the United States, and denied the right. | ber entered a motion before that court to quash the writ because the decree on which So far the conditions of the power of review by this court existed. A right under the Constitution of the United States was specially set up and the right was denied. Was it set up in time? It has been repeat-ments thereto. The motion was denied and edly decided by this court that to suggest or set up a Federal question for the first time in a petition for a rehearing in the highest court of a state is not in time. Texas & Pacific Railway Co. v. Southern Pacific Railroad Co. 137 U. S. 48, 54 [34: 614, 617]; Butler v. Gage, 138 U. S. 52 [34: 869]; Win-cuted a writ of error to this court assigning ona & St. Peter Railroad Co. v. Plainview, 143 U. S. 371 [36: 191]; Leeper v. Texas, 139 U. S. 462 [35: 225]; Loeber v. Schroeder, 149 U. S. 580 [37: 856]. In all of these cases the Federal question was not presented in any way to the lower court nor to the higher court until after judgment. It is not, therefore, decided that a presentation to the lower court at some stage of the proceedings and in accordance with its procedure, and a presentation to the higher court before judgment, would not be sufficient. In Loeber v. Schroeder the court of appeals of Maryland, having before it for review a judgment of one of the lower state courts, reversed such judgment, and, having denied a rehearing on April 28, 1892, issued its order for a fieri facias against Loeber for the amount of the judgment decreed returnable to the lower court. On April 29, 1892, Loe the expense thereof shall be a debt against the said company recoverable as debts are now recoverable by the city of Richmond. Sixth. The said company doth, by exercising the privileges herein granted, agree and bind itself and its assigns to make no claim to the land now occupied by that portion of Eighth street to be closed, on account of said closing or the privileges herein granted, and doth fully recognize and admit the right of the said city to reopen the said Eighth street at any time, according to the provisions of this ordinance. Seventh. Nothing in this ordinance shall conflict in any way with the ordinance approved May 12, 1886, granting permission to the Richmond & Chesapeake Railroad Company to construct a tunnel under Eighth street; and should the bridge constructed under this ordinance obstruct in any manner the said tunnel or tracks leading thereto, it shall be changed by the said Richmond & Alleghany Railroad Company withIn sixty days after receipt of notice from the committee on streets of the said city council requiring such change to be made. A copy. Teste: Ben. T. August, City Clerk. Virginia Acts of Assembly, 1869-'70, pp. 120146. Sec. 19. The city council shall have, subject to the provisions herein contained, the control and management of the fiscal and municipal affairs of the city and of all property, real and personal, belonging to the said city; and may make such ordinances, orders, and by-laws, relating to the same, as it shall deem proper and necessary. They shall likewise have the power to make such ordinances, by-laws, orders, and regulations as they may deem desirable to carry out the following powers which are hereby vested in them: the unconstitutionality of the state law sustained by the court of appeals. Mr. Justice Jackson, who delivered the opinion of the court, said: "The motion to quash the fi. fa. in this case on the grounds that the order of the court of appeals, which directed it to be issued, was void for the reasons assigned, stood on no better footing than a petition for rehearing would have done and suggested Federal questions for the first time, which, if they existed at all, should have been set up and interposed when the decree of the court of appeals was rendered on January 28, 1892. In other words, should have been urged when the case was pending and before its decision. It is an inference from the opinion that, if this had been done, the Federal question would have been claimed in time. In Chicago, Burlington & Q. R. Co. v. Chicago, 166 U. S. 226 [41: 979], the right VII. To close or extend, widen or narrow, lay out and graduate, pave and otherwise improve streets and public alleys in the city, and have them properly lighted and kept in good order; and they shall have over any street or alley in the city, which has been or may be ceded to the city, like authority as over other streets or alleys. They may build bridges in and culverts under said streets, and may prevent or remove any structure, obstruction, or encroachment over or under, or in a street or alley, or any sidewalk thereof, and may have shade trees planted along the said streets; and no company shall occupy with its work the streets of the clty without the consent of the council. In the meantime no order shall be made and no injunction shall be awarded, by any court or judge, to stay the proceedings of the city in the prosecution of their works, unless it be manifest that they, their officers, agents, or servants are transcending the authority given them by this act, and that the interposition of the court is necessary to prevent injury that cannot be adequately compensated in damages. Sec. 22. The council shall not take or use any private property for streets or other public purpose without making to the owner or owners thereof just compensation for the same. But in all cases where the said city cannot by agreement obtain title to the ground necessary for such purposes, it shall be lawful for the said city to apply to and obtain from the circuit or county court of the county in which the land shall be situated, or to the proper court of the city having jurisdiction of such matters, if the subject lies