Lapas attēli
[blocks in formation]

“The view thus taken is amply justified by an inspection of the record in the two suits, and upon this ground alone the action of the trial court, in admitting the judgment, was correct."

We concur in this conclusion. The objection made by the appellant to it is, as we have indicated, that suit No. 1996 was a proceeding in rem and that the court did not acquire jurisdiction of the property for the reason that it was in the custody of the court in suit No. 1728, and that the court in the latter case did not extend the receivership to the No. 1996 nor consolidate the suits, and, therefore, had no power to order the sale of the property by the receiver in No. 1728.

This is tantamount to saying that the absence of formal orders by the court must prevail over its essential action. It is clear from the record that the District Court considered the cases pending before it at the same time, considered No. 1996 as the complement of No. 1728, regarded the cases in fact as consolidated, and empowered the receiver appointed in 1728 to sell the property and distribute the proceeds as directed by the decree in 1996. The provision of the decree entered July 21, 1894 (and of the amended decree of November 20, 1894), is as follows:

“It is further ordered, adjudged and decreed by the court that James McMillan, the receiver heretofore appointed by this court, and now in possession of said premises under the orders of this court, proceed to advertise and sell said property and distribute the proceeds as directed in the decree.

This decree was affirmed by the Supreme Court of the Territory and afterwards by this court. The assignments of error, therefore, are without foundation.

Decree affirmed.

202 U. S.

Argument for Plaintiff in Error.



No. 248. Submitted April 25, 1906.-Decided May 14, 1906.

The mere claim in objections to confirmation of a rule in a proceeding in

the County Court to confirm an assessment for paving a street that the act under which the assessment was made was unconstitutional as depriving the objector of his process of law, never afterwards brought to the attention of the trial court or of the Supreme Court of the State, is not a sufficient compliance with 709, Rev. Stat., in setting up a right under the Constitution of the United States to give this court jurisdic

tion to review the judgment on writ of error. According to the practice of Illinois an error not assigned is not open to

review in the Supreme Court of the State, and if assigned but not noticed or relied on in the brief or argument of counsel it will be regarded as

waived or abandoned, and this court will recognize that rule of practice. It is too late to raise the Federal question by a statement in the writ of error

and petition for citation that constitutional rights and privileges were involved and decided by the highest court of the State against plaintiff in error, even if the Chief Justice of that court allowed the writ.

The facts are stated in the opinion.

Mr. George W. Wilbur for plaintiff in error:

The act entitled, “An Act Concerning Local Improvements,” passed June 14, 1897, and amendments thereto, is contrary to section 2, article 2, and section 9, article 9, of the constitution of Illinois.

The board of local improvements is not a municipal corporation, and it has no authority to make special assessments. Harward v. St. Clair & M. L. & D. Co., 51 Illinois, 130; Cornell v. People, 107 Illinois, 372; Updike v. Wright, 91 Illinois, 49; Gage v. Graham, 57 Illinois, 144; Dunham v. People, 96 Illinois, 331; Wetherell v. Devine, 116 Illinois, 631; Snell v. Chicago, 133 Illinois, 413; The People v. Knopf, 171 Illinois, 191.

Sections 42 and 84 of said act are unconstitutional and void

Argument for Defendant in Error.

202 U.S.

because they interfere with right of contract by fixing the rate of interest on assessments and improvement bonds at five per cent. Ritchie v. People, 155 Illinois, 98; McChesney v. People, 200 Illinois, 146; Adams v. Brennan, 177 Illinois, 194; Frorer v. People, 141 Illinois, 171; Millett v. People, 117 Illinois, 294; Bailey v. People, 190 Illinois, 28.

Mr. James Hamilton Lewis, Mr. Charles H. Mitchell and Mr. Frank Johnston, Jr., for defendant in error:

The question of the constitutionality of the Local Improvement Act of Illinois of June 14, 1897, cannot be reviewed by this court for the reason that this question was not decided nor even noticed in the opinion of the Supreme Court of Illinois, and the record does not show that it was called to the attention of that court. In order to give this court the power to reëxamine the judgment of the state court, the title, right, privilege or immunity must be specially set up or claimed at the proper time and in the proper way, and the right on which the party relies must have been called to the attention of the court in some proper way, and the decision of the court must have been against the right claimed. Oxley Stave Co. v. Butler Co., 166 U. S. 648; Sayward v. Denny, 158 U. S. 180; Levy v. Sup. Ct. of San Francisco, 167 U. S. 175, 177; C. & N. W. Ry. Co. v. Chicago, 164 U. S. 454, 457; Ansbro v. United States, 159 U. S. 695, 698; Hoyt v. Shelden, 1 Black, 518, 521; Keokuk & Hamilton Bridge Co. v. Illinois, 175 U. S. 626. Although the state court may have decided a Federal question, it must appear that the particular Federal question sought to be raised here was also decided. Capital City Dairy Co. v. Ohio, 183 U. S. 238, 248; Chapin v. Fye, 179 U. S. 127.

