U.S. Supreme Court
MEYER v. CITY OF RICHMOND, 172 U.S.
82 (1898)
172 U.S. 82
MEYER
v.
CITY OF RICHMOND et al.
No. 48.
November 28, 1898.
Page 172 U.S. 82, 83
This is a common-law action of trespass on the case, and was
brought by plaintiff in error against the defendants in error in one
of the nisi prius courts of the state of Virginia. The substance of
the plaintiff's declaration is as follows:
That he was the owner in fee of a lot of land fronting on Eighth
street, between Cary and Canal streets, on which were
Page 172 U.S. 82, 84
located two brick buildings, the first floor of which was used for
store purposes and the second story as dwellings; that said property,
previous to the obstruction of Eighth street as hereinafter described,
was very profitable as an investment, being continuously rented to
good tenants, who promptly paid remunerative rents for the same; that
on the 25th day of June, 1886, the city council of Richmond, by
ordinance, authorized the Richmond & Alleghany Railway Company to
obstruct, for the distance of 60 feet (commencing at Canal street, in
the direction of Cary street), Eighth street, and by virtue of which
said railway company wholly obstructed and occupied said street for
said distance with its tracks, sheds, fences, etc ., except to
pedestrians, for whom said company was required to provide by overhead
bridge and stairway approaches thereto. It was averred in said
declaration that, 'by means of this obstruction so made by said
company by authority of said city, travel along said street was
arrested, and the property rights of your petitioner as an abutter
upon said street were not only substantially injured, but practically
destroyed; that the city had no right, under the constitution and laws
of the land, to authorize the said railroad company to close said
street or place obstructions therein without proper legal proceedings
for that purpose, and the making of just compensation to such abutting
owners as might be injured by said action; that this unconstitutional
and illegal action rendered said defendants liable to your petitioner,
as trespassers on his property, for all damages that he had sustained
not common to the public'; that the obstructions were in themselves
nuisances which the city was charged with the duty of abating and
moving, and that every day's continuation of the same was a new
offense; that the rights, privileges, and obligations of said Richmond
& Alleghany Railway Company had been legally transferred to and
assumed by said Chesapeake & Ohio Railway Company; and that it (the
said last- named company) now maintained the said obstructions, and
was therefore liable, jointly with said city of Richmond, for the said
trespasses. A plat of the locus in quo and a copy of said ordinance
were made parts of said declaration.
Page 172 U.S. 82, 85
Damages were claimed in the sum of $5,000.
On the 9th of September, 1895, the defendants entered a general
demurrer to the whole declaration and each count thereof, in which the
plaintiff joined; and on the 27th of December, 1895, the court
sustained the demurrer, and gave judgment for the defendants,
dismissing the action.
And thereupon the plaintiff, by counsel, moved the court to set
'aside the said judgment and enter judgment for him on said demurrer;
and it being represented to the court that it is the intention of the
plaintiff in the case of H. Wythe Davis against the city of Richmond
and the Chesapeake & Ohio Railway Company to apply for a writ of error
to the judgment of this court entered this day in that cause, and the
questions involved in that case being the same as in this case, the
court takes time to consider of said motions, and by consent of
parties this case is retained on the docket of this court, and the
determination of said motions to await the result of the application
for a writ of error in the case of H. Wythe Davis against the city of
Richmond and the Chesapeake & Ohio Railway Company.'
On the 31st day of January, 1896, the following proceedings were
had:
'This day came the parties again, by their attorneys; and the
court, being now advised of its judgment to be rendered herein, on
the motion of the plaintiff to set aside the judgment rendered on
the demurrer to the plaintiff's declaration and to each count
thereof, doth refuse to set aside said judgment.