within this city, for authority to condemn the same; which shall be applied for and proceeded with as provided by law. under the Constitution of the United States | Constitution and laws of Virginia as well as the prohibition of the Constitution of the The similarity of that case to the case at bar is apparent. In both, the constitutional [94] right was claimed in such manner as to bring it to the attention of the lower court, and its decision was necessarily adverse to such right. In both it was reasserted in the assignment of errors to the higher court, and there again in both the effect of the judg ment was to declare the right not infringed by the proceedings in the case. This court, therefore, has jurisdiction, and we proceed to the consideration of the merits. The plaintiff's constitutional claim is under that provision of the Fourteenth Amendment, which prohibits a state from depriving any person of property without due process of law, and he avails himself of it by the contention (which we give in his own language): The plaintiff quotes Western Union Telegraph Co. v. Williams, 86 Va. 696 [8 L. R. A. 429]; Hodges v. Seaboard & R. Railroad Co. 88 Va. 656; Norfolk City v. Chamberlaine, 29 Gratt. 534; Bunting v. Danville, 93 Va. 200. The case at bar is not within the principle of these cases. These were concerned with erections immediately in front of the abutting owner's property, and it was held that he owned to the middle of the highway, subject only to the easement of the latter; that it was for the easement only for which he was compensated, and that any other use was an additional servitude and its authorization illegal unless paid for. In Home Building & C. Co. v. Roanoke, 91 Va. 52 [27 L. R. A. 551], the city of Roanoke authorized the erection of a bridge across a street in the city and itself constructed the approaches to it. These approaches were sixteen feet high and thirty-five wide, but did not extend to either side of the street, but left on each side about seven and onehalf feet unoccupied on Randolph street, on which the complainant's lot was situated, available for its use and that of the public. It was held that the city was not liable. The substantial thing is not that one may be damaged by an obstruction in a street,not that one may be specially damaged beyond others, but is such damage a depriva"That under the Constitution and laws of tion of property within the meaning of the the state of Virginia, the free and uninter- constitutional provision? According to the rupted use of highways, once dedicated to Virginia cases an additional servitude may and accepted by the public, or acquired by the be said to be another physical appropriation, right of eminent domain, are for continuous and hence another taking, and must be compublic use, and that, when relying upon that pensated. But the plaintiff's case is not fact, important public and private property within this doctrine, nor is there anything in rights have been acquired, the highway can- the decisions of Virginia which makes consenot be permanently diverted to a private use quential damages to property a taking withwithout proper compensation being made to in the meaning of the Constitution of that those injured, and as a consequence, any per- state. Decisions in other states we need not son or persons so diverting such highway are resort to or review. Those of this court furtrespassers and liable in damages to the par-nish a sufficient guide. Northern Transporties injured." The proposition is very general. To make it available to plaintiff in error it must be held to cover and protect an owner whose property abuts on one part of a street from damage from obstruction placed in another part of the street and not opposite his property-not only a physical taking of his property, but damages to it-not only direct damages, but consequential damages. All of these aspects of the proposition seem to be rejected by the decision of the supreme court of appeals of Virginia on the plaintiff's petition for writ of error. The petition submitted for decision the power of the city of Richmond to make or authorize the obstruction complained of under its charter, and the tation Co. v. Chicago, 99 U. S. 635 [25: 336]; In Northern Transportation Company v. Chicago it was decided "that acts done in the proper exercise of governmental power and not directly encroaching on private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision." Removing any apparent antago nism of this proposition to Pumpelly v. Green Bay & M. Canal Co. 13 Wall. 166 [20: 557], and Eaton v. Boston, Concord & Montreal Railroad Co. 51 N. H. 504 [12 Am. Rep. 147], it was further said that in those cases "the extremest qualification of the doctrine is to be found, perhaps," and they were discriminated by the fact that in them there was a permanent flooding of private property, hence a "taking" "a physical invasion of the real estate of the owners and a practical ouster of his possession." In Marchant v. Pennsylvania Railroad Co. the plaintiff owned a lot on the north side of Filbert street, Philadelphia; the railroad erected an elevated railroad on the south side of the street and opposite plaintiff's property. It was held by the supreme court of Pennsylvania, reversing the trial court, that for the damages hence resulting the plaintiff could not recover. The case was brought to this court by writ of error, the plaintiff urging that her property had been taken with In Chicago v. Taylor, Taylor sued to recover damages sustained by reason of the construction by the city of a viaduct in the immediate vicinity of his lot. The construc-out due process of law. The judgment was tion of the viaduct was directed by special ordinances of the city council. The