The fact that the opinion of the state court makes no reference to the particular question sought to be presented in this court, may be considered in determining whether the question was called to the attention of the state court. Oxley Stave Co. v. Butler County, 166 U. S. 648, 653, 655; Kipley v. Illinois, 170 U. S. 182, 186; C. & N. W. Ry. Co. v. Chicago, 164 U. S.

202 U. S.

Argument for Defendant in Error.

454, 457; Mich. Sugar Co. v. Michigan, 185 U. S. 112, 113; N. Y. Cent. R. R. Co. v. New York, 186 U. S. 269, 273.

This court will recognize and be governed by the rule of practice in a state court prescribing the requirements to be observed in order to save a question for review in that court. Erie Railroad Co. v. Purdy, 185 U. S. 148.

According to the well settled rule of practice in the Supreme Court of Illinois, every error must be specifically pointed out in the assignments of error, and an error not assigned is not open to review. Berry v. City of Chicago, 192 Illinois, 154; Skakel v. People, 188 Illinois, 291; Gibler v. City of Mattoon, 167 Illinois, 18. Errors assigned, but not noticed or relied on in the brief and argument of counsel, will be regarded as waived or abandoned. Lewis v. King, 180 Illinois, 259, 266; Dorn v. Ross, 177 Illinois, 225, 228; Keyes v. Kimmell, 186 Illinois, 109, 114; Harris v. Shebek, 151 Illinois, 287, 294.

Even though it should be held that the unconstitutionality of the act was sufficiently set up or claimed in the Supreme Court of Illinois to authorize this court to review it, the proposition contended for by plaintiff in error does not involve a Federal, but only a local question. The United States Supreme Court has no power to review a state statute on the ground solely that it is repugnant to the state constitution. Kipley v. Illinois, 170 U. S. 182, 186; Miller v. Cornwall R. R. Co., 168 U.S. 131, 134.

A special assessment is levied under the taxing power of a State, and is a species of taxation. French v. Barber Asphalt Pav. Co., 181 U. S. 324, 343, 344; C. & A. R. R. Co. v. City of Joliet, 153 Illinois, 649; County of Adams v. City of Quincy, 130 Illinois, 566. It is not the province of this court ordinarily to interfere with the policy of the revenue laws of the State or with statutes providing for making local improvements by special assessment. French v. Barber Asphalt Pav. Co., 181 U.S. 324; Witherspoon v. Duncan, 4 Wall. 210, 217; Williams v. Supervisors of Albany, 122 U. S. 154, 164; Shaefer v. Werling, 188 U. S. 516, 517.

[blocks in formation]

The statute fixing the rate of interest on special assessment installments and bonds at five per cent is not unconstitutional, as precluding the right of property owners to contract, through the city, for a less rate. Gage et al. v. City of Chicago, 216 Illinois, 107.

MR. JUSTICE MCKENNA delivered the opinion of the court.

Error to the judgment of the Supreme Court of the State of Illinois affirming a judgment of the County Court of Cook County, confirming an assessment to defray the cost of paving a street in the city of Chicago.

The proceeding was commenced by a petition filed by the city in the County Court of Cook County in accordance with the law of the State. The petition recited an ordinance of the city providing for the improvement of the street, and prayed "that steps be taken to levy a special assessment for said improvements in accordance with the provisions of said ordinance, and in the manner prescribed by law.

An order was made in accordance with the prayer. An assessment and report thereon were duly made with an assessment roll attached, which exhibited the property of plaintiff in error as assessed and the amount for which it was assessed.

In pursuance of notice given to all parties to file objections to the confirming of the assessment roll, plaintiff in error filed objections thereto. Among his objections were the following:

“Said act concerning local improvements, passed June 14, 1897, and all amendments thereto, are not only contrary to the constitution of Illinois, but they are also contrary to the Constitution of the United States and to the Fourteenth Amendment thereof.

“Said act concerning local improvements, said ordinance, which is the basis of the present proceedings, and all documents and orders relating thereto, are contrary to the Constitution of the United States, and to the Fourteenth Amendment thereof, because such act, ordinance, document and orders seek to de prive objector of property without due process of law.

« iepriekšējāTurpināt »