sion. First Nat. Bank v. Kentucky, 9 the United States, particularly the 10th Wall. 353, 19 L. ed. 701; Spies v. Illi-section of article I. thereof; "which said nois, 123 U. S. 131, 31 L. ed. 80, 8 Sup. claims fully appear in the pleadings and Ct. Rep. 21, 22; Zadig v. Baldwin, 166 record herein, and that such claims were U. S. 485, 41 L. ed. 1087, 17 Sup. Ct. considered by the court and decided adRep. 639; F. G. Oxley Stave Co. v. Butler versely to said plaintiffs in error." The County, 166 U. S. 648, 41 L. ed. 1149, 17 character of the claims thus made we have Sup. Ct. Rep. 709; Waters-Pierce Oil Co. already described. Moreover a mere cerv. Texas, 212 U. S. 113, 53 L. ed. 431, 29 tificate of this character cannot bring an Sup. Ct. Rep. 227; Mallers v. Commercial additional question into the record, where Loan & T. Co. 216 U. S. 613, 54 L. ed. 638, the record does not otherwise show it to 30 Sup. Ct. Rep. 438; Appleby v. Buffalo, exist. Marvin v. Trout, 199 U. S. 21 50 221 U. S. 524, 55 L. ed. 838, 31 Sup. Ct. L. ed. 157, 26 Sup. Ct. Rep. 31. Rep. 699. It follows that the writ of error must be dismissed. It is equally well settled that an inpairment of the obligation of the contract, within the meaning of the 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 L. ed. 458, 463, 33 Sup. Ct. Rep. 220, Ann. Cas 1914C, 224; Moore-Mansfield Constr. Co. v. Electrical Installation (o. 234 U. S. 619, 624, 58 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 the courts. INDIANS ( 15 )-ALLOTMENTS RESTRIC- Indian allottees, made by ¶ 12, 15, 16, of [Ed. Note.-For other cases, see Indians, Cent. Dig. $ 17, 29, 34, 37-44; Dec. Dig. § 15.] 2. The extension of the laws of Arkansas theretofore put in force in the Indian Territory so as to embrace all persons and estates in said territory, whether Indians, freedmen, or otherwise, made by the act of April 28, 1904 (33 Stat. at L. 573, chap. 1824), § 2, enabled an Indian in the Indian Territory to devise all his alienable property by a will made in accordance with the laws of the state of Arkansas, but did not operate to remove any of the restrictions on alienation by Indian allottees theretofore made by congressional legislation. Dig. §§ 17, 29, 34, 37-44; Dec. Dig. § 15.] [Ed. Note. For other cases, see Indians, Cent. 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 con- Submitted tract 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 Sep. tember 13th, 1849, sustained by the judg. ment 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 [No. 58.] November 5, 1914. Decided N ERROR to the Supreme Court of the State of Oklahoma to review a judgment which affirmed a judgment of the District Court of Johnson County, in that state, for the recovery of an Indian allotment devised by an Indian allottee. Affirmed. See same case below, 33 Okla. 199, 126 Pac. 573. The facts are stated in the opinion. •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes Mr. H. A. Ledbetter for plaintiff in adopted, it would not be helped by long error. Messrs. Cornelius Hardy, A. C. Cruce, W. I. Cruce, and W. R. Bleakmore for defendants in error. discussion. In view of the evils sought to be prevented, and in aid of what we understand to have been the policy of the Indians and the United States in their agreement, we are of opinion that the supreme court Mr. Justice Holmes delivered the opin- of this state was right in extending the ion of the court: This is a suit by the heirs of Maggie Taylor, a member of the Chickasaw tribe of Indians, against the plaintiff in error, her husband and devisee, to recover her allotment, which she devised to him. The answer relied upon the will, the plaintiffs demurred, and the courts of Oklahoma sustained the demurrer and gave judgment for the plaintiffs. 33 Okla. 199, 126 Pac. 573. The question is whether the devise was invalid under the supplemental agreement with the Choctaws and Chickasaws, ratified by the act of Congress of July 1, 1902, chap. 1362, 32 Stat. at L. 641. prohibition to wills. To the same effect is Hayes v. Barringer, 93 C. C. A. 507, 168 Fed. 221. See also Jackson v. Thompson, 38 Wash. 282, 80 Pac. 454. A further and distinct argument is based upon the act to provide for additional judges, etc., of April 28, 1904, chap. 1824, § 2, 33 Stat. at L. 573, to the effect that all the laws of Arkansas theretofore put in force in the Indian Territory are extended to embrace all persons and estates in said territory, whether Indians, freedmen, or