'Opinion of the Court.

It moreover decided that, as the previous assessment had been set aside because of the instalment feature, the sums fixed therein were not conclusive, and on the new assessment it was competent to reëxamine the question of benefits and to restate the amounts due, even although in doing so it was ascertained that a larger sum was assessable upon some portions of the property than had been decreed by the order which confirmed the previous assessment. As to the property of Lombard, the court decided that the proof established that a change in condition had caused the property to be justly assessed for a larger proportion of benefit than had been attributed to it by consent in the first assessment. 181 Illinois, 136. To this decision the present writ of error is prosecuted.

Mr. Nathan Grier Moore for plaintiffs in error.

Mr. John P. Wilson and Mr. William B. McIlvaine filed a brief for

same.

Mr. Robert A. Childs for defendant in error. Mr. Charles Hudson was on his brief.

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

The assignments of error contained in the record are nine in number, and eleven in addition have been made since the record was filed in this court. The question whether the benefit accruing to each particular piece of property assessed equalled the sum of the assessment placed thereon was foreclosed by the findings of fact of the trial court, to which court the case was submitted without the intervention of a jury. It is suggested, although under the statutes of Illinois a special assessment can only be made for the amount of the benefit shown to exist, this is of no concern in this case since this levy is not a special assessment, but is a special tax. Where a special tax is imposed under the law of Illinois, it is asserted, no inquiry into the benefits can be had, and, therefore, there arises no question whether the levy was invalid, as exceeding the benefits to be derived,

Opinion of the Court.

since all investigation into the amount of the benefits was, as a matter of law, excluded. But this proposition is plainly an afterthought. From the statement of the case which precedes, it is apparent that the objectors to the assessment considered that their defence raised the issue of benefit, that they tendered proof, submitted the question to the trial court without a jury and had an award against them. It is plain, also, that this contention was not raised by the assignment of errors in the Supreme Court of Illinois, and such question was not by that court in any way considered. Putting out of view questions of form, the principal contentions made in the Supreme Court of Illinois, as shown by the assignment of errors in that court, were as follows: That as under the law of the State of Illinois, an authority existing at the time the work was done was necessary to justify an assessment, a violation of the Fourteenth Amendment would be brought about by holding that authority for the assessment was supplied by the Illinois act of 1895, since such law was enacted after the work was completed, and that as the previous ordinance had been declared void by the Supreme Court of Illinois, to hold such void ordinance to be an authority for the subsequent assessment would also violate the Fourteenth Amendment, since it would amount to a want of due process of law and a denial of the equal protection of the laws. And these propositions, stated in varying form, really express every substantial issue raised by the twenty assignments which are here pressed. We do not take up each assignment in detail to show that this is the case, since a statement of them all, as summed up in argument of counsel, is in the margin,' and renders a more detailed enumeration unnecessary.

1"1st. As the court will see, this is a hard case.

The controversy arises

out of an effort to compel a ribbon of land 125 feet wide, along the margin of a boulevard 250 feet in width, decorated and ornamented as a park, to pay the entire cost of its improvement, although it is made for the general benefit of the inhabitants.

"2d. The original ordinance for the improvement was declared by the Supreme Court, in a direct proceeding, to be void, and so utterly without effect as to form no basis for an adjudication thereon by the county court. "3d. The constitution and laws of the State, as uniformly construed, permit no such charge to be created against private property without a previ

Opinion of the Court.

The power of the State of Illinois to levy a special assessment in proportion to benefits, for the execution of a local work, and the authority to confer on a municipality the attribute of providing for such an assessment, is not denied.

It is no longer open to question that where a special assessment to pay for a particular work has been held to be illegal, no violation of the Constitution of the United States arises from a subsequent authority given to make a new special assessment to pay for the completed work. Spencer v. Merchant, 125 U. S. 345.

With these two propositions in mind it is certain that if the power flowing from the ordinance which the Supreme Court of the State of Illinois upheld existed, prior to the work, the assessment was valid. So, also, if the authority was only given subsequent to the work, it was, from the point of view of the Constitution of the United States, legally conferred. In either contingency, therefore, there was no cause of complaint so far as Federal rights were concerned. The contention advanced,

ous valid ordinance providing that the cost be paid by special assessment or special tax.

