Where the constitutional question is obvious from the beginning
and is not open in the supreme court of the state unless taken on
the trial, it cannot be considered here unless it was so taken.
Hulbert v. Chicago, 202 U. S. 275.
Where an assessment could have been levied for a past
improvement against the original owners, purchasers take subject to
the same liability, and such an assessment does not deprive them of
their property without due process of law.
Seattle v.
Kelleher, 195 U. S. 351.
Whether a particular assessment could have been levied for past
improvements if the property had not been sold depends upon the
construction of state statutes, as to which this Court follows the
decisions of the state courts.
The overruling of its earlier decisions by the state court does
not amount to deprivation of property without due process of law
where no vested rights are interfered with.
Muhlker v. Harlem
R. Co., 197 U. S. 544,
distinguished.
On writ of error based on the claim that there was no power to
make the assessment, this Court cannot inquire into the facts as
found by the state court in regard to value of the land taken for,
and the extent of the benefit conferred by, the improvement for
which the land has been assessed.
Writ of error to review 249 Ill. 249 dismissed.
The facts, which involve the jurisdiction of this Court under §
237, Judicial Code, to review a judgment of the state court
confirming a street widening assessment, are stated in the
opinion.
Page 235 U. S. 48
MR. JUSTICE HOLMES delivered the opinion of the Court.
In 1893, a portion of certain land now belonging to the
plaintiffs in error was taken by Chicago for the widening of a
street, and the damages to the owners were fixed by judgment in due
form. Afterwards, an assessment for betterments by reason of the
change was laid upon certain lands in this neighborhood, including
the lots in question, and was confirmed as to the other land. At
the trial with regard to these lots, it was contended by the owner
and ruled in the lower court that the matter was concluded
Page 235 U. S. 49
by the first judgment. This ruling was reversed by the supreme
court of the state (
Chicago v. Mecartney, 216 Ill. 377),
but, by the failure of the city to file the remanding order within
two years, the assessment upon these lots failed. In January, 1910,
the city passed an ordinance for a new assessment, the object of
which was to reach these lots, and a new petition was filed. The
supreme court of the state held that the validity of the assessment
did not depend on the validity of the ordinance, that the petition
was warranted by the former proceedings, and that a judgment for
the amount should be affirmed. 249 Ill. 249.
The error assigned is that the property of the plaintiffs in
error is taken without due process of law, and that the obligation
of their contracts is impaired (they having purchased before this
supplementary proceeding was begun), contrary to the Fourteenth
Amendment and Art. I, § 10, of the Constitution of the United
States. There is a motion to dismiss upon which we must dispose of
the case. The objection which is urged is that there was no
statutory authority for this proceeding, and that the assessment
was imposed by mere judicial fiat that could not have been
anticipated, and that was without warrant of law. If there were
anything in this objection, it was obvious from the beginning, and
as it was not taken at the trial, it was not open in the supreme
court of the state, and could not be considered here.
Hulbert
v. Chicago, 202 U. S. 275. It
is obvious, too, that the state could have authorized the
proceeding followed here, which ordinarily is the only question to
be considered by this Court.
Missouri v. Dockery,
191 U. S. 165.
If the assessment could have been levied against the original
owners of the land, purchasers took subject to the same liability.
Seattle v. Kelleher, 195 U. S. 351. The
question whether it could have been levied if the land had not been
sold depended upon the construction of state
Page 235 U. S. 50
statutes, as to which we follow the decision of the state court.
Even if the court had overruled earlier decisions, it would have
interfered with no vested rights of the plaintiffs in error.
Knox v. Exchange
Bank, 12 Wall. 379,
79 U. S. 383;
Sauer v. New York, 206 U. S. 536;
Moore-Mansfield Constr. Co. v. Electrical Installation
Co., 234 U. S. 619,
234 U. S. 626.
But it does not appear to have done so, and although its decision
may have been unexpected, there was plausible ground for it in the
statutes. We go no further, because there is no question before us
of the kind that was before the Court in
Muhlker v. New York
& Harlem R. Co., 197 U. S. 544, and
Tampa Water Works Co. v. Tampa, 199 U.
S. 241,
199 U. S. 243,
and, in circumstances like these, it is not within our province to
inquire whether the construction was right. It is objected that
less was allowed for the land taken than was charged for the
benefit, but it is quite possible that the benefit was greater than
the loss, and we cannot inquire into the fact.
Writ of error dismissed.
