error.

Messrs. Cornelius Hardy, A. C. Cruce, W. I. Cruce, and W. R. Bleakmore for defendants in error.

Mr. Justice Holmes delivered the opinion 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.

By 12 of the above act "each member of said tribes shall, at the time of the selection of his allotment, designate as a homestead out of said allotment land equal in value to one hundred and sixty acres of the average allottable land of the Choctaw and Chickasaw nations, as nearly as may be, which shall be inalienable during the lifetime of the allottee, not exceeding twenty-one years from the date of certificate of allotment, and separate certificate and patent shall issue for said homestead." 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. Obviyously they could be read in a narrower sense, and whichever interpretation be

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 of this state was right in extending the 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 guardianship of minors and incompetents, whether Indians, freedmen, or otherwise. The Arkansas law of wills was a part of the law that thus had been adopted for the Indian Territory before 1904, and it is contended that the result of the above extension was to free the Indians from the restrictions so specifically imposed upon them in 1902. Of course, nothing of that sort was intended. As said below, the extension enabled "the Indian to devise all his alienable property by will made in accordance with the laws 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, Henry E. Sever, et al., Plffs. in Err.,

V.

CITY OF CHICAGO.

COURTS ( 396*)-ERROR TO STATE COURT— FEDERAL QUESTION-RAISING IN TEIAL COUBT.

benefits resulting from the widening of a 1. The objection that an assessment for street was imposed by mere judicial fiat that could not have been anticipated and that was without warrant of law, which, not being taken at the trial, was not open in the highest state court, cannot serve as the basis of a writ of error to that court from the Federal Supreme Court.

Dig. § 1080; Dec. Dig. § 396.*]

[Ed. Note.-For other cases, see Courts, Cent

COURTS (399*)-Error TO STATE COURTFEDERAL QUESTION-LOCAL PRACTICE.

2. Whether the state could, not whether it did, authorize the procedure followed below, is ordinarily the only question cpen for consideration by the Federal Supreme Court on a writ of error to a state court, which attacks the validity, under the Federal Constitution, of an assessment for benefits resulting from the widening of a street.

[Ed. Note.-For other cases, see Courts, Cent. Dig. 88 1089, 1090; Dec. Dig. § 399.]

MUNICIPAL CORPORATIONS (§ 435*)-PUBLIC ASSESSMENT FOR BENEFITS LIABILITY OF PURCHASER.

IMPROVEMENTS

3. Purchasers of real property after the damages for the part taken in the widening of a street have been fixed by judgment in due form take the property subject to the same liability as the original owners to the subsequent levy of an assessment for the benefits resulting from such improvement. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1061; Dec. Dig. § 435.*]COURTS (366*)-ERROR TO STATE COURTFEDERAL QUESTION STATUTORY CONSTRUCTION.

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. 88 954-957, 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. §§ 264-266; Dec. Dig. § 110.*]

COURTS (§ 399*)-ERROR TO STATE COURTSCOPE 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. §8 1089, 1090; Dec. Dig. § 399.*]

[No. 66.]

Submitted November 6, 1914. Decided

November 16, 1914.

Mr. Charles R. Holden for plaintiffs in

error.

Messrs. William H. Sexton, Philip J. McKenna, and Howard F. Bishop for defendant in error.

Mr. Justice Holmes delivered the opinion of the court:

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

by judgment in due form. Afterwards an

assessment for betterments by reason of the change was laid upon certain lands in this neighborhood, including the lots in question, and was confirmed as to the other land. At the trial with regard to these lots it was contended by the owner and ruled in the lower court that the matter was concluded by the first judgment. This ruling was reversed by the supreme court of the state (Chicago v. Mecartney, 216 Ill. 377, 75 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 purchased before this supplementary proceeding 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

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.

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.

The facts are stated in the opinion.

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.