facts were: "For many years prior to, as well as at, the time this viaduct was built, the lot in question was used as a coal yard, having upon it sheds, machinery, engines, boilers, tracks, and other contrivances required in the business of buying, storing, and selling coal. The premises were long so used, and they were peculiarly well adapted for such business. There was evidence before the jury tending to show that, by reason of the construction of the viaduct, the actual market value of the lot, for the purposes for which it was specially adapted, or for any other purpose for which it was likely to be used, was materially diminished, access to it from Eighteenth street being greatly obstructed, and at some points practically cut off; and that, as a necessary result of this work, the use of Lumber street, as a way of approach to the coal yard by its occupants and buyers, and as a way of exit for teams carrying coal from the yard to customers, was seriously impaired. There was also evidence [97] tending to show that one of the *results of the construction of the viaduct, and the approaches on either side of it to the bridge over Chicago river was, that the coal yard was often flooded with water running on to it from said approaches, whereby the use of the premises as a place for handling and storing coal was greatly interfered with, and often became wholly impracticable. "On behalf of the city there was evidence tending to show that the plaintiff did not sustain any real damage, and that the inconveniences to occupants of the premises, resulting from the construction and maintenance of the viaduct, were common to all other persons in the vicinity, and could not be the basis of an individual claim for damages against the city." affirmed. The court, by Justice Shiras, said: "In reaching the conclusion that the plaintiff, under the admitted facts in the case, had no legal cause of action, the supreme court of Pennsylvania was called upon to construe the laws and Constitution of that state. The plaintiff pointed to the tenth [98] section of article 1 of the Constitution, which provided that 'private property shall not be taken or applied to public use, without authority of law, and without just compensa. tion being first made or secured;' and to the eighth section of article 16, which contains the following terms: 'Municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured, or destroyed, by the construction or enlargement of their works, highways, or improvements, which compensation shall be paid or secured before such taking, injury, or destruction.' "The first proposition asserted by the plaintiff, that her private property has been taken from her without just compensation having been first made or secured, involves certain questions of fact. Was the plaintiff the owner of private property, and was such property taken, injured, or destroyed by a corporation invested with the privilege of taking private property for public use? The title of the plaintiff to the property affected was not disputed, nor that the railroad company was a corporation invested with the privilege of taking private property for public use. But it was adjudged by the supreme court of Pennsylvania that the acts of the defendant which were complained of did not, under the laws and Constitution of the state, constitute a taking, an injury, or a destruction of the plaintiff's property. "We are not authorized to inquire into the grounds and reasons upon which the supreme court of Pennsylvania proceeded in its construction of the statutes and Constitution of that state, and if this record presented no other question except errors alleged to have been committed by that court in its construction of its domestic laws, we should be obliged to hold, as has been often held in like cases, that we have no jurisdiction to review the judgment of the state court, and we should have to dismiss this writ of error for that reason." There was a verdict and judgment against the city, and this was sustained. The tenor of the decision is, that the damages were consequential, and the difference of the ruling from that in Northern Transportation Co. v. Chicago was explained and based upon a change in the Constitution of the state of Illinois, which enlarged the prohibition to the damaging as well as to the taking of private property for public use, and its interpretation by the supreme court of the state "that it does not require that the damage shall be In Gibson v. United States a dike was concaused by a trespass, or an actual physical structed in the Ohio river under the authori invasion of the owner's real estate; but if the ty of certain acts of Congress for the imconstruction and operation of the improve-provement of rivers and harbors. The conment is the cause of the damage, though con- struction of said dike by the United States sequential, the party may recover." substantially destroyed the *landing of Mrs. [99] Gibson by preventing ingress and egress to of the state courts discloses that a Federal [99] *Mr. Chief Justice Fuller, with whom Mr. Justice Gray concurred, dissenting on the question of jurisdiction: I am of opinion that this writ of error should be dismissed. The contention of plaintiff in error is that the validity of the act of the General Assembly of Virginia of May 24, 1870, was drawn in question in the state courts on the ground of repugnancy to the Constitution of the United States, and that the decision of the court of appeals was in favor of its validity. The validity of a statute is drawn in question when the power to enact it is denied, and a definite issue in that regard must be distinctly deducible from the record in order for this court to hold that the state courts have adjudicated as to the validity of the enactment under the Constitution. This case had gone to judgment, and a motion to set aside the judgment had been made and denied, before it was suggested that the act was inconsistent with the Federal Constitution. And that question was then attempted to be raised by a second motion to vacate. But the disposal of motions of this class is within the discretion of the trial court, and only revisable by the appellate tribunal, if at all, when there is a palpable abuse of discretion. Whether the trial court, in this instance, overruled the second motion because a second motion of that sort, without special cause shown, could not be entertained, or be[100]cause of unreasonable delay, it is impossible to say, and to impute to that court the decision of a Federal question when it obviously may have considered that the point was presented too late, seems to me wholly inadmissible. And although in his petition to the court of appeals, plaintiff in error recited the action he had taken, and urged that the trial court had erred in sustaining the demurrer to his declaration, and in refusing to set aside the judgment so that the constitutional question suggested might be passed on, that court, in the exercise of appellate jurisdiction only, may well have concluded that the discretion of the court below could not be interfered with. It does not follow from the bare fact that this second motion presented in terms a single point that that point was disposed of in denying the motion, when other grounds for such denial plainly existed. It is thoroughly settled that if the record what particular ground was pressed and In Klinger v. Missouri, 13 Wall. 257 [20: We have held that the question whether a party has by laches and acquiescence waived the right to insist that a state statute impaired the obligation of a contract is not a 02] Federal question. Pierce v. Somerset Rail-a judgment of said court in favor of the way Company, 171 U. S. 641 [ante, 316]. And, certainly, in view of the careful language of § 709 of the Revised Statutes, we ought not to take jurisdiction to revise a judgment of a state court, where a party seeks to import a Federal question into the record, after judgment, by an application so palpably open to decision on non-Federal grounds. I am authorized to state that Mr. Justice Gray concurs in this dissent. A. A. MCCULLOUGH, Plff. in Err., v. COMMONWEALTH OF VIRGINIA. Commonwealth of Virginia, and reversing Statement by Mr. Justice Brewer: *On March 30, 1871, the general assembly[103] of the state of Virginia passed an act for the refunding of the public debt. (Va. Acts Assembly, 1870-71, p. 378. See also act of March 28, 1879; Va. Acts Assembly, 1878-79, p. 264.) This act, which authorized the is sue of new coupon bonds for two thirds of the old bonds, leaving the other third (See S. C. Reporter's ed. 102-133.) as the basis of an equitable claim upon the state of West Virginia, contained this proviVirginia law that coupons of bonds shall be sion: "The coupons shall be payable semireceived for taxes, etc., is valid-decision annually, and be receivable at and after maof state court, when not binding on Fed-turity for all taxes, debts, dues, and deeral court-special taxes-Federal ques-mands due the state, which shall be so extion-limits of review of state judgments -costs-vested right not taken away by repeal of statute. 1. The coupon provision of Va. act March 30, 8. validity of a state statute which constitutes courts. A state statute authorizing state coupons to be received for all taxes is not wholly void because certain special taxes and dues are, by the existing state Constitution, required to be paid in cash. 4. The decision of a state court denying the validity of a state statute which creates a contract, and giving effect to subsequent statutes which impair the obligation of the contract, presents a Federal question which this court may review, although the state court in its opinion considers only the statute which it holds void, and does not discuss the later statutes. In reviewing the judgment of the courts of a state, this court is not limited to a mere consideration of the language used in the opinion, but may examine and determine what is the real substance and effect of the decl sion. pressed on their face." Under this act a At the time the act of 1871 was passed and the new bonds and coupons were issued, the court of appeals of the state had jurisdiction to grant a mandamus in any action where the writ would lie according to the principles 22 Gratt. 883, it was held by that court that of the common law, and *in Antoni v. Wright [104]| mandamus was the proper remedy to compel 7. A rightful judgment against the state gives the collector to accept coupons offered in paya vested right which cannot be taken away ment of taxes. On January 14, 1882, the aspending writ of error, by a repeal of the stat-sembly passed an act (Acts 1881-82, p. 10), ute which authorized the state to be sued. 6. Judgment for costs cannot be rendered against the plaintiff in an action which has abated. [No. 3.] Submitted November 2, 1896. Ordered for oral argument December 14, 1896. Argued February 21, 23, 1898. Decided December 5, 1898. IN which, in effect, provided that a taxpayer seeking to use coupons in payment of his taxes should pay the taxes in money at the time of tendering the coupons, and thereafter bring a suit to establish the genuineness of the coupons, which, if decided in his fa vor, enabled him to obtain from the treasurer a return of the money paid. The various features of this act are specifically pointed N ERROR to the Supreme Court of Ap-out in Antoni v. Greenhow, 107 U. S. 769 (27: peals of the State of Virginia to review 468]. At the same session, and on January |