The question whether a special act of a state legislature
chartering a power company contravenes the equal protection and
privileges and immunities clauses of the Fourteenth Amendment
because it grants powers of eminent domain not conferred on a rival
company organized under a general law is not necessarily decided by
a ruling of a state trial court, in a suit by the former company
against the latter to quiet title, admitting the special charter in
evidence over defendant's objection that it is void under the state
bill of rights and constitution and violates the Fourteenth
Amendment, nor is such question raised in the state supreme court
by an assignment alleging merely that the trial court erred in
admitting such evidence, and not mentioning the Amendment. P.
252 U. S.
342.
A constitutional question not presented by assignment of errors
or otherwise, or passed upon, in the state supreme court does not
afford jurisdiction under Jud.Code, § 237; an attempt to raise it
by the petition for a writ of error from this Court and the
assignment filed here is too late, and allowance of the writ by the
chief justice of the state court does not cure the omission. P.
252 U. S.
343.
Writ of error to review 175 N.Car. 668 dismissed.
The case is stated in the opinion.
Page 252 U. S. 342
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
The Carolina-Tennessee Power Company, a public utility, was
incorporated by a private law of North Carolina with broad powers,
including that of taking by eminent domain riparian lands of and
water rights in any nonnavigable stream of the state. It filed
locations for two hydroelectric plants on the Hiawassee River and
proceeded to acquire by purchase and by condemnation the lands and
water rights necessary for that development. Thereafter, the
Hiawassee River Power Company was organized under the general laws
of the state, and threatened to locate and develop on that river
hydroelectric plants which would necessarily interfere with the
development undertaken by the Carolina-Tennessee Company. The
latter brought in the Superior Court of Cherokee County a suit in
the nature of a bill to quiet title. The case was tried in that
court with the aid of a jury. Many issues of fact were raised, and
many questions of state law presented. A decree entered for the
plaintiff below was reversed by the supreme court of the state, and
a new trial was ordered.
Carolina-Tennessee Power Co. v.
Hiawassee River Power Co., 171 N.C. 248. The second trial
resulted also in a decree for plaintiff below which was affirmed by
the state supreme court. 175 N.C. 670. The case comes here on writ
of error.
The federal question relied upon as giving jurisdiction to this
Court is denial of the claim that the private law incorporating the
Carolina-Tennessee Company is invalid, because it conferred upon
that company broad powers of eminent domain, whereas the general
law, under which the Hiawassee Company was later organized
conferred no such right, the contention being that thereby the
guaranty of the Fourteenth Amendment of privileges and immunities
and equal protection of the laws had been violated. But this claim
was not presented to nor passed upon by the
Page 252 U. S. 343
supreme court of the state. The only basis for the contention
that it was so presented is the fact that, when the
Carolina-Tennessee Company offered in evidence at the trial in the
superior court the private law as its charter, objection was made
to its admission
"on the ground that the same was, in terms and effect, a
monopoly, and a void exercise of power by the state legislature
which undertook to provide it, it being opposed and obnoxious to
the bill of rights and the Constitution and in violation of the
Fourteenth Amendment,"
and that the admission of this evidence is among the many errors
assigned in the supreme court of the state. The law, whether valid
or invalid, was clearly admissible in evidence, as it was the
foundation of the equity asserted in the bill. No right under the
federal Constitution was necessarily involved in that ruling. The
reference to the "bill of rights and the Constitution" made when
objecting to the admissibility of the evidence was to the state
constitution, and the point was not again called to the attention
of that court.
Compare Hulbert v. Chicago, 202 U.
S. 275,
202 U. S.
279-280. The claim of invalidity under the state
constitution was specifically urged in that court as a reason why
the Carolina-Tennessee Company should be denied relief, and the
claim was passed upon adversely to the plaintiff in error, but no
reference was made in that connection to the Fourteenth
Amendment.
If a general statement that the ruling of the state court was
against the Fourteenth Amendment were a sufficient specification of
the claim of a right under the Constitution to give this Court
jurisdiction (
see Clarke v. McDade, 165 U.
S. 168,
165 U. S. 172;
Capital City Dairy Co. v. Ohio, 183 U.
S. 238,
183 U. S. 248;
Marvin v. Trout, 199 U. S. 212,
199 U. S. 217,
199 U. S.
224), still the basis for a review by this Court is
wholly lacking here. For the Fourteenth Amendment was mentioned
only in the trial court. In the supreme court of the state, no
mention was made of it in the assignment of errors, nor was it, so
far as appears by the record, otherwise presented to or
Page 252 U. S. 344
passed upon by that court. The denial of the claim was
specifically set forth in the petition for the writ of error to
this Court and in the assignment of errors filed here. But
obviously that was too late.
Chicago, Indianapolis &
Louisville Ry. Co. v. McGuire, 196 U.
S. 128,
196 U. S. 132.
The omission to set it up properly in the supreme court of the
state was not cured by the allowance of the writ of error by its
chief justice.
Appleby v. Buffalo, 221 U.
S. 524,
221 U. S. 529;
Hulbert v. Chicago, 202 U. S. 275,
202 U. S. 280;
Marvin v. Trout, 199 U. S. 212,
199 U. S.
223.
We have no occasion, therefore, to consider whether the claim of
denial of rights under the Fourteenth Amendment was substantial in
character, which is required to support a writ of error.
Equitable Life Assurance Society v. Brown, 187 U.
S. 308,
187 U. S. 311.
Compare Henderson Light & Power Co. v. Blue Ridge
Interurban Ry. Co., 243 U. S. 563.
Dismissed for want of jurisdiction.