otherwise, and full jurisdiction is conferred upon the district courts in the settlement of all estates of decedents, and the guardianBy 12 of the above act "each member ship of minors and incompetents, whether of said tribes shall, at the time of the se- Indians, freedmen, or otherwise. The Arlection of his allotment, designate as a kansas law of wills was a part of the law homestead out of said allotment land equal that thus had been adopted for the Indian in value to one hundred and sixty acres Territory before 1904, and it is contended of the average allottable land of the Choc- that the result of the above extension was taw and Chickasaw nations, as nearly as to free the Indians from the restrictions may be, which shall be inalienable during so specifically imposed upon them in 1902. the lifetime of the allottee, not exceeding Of course, nothing of that sort was intended. twenty-one years from the date of certifi- As said below, the extension enabled "the cate of allotment, and separate certificate Indian to devise all his alienable property and patent shall issue for said homestead." | by will made in accordance with the laws By 16 all lands allotted to members of said tribes except homestead shall be alienable after issue of patent, one fourth in acreage in one year, one fourth in three years, and the rest in five years; but not for less than its appraised value before the expiration of the tribal governments. The plaintiff in error, in aid of the construction of ¶¶ 12, 16, for which he contends, and to show that transactions inter vivos alone were aimed at by the word "inalienable," invokes 15, which enacts that allotted lands "shall not be affected or encumbered by any deed, debt, or obligation of any character contracted prior to the time at which said land may be alienated under this act, nor shall said lands be sold except as herein provided." The land in question was allotted to Maggie Taylor in 1903, including, it would seem, a homestead; patents were issued on December 20, 1904, and were approved by the Secretary of the Interior and delivered on December 28, 1904. She made her will on March 22 and died on March 25, 1905, so that if the foregoing prohibitions extend to a devise, they include the one under which the plaintiff in error claims. Obviously they could be read in a narrower sense, and whichever interpretation be of the state of Arkansas, but did not operate to remove any of the restrictions theretofore placed upon lands of Indians by act of Congress." That this was the understanding of Congress is indicated by the acts of April 26, 1906, chap. 1876, § 23, 34 Stat. at L. 137, 145, and May 27, 1908, chap. 199, 35 Stat. at L. 312, giving Indians power to dispose of their allotments by will. Judgment affirmed. (235 U. S. 45) FRANK J. WILLOUGHBY, Louise Specht, V. CITY OF CHICAGO. COURTS (§ 396*)-ERROR TO STATE COURT- benefits resulting from the widening of a [Ed. Note.-For other cases, see Courts, Cent. Dig. § 1080; Dec. Dig. § 396.*] *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes COURTS (399*)-ERROR TO STATE COURT- [Ed. Note.-For other cases, see Courts, Cent. Dig. 1089, 1090; Dec. Dig. § 399.] MUNICIPAL CORPORATIONS (§ 435)-PUBLIC In 1893 a portion of certain land now belonging to the plaintiffs in error was taken by Chicago for the widening of a street, and the damages to the owners were fixed 3. Purchasers of real property after the assessment for betterments by reason of by judgment in due form. Afterwards an damages for the part taken in the widening of a street have been fixed by judgment the change was laid upon certain lands in in due form take the property subject to the this neighborhood, including the lots in same liability as the original owners to the question, and was confirmed as to the other subsequent levy of an assessment for the land. At the trial with regard to these lots benefits resulting from such improvement. it was contended by the owner and ruled [Ed. Note.-For other cases, see Municipal in the lower court that the matter was conCorporations, Cent. Dig. § 1061; Dec. Dig. § 435.)cluded by the first judgment. This ruling COURTS (366)-ERROR TO STATE COURT- STRUCTION. 