The plaintiffs declaration, in a case pending in a
nisi
prius court in Virginia, set forth that he was the owner in
fee of a lot of land fronting on Eighth Street between Cary and
Canal Streets in Richmond on which were 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
Page 172 U. S. 83
day of June, 1886, the City Council of Richmond, by ordinance,
authorized the Richmond and Alleghany Railway Company to obstruct
for the distance of sixty 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 further was
averred 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 the 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 the 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 offence. A general demurrer
being entered, judgment was given for defendants. The plaintiff
moved to set aside said judgment 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, 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 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; 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. The Supreme Court of Appeals of the
state sustained that judgment, whereupon a writ of error was sued
out to this Court.
Held,
(1) That the constitutional question so raised was set up in
time, and this Court has jurisdiction.
(2) That the judgment of the state court was right, and should
be affirmed.
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. 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 sixty
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. 85
Damages were claimed in the sum of five thousand dollars.
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. 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."
"Your petitioner therefore humbly submits:"
"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. 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
divesting 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.
*
Page 172 U. S. 88
image:a
Page 172 U. S. 89
The Constitution of Virginia, so far as involved in this
controversy, provides, in article 5, section 14, that the General
Assembly shall not pass "any laws whereby private property shall be
taken for public use without just compensation."
Page 172 U. S. 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. 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, Burlington &c. Railroad v.
Chicago, 166 U. S.
228.
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
& Pacific Railway v. Southern Pacific Railroad,
137 U. S. 48,
137 U. S. 54;
Butler v. Gage, 138 U. S. 52;
Winona & St. Peter Railroad v. Plainview, 143 U.
S. 371;
Leeper v. Texas, 139 U.
S. 462;
Loeber v. Schroeder, 149 U.
S. 580.
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. 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, Burlington &c. Railroad v. Chicago,
166 U. S. 226, 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. 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's 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. 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. Pennsylvania Railroad, 153 U.
S. 380.
The plaintiff quotes
Western Union Telegraph Co. v.
Williams, 86 Va. 696;
Hodges v. Railroad Co., 88 Va.
653;
Chamberlain v. Norfolk City, 29 Gratt. 53;
Buntin
v. Danville, 93 Va. 200. 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 &c. Co. v. Roanoke, 91 Va. 52, 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 sixteen feet high and thirty-five wide, but did not
extend to either side of the street, but left on each side about
seven and one-half 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;
Chicago v. Taylor, 125 U. S. 161;
Marchant v.
Pennsylvania
Page 172 U. S. 96
Railroad, 153 U. S. 380;
Gibson v. United States, 166 U. S. 269.
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. Boston, Concord
& Montreal 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
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. 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. Pennsylvania 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. 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's 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. United States, 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. 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 affirmed.
*
"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 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 anyone 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 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"
"
V
irginia 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 bylaws, relating to the same, as it shall deem proper
and necessary. They shall likewise have the power to make such
ordinances, bylaws, 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."
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. 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 jurisdiction 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 reexamined 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. 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;
Dibble v. Bellingham Bay Land Co., 163 U. S.
63.
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.
Somerset Pierce v. Railway Company, 171 U.
S. 641.
And certainly, in view of the careful language of § 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.
