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 jurisdiction 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.
Page 202 U. S. 278
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 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 deprive objector of
property without due process of law. "
Page 202 U. S. 279
"Said ordinance and proceedings are in other respects illegal,
unconstitutional, and void."
"The proceedings herein and said act are contrary to the
Constitution of the United States and to the Fourteenth Amendment
thereof because the petitioner herein, under and by virtue of said
act and of said proceedings, seeks to deprive these objectors of
their property without due process of law. Said proceedings and
said act are also contrary to the Constitution of the United States
and to the Fourteenth Amendment thereof for the reasons set forth
in the several foregoing objections."
The case came on for hearing before the court, the right of a
jury on the question of benefits having been expressly waived.
Petitioner (defendant in error) introduced the petition,
assessment roll, and notice. They were received in evidence, though
objected to as not complying with or meeting the requirements of
the statute.
Plaintiff in error, to sustain the issues "on the question of
the legal objections," offered in evidence the various resolutions
and proceedings before the board of local improvements. They are
set out in the record, but it is not necessary to quote them. No
other evidence was offered. The court overruled the objections.
On the question of benefits, the same evidence was offered by
the respective parties. Plaintiff in error objected to the
documents offered by the city on the ground that the ordinance was
illegal and void because the first resolution of the board of local
improvements in regard to assessments did not contain an itemized
estimate of the cost of the improvements, made by the engineer, in
the manner and form required by the statute.
The objection was overruled and the assessment confirmed with
some modification not necessary to notice. The judgment was
affirmed by the supreme court of the state.
The bill of exceptions shows that plaintiff in error did not
bring to the attention of the trial court that the act of the state
under which the assessment was made, or any of the proceedings
Page 202 U. S. 280
were contrary to the Fourteenth Amendment to the Constitution of
the United States, nor did he assign as error on appeal to the
supreme court that the rulings of the trial court or its judgments
infringed that amendment.
All the questions submitted to the supreme court and all the
questions passed on by it depended upon the construction of the
statute or the compliance of the proceedings with the statute,
except that it was contended that the sections of the act which
provided for the division of the assessment into installments and
the issue of bonds to anticipate the payment of the installments,
to bear five percent interest, was unconstitutional in that the
legislature had no power to fix the rate of interest and that, by
so doing, a lower rate of interest was prevented and plaintiff in
error thereby deprived of his property without due process of law.
The court decided against both contentions, holding that "the
legislature had the right to fix the rate of interest which said
installments and bonds when issued should bear," and sections 42
and 86 of the local improvement act "are not in conflict with the
constitution." That is, the constitution of the state.
We do not think that the plaintiff in error complied with § 709
of the Revised Statutes in setting up a right under the
Constitution of the United States. The mere claim in the objections
to the confirming of the assessment, never afterwards brought to
the attention of the trial court or of the supreme court, was not
sufficient. There is no evidence in the record to show that the
decision of either of the courts was invoked by plaintiff in error
upon a right claimed under the Constitution of the United
States.
It is urged that in the writ of error and petition for citation
it is stated that certain rights and privileges were claimed under
the Constitution of the United States, and that the Supreme Court
of the State of Illinois decided against such rights and
privileges, and, it is further urged, that the chief justice of the
court allowed the writ of error. This is not sufficient.
Marvin
v. Trout, 199 U. S. 212,
199 U. S.
223.
Page 202 U. S. 281
Nor was a right under the Constitution of the United States
necessarily involved in the determination of the cause. And the
supreme court was justified by its rulings in omitting the
consideration of rights under the Constitution of the United
States. According to the practice of the court, an error not
assigned is not open to review.
Berry v. Chicago, 192 Ill.
154, 155. Errors assigned but not noticed or relied on in the brief
or argument of counsel will be regarded as waived or abandoned.
Keyes v. Kimmel, 186 Ill. 109, 114. And such rule of
practice will be recognized by this Court.
Erie Railroad Co. v.
Purdy, 185 U. S. 148,
185 U. S. 153.
It follows that this Court has not jurisdiction of this writ of
error.
Oxley Stave Co. v. Butler County, 166 U.
S. 648;
Capital City Dairy Co. v. Ohio,
183 U. S. 238;
Chapin v. Fye, 179 U. S. 127.
Writ dismissed.