Opinion
No. 635.
Argued March 13, 1934. Decided April 2, 1934.
Appeal dismissed for want of a substantial federal question properly presented to the state court, in a suit for damage caused by a change of street grade to a lessee of abutting property.
Mr. John Robert Jones for appellant.
Mr. Harold D. Saylor, Deputy Attorney General of Pennsylvania, with whom Mr. Wm. A. Schnader, Attorney General, was on the brief, for appellees.
This action was brought to recover damages alleged to have been caused by a change in the grade of a street which prevented access to appellant's leasehold. The authority of the State Commission which directed the change of grade was conferred by the state statute of July 9, 1919, P.L. 814. The state court held that the damage in question was merely consequential, that the allowance of recovery therefor was a matter of legislative grace and not of right, and that the statute as invoked by appellant was invalid as it did not conform to the requirements of the state constitution. 311 Pa. 436; 166 A. 895. No federal question was raised prior to a petition for rehearing in the Supreme Court of the State, which was denied without more. Appellant insists that questions under the Fourteenth Amendment were thus raised at the first opportunity. The petition for rehearing does not appear in the record. Nor does the record contain the pleadings, the evidence, or any findings by the state court upon the questions of fact involved. Appellant relies upon statements in the opinion of the state court but these fail to support appellant's contentions.
The appeal is dismissed for the want of a property presented substantial federal question. Whitney v. California, 274 U.S. 357, 360, 362, 363; Dewey v. Des Moines, 173 U.S. 193, 199, 200; Transportation Co. v. Chicago, 99 U.S. 635, 641-643; Wabash R. Co. v. Defiance, 167 U.S. 88, 101.
Dismissed.