MR. JUSTICE SANFORD delivered the opinion of the Court.
The Rosevale Realty Co., the relator herein, filed its petition in the Supreme Court of New York for a peremptory mandamus directing Kleinert, as Superintendent of the Bureau of Buildings, to approve its plans
By an Act amending the charter of Greater New York the Board of Estimate and Apportionment was given power to regulate the height and bulk of buildings thereafter erected, the area of courts and other open spaces, and the location of buildings designed for specific uses; to divide the city into districts for such purposes; and to change such districts from time to time, after public notice and hearing. New York Laws, 1916, c. 497, p. 1320. In July, 1916, the Board adopted a "Building Zone Resolution", or ordinance, dividing the city into various classes of Use, Height, and Area districts.
In the Spring of 1922 the relator acquired a plot of ground in the Borough of Brooklyn, then in a C area district. It was also in a residential section known as Midwood Manor, in which, under private restrictive covenants contained in the deeds, no buildings except detached dwelling houses could be erected before January 1, 1923. Disregarding these restrictive covenants, the relator procured plans for a 40-family apartment house, conforming as to open spaces, etc., to the requirements of a C area
On January 25, 1923, the relator filed the present petition for peremptory mandamus against the Superintendent.
The petition was denied by the Supreme Court on the ground that the building for which the relator desired a permit would, if constructed, be in violation of the Zoning Resolution as amended, and would be unlawful. There was no reference in the opinion to any constitutional question; and the order of the Supreme Court was affirmed by the Appellate Division and the Court of Appeals, without opinions.
1. The relator by its assignments of error challenges the constitutionality of the substantive provisions of the Zoning Resolution, especially as to the restrictions in an E area district made applicable to its plot by the amendment of October, 1922, and earnestly contends, in an elaborate argument, that such restrictions are not regulatory, but confiscatory, and have no such relation to the public welfare, as justifies the exercise of the police power of the State. This broadly outlined, is the contention made both in the oral argument and the relator's brief.
It is clear, however, that no question as to alleged unconstitutionality of the substantive provisions of the Zoning Resolution or of the particular provisions relating to E area districts, was presented by the petition for mandamus; and no such question appears to have been presented to any of the State courts, or to have been considered or determined by them. It is well settled that this Court is without jurisdiction to review the judgment of a State court on a writ of error, by reason of a federal question which was not raised below or called to the attention of or decided by the State court. Cincinnati, etc., Ry. v. Slade, 216 U.S. 78, 83; El Paso and Southwestern R.R. v. Eichil, 226 U.S. 590, 597. The writ of error in the present case, therefore, does not bring up for our determination
2. While there is an incidental statement in the relator's brief that the amendment of the Zoning Resolution has resulted in restricting the principal use to which relator's property may be put, and also in the illegal confiscation of the plans prepared to conform to a C area district, no argument is made as to this question. And we find that the assignments of error do not, in any tangible or specific way, present any question as to the constitutionality of such amendment, but, that, reasonably construed, they relate merely to the constitutionality of the substantive provisions of the Zoning Resolution made applicable to the relator's property by the amendment. In short, the assignments challenge the constitutionality of the restrictive provisions themselves, and not the transfer from one area district to another. Nor is there in the relator's brief any specification of the errors relied upon, as required by Rule 21 of this Court, par. 2, cl. (2), setting up separately and particularly any error asserted in reference to the constitutionality of the amendment itself. This question is therefore not properly before us, even if its presentation was in fact intended.
As the only federal question properly presented by the assignments of error, namely, the constitutionality of the substantive provisions of the Zoning Resolution, is one which, for the reasons already stated, is not brought within our jurisdiction by the writ of error, we conclude that, without consideration of the merits, the writ must be dismissed, and it is so ordered.
Writ of error dismissed.