Without deciding that the briefs of counsel may be resorted to
for the purpose of determining whether a federal question was
raised in the state court, it is sufficient to say that a general
claim made that a particular act of the legislature is violative of
the state and federal Constitution is not sufficient to show that a
federal right was specially set up and claimed or the validity of a
statute was drawn in question in the state court when no such
question was noticed in the opinion of the state court and the case
was disposed of upon a ground wholly independent of a federal
question.
This was a petition of the New York Central & Hudson River
Railroad Company, as lessee, and the New York & Harlem Railroad
Company, as owner, to vacate certain assessments for regulating and
grading, setting curbstones, paving, and other improvements to
Vanderbilt Avenue East, in the City of New York, upon the ground
that the property in question had not been, would not be, and could
not be, benefited in any manner by the improvements.
The successive steps towards the proposed improvements were the
adoption of resolutions by the local municipal legislature
directing the improvements, the ascertainment of their cost, the
making of a contract for their construction, and finally the
assessment of the benefits upon the property, which in one case
amounted to $4,687.82 and in the other to $12,626.72.
Petitioners
Page 186 U. S. 270
filed before the board of assessors objections to both
assessments upon the ground that they were unfair, unequal,
inequitable, and unjust, and greater than the amounts assessed upon
surrounding property. The two proposed assessments with these
objections were transmitted by the assessors to the board of
revision, which confirmed them.
Thereupon the two railway companies filed this petition, setting
up the facts above stated and alleging that their lands assessed
are held and occupied only and exclusively as a roadway upon which
their tracks are laid, and over which their trains are run, and
that there are no buildings or other improvements upon the land
except such railway tracks; that the grade of Vanderbilt Avenue is
from ten to eighteen feet above the level of petitioners' tracks;
that there is no possible access from the land of petitioners to
Vanderbilt Avenue, but, on the contrary, that the roadway was
constructed under a contract between petitioners and the board of
public parks, and was depressed to its present grade and solid
stone retaining walls built upon and along the easterly and
westerly sides of said land in order that access to and from public
streets and avenues, including that part of Park Avenue or
Vanderbilt Avenue East should be cut off and rendered impossible,
and that no benefit could accrue to petitioners' lands by such
improvements.
Petitioners prayed that the assessments might be vacated and the
liens upon their lands discharged, but there is nowhere in the
petition any claim of a federal right or a violation of the
Constitution of the United States in any particular.
The case coming on to be heard before a special term of the
supreme court held on July 21, 1899, upon the petition, and
testimony taken by consent, it was ordered that the prayer of the
petition be denied. The railroad companies thereupon appealed to
the appellate division of the supreme court, which affirmed the
order of the special term. An appeal was taken to the court of
appeals, where the order of the appellate division was affirmed,
and the case remitted to the supreme court, which ordered the
judgment of the court of appeals to be made the order and judgment
of that court. No written opinion was filed by the court of
appeals.
Page 186 U. S. 271
Whereupon the railway companies applied for, and were allowed, a
writ of error from this Court.
MR. JUSTICE BROWN delivered the opinion of the Court.
Petitioners rely in this case upon the fact that the property
assessed consists solely of a roadway through Park Avenue or
Vanderbilt Avenue East, depressed from ten to eighteen feet below
the grade of the street, the sides of which depression are held in
place, and faced by a retaining wall, surmounted by an iron fence,
whereby all access to and from the roadway to the street is
rendered impossible, except at the intersection of side streets,
where bridges are built for the accommodation of traffic. Their
claim is that no possible benefit had, would, or could inure to the
benefit of the railway companies by the construction of the
proposed improvements, and all the oral testimony tended to show
that fact. The roadway was in fact nothing more than a tunnel
through the avenue, open at the top, and differed only in that
particular from an ordinary railway tunnel or subway wholly beneath
the surface. The only evidence to the contrary was the order of the
board of assessors and the board of revision making the assessment,
presumably founded upon the opinion that some benefit must have
accrued to the roads.
The only opinion delivered was that of the appellate division,
which held that, under the city charter, there was no power in the
court, in any event, to vacate an assessment for local
improvements; that, while the court was given power to reduce an
assessment, it was deprived of the power to vacate it. "It may
correct an error, but it cannot entirely wipe out the assessment
itself," although it was intimated that the property owner might
still "challenge the validity of the assessment, whenever his
property is assessed under it, or it is made the foundation of
proceedings against him."
Page 186 U. S. 272
The difficulty with the position of the railway companies in
this Court is that no federal question was raised in their petition
-- the only pleading filed by them -- and they are forced to rely
upon a copy of their printed brief submitted in the court of
appeals, and certified by the chief judge of that court as
containing certain matters. The only allusion, however, in this
brief to a possible federal question is that contained in the
following extracts:
"Legislative enactment is to be interpreted and construed upon
the hypothesis that the legislature has, in its enactments, had due
regard for these limitations upon its power, and that
interpretation to be given to the language promulgated by it which
will render it conformable to, rather than violative of, the rule
of state and federal Constitution."
"If, by prohibiting judicial review, the result of section 962
is to enable the assessors to assess property for local
improvements without reference to the benefits conferred upon the
property by such improvements, that section is unconstitutional. A
statute which authorizes assessments for local improvements, other
than in accordance with the benefits conferred, is unconstitutional
and void.
Norwood v. Baker, 172 U. S.
269. That case holds that the only principle justifying
the levying of assessments for local improvements is"
"that the property upon which they are imposed is peculiarly
benefited, and therefore the owners do not, in fact pay anything in
excess of what they receive by reason of such improvements."
Manifestly, this is not such a case of setting up and claiming a
federal right as is required by Rev.Stat. section 709, to invest
this Court with jurisdiction of a writ of error. In the case of
Zadig v. Baldwin, 166 U. S. 485, the
contention that there was a federal question raised below was
contained only in an extract from the closing brief of counsel,
presented to the supreme court of the state, in which such federal
question was discussed, and an oral assertion in the argument made
to the Supreme Court of California that a claim under the federal
Constitution was presented. "But manifestly," said the court,
"the matters referred to form no part of the record, and are not
adequate to create a federal question, when no such question
Page 186 U. S. 273
was necessarily decided below, and the record does not disclose
that such issues were set up or claimed in any proper manner in the
courts of the state."
But assuming, without intimating an opinion to that effect, that
the raising of a federal question in the brief might be sufficient,
it is well settled in this Court that it must be made to appear
that some provision of the federal, as distinguished from the
state, constitution was relied upon, and that such provision must
be set forth.
Porter v.
Foley, 24 How. 415;
Miller v. Cornwall R.
Co., 168 U. S. 131;
Dewey v. Des Moines, 173 U. S. 193;
Keokuk &c. Bridge Co. v. Illinois, 175 U.
S. 626;
Chapin v. Fye, 179 U.
S. 127.
It is hardly necessary to say that the raising of such a
question in the assignments of error in this Court is insufficient.
Not only was there no federal question raised in the record, but
the appellate division made no allusion to such a question, and
dismissed the petition upon the ground that the charter of New York
did not permit a question of benefit or no benefit to be raised in
such a proceeding,-a ground wholly independent of a federal
question.
The writ of error must therefore be
Dismissed.