'And thereupon the plaintiff again moved the court to set aside
said judgment entered on the 27th day of December, 1895, sustaining
defendants' demurrer to the declaration and to each count thereof,
solely on the ground that the act of the general assembly of
Virginia, approved May 24, 1870, providing a charter for the city of
Richmond (Acts 1869-70, p. 120), so far as it authorized the passage
of the ordinance in the declaration mentioned, as well as said
ordinance, is unconstitutional and void, because in conflict with
the fourteenth amendment of the constitution of the United States,
which prohibits any
Page 172 U.S. 82, 86
state from depriving any person of property without due process
of law, and therefore there was no warrant of law for the closing of
said street as claimed by said defendants; but the court overruled
said motion, and refused to grant said motion and to set aside said
judgment; to which action of the court the plaintiff excepted, and
filed his bill of exception, which was signed, sealed, and enrolled,
and made a part of the record.'
The plaintiff then presented a petition to the supreme court of
appeals of Virginia, the court of last resort of that state, asking
for a writ of error to said judgment; but said court rejected the
petition, by the following order:
'Virginia: In the Supreme Court of Appeals, Held in the State
Library Building, in the City of Richmond, on Thursday, February 20,
1896. The petition of Engelbert Meyer for a writ of error from a
judgment rendered by the law and equity court of the city of
Richmond on the 31st day of January, 1896, in a suit in which the
petitioner was plaintiff and the city of Richmond and the Chesapeake
& Ohio Railway Company were defendants, having been maturely
considered and the transcript of the record of the judgment
aforesaid seen and inspected, the court, being of opinion that said
judgment is plainly right, doth reject said petition.'
The case is here on error to this order.
In his petition to the court of appeals the plaintiff set up and
urged a right under the constitution of the United States, as follows:
'Your petitioner now insists that the said law and equity court
erred in sustaining said demurrer to his declaration, and also in
refusing to set aside its judgment so holding, as set forth in his
bill of exception.
'That under the constitution and laws of this state the free and
uninterrupted use of public highways once dedicated to and accepted
by the public, or acquired by right of eminent domain, are for
continuous public use, and that the right of
Page 172 U.S. 82, 87
access to and use of such streets by an abutting property holder
is property, of which the owner cannot, under the federal
constitution, be deprived without due process of law.
'The said law and equity court in sustaining the said demurrer
denied to your petitioner his constitutional rights, and specially
so did it in refusing to set aside its judgment when its attention
was called to the unconstitutionality of the act of the general
assembly of Virginia approved May 24, 1870 (Acts 1869-70, p. 120),
so far as it authorized the passage of the ordinance in the
declaration mentioned, because in conflict with the fourteenth
amendment, which prohibits any state from depriving any person of
property without due process of law; there being no mode prescribed
in said act of the general assembly or in said ordinance for the
devesting him of his said property rights by any judicial
proceedings whatsoever.'
On page 88 is a copy of the diagram showing plaintiff's property
and obstructions complained of.
The ordinance under which the defendants justified is inserted in
the margin; also, the sections of the Virginia Acts of Assembly of
1869-70 under which the ordinance was passed are inserted in the
margin. [Footnote
1]
Page 172 U.S. 82, 88
The constitution of Virginia, so far as involved in this
controversy, provides, in article 5, 14, that the general assembly
shall not pass 'any laws whereby private property shall be taken for
public use without just compensation.'
___ wide, and shall be so located, and shall be of such material or
materials, design, security and capacity, as may be required by the
city engineer; the same shall always be kept and maintained in such
condition and repair as may be from time to time required by the
committee on streets of the said city council, and always be open to
the free use of the public.
Third. Should the said company fail for the space of ten days to
put the said bridge or stairways in such condition or repair, after
having been required so to do by said committee, then the said company
shall be liable to a fine of fifty dollars, to be imposed by the
police justice of Richmond, and each day's failure to be a separate
offense; and the city may in all such cases repair said bridge or
stairways when not done by said company as herein required, and the
expense thereof shall be a debt against the said company recoverable
as debts are now recoverable by the city of Richmond.
Fourth. The said company, by exercising the privileges herein
granted, doth hereby agree and bind themselves to indemnify and save
harmless at all times the said city from any loss or damage suffered
by reason of any one being injured in any manner in using said bridge
or stairways, or by reason of the building or existence of the same,
and shall pay to the city any amount or amounts recovered against said
city by any judgment or judgments given on account of any such
injuries.
Fifth. The above-described portion of Eighth street shall remain
closed until the said Richmond and Alleghany Railroad Company shall
have been ordered by the ordinances of two successively elected
councils to remove the said overhead bridge and restore the street to
its present condition, and to the same authority and control of the
city as existed prior to the passage of this ordinance. Whenever it is
so ordered to be reopened, the said company shall be allowed three
months from the date of the passage of the last of the said two
ordinances in which to remove said bridge and stairways, and to
restore said Eighth street to the same condition in which it was
before the passage of this ordinance. And should the said company fail
to remove said bridge and stairways and to restore said Eighth street
to its former condition, before the expiration of the said three
months, then the said company shall be liable to a fine of one hundred
dollars, and each day's default shall be a separate offense; and the
said city may remove said bridge and stairways and restore said Eighth
street as above mentioned, when not done by said company as above
required, and the expense thereof shall be a debt against the said
company recoverable as debts are now recoverable by the city of
Richmond.
Sixth. The said company doth, by exercising the privileges herein
granted, agree and bind itself and its assigns to make no claim to the
land now occupied by that portion of Eighth street to be closed, on
account of said
Page 172 U.S. 82, 90
H. R. Pollard, for plaintiff in error.
H. T. Wickham, for defendants in error.
Page 172 U.S. 82, 91
Mr. Justice McKENNA, after stating the case, delivered the opinion
of the court.
The jurisdiction of this court is challenged. The defendants in
error claimed that 'the declaration shows no point is therein raised
which demanded the consideration by the court of any constitutional
question'; and they insist further that 'if it were intended to raise
the question that the charter and ordinance were unconstitutional, and
in consequence thereof plaintiff was deprived of his property without
due process of law, the same should have been specially set up as
claimed, by apt language, in the declaration, so as to bring the
question to the attention of the court when it had to pass on the
demurrer.' This certainly was not done, and, if it was an
indispensable condition to the jurisdiction of this court, it has
none.
But it was done subsequently, as we have stated; and, whatever the
ground of the court's ruling on the demurrer and on the first motion
to reverse that ruling, the second motion was unequivocally based on
the invalidity of the city ordinance because of its asserted conflict
with the fourteenth amendment of the constitution of the United
States, and the court's ruling necessarily responded to and opposed
the grounds of the motion,-necessarily denied the right specially set
up by him under the constitution.
Plaintiff's motion, and the special grounds of it, and exceptions
to the ruling of the court, were embraced in a bill of exceptions, and
allowed, and became part of the record on his petition to the supreme
court of appeals of Virginia for a review and reversal of the
judgment; and the petition, besides, explicitly set up and urged a
right under the constitution of the United States.
Page 172 U.S. 82, 92
The court of appeals rejected the petition. Its order recited '...
that, having maturely considered, and the transcript of the record of
the judgment aforesaid seen and inspected, the court, being of opinion
that such judgment is plainly right, doth reject said petition.'
Necessarily, therefore, the supreme court of appeals did as the
court of the city of Richmond did,-considered the right which
plaintiff claimed under the constitution of the United States, and
denied the right. Chicago, B. & Q. R. Co. v. City of Chicago, 166 U.S.
228, 17 Sup. Ct. 581.
So far the conditions of the power of review by this court existed.
A right under the constitution of the United States was specially set
up, and the right was denied. Was it set up in time? It has been
repeatedly decided by this court that to suggest or set up a federal
question for the first time in a petition for a rehearing in the
highest court of a state is not in time. Texas & P. Ry. Co. v.
Southern Pac. Co.,
137 U.S.
48, 54, 11 S. Sup. Ct. 10; Butler v. Gage,
138 U.S. 52,
11 Sup. Ct. 235; Winona & St. P. R. Co. v. Plainview,
143 U.S. 371,
12 Sup. Ct. 530; Leeper v. Texas, ,
139 U.S. 462,
11 Sup. Ct. 577; Loeber v. Schroeder,
149 U.S. 580,
13 Sup. Ct. 934.
In all of these cases the federal question was not presented in any
way to the lower court, nor to the higher court until after judgment.
It is not, therefore, decided that a presentation to the lower court
at some stage of the proceedings, and in accordance with its
procedure, and a presentation to the higher court before judgment,
would not be sufficient.
In Loeber v. Schroeder the court of appeals of Maryland, having
before it for review a judgment of one of the lower state courts,
reversed such judgment, and, having denied a rehearing on April 28,
1892, issued its order for a fieri facias against Loeber for the
amount of the judgment decreed returnable to the lower court. On April
29, 1892, Loeber entered a motion before that court to quash the writ
because the decree on which the writ was issued and the writ were
void, because said writ would deprive him of his property without due
process of law, and because it was issued in violation of the
constitution of the United States and amendments thereto. The motion
was denied, and Loeber prosecuted an
Page 172 U.S. 82, 93
appeal, which affirmed the order of the lower court, holding that
the state law upon which it had made its decision was not in conflict
with the constitution of the United States. From this judgment of the
court of appeals, Loeber prosecuted a writ of error to this court,
assigning the unconstitutionality of the state law sustained by the
court of appeals.
Mr. Justice Jackson, who delivered the opinion of the court, said:
'The motion to quash the fi. fa. in this case on the ground that the
order of the court of appeals, which directed it to be issued, was
void for the reasons assigned, stood on no better footing than a
petition for rehearing would have done, and suggested federal
questions for the first time, which, if they existed at all, should
have been set up and interposed when the decree of the court of
appeals was rendered, on January 28, 1892.' In other words, should
have been urged when the case was pending, and before its decision. It
is an inference from the opinion that, if this had been done, the
federal question would have been claimed in time.
In Chicago, B. & Q. R. Co. v. City of Chicago,
166 U.S. 226,
17 Sup. Ct. 581, the right under the constitution of the United States
was claimed by plaintiff in error after verdict, and in a motion to
set aside the verdict and to grant a new trial. It is true that in
that case (being a proceeding to condemn land under the eminent domain
act of the state of Illinois) no provision was made for an answer; but
this accounts for some, but not all, of the language of the decision.
Mr. Justice Harlan, speaking for the court, said: 'It is not,
therefore, important that the defendant neither filed nor offered to
file an answer specially setting up or claiming a right under the
constitution of the United States. It is sufficient if it appears from
the record that said right was specially set up or claimed in the
state court in such manner as to bring it to the attention of that
court.' But he said further: 'But this is not all. In the assignment
of errors filed by the defendant in the supreme court of Illinois
these claims of rights under the constitution of the United States
were distinctly asserted.'
The similarity of that case to the case at bar is apparent. In
both, the constitutional right was claimed in such manner
Page 172 U.S. 82, 94
as to bring it to the attention of the lower court, and its
decision was necessarily adverse to such right. In both it was
reasserted in the assignment of errors to the higher court, and there
again, in both, the effect of the judgment was to declare the right
not infringed by the proceedings in the case. This court therefore has
jurisdiction, and we proceed to the consideration of the merits.
The plaintiff's constitutional claim is under that provision of the
fourteenth amendment which prohibits a state from depriving any person
of property without due process of law; and he avails himself of it by
the contention (which we give in his own language):
'That, under the constitution and laws of the state of Virginia,
the free and uninterrupted use of highways, once dedicated to and
accepted by the public, or acquired by the right of eminent domain,
is for continuous public use, and that when, relying upon that fact,
important public and private property rights have been acquired, the
highway cannot be permanently diverted to a private use without
proper compensation being made to those injured; and, as a
consequence, any person or persons so diverting such highway are
trespassers, and liable in damages to the parties injured.'
The proposition is very general. To make it available to plaintiff
in error, it must be held to cover and protect an owner whose property
abuts on one part of a street from damage from obstruction placed in
another part of the street, and not opposite his property; not only a
physical taking of his property, but damages to it; not only direct
damages, but consequential damages. All of these aspects of the
proposition seem to be rejected by the decision of the supreme court
of appeals of Virginia on the plaintiff's petition for writ of error.
