Vandalia R.R. Co. v. Indiana ex rel. City of South Bend, 207 U.S. 359 (1907)

The return of the railway company to the alternative writ of mandamus, after averring the facts constituting the first ground for the assertion that this court has jurisdiction, makes the direct and positive allegation of the existence of a Federal right in the following words: “And this defendant says that in this action it is sought to appropriate its property acquired by virtue of the decree aforesaid rendered in the Circuit Court of the United States, for the District of Indiana, without due process of law and without compensation, in violation of the Fourteenth Amendment of the Constitution of the United States, and this defendant now claims immunity under said Fourteenth Amendment from having its property taken from it by means of this action without compensation and without due process of law.” This would seem to meet even the stringent requirements of the earlier cases in this court, of which Maxwell v. Newbold, 18 How. 511, is an example. Upon this ground, viz.: That the state court decided against the immunity claimed under the constitution, the return leaves nothing to inference but the averments are so p. 361207 U. S. Argument for Defendant in Error.

Whether the construction of the pleading as made by the state Supreme Court, or its finding upon the validity of the contract, were sound or not, is not for inquiry here. The basis of the decision is broad enough in itself to support the final p. 362judgment without reference to the alleged Federal question. Beaupre v. Noyes, 158 U. S. 397, 401; also Klinger y. Missouri, 13 Wall. 257, 263.

This action was commenced by the defendant in error in the Circuit Court of St. Joseph County, Indiana, to compel the Terre Haute and Logansport Railway Company to open its tracks and yards within Calvert street in South Bend, to p. 363make the roadbed conform to the street grade, to plank the crossing of the same, and to make that crossing safe and convenient for the passage of persons and vehicles. While the action was pending in the state courts the Terre Haute company and certain other companies consolidated and formed a new corporation under the name of the Vandalia Railroad Company, which succeeded to all the rights and duties of the original defendant, carried on the further litigation, and is the plaintiff in error.

e demurrer to the writ raised the question whether the ac ion was not founded alone upon the contract created by p. 364of mandamus; also whether the plaintiff could not of itself have constructed the crossing and brought an action for the cost thereof and the penalty as provided in the ordinance, and thereby secured adequate redress without resorting to the extraordinary remedy of mandamus. But obviously these matters are of a local nature and present no question under the Federal Constitution.

The return of the defendant alleged that at the time the original franchise was granted the place at which the improvement of the crossing was sought to be compelled by this action was outside the limits of the city of South Bend; that in 1887 it was taken into the corporate limits of the town of Myler, and thereafter, in 1892, said town of Myler was annexed to and became a part of the city of South Bend; that before this annexation and while the town of Myler existed certain parties filed with the board of trustees of that town a petition for the establishment of a street, at first called Elmira, but afterwards Calvert street, over the ground where the plaintiff now claims said street is located; that the Terre Haute and Logansport Railroad Company, then the owner of the real estate, had no notice of the proceedings had for the establishment of said street and took no part therein; neither did it receive any compensation on account thereof ; that prior thereto that company had placed a trust deed on the property, which, after the attempted establishment of the street, was foreclosed by suit in the United States Circuit Court for the State and District of Indiana, and the property purchased by one Joshua T. Brooks, who directed a conveyance to the Terre Haute and Logansport Railway Company, the defendant herein; that neither the trustee in said trust deed nor any holder of bonds secured by it was a party to .the proceedings for the establishment of said street, nor was any notice of said proceedings given to said trustee or any bondholder, nor did either have any knowledge thereof; that no damages for the opening of the street were assessed or tendered to either, and that at the time of the purchase of the property and the payment of the p. 365purchase price neither the purchaser nor the railroad company nor the defendant had any knowledge of the proceedings to locate and open the said street. A violation of the Fourteenth Amendment was in terms claimed in that an appropriation of its property acquired by the proceedings in the Federal court was sought to be made without compensation. The return further set forth that, springing out of these facts, there was a dispute between the railroad company and the city of South Bend as to the validity of the proceedings for the opening of said street, and that “ on January 17, 1902, for the purpose of adjusting and settling the said conflicting claims of the relator and settling the said conflicting claims of the relator and the defendant, the relator, acting by its then board of public works, made and entered into a contract whereby the defendant agreed to construct a steel viaduct, above and across its tracks at said Elmira street where claimed by the relator, and the relator agreed to construct the approaches thereto and each agreed to perform the other agreements set forth in said contract, which is in writing and which was reported to the common council of said city of South Bend, which, by ordinance duly passed and enacted, ratified and approved said contract. Said ordinance and said contract are in the following words and figures, to wit: ‘Ordinance. An ordinance ratifying a contract between the Department of Public Works and the Terre Haute and Logansport Railway. Be it ordained by the Common Council of the City of South Bend, that the within contract, made on the 17th day of January, 1902, between the Department of Public Works and the Terre Haute and Logansport Railway Company is hereby ratified and approved. This agreement made this 17th day of January, 1902, between the City of South Bend, by and through its Board of Public Works, and the Terre Haute and Logansport Railway Company. Witnesseth,’ ” etc. The return further averred that the defendant was ready at all times to construct the said viaduct according to said contract and ordinance, but the city had not performed any of the agreements contained p. 366in said contract to be performed by it, and that it had not given to the defendant any written or other notice to construct the viaduct according to the provisions of said contract.