4. Whether or not an assessment of benefits resulting from the widening of a street could have been levied if the land had not been sold is a question of statutory construction, the decision of which by the state court will be followed by the Federal Supreme Court on writ of error. [Ed. Note. For other cases, see Courts, Cent. Dig. 1954-957, 960-968; Dec. Dig. 366.] CONSTITUTIONAL LAW (§ 110*) - VESTED RIGHTS CHANGE OF JUDICIAL DECISION, 5. No vested rights of the owners of real property can be said to be interfered with by the overruling of earlier decisions so as to render the property liable for an assessment for the benefits resulting from the widening of a street after the damages for the part taken have been fixed by judg. ment in due form. (Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 261-266; Dec. Dig. § 110.] was reversed by the supreme court of the state (Chicago v. Mecartney, 216 Ill. 377, 5 N. E. 117), but by the failure of the city to file the remanding order within two years the assessment upon these lots failed. In January, 1910, the city passed an ordinance for a new assessment, the object of which was to reach these lots, and a new petition was filed. The supreme court of the state held that the validity of the assessment did not depend on the validity of the ordinance; that the petition was warranted by the former proceedings, and that a judgment for the amount should be affirmed. 249 Ill. 249, 94 N. E. 513. The error assigned is that the property of the plaintiffs in error is taken without due process of law, and that the obligation of their contracts is impaired (they having COURTS (§ 399*)-ERROR TO STATE COURT-purchased before this supplementary proSCOPE OF REVIEW-QUESTION OF FACT. 6. Whether the benefit to real property from the widening of a street is greater or less than the damage is a question of fact not open for consideration on a writ of error from the Federal Supreme Court to a state court, attacking the validity of an assessment for benefits. [Ed. Note. For other cases, see Courts, Cent. Dig. II 1089, 1090; Dec. Dig. § 399.*] [No. 66.] Submitted November 6, 1914. Decided November 16, 1914. N ERROR to the Supreme Court of the State of Illinois to review a judgment which affirmed a judgment of the Circuit Court of Cook County, in that state, confirming an assessment for benefits resulting from a local improvement. Dismissed for want of jurisdiction. ceeding was begun), contrary to the 14th Amendment and art. I. § 10, of the Constitution of the United States. There is a motion to dismiss upon which we must dispose of the case. The objection which is urged is that there was no statutory authority for this proceeding, and that the assessment was imposed by mere judicial fiat that could not have been anticipated, and that was without warrant of law. If there were anything in this objection, it was obvious from the beginning; and as it was not taken at the trial, it was not open in the supreme court of the state and could not be considered here. Hulbert v. Chicago, 202 U. S. 275, 50 L. ed. 1026, 26 Sup. Ct. Rep. 617. It is obvious, too, that the state could have authorized the proceeding followed here, which ordinarily is the only question to be considered by this court. See same case below, 249 Ill. 249, 94 N. Missouri v. Dockery, 191 U. S. 165, 48 E. 513. L. ed. 133, 63 L.R.A. 571, 24 Sup. Ct. Rep. •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes If the assessment could have been levied against the original owners of the land, purchasers took subject to the same liability. Seattle v. Kelleher, 195 U. S. 351, 49 L. ed. 232, 25 Sup. Ct. Rep. 44. The question whether it could have been levied if the land had not been sold depended upon the construction of state statutes, as to which we follow the decision of the state court. Even if the court had overruled earlier decisions, it would have interfered with no vested rights of the plaintiffs in error. Knox v. Exchange Bank, 12 Wall. 379, 383, 20 L. ed. 414, 415; Sauer. v. New York, 206 U. S. 536, 51 L. ed. 1176, 27 Sup. Ct. Rep. 686; Moore-Mansfield Constr. Co. v. Electrical Installation Co. 234 U. S. 619, 626, 58 L. ed. 1503, 1506, 34 Sup. Ct. Rep. 941. But it does not appear to have done so, and although its decision may have been unexpected, there was plausible ground for it in the statutes. We go no further, because there is no question before us of the kind that was before the court in Muhlker v. New York & H. R. Co. 197 U. S. 544, 49 L. ed. 872, 25 Sup. Ct. Rep. 522, and Tampa Waterworks Co. v. Tampa, 199 U. S. 241, 243, 50 L. ed. 170, 173, 26 Sup. Ct. Rep. 23, and in circumstances like these it is not within our province to inquire whether the construction was right. It is objected that less was allowed for the land taken than was charged for the benefit, but it is quite possible that the benefit was greater than the loss, and we cannot inquire into the fact. Writ of error dismissed. (23% 1°. S. 287) and evidence, dismissed the bill; and this was affirmed by the circuit court of appeals (114 C. C. A. 261, 194 Fed. 301). The cause is here upon certiorari. WILLIAM R. HOPKINS, Benjamin P. Bole, Edward I. Leighton, Fred W. Bruch, George Reeves, and John Matthews, Petitioners, CHARLES HEBARD and the Smoky Mountain Land, Lumber, & Improvement Com-Tennessee river, and for some time prior to pany. V. EQUITY (450)-BILL OF REVIEW-NEW- late court. [Ed. Note.