Dewey v. City of Des Moines

• Decision Date: 27 February 1899
• Docket Number: No. 122,122
• Citation: 43 L.Ed. 665,19 S.Ct. 379,173 U.S. 193
• Parties: DEWEY v. CITY OF DES MOINES et al
• Court: U.S. Supreme Court

173 U.S. 193

19 S.Ct. 379

43 L.Ed. 665

DEWEY

v CITY OF DES MOINES et al.

No. 122.

February 27, 1899.

The petition in this case was filed by the plaintiff in error to set aside certain assessments upon his lots in Des Moines, in the state of Iowa, which had been imposed thereon for the purpose of paying for the paving of the street upon which the lots abutted, and to obtain a judgment enjoining pro- ceedings towards their sale, and adjudging that there was no personal liability to pay the excess of the assessment above the amount realized upon the sale of the lots.

The petition alleged that the petitioner was at all times during the proceedings mentioned a resident of Chicago, in the state of Illinois, and that he had no actual notice of any of the proceedings looking towards the paving of the street upon which his lots abutted; that the street was paved under the direction of the common council, which decided upon its necessity, and the expense was, by the provisions of the Iowa statute, assessed upon the abutting property, and the lot owner made personally liable for its payment; that the expense of the improvement was greater than the value of the lots assessed, and the common council knew it would be greater when the paving was ordered.

Various other facts were set up touching the invalidity of the assessment upon the lots, but no allegation was made attacking its validity by reason of any violation of the federal constitution. Under stipulation of the parties, various allegations of fraud upon the part of the members of the common council, which had been included in the petition, were withdrawn, and the allegations of the petition as thus amended were not denied.

The contractor who did the work of paving the street was made a party to this proceeding, and he set up a counterclaim asking that the certificates given him by the city in payment for his services, and which by statute were made a lien upon the lots abutting upon the street, might be foreclosed, and the lots sold, and a personal judgment pursuant to the same statute rendered against the plaintiff in error.

By stipulation, certain motions, which were made to strike out allegations in the petition, were treated as demurrers to the petition, and the case was thus placed at issue.

Upon the trial the district court of Polk county gave judgment dismissing the petition, with costs, and in favor of the contractor on his counterclaim, foreclosing the lien of the latter, and ordering the sale of the lots, and the judgment also provided for the issue of a personal or general execution against the plaintiff in error to collect any balance remaining unpaid after sale of the lots.

Plaintiff took the case to the state supreme court, and there made an assignment of errors, one of which is as follows:

'The court erred in holding and deciding that plaintiff was personally liable to said Des Moines Brick-Manufacturing Company for so much of said special tax or assessment as could not or would not be realized by a sale of the sixty lots in question on special execution, and in ordering and adjudging that a general execution should issue against plaintiff, and in favor of said Des Moines Brick-Manufacturing Company, for the balance of such tax or assessment; and, further, that, as plaintiff was at all times a nonresident of the state of Iowa, and had no personal notice or knowledge of the assessment proceedings, that the imposition of a personal liability against him, in excess of the value of all the lots, was not due process of law, and was in contravention of the provisions on that subject of the fourteenth amendment to the constitution of the United States, as well as in contravention of the provisions of the constitution of the state of Iowa on the same subject.'

The supreme court affirmed the judgment of the district court (70 N. W. 605), and plaintiff brought the case here by writ of error.

A. E. Harvey, for plaintiff in error.

N. T. Guernsey, for defendants in error.

Mr. Justice PECKHAM, after stating the facts, delivered the opinion of the court.

The only one of the assignments of error made in the state supreme court which has reference to any federal question is the one set forth in the statement of facts, and it will be seen that such assignment relates solely to the validity of the provision for the personal liability imposed upon plaintiff in error by the judgment of the district court. None of the other assignments of error involves any federal question.

In the brief for plaintiff in error in this court it is said that the 'counsel for plaintiff in error in the state court seem to have relied upon one single proposition only as involving a federal question, to wit: As plaintiff was at all times a nonresident of the state of Iowa, and had no personal notice or knowledge of the assessment proceedings, the imposition of the personal liability against him in excess of the value of all the lots was not due process of law, and was in contravention of the provisions upon that subject of the fourteenth amendment of the constitution of the United States.'

The counsel, however, does not confine himself in this court solely to a discussion of the federal question which was contained in the assignment of error above set forth, and which was argued in the court below, regarding the validity of a personal judgment; but counsel claims the further right to attack the validity of the assessment upon the lots themselves, because, as he asserts, it was laid without regard to any question of benefits, and that it exceeds the actual value of the property assessed, and that, even if permitted by the statute of Iowa, such an assessment constitutes a taking, under the guise of taxation, of private property for public use, without just compensation, and is therefore void, under the federal constitution, as amounting to a taking of property without due process of law.

This is a very different question from that embraced in the assignment of errors and argued in the supreme court of the state.

It is objected on the part of the defendant in error that, as this is a review of a judgment of a state court, this second question cannot be raised here, because it was not raised in the courts below and was not decided by either of them.

Reference to the poinion of the supreme court of the state shows that it was not therein discussed or decided. If the question were only an enlargement of the one mentioned in the assignment of errors, or if it were so connected with it in substance as to form but another ground or reason for alleging the invalidity of the personal judgment, we should have no hesitation in holding the assignment sufficient to permit the question to be now raised and argued.

Parties are not confined here to the same arguments which were advanced in the courts below upon a federal question there discussed. Having, however, raised only one federal question in the court below, can a party come into this court from a state court, and argue the question thus raised, and also another not connected with it, and which was not raised in any of the courts below, and does not necessarily arise on the record, although an inspection of the record shows the existence of facts upon which the question might have een raised?

The two questions, the one as to the invalidity of the personal judgment, and the other as to the invalidity of the assessment upon the lots, are not in any wise necessarily connected, any more than that they both arise out of the proceedings in paving the street and in levying the assessment. The assessment upon the lots might be valid, while the provision for a personal judgment might be void, each depending upon different principles, and the question as to the invalidity of the personal judgment might, as in this case, be raised and argued without in any manner touching the question as to the invalidity of the assessment upon the lots.

In Oxley Stave Co. v. Butler Co., 166 U. S. 648, 17 Sup. Ct. 709, it was held that the federal question must be specially taken or claimed in the state court; that the party must have the intent to invoke, for the protection of his rights, the constitution or some statute or treaty of the United States; and that such intention must be declared in some unmistakable manner, and unless he do so this court is without jurisdiction to re-examine the final judgment of the state court upon that matter. See also Levy v. Superior Court of San Francisco, 167 U. S. 175, 17 Sup. Ct. 769; Kipley v. Illinois, 170 U. S. 182, 18 Sup. Ct. 550. In other words, the court must be able to see clearly from the whole record that a provision of the constitution or act of congress is relied upon by the party who brings the writ of error, and that the right thus claimed by him was denied. Bridge Pro- prietors v. Hoboken Co., 1 Wall. 116, 143. In the case at bar no claim was made in the state court that the assessment upon the lots was invalid, as in violation of any provision of the federal constitution.

Nor does the record herein show, by clear and necessary intendment, that the federal question must have been directly involved, so that the state court could not have given judgment without deciding it. In such case it has been held that the federal question sufficiently appears. Green Bay & M. Canal Co. v. Patten Paper Co., 172 U. S. 58, 68, 19 Sup. Ct. 97, and cases cited. In substance, the validity of the statute or the right under the constitution must have been drawn in question. Powell v. Brunswick Co., 150 U. S. 433, 14 Sup. Ct. 166; Sayward v. Denny, 158 U. S. 180, 15 Sup. Ct. 777. The latest decision to this effect is Capital Nat. Bank of Lincoln v. First Nat. Bank of Cadiz, 172 U. S. 425, 19 Sup. Ct. 202.

Although no particular form of words is necessary to be sued in order that the federal question may be said to be involved, within the meaning of the cases on this subject, there yet must be something in the case...