"4th. The previous assessment having been extinguished completely by the decision of the Supreme Court, there remained no authority of law to charge this property. The legislature thereupon passed a law, after the work had been completed, providing that, notwithstanding the said provisions of the constitution of the State, the work previously completed might be charged upon the private property by a procedure therein for the first time provided. "5th. On the application for such an assessment the property owners protested, setting up the provisions of the Constitution of the United States in denial of the right.

"6th. The courts of the State, although they had held the original ordinance void, so as to confer no jurisdiction on the courts even to consider it, held that it was valid for the purpose of creating a charge on property of plaintiffs in error.

"7th. If the ordinance was in fact valid, then the original judgment of confirmation, reducing this assessment, was valid and effectual, and should have been applied here.

"8th. By the whipsawing process we have referred to, the courts of the State have held that the ordinance of March 28, 1893, was void, so as to deprive plaintiffs in error of the benefits of its adjudication reducing the amount of their assessment; but valid for the purpose of creating a charge upon their property."

Opinion of the Court.

therefore, amounts to this, that a violation of the Constitution of the United States has been produced by the exercise of a power which, whatever view may be taken, could be brought into play without giving rise to a conflict with such Constitution. But in effect, it is asserted, this deduction is inapposite to this case, since the proposition here relied upon is that the Supreme Court of the State of Illinois maintained the assessment on a void ordinance, and, therefore, in effect decided that a valid assessment could be made where there was no authority whatever for the levy. This, however, rests upon an entirely false assumption, since it is manifest that the court below held that there was a valid ordinance, that is, one which sufficiently conferred the authority to make the assessment. Whether the ordinance was or was not valid, and the extent to which it was so, having regard to the state constitution and laws, was wholly a state and not a Federal question, and we are not concerned with it. Accepting the conclusion of the Supreme Court of the State of Illinois as to the existence of the ordinance by virtue of the state law and constitution, the proposition pressed upon us comes to the result which we have above indicated, and, therefore, is obviously without merit. Indeed, the misconception involved in the argument was pointed out in Castillo v. McConnico, 168 U. S. 674. There it was asserted that a particular assessment was void because of a mistake in the name of the person whose property had been assessed. The Supreme Court of Louisiana, interpreting the statutes of that State, otherwise decided. It was urged, however, that such decision was in conflict with many prior rulings of that court, and therefore a Federal question was presented. But it was held that as it was within the power of the State of Louisiana, without violating the Constitution of the United States, to direct the assessment without giving the name of the owner, by an adequate description of the property assessed, the decision of the Supreme Court of the State of Louisiana raised no Federal question. The court said (p. 683):

"The vice which underlies the entire argument of the plaintiff in error arises from a failure to distinguish between the essentials of due process of law under the Fourteenth Amend

Opinion of the Court.

ment and matters which may or may not be essential under the terms of the state assessing or taxing law. The two are neither correlative or coterminous.

"The first, due process of law, must be found in the state statute, and cannot be departed from without violating the Constitution of the United States. The other depends on the lawmaking power of the State, and as it is solely the result of such authority may vary or change as the legislative will of the State sees fit to ordain. It follows that, to determine the existence of the one, due process of law is the final province of this court, whilst the ascertainment of the other, that is, what is merely essential under the state statute, is a state question, within the final jurisdiction of the courts of last resort of the several States."

And the principle thus inculcated not only disposes of the argument which we have previously considered, but also makes it clear that the Supreme Court of Illinois decided a local and not a Federal question when it held that it was competent on a new assessment to determine the questions of benefit from the proof, even though in so doing a different result was reached from that which had been arrived at when the former assessment which had been set aside was made. The theory lying at the foundation of all the arguments advanced to show that the court below committed error of a Federal nature is this, and nothing more, that the equal protection of the laws was denied by the Supreme Court of Illinois, because that court, although it treated the assessing ordinance as invalid for the purposes of the first assessment, upheld that ordinance as valid for the second assessment. This but asserts that because it is considered that there was inconsistency in the reasoning by which the Supreme Court of Illinois sustained its conclusion, therefore the equal protection of the laws was denied. If the proposition as thus understood was held to be sound, as it cannot be, every case decided in the courts of last resort of the several States would be subject to the revisory power of this court, wherever the losing party deemed that the reasoning by which the state court had been led to decide adversely to his rights was inconsistent with the reasoning previously announced by the same