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Arts. 3537, 3668, 3671; German Society v. Dormitzer, 192 U.S. 124; Green v. Van Buskirk, 7 Wall. 139; Hamblen v. Western Land Co., 147 U. S. 531; Hill v. Spear, 50 N. H. 253; Horner v. United States, 143 U. S. 570; Insurance Co. v. Bank, 107 S. W. Rep. 114; Insurance Co. v. Williams, 79 Texas, 633; Insurance Co. v. Hazelwood, 75 Texas, 351; Irvin v. Williams, 110 U. S. 508; Jones v. Aiken, 80 S. W. Rep. 285; Keokuk & H. B. Co. v. Illinois, 175 U. S. 193; Maxwell v. Newbold, 18 How. 511; McLaughlin v. Fowler, 154 U. S. 663; 1 Meechum on Sales, $$ 8430, 484; Messenger v. Mason, 10 Wall. 507; Murdock v. Memphis, 20 Wall. 590; Myrick v. Thompson, 99 U. S. 297; Norris v. Logan, 97 S. W. Rep. 20.; Osborne v. Florida, 164 U. S. 650; Oscanyon v. Arms Co., 103 U. S. 261; Pope v. Hanke, 40 N. E. Rep. 842; Railway v. Dennis, 224 U. S. 503; Railway v. Wynne, 224 U. S. 354; Rev. Stat. Texas, Art. 3071; Schonfield v. Turner, 75 Texas, 329; Seligson v. Lewis, 63 Texas, 220; Storey v. Solomon, 71 N. Y. 422; Sweeney v. Ousley, 53 Kentucky, 413; Telegraph Co. v. Blanchard, 68 Georgia, 299; Tilt v. Kelsey, 207 U. S. 43; Tracey v. Talmage, 67 Am. Dec. (N. Y.) 132; Wheeless v. Myer, 12 S. W. Rep. 712; Wilson v. Namie, 102 U. S. 572; Wilton v. Ins. Co., 78 S. W. Rep. 403; Zipcey v. Thompson, 1 Gray (Mass.), 242.

MR. CHIEF JUSTICE WHITE, after making the foregoing statement, delivered the opinion of the court.

Upon the pleadings which we have just stated and the facts stipulated, the trial court gave judgment for the plaintiff, Cohen, against the defendant company for the amount of the policies less the sums which had been loaned thereon by the Company with interest and with the statutory penalties and attorney's fees claimed.

To recapitulate, it suffices to say that the assignments of error made by the Company in the court below for the

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purpose of the appeal by it taken but expressed the defenses resulting from its answer and the stipulated facts which we have stated. That is to say, reliance was placed (1) upon the proposition that in any event the recourse of the plaintiff was against Hilsman and not against the Company; (2) that the transfer of the policies to Hilsman was a Georgia contract and valid under the law of that State because the existence of insurable interest at the time of the transfer, although necessary under the Texas law, was not necessary under the Georgia law; (3) that as in any event the transaction out of which the assignment of the policies from Cohen to Hilsman grew was admittedly a gambling one, the court would not allow the executor of Cohen to derive any rights from assailing that transaction, but would leave the parties where their illegal contract had placed them, that is, let the assignment to Hilsman stand, and hence leave no right in Cohen, executor, to recover; (4) that the court erred in giving judgment for the statutory penalties and damages because under the circumstances stated the liability to pay them was not embraced by the statute under which they were imposed and that if the statute, as construed, imposed the damages and attorney's fee which were allowed, it was in violation of § 1, of the Fourteenth Amendment.

In an elaborate opinion the court disposed of all these contentions. It held that the suit need not be brought against Hilsman but that it could be brought directly against the Company. It decided that the contract of assignment was a Texas contract and for want of insurable interest in Hilsman was invalid under the laws of that State, although it was in substance admitted that it would have been valid, so far as the question of insurable interest was concerned, if it had been a Georgia contract. Coming to consider the fact that both parties had conceded that the transaction out of which the assignment of the policies grew was purely of a gambling nature and that that fact

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had been stipulated, the court refused to sustain the following proposition which was insisted upon by the defendant company: “When an insurance policy is assigned as part of a gaming transaction, the law will give no relief to either party, or to their heirs, executors or assigns, regardless of all other questions, but will leave the parties where they have voluntarily placed themselves.” On the contrary the court, relying upon the Texas law upon that subject, the Georgia law on the same subject and the principles of general law applicable thereto, held that instead of leaving the assignment growing out of the gambling transaction enforceable in the hands of Hilsman it would in consequence of the illegality, strike down the whole transaction and therefore leave the policy in the hands of Cohen the insured, to whom it belonged before the assignment had been made. And for this reason also the court decided that the sum paid by Hilsman for the transfer need not be repaid by Cohen in order to recover. On the subject of the penalties the court referring to the cases of Fidelity Mutual Life Association v. Mettler; 185 U. S. 308, and Farmers' & MerchantsInsurance Company v. Dobney, 189 U. S. 301, held that the statute under which they were imposed was not repugnant to the Fourteenth Amendment and said: “The action of the Insurance Company in paying the money due on the policies was not, as in Insurance Co. v. Woods Nat. Bank, 107 S. W. Rep. 119, an offer of the Insurance Company to pay to the one of the two real claimants when it should be determined whom he was, but a voluntary payment to the rival claimant who had no right whatever to the amount due on the policy. The company has indemnified itself against its act in paying the money due on the policy to one who was not entitled to receive it; now let it resort to its indemi y."

At the threshhold we must dispose of a motion to dismiss. It is apparent from the statement of the case that the only express assertion of Federal right had reference to

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the statutory penalty and the attorney's fee. The assignments of error however, assert violations of rights under the Constitution in many particulars, but more especially with reference to the action of the court in treating the sales of the policies as Texas contracts and refusing to apply the Georgia law which admittedly differed fundamentally from that of Texas. It is elementary that a Federal question may not be imported into a record for the first time by way of assignments of error made for the purposes of review by this court. Moreover as a general rule it is true that for the purposes of review by this court rights under the full faith and credit clause, $ 1, Article IV of the Constitution, come within that class which are required to be expressly set up and claimed in the court below. Johnson v. New York Life Ins. Co., 187 U. S. 491; El Paso and Southwestern R. R. v. Eichel, 226 U. S. 590, 597; Chicago, Ind. and L. Ry. Co. v. Hackett, 228 U. S. 559, 565. Let it be conceded, as we think it must be, where the record leaves no doubt that rights under the full faith and credit clause were essentially involved and were necessarily passed upon, there would be jurisdiction to review even although such rights had not been expressly asserted below (see Tilt v. Kelsey, 207 U. S. 43, 51); the right to review under such condition being in effect but a result of the elementary rule that it is irrelevant to inquire how and when a Federal question was raised in a court below when it appears that such question was actually considered and decided. But these concessions are irrelevant, even although it be further conceded that the ruling of the court below as to the necessity for an insurable interest and its governing the case by the law of Texas instead of by the law of Georgia brings this case within the doctrines just stated. We say this because of the existence of another and fundamental question which causes the concessions stated to be immaterial. Both parties, as we have seen, wholly independent of the existence of an in

234 U. S.

Opinion of the Court.

surable interest, affirmed the illegality of the transaction out of which the assignments of the policies grew because of the alleged gambling nature of the transaction and the admitted facts without dispute established that situation. There being thus an admission by both parties and no dispute concerning the illegality of the transaction and a difference only as to the consequences to arise from such illegality, it follows that the case reduces itself to a consideration of that subject. But on coming to its consideration it is plain that no question concerning the full faith and credit clause was involved in any contention made below by the plaintiff in error in that regard, since the rights deduced from the admitted illegality of the transaction were placed solely on considerations of the local law of the State of Texas and of the State of Georgia deemed to be applicable to such condition of things or upon what was deemed to be the controlling principles of general law on the subject. Indeed, so absolutely is this the case, that, as we have seen, the Company itself insisted on the illegality and based rights upon it. And it was only on behalf of the defendant in error that considerations involving the full faith and credit clause were suggested as controlling the results in consequence of the admitted illegality of the transaction as a gambling one. A condition which is illustrated by the fact that the reply petition of the plaintiff while accepting and reiterating the averment of illegality made in the answer of the defendant Company, in addition specially alleged that the illegality resulting from the gambling transaction caused the assignment of the policies to be void under the law of New York where the Company was organized and under the law of Texas, as well as under the law of Georgia. And it was for this reason that the proof which was offered as to the statute law of Georgia on the subject of gambling transactions and the decision or decisions of that State which it was deemed made the statute applicable were tendered on behalf of the plaintiff

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