ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS.
Taft, Holmes, Van Devanter, McReynolds, Brandeis, Sutherland, Butler, Sanford, Stone.
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
The City of Edwardsville, in July 1882, by ordinance granted to the Central Union Telephone Company a right in its streets to erect and maintain the necessary poles and wires for the operation of a telephone system. The Central Telephone Company transferred its rights to the Central Union Telephone Company. Later the city council adopted a resolution requesting the Central Union Telephone Company to furnish to the city, free of charge, one telephone and such additional telephones as the city council might call for at a reduction of 25 per cent. from the regular rates, and the right to attach, without charge, fire and police alarm wires to the top cross-arm of each pole. The company filed its acceptance of this resolution as provided in the resolution. It maintains 1000 poles in the City of Edwardsville. The city in 1914 passed an ordinance which in effect imposes a tax of 50 cents a pole upon every person, firm or corporation owning, controlling or occupying any such poles in the streets of Edwardsville. The city brought
suit for the amount due under the tax law at 50 cents a pole. A jury was waived, and after a hearing the court entered judgment for $3,000 against the company. The Circuit Court held that neither the ordinance by which the Central Telephone Company was permitted to occupy the streets, nor the subsequent resolution accepted by the Central Union Telephone Company, constituted a contract, and that the tax law was not therefore a violation of the Constitution of the United States in impairing a contract, or in depriving the company of property without due process of law. Upon this record an appeal was taken to the Appellate Court of the State for the Fourth Circuit. That court transferred the case to the Supreme Court of Illinois, on the ground that the Appellate Court had no jurisdiction of it. City of Edwardsville v. Central Union Telephone Co., 302 Ill. 362. The Supreme Court held that as the appeal had been taken to the Appellate Court and errors assigned which that court had jurisdiction to hear, the case was improperly transferred to the Supreme Court, and remanded it to the Appellate Court, which gave judgment affirming the Circuit Court. The plaintiff then obtained a certiorari from the Supreme Court to review the decision of the Appellate Court, and in that hearing the Supreme Court declined to hear the constitutional questions on the ground that they had been waived by the failure to carry the case from the Circuit Court directly to the Supreme Court to review those questions.
Paragraph 89, § 88, 3d Starr & Curtiss, Annotated Illinois Statutes, p. 3114, reads as follows:
"Par. 89. Appeal from trial court to appellate court -- From trial court to supreme court. § 88. Appeals from and writs of error to circuit courts, the superior court of Cook county, the criminal court of Cook county, county courts and city courts in all criminal cases, below the grade of felony, shall be taken directly to the appellate
court, and in all criminal cases above the grade of misdemeanors, and cases in which a franchise or freehold or the validity of a statute or construction of the Constitution is involved; and in all cases relating to revenue, or in which the State is interested as a party or otherwise, shall be taken directly to the supreme court."
The construction of this statute has been uniformly held to be, that where a question involves the Constitution, it must be taken on error or appeal to the Supreme Court, and that if it be taken to the Appellate Court on other grounds, the party taking the appeal or suing out the writ of error shall be held to have waived the constitutional questions. Indiana Millers Ins. Co. v. People, 170 Ill. 474; Robson v. Doyle, 191 Ill. 566; Case v. Sullivan, 222 Ill. 56; Poe v. Ulrey, 233 Ill. 56; Haas Co. v. Amusement Co., 236 Ill. 452; Scott v. Artman, 237 Ill. 394; Comm'rs v. Shockey, 238 Ill. 237. The city, therefore, moves to dismiss the writ of error.
It is objected on behalf of the plaintiff in error that the words "validity of a statute or construction of the Constitution" refer to the constitution of Illinois and not to the Federal Constitution. The Supreme Court of Illinois has held otherwise in this case. 309 Ill. 482, 483, 484.
But counsel for plaintiff in error insist that it is for this Court to determine finally whether a litigant in a state court has waived his federal right, citing Davis v. O'Hara, 266 U.S. 314; Davis v. Wechsler, 263 U.S. 22; American Railway Co. v. Levee, 263 U.S. 19; Truax v. Corrigan, 257 U.S. 312; 324; Union Pacific Railway Company v. Public Service Commission, 248 U.S. 67. But there is nothing in these cases which justifies this Court in ignoring or setting aside a required from of practice under the appellate statutes of the State by which federal constitutional rights, as ...