The petition submitted for decision the power of the city of Richmond
to make or authorize the obstruction complained of, under its charter
and the constitution and laws of Virginia, as well as the prohibition
of the constitution of the United States. If the decision necessarily
passed on and denied the latter, as we hold it did, and hence
entertain jurisdiction to review its judgment, it necessarily passed
on and denied the
Page 172 U.S. 82, 95
former. If, under the constitution and laws of Virginia, whatever
detriment he suffered was damnum absque injuria, he cannot be said to
have been deprived of any property. Marchant v. Railroad Co.,
153 U.S. 380,
14 Sup. Ct. 894.
The plaintiff quotes Telegraph Co. v. Williams, 86 Va. 696, 11 S.
E. 106; Hodges v. Railroad Co., 88 Va. 653, 14 S. E. 380; Chamberlain
v. Norfolk City, 29 Grat. 53; Buntin v. City of Danville, 93 Va. 200,
24 S. E. 830. The case at bar is not within the principle of these
cases. These were concerned with erections immediately in front of the
abutting owner's property; and it was held that he owned to the middle
of the highway, subject only to the easement of the latter, that it
was for the easement only for which he was compensated, and that any
other use was an additional servitude, and its authorization illegal,
unless paid for.
In Home Building & Conveyance Co. v. City of Roanoke, 91 Va. 52, 20
S. E. 895, the city of Roanoke authorized the erection of a bridge
across a street in the city, and itself constructed the approaches to
it. These approaches were 16 feet high and 35 wide, but did not extend
to either side of the street, but left on each side about 7 1/2 feet
unoccupied on Randolph street, on which the complainant's lot was
situated, available for its use and that of the public. It was held
that the city was not liable.
The substantial thing is not that one may be damaged by an
obstruction in a street,-not that one may be specially damaged beyond
others,-but is such damage a deprivation of property, within the
meaning of the constitutional provision? According to the Virginia
cases, an additional servitude may be said to be another physical
appropriation, and hence another taking, and must be compensated. But
the plaintiff's case is not within this doctrine, nor is there
anything in the decisions of Virginia which make consequential damages
to property a taking, within the meaning of the constitution of that
state. Decisions in other states we need not resort to or review.
Those of this court furnish a sufficient guide. Transportation Co. v.
Chicago, 99
U.S. 635; City of Chicago v. Taylor,
125 U.S. 161,
8 Sup. Ct. 820; Marchant v.
Page 172 U.S. 82, 96
Railroad Co.,
153 U.S. 380,
14 Sup. Ct. 894; Gib son v. U. S.,
166 U.S. 269,
17 Sup. Ct. 578.
In Transportation Co. v. Chicago it was decided 'that acts done in
the proper exercise of governmental power, and not directly
encroaching on private property, though their consequences may impair
its use, are universally held not to be a taking, within the meaning
of the constitutional provision.' Removing moving any apparent
antagonism of this proposition to Pumpelly v. Green Bay Co., 13 Wall.
166, and Eaton v. Railroad Co., 51 N. H. 504, it was further said that
in those cases 'the extremest qualification of the doctrine is to be
found, perhaps'; and they were discriminated by the fact that in them
there was a permanent flooding of private property, hence a
'taking,'-'a physical invasion of the real estate of the owner, and a
practical ouster of his possession.'
In City of Chicago v. Taylor, Taylor sued to recover damages
sustained by reason of the construction by the city of a viaduct in
the immediate vicinity of his lot. The construction of the viaduct was
directed by special ordinances of the city council. The facts were:
For many years prior to, as well as at, the time this viaduct was
built, the lot in question was used as a coal yard, having upon it
sheds, machinery, engines, boilers, tracks, and other contrivances
required in the business of buying, storing, and selling coal. The
premises were long so used, and they were peculiarly well adapted for
such business. There was evidence before the jury tending to show
that, by reason of the construction of the viaduct, the actual market
value of the lot, for the purposes for which it was specially adapted,
or for any other purpose for which it was likely to be used, was
materially diminished, access to it from Eighteenth street being
greatly obstructed, and at some points practically cut off; and that,
as a necessary result of this work, the use of Lumber street, as a way
of approach to the coal yard by its occupants and buyers, and as a way
of exit for teams carrying coal from the yard to customers, was
seriously impaired. There was also evidence tending to show that one
of the
Page 172 U.S. 82, 97
results of the construction of the viaduct and the approaches on
either side of it to the bridge over Chicago river was that the coal
yard was often flooded with water running onto it from said
approaches, whereby the use of the premises as a place for handling
and storing coal was greatly interfered with, and often became wholly
impracticable.
'On behalf of the city there was evidence tending to show that
the plaintiff did not sustain any real damage, and that the
inconveniences to occupants of the premises resulting from the
construction and maintenance of the viaduct were common to all other
persons in the vicinity, and could not be the basis of an individual
claim for damages against the city.'
There was a verdict and judgment against the city, and this was
sustained. The tenor of the decision is that the damages were
consequential, and the difference of the ruling from that in
Transportation Co. v. Chicago was explained and based upon a change in
the constitution of the state of Illinois which enlarged the
prohibition to the damaging as well as to the taking of private
property for public use, and its interpretation by the supreme court
of the state, 'that it does not require that the damage shall be
caused by a trespass, or an actual physical invasion of the owner's
real estate; but if the construction and operation of the improvement
is the cause of the damage, though consequential, the party may
recover.'
In Marchant v. Railroad Co., the plaintiff owned a lot on the north
side of Filbert street, Philadelphia. The railroad erected an elevated
railroad on the south side of the street, and opposite plaintiff's
property. It was held by the supreme court of Pennsylvania (reversing
the trial court) that for the damages hence resulting the plaintiff
could not recover. The case was brought to this court by writ of
error, the plaintiff urging that her property had been taken without
due process of law. The judgment was affirmed. The court, by Justice
Shiras, said:
'In reaching the conclusion that the plaintiff, under the
admitted facts in the case, had no legal cause of action, the
supreme court of Pennsylvania was called upon to construe the laws
and constitution of that state. The plaintiff pointed
Page 172 U.S. 82, 98
to the tenth section of article 1 of the constitution, which
provided that 'private property shall not be taken or applied to
public use, without authority of law, and without just compensation
being first made or secured,' and to the eighth section of article
16, which contains the following terms: 'Municipal and other
corporations and individuals invested with the privilege of taking
private property for public use shall make just compensation for
property taken, injured, or destroyed, by the construction or
enlargement of their works, highways or improvements, which
compensation shall be paid or secured before such taking, injury or
destruction.'
'The first proposition asserted by the plaintiff, that her
private property has been taken from her without just compensation
having been first made or secured, involves certain questions of
fact. Was the plaintiff the owner of private property, and was such
property taken, injured, or destroyed by a corporation invested with
the privilege of taking private property for public use? The title
of the plaintiff to the property affected was not disputed, nor that
the railroad company was a corporation invested with the privilege
of taking private property for public use. But it was adjudged by
the supreme court of Pennsylvania that the acts of the defendant
which were complained of did not, under the laws and constitution of
the state, constitute a taking, an injury, or a destruction of the
plaintiff's property.
'We are not authorized to inquire into the grounds and reasons
upon which the supreme court of Pennsylvania proceeded in its
construction of the statutes and constitution of that state, and, if
this record presented no other question except errors alleged to
have been committed by that court in its construction of its
domestic laws, we should be obliged to hold, as has been often held
in like cases, that we have no jurisdiction to review the judgment
of the state court, and we should have to dismiss this writ of error
for that reason.'
In Gibson v. U. S., a dike was constructed in the Ohio river under
the authority of certain acts of congress for the improvement of
rivers and harbors. The construction of said dike by the United States
substantially destroyed the
Page 172 U.S. 82, 99
landing of Mrs. Gibson, by preventing ingress and egress to and
from the landing on and in front of her farm to the main or navigable
channel of the river. Held, damnum absque injuria. The court, by the
chief justice, said: 'The fifth amendment to the constitution of the
United States provides that private property shall not be taken for
public use without just compensation. Here, however, the damage of
which Mrs. Gibson complained was not the result of the taking of any
part of her property, whether upland or submerged, or a direct
invasion thereof, but the incidental consequence of the lawful and
proper exercise of a governmental power.'
Judgment is affirmed.
Mr. Chief Justice FULLER, dissenting on the question of
jurisdiction.
I am of opinion that this writ of error should be dismissed. The
contention of plaintiff in error is that the validity of the act of
the general assembly of Virginia of May 24, 1870, was drawn in
question in the state courts on the ground of repugnancy to the
constitution of the United States, and that the decision of the court
of appeals was in favor of its validity.
The validity of a statute is drawn in question when the power to
enact it is denied, and a definite issue in that regard must be
distinctly deducible from the record, in order for this court to hold
that the state courts have adjudicated as to the validity of the
enactment under the constitution.
This case had gone to judgment, and a motion to set aside the
judgment had been made and denied, before it was suggested that the
act was inconsistent with the federal constitution. And that question
was then attempted to be raised by a second motion to vacate. But the
disposal of motions of this class is within the discretion of the
trial court, and only revisable by the appellate tribunal, if at all,
when there is a palpable abuse of discretion.
Whether the trial court, in this instance, overruled the second
motion because a second motion of that sort, without special cause
shown, could not be entertained, or because of
Page 172 U.S. 82, 100
unreasonable delay, it is impossible to say; and to impute to that
court the decision of a federal question, when it obviously may have
considered that the point was presented too late, seems to me wholly
inadmissible. And although, in his petition to the court of appeals,
plaintiff in error recited the action he had taken, and urged that the
trial court had erred in sustaining the demurrer to his declaration,
and in refusing to set aside the judgment so that the constitutional
question suggested might be passed on, that court, in the exercise of
appellate juricdiction only, may well have concluded that the
discretion of the court below could not be interfered with.
It does not follow, from the bare fact that this second motion
presented in terms a single point, that that point was disposed of in
denying the motion, when other grounds for such denial plainly
existed.
It is thoroughly settled that if the record of the state courts
discloses that a federal question has been raised and decided, and
another question, not federal, broad enough to sustain the judgment,
has also been raised and decided, this court will not review the
judgment; that this is so even when it does not appear on which of the
two grounds the judgment was based, if the independent ground on which
it might have been based was a good and valid one; and also where the
record shows the existence of nonfederal grounds of decision, though
silent as to what particular ground was pressed and proceeded on. In
other words, the rule is that the record must so present a federal
question that, even if the reasons for decision are not given, this
court can properly conclude that it was disposed of by the state
courts. If the conflict of a state law with the constitution, and the
decision by the state court in favor of its validity, are relied on,
such decision must appear on the face of the record, before the
judgment can be re-examined in this court.
In Klinger v. Missouri, 13 Wall. 257, a juror had declined to take
the test oath prescribed by the sixth section of the second article of
the constitution of Missouri of 1865, and was discharged from the
panel. It was insisted here that he was thus excluded for no other
reason than that he refused
Page 172 U.S. 82, 101
to take the oath, and, if this had been so, the question of the
repugnancy of the section to the constitution of the United States
would have arisen. But as this court was of opinion that, inasmuch as
the grounds the juror assigned for his refusal manifested a settled
hostility to the government, he might 'well have been deemed by the
court, irrespective of his refusal to take the oath, an unfit person
to act as a juryman, and a participant in the administration of the
laws,' it was held that 'it certainly would have been in the
discretion of the court, if not its duty, to discharge him.' And Mr.
Justice Bradley, delivering the opinion of the court, said: 'In this
case it appears that the court below had a good and valid reason for
discharging the juror, independent of his refusal to take the test
oath; and it does not appear but that he was discharged for that
ground. It cannot, therefore, with certainty, be said that the supreme
court of Missouri did decide in favor of the validity of the said
clause of the state constitution, which requires a juror to take the
test oath.' There was nothing in the record to show on what ground the
trial court excluded the juror, or that the point urged in this court
was taken in the supreme court of the state; and yet, because the
trial court might have discharged the juror as matter of discretion,
or because of unfitness in the particular suggested, this court
decided that its jurisdiction could not be maintained, and the writ of
error was dismissed. And see Johnson v. Risk,
137 U.S. 300,
11 Sup. Ct. 111; Dibble v. Land Co.,
163 U.S. 63,
16 Sup. Ct. 939.
We have held that the question whether a party has by laches and
acquiescence waived the right to insist that a state statute impaired
the obligation of a contract is not a federal question. Pierce v.
Railway Co.,
171 U.S. 641, 19 Sup. Ct. 64.
And certainly, in view of the careful language of section 709 of
the Revised Statutes, we ought not to take jurisdiction to revise a
judgment of a state court, where a party seeks to import a federal
question into the record, after judgment, by an application so
palpably open to decision on nonfederal grounds.
I am authorized to state that Mr. Justice GRAY concurs in this
dissent.
Footnotes
Footnote 1 Ordinance permitting the Richmond and Alleghany
Railroad Company to close a certain portion of Eighth street and
requiring them to erect a foot bridge. (Approved June 28, 1886.)
Be it ordained by the city council of Richmond, First. So much of
Eighth street as lies between the present southern boundary line of
the property of the Richmond and Alleghany Railroad Company, being
also the southern boundary line of the right of way of the James River
and Kanawha Company, and a line drawn across Eighth street at right
angles, sixty feet north of the face of the north wall of the canal as
said wall is now built, shall be, and the same is hereby, closed from
the 31st day of August, 1886, until it is required to be reopened in
accordance with the provisions of this ordinance: provided, that the
said Richmond and Alleghany Railroad Company shall, on or before the
said 31st day of August, begin to erect an overhead foot bridge across
the tracks and canal of said railroad on that portion of Eighth street
above described, and shall complete the same by the 30th day of
September, 1886.
Second. The said bridge and the stairways thereto shall be twelve
feet
closing or the privileges herein granted, and doth fully recognize
and admit the right of the said city to reopen the said Eighth street
at any time, according to the provisions of this ordinance.
Seventh. Nothing in this ordinance shall conflict in any way with
the ordinance approved May 12, 1886, granting permission to the
Richmond and Chesapeake Railroad Company to construct a tunnel under
Eighth street; and should the bridge constructed under this ordinance
obstruct in any manner the said tunnel or tracks leading thereto, it
shall be changed by the said Richmond and Alleghany Railroad Company
within sixty days after receipt of notice from the committee on
streets of the said city council requiring such change to be made.
A copy.
Teste: Ben. T. August, City Clerk.
Virginia Acts of Assembly of 1869-70, pp. 120-146.
Sec. 19. The city council shall have, subject to the provisions
herein contained, the control and management of the fiscal and
municipal affairs of the city and of all property, real and personal,
belonging to the said city; and may make such ordinances, orders and
by-laws, relating to the same, as it shall deem proper and necessary.
They shall likewise have the power to make such ordinances, by-laws,
orders and regulations as they may deem desirable to carry out the
following powers which are hereby vested in them:
...
VII. To close or extend, widen or narrow, lay out and graduate,
pave and otherwise improve streets and public alleys in the city, and
have them properly lighted and kept in good order; and they shall have
over any street or alley in the city, which has been or may be ceded
to the city, like authority as over other streets or alleys. They may
build bridges in and culverts under said streets, and may prevent or
remove any structure, obstruction or encroachment over or under, or in
a street or alley, or any sidewalk thereof, and may have shade trees
planted along the said streets; and no company shall occupy with its
work the streets of the city without the consent of the council. In
the meantime no order shall be made and no injunction shall be
awarded, by any court or judge, to stay the proceedings of the city in
the prosecution of their works, unless it be manifest that they, their
officers, agents or servants, are transcending the authority given
them by this act, and that the interposition of the court is necessary
to prevent injury that cannot be adequately compensated in damages.
...
Sec. 22. The council shall not take or use any private property for
streets or other public purpose without making to the owner or owners
thereof just compensation for the same. But in all cases where the
said city cannot by agreement obtain title to the ground necessary for
such purposes, it shall be lawful for the said city to apply to and
obtain from the circuit or county court of the county in which the
land shall be situated, or to the proper court of the city having
jurisdiction of such matters, if the subject lies within this city,
for authority to condemn the same; which shall be applied for and
proceeded with as provided by law.
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