleged by respondent to have been made valid by the retrospective part of the said code section; which said statement, as set forth in the opinion of this court, is an integral and necessary part of the decision by this court rendered in affirming the said decree of the lower court."

In respect of the Supreme Court, it is provided by section 5 of the Code of Procedure of Washington that: "In the determination of causes, all decisions of the court shall be in writing, and the grounds of the decision shall be stated;" and by sections 68 and 73 it is made the duty of its clerk to record its proceedings and enter its orders, judgments and decrees. And the thirteenth rule of the court provides that "all opinions of the court shall be recorded by the clerk in a well bound volume, and the original filed with the papers in the case." 2 Washington, 689.

It is the settled course of decision that this court may examine opinions so delivered and recorded to ascertain the ground of the judgment of the state court. Kreiger v. Shelby Railroad Co., 125 U.S. 39, 44.

If the record discloses that a question has been raised and decided adversely to a party claiming the benefit of a provision of the Constitution of the United States, and another question not Federal has also been raised and decided against such party, and the decision of the latter question is sufficient notwithstanding the Federal question to sustain ...


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