Argument for Plaintiff in Error.

Street, where it extends in front of the plaintiff's lot, occupied by the structure of the railroad company. But at another portion of Filbert Street, not far from plaintiff's lot, the bed of the street was and is occupied by the railroad. The plaintiff alleged in his declaration that by the erection and maintenance of the elevated railroad, and the continuous passage of passenger and freight cars thereon, driven by steam locomotives, he was injured in the possession, use, and enjoyment of his property, and that his dwelling and business house on said lot was rendered unfit for habitation, and was greatly depreciated in value. The trial resulted in a verdict and judgment for the plaintiff in the sum of $4980. The cause was taken on error to the Supreme Court of Pennsylvania, where the judgment was reversed, the majority of the court holding that the plaintiff had no legal cause of action. The plaintiff having died, pending the litigation, his administratrix was substituted, and thereupon sued out a writ of error to this court.

Mr. M. Hampton Todd for plaintiff in error.

I. The Supreme Court of Pennsylvania, in reversing the judgment which plaintiff had recovered as compensation for the damage done to his property by the construction of defendant's elevated railroad in front thereof, and holding that he had no cause of action for the recovery of such damages, deprived him of his property without due process of law. Case of Phil. & Trenton Railroad, 6 Wharton, 25; S. C. 36 Am. Dec. 202; O'Connor v. Pittsburgh, 18 Penn. St. 187; Monongahela Navigation Co. v. Coons, 6 W. & S. 101; Schuyl kill Navigation Co. v. Thoburn, 7 S. & R. 411; Pusey v. Allegheny, 98 Penn. St. 522; Reading v. Althouse, 93 Penn. St. 400; New Brighton v. United Presbyterian Church, 96 Penn. St. 331; Pennsylvania Railroad v. Duncan, 111 Penn. St. 352; Pennsylvania Ins. Co. v. Schuylkill Valley Railroad, 151 Penn. St. 334; Jones v. Erie & Wyoming Railroad, 151 Penn. St. 30; Pottstown Gas Co. v. Murphy, 39 Penn. St. 257; Pittsburgh, Fort Wayne &c. Railway v. Gilleland, 56 Penn. St. 445; Western Pennsylvania Railroad v. Hill, 56 Penn.

Argument for Plaintiff in Error.

St. 460; Columbia Bridge Co. v. Geisse, 35 N. J. Law, 562; Radcliff v. Brooklyn, 4 N. Y. 195; S. C. 53 Am. Dec. 357; Pumpelly v. Green Bay Co., 13 Wall. 166; Baltimore & Potomac Railroad v. Fifth Baptist Church, 108 U. S. 317; Struthers v. Dunkirk &c. Railway, 87 Penn. St. 282.

II. The Supreme Court of Pennsylvania denied to the plaintiff the equal protection of the laws given by the Fourteenth Amendment by holding that the defendant is liable to make compensation for the damage done to abutting owners on Filbert Street by the occupation of the bed of the street for its railroad, and is not liable to the owners of property abutting on the north side of Filbert Street, including plaintiff, where its railroad is on property abutting on the south side of Filbert Street, there being no difference in principle between the two classes of cases.

This clause is intended, we think, to be supplemental to the clause providing for due process of law. If we construe it correctly, it is intended that after one has appeared in a duly constituted court such person shall have no unjust and arbitrary discrimination made against him in the administration of law, but that he shall be entitled to have the law ruled in his case as it is in that of other citizens similarly situated. In Caldwell v. Texas, 137 U. S. 692, it is ruled:

"No State can deprive particular persons or classes of persons of equal and impartial justice under the law without violating the provisions of the Fourteenth Amendment to the Constitution.

"Due process of law within the meaning of the Constitution is secured where the laws operate on all alike, and no one is subject to partial or arbitrary exercise of the powers of government."

We submit that in this case it is an unjust and arbitrary exercise of the powers of government for the Supreme Court of Pennsylvania under the same constitutional guarantees to allow compensation to be recovered by Mr. Duncan and that class of abutting owners and denied to the plaintiff, when there is, as we think we have heretofore shown, no difference in principle between the two classes of cases.

Opinion of the Court.

That is, while the Supreme Court of Pennsylvania have endeavored to set up a distinction between the cases, there is no real distinction in law between them. The rules of law that give one class a right to compensation for the injuries sustained, apply with equal force to the other. The attempted distinction founded on the occupancy of the bed of Filbert Street is a distinction which affects alone the quantum of damage and not the right of action.

Mr. Wayne Mac Veagh, (with whom was Mr. A. H. Wintersteen on the brief,) for defendant in error.

MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.

The Pennsylvania Railroad Company, a corporation under the laws of the State of Pennsylvania, and invested with the privilege of taking private property for its corporate use, erected in May, 1881, and has since maintained a viaduct or elevated roadway and railroad thereon, along the south side of Filbert Street in the city of Philadelphia. On the opposite or north side of Filbert Street the plaintiff below was the owner of a lot or parcel of land, whereon was erected a large four-story building, at that time occupied as a dwelling and business house. The elevated railroad did not occupy any' portion of the plaintiff's land, nor did it trench upon Filbert Street where it extends in front of the plaintiff's property, which is situated on Filbert between Seventeenth and Eighteenth streets, but where the elevated road, in its course westward, reaches Twentieth Street, it trends to the north and is supported over the cartway of Filbert Street by iron pillars. having their foundations in that street inside the curb line, and thus extends westwardly to the Schuylkill River. Opposite the plaintiff's lot the railroad structure occupies land owned by the company.

The plaintiff, by his action in the Court of Common Pleas, sought to recover for injuries caused to his property by the smoke, dust, noise, and vibration arising from the use of the

Opinion of the Court.

engines and cars, the necessary consequence and incidents of the operations of a steam railway.

The trial court refused the defendant's prayer that "the jury should be instructed that the defendant, under its charter and supplements in evidence, had full lawful authority to create and operate the Filbert Street extension or branch described in the declaration without incurring any liability by reason thereof for consequential damages to the property of the plaintiff, the uncontradicted evidence being that none of the said property was taken by the defendant, but that the entire width of Filbert Street intervenes between the railroad of the defendant and the nearest point thereto of the property of the plaintiff," and instructed the jury that the only question for them to determine was the amount of depreciation in value of the plaintiff's property caused by the operation of the railroad, and that in estimating the damages they should consider the value of the property before and its value after the injury was inflicted, and allow the difference. The plaintiff recovered a verdict and judgment. This judgment was reversed by the Supreme Court of Pennsylvania, because of the action of the trial court in refusing to grant the defendant's prayer for instruction, and, in effect, because the plaintiff had no cause of action. By the specifications of error contained in this record we are asked to reverse the judgment of the Supreme Court of Pennsylvania because the plaintiff in error was thereby deprived of her property without compensation; because she was thereby deprived of the equal protection of the laws; and because she was thereby deprived of her property without due process of law.

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 the State. The plaintiff pointed to the 10th 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 compensation being first made or secured;" and to the 8th section. of article 16, which contains the following terms: "Municipal

Opinion of the Court.

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 that 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.

But we are urged to sustain and exercise our jurisdiction in this case because it is said that the plaintiff's property was taken "without due process of law," and because the plaintiff was denied "the equal protection of the laws," and these propositions are said to present Federal questions arising under the Fourteenth Amendment of the Constitution of the United States, to which our jurisdiction extends.

It is sufficient for us in the present case to say that, even if the plaintiff could be regarded as having been deprived of

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