[235 U.S. 50, 51] Messrs. William B. Sanders and Harold T. Clark for plaintiffs in error.
Messrs. Newton D. Baker, John N. Stockwell, and Arthur F. Young for defendant in error.
Memorandum opinion by Mr. Justice Day, by direction of the court:
The original action was brought by the city of Cleveland, Ohio, to oust the railroad companies, now plaintiffs in error, from the exclusive possession of Bath street, in that city. A number of defenses were set up by the railroad companies, but we are concerned only with the alleged deprivation of Federal right, resulting from the decision of the state court. In the court of original jurisdiction, the common pleas, judgment was rendered in favor of the city. Upon proceedings in error, that judgment was affirmed by the state circuit court, and in the supreme court of the state of Ohio the judgment of the circuit court was affirmed without opinion.
It is now undertaken to bring the case here, because of alleged violation of rights under the Federal Constitution arising by virtue of 10 of article I. of that instrument, preventing the impairment of contract rights by subsequent legislation.
In order to bring a case here under 237 of the Judicial Code [36 Stat. at L. 1156, chap. 231, U. S. Comp. Stat. Supp. 1911, p. 227] ( formerly 709 of the Revised Statutes of the United States [U. S. Comp. Stat. 1901, p. 575]), it is well settled that the Federal right must have been set up and adjudicated against the claimant by the judgment of the state court. It is equally well settled that the contention made and passed upon in the state court cannot be enlarged by assignments of error made to bring the case to this court. This proposition is too well settled to need discussion. First Nat. Bank v. Kentucky, 9 Wall, 353, 19 L. ed. 701; Spies v. Illinois, 123 U.S. 131 , 31 L. ed. 80, 8 Sup. Ct. Rep. 21, 22; Zadig v. Baldwin, 166 U.S. 485 , 41 L. ed. 1087, 17 Sup. Ct. Rep. 639; F. G. Oxley Stave Co. v. Butler County, 166 U.S. 648 , 41 L. ed. 1149, 17 Sup. Ct. Rep. 709; Waters-Pierce Oil Co. v. Texas, 212 U.S. 113 , 53 L. ed. 431, 29 Sup. Ct. Rep. 227; Mallers v. Commercial Loan & T. Co. 216 U.S. 613 , 54 L. ed. 638, 30 Sup. Ct. Rep. 438; Appleby v. Buffalo, 221 U.S. 524 , 55 L. ed. 838, 31 Sup. Ct. Rep. 699.
It is equally well settled that an inpairment of the obligation of the contract, within the meaning of the [235 U.S. 50, 54] Federal Constitution, must be by subsequent legislation, and no mere change in judicial decision will amount to such deprivation. Ross v. Oregon, 227 U.S. 150, 161 , 57 S. L. ed. 458, 463, 33 Sup. Ct. Rep. 220, Ann. Cas 1914C, 224; Moore-Mansfield Constr. Co. v. Electrical Installation Co. 234 U.S. 619, 624 , 58 S. L. ed. 1503, 1505, 34 Sup. Ct. Rep. 941; and cases cited on page 625. An examination of the record shows that the Federal right set up in the court of common pleas, and considered in the circuit court, the latter judgment being affirmed by the supreme court without opinion, concerned an alleged change of decision in the supreme court of Ohio, construing a statute concerning the contract upon which the railroad companies relied, the effect of which, it was alleged, would be to do violence to the contract clause of the Federal Constitution. It was not set up that subsequent legislation had impaired the obligation of the contract of the railroad companies. Therefore, in the light of the decisions of this court above quoted, no Federal right was alleged to be imparied within the meaning of the Constitution of the United States, and no such right was passed upon in the decisions of the courts.
The contention is made that the presence of the Federal right set up and denied as violative of this clause of the Constitution is shown by the certificate of the Supreme Court, contained in its journal entry affirming the judgment of the circuit court. An examination of the certificate however, does not show that any contention that contract rights were impaired by subsequent state legislation was passed upon adversely to the railroad companies, but shows only that the contention was that the claim of the city, in respect to the contract of September 13th, 1849, sustained by the judgment of the circuit court, and affirmed by the supreme court was in contravention of the defendants' rights under said contract, and impaired their rights under said contract, in violation of the Constitution of the United States, particularly the [235 U.S. 50, 55] 10th section of article I. thereof; 'which said claims fully appear in the pleadings and record herein, and that such claims were considered by the court and decided adversely to said plaintiffs in error.' The character of the claims thus made we have already described. Moreover a mere certificate of this character cannot bring an additional question into the record, where the record does not otherwise show it to exist. Marvin v. Trout, 199 U.S. 212 , 50 L. ed. 157, 26 Sup. Ct. Rep. 31.
It follows that the writ of error must be dismissed.
Mr. Justice Holmes took no part in the consideration and decision of this case.