It is now contended on the part of the defendant in error that no Federal question was passed upon by the Supreme Court of the State and that, therefore, the writ of error should be dismissed, while the plaintiff in error insists that there arc two Federal questions; first, whether the state court gave due effect to the proceedings of the Federal court in the foreclosure and sale of the property under the trust deed; and second, whether the proceedings for the opening of the street were had without notice to the defendant and its predecessor, and so operated to take private property without compensation. This involves a consideration of the meaning and scope p. 367of the return. It is true that in that return it is alleged that no notice was given to the railroad company or its predecessor or the trustee in the trust deed or any bondholder, and that therefore there was no valid appropriation of the property of the railroad company to street purposes. It is also stated that by the foreclosure proceedings in the Federal court the full title to the property passed to the defendant, a title which in its origin antedated the attempt to open the street. But the Supreme Court held that these were merely matters of inducement leading up to the making of the contract for a viaduct; that they were only presented for the purpose of showing the state of the controversy, which was settled between the parties by the making of this alleged contract. In other words, it did not pass upon the Federal questions, but held that they were put entirely out of the case by facts set forth in the return presenting a question obviously not of a Federal character.

There is no suggestion in the record that any of these quesvol . ccvn—24 p. 370tions were raised at any stage below, except in an agreement of counsel that the full record showed that before any evidence was received the plaintiff in error asked leave to withdraw his plea of not guilty and substitute the statement that he did not know how to plead, which was denied, and that he objected to the reception of any evidence in support of the complaint, because it was incapable of being sustained by evidence, which objection was overruled. There was a motion for rehearing, on the grounds set out in the assignment of error, but as the motion was denied, that cannot be relied upon here. See McMillen v. Ferrum Mining Co., 197 U. S. 343. It would be going far in allowance for different habits of thought and action, to treat what was done as equivalent to a demurrer. The court below does not so interpret it, but says that no exception was taken to the sufficiency of the complaint. It would be going farther to treat it as setting up the Philippine bill of rights in analogy to a claim of constitutional rights in a Circuit Court of the United States. If a case is brought up from the Circuit Court on the ground that it involves the construction or application of the Constitution of the United States, the record must show that the question was raised for the consideration of the court below. Carey v. Houston & Texas Central Ry. Co., 150 U. S. 170, 181; Ansbro n . United States, 159 U. S. 695; Cornell v. Green, 163 U. S. 75, 78; Cincinnati, Hamilton & Dayton R. R. Co. v. Thiebaud, 177 U. S. 615, 619, 620; Arkansas v. Schlierholz, 179 U. S. 598. The most that could be gathered from this record is that the plaintiff in error contended that the complaint was bad by the rules of criminal pleading. See Cornell v. Green, 163 U. 8. 75, 79. There was no hint that he relied on the bill of rights or contended that the complaint would not satisfy that. The bill of rights, in all probability, was an afterthought when everything else had failed.

Our consideration of the case properly might stop here. But, as the rule laid down probably was not well known, we will add that we find nothing in the errors assigned. The p. 371complaint, however open it might be to criticism on demurrer, supposing the strict rules of the old common law should be applied, would leave no doubt in the mind of any person of rudimentary intelligence that it meant to charge the defendant with falsely entering on the stubs of certain specified tax certificates smaller sums than those shown by the certificates and actually received by him, and with altering such stubs to lower sums, with intent of gain; (that is to say, with intent to settle his accounts as a public officer on the showing that less was due than was due in fact), contrary to Article 300, clauses 4, 6 and 7 of the Penal Code.1 If the Philippine Code had sanc-