-For other cases, see Equity, Cent. Dig. 1095; Dee. Dig. 450.] [No. 30.] Argued October 16 and 19, 1914. November 30, 1914. The land in controversy lies on the waters of Slick Rock Creek, an affluent of the Little 1895 was claimed by Hebard under a grant from the state of Tennessee. Belding and others claimed it under a North Carolina grant. The rights of the disputants depended on the true location of the dividing line between the two states. If, after crossing the Little Tennessee, the line ran southward along Hangover ridge, the land was within Tennessee and belonged to Hebard; if, on the other hand, it ran along Slick Rock creek, the North Carolina grant was good, and Belding and others were the owners. In 1895 Hebard began a suit in the chancery court, Monroe county, Tennessee, seeking an adjudication of his rights. This was removed to the United States circuit court; elaborate proofs were taken; and, upon the hearing, the court determined that Decided the state line ran along Hangover ridge, as Decided contended by Hebard, and adjudged the title to be in him. The circuit court of appeals, in a final decree, entered July 13, 1900, O`States Circuit Court of the United affirmed this action, the opinion being writ N WRIT of Certiorari to the United Appeals for the Sixth Circuit to review a decree which affirmed a decree of the Circuit Court for the Eastern District of Tennessee, dismis sing a bill of review for newly discovered evidence. Affirmed. See same case below, 114 C. C. A. 261, 194 Fed. 301. Messrs. John Franklin Shields, Wil ten by the late Mr. Justice Lurton (43 C. C. A. 296, 103 Fed. 532). Some years before the present suit was brought, the Smoky Mountain Land, Lumber, & Improvement Company, relying upon the last-mentioned final decree in the cir cuit court of appeals, in good faith and for value, acquired the interest of Hebard. As security for debt, Belding and others, by deeds of December, 1899, and March, 1900, transferred to Archer and McGarry, trus liam A. Stone, and T. E. I!. McCroskey for tees, with power of sale, their interest in respondents. Mr. Justice McReynolds delivered the opinion of the court: In 1907, petitioners, alleged successors to David W. Felding and others, filed a bill of review against the heirs and representatives of Charles Hebard in the United States circuit court, eastern district of Tennessee, wherein they sought to reverse the decree for complainant, granted by the same court, June 10, 1899, and later affirmed by the circuit court of appeals in the cause entitled Hebard v. Belding, which was instituted to determine the title to some 7,000 acres of mountain land. The Smoky Mountain Land. Lumber, & Improvement Company intervened, denied the alleged equities, and set up that it had purchased the property for value and in good faith. The trial court, having heard the matter upon the pleadings a large tract of land the boundaries of which included the 7,000 acres now in question, "subject, nevertheless, to all deductions, if any, arising by, through, or under the 'State Line' suit hereinafter mentioned" (Hebard v. Belding). Default having occurred, the trustees executed a deed to William R. Hopkins and others, petitioners here, with covenants of seisin and right to convey and special warranty; but from the covenants they expressly excepted "all those lands situated at or near the state line, between the state of North Carolina and Tennessee, which were recovered in a certain action known as the 'State Line Suit,' which was pending in the United States circuit court for the eastern district of Tennessee, and was brought by one Hebard against David W. Belding and others, if future proceedings do not recover the title thereof." During the year 1821, commissioners ap •For other cases ree same topic & } NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |