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Messrs. Floyd Estill, James J. Lynch, Jesse tution is assumed to invalidate the statute M. Littleton, Isaac W. Crabtree, and Felix by one of the clauses set up in the bill. The D. Lynch for plaintiffs in error.

judge, speaking for himself, would regard Messrs. Charles C. Trabue and William L. the academy as a public corporation, but he Granbery for defendants in error.

yields to the weight of the decision in the

Dartmouth College Case, or, at least, to the Mr. Justice Holmes delivered the opinion principle of that case, according to which, of the court:

as he conceives, the academy is a private This is a bill to set aside a lease made by corporation, and therefore exempt from a former trustees of Carrick Academy to the diversion from its original charter purposes, trustees of the Winchester Normal College, such as the act authorizing the lease is asin pursuance of an act of the general assem- sumed to effect. The objections to such a bly of Tennessee, authorizing the letting of diversion that he is considering are those the academy property to said lessees. The that he has stated as presented by the bill. bill alleged that the act was contrary to the The supreme court, after stating the nature Constitution of the state for various reasons, of the corporation and the relations and but said nothing of the Constitution of the course of dealing of the state with it, and United States, and in no way implied a re- citing cases to prove that Carrick Academy liance upon any of its terms. An act of is a public agency, refers to the decision beCongress of April 18, 1806 [2 Stat. at L. low and the citation there of the Dartmouth 381, chap. 31], was referred to, but was not College Case only in order to show that that alleged to be contravened. The defendants case was misapplied. demurred, and the demurrer, after being But the plaintiffs in error say further overruled by the court of chancery appeals, that the question of their rights under the was sustained by the supreme court of the Constitution of the United States necessastate. 112 Tenn. 483, 80 S. W. 64. The case rily was involved in a decision upon the bill, then was brought here by writ of error, and and that that is enough when the validity was argued both on the merits and upon of a state law is concerned. Columbia Wata motion to dismiss.

er Power Co. v. Columbia Electric Street The assignment of errors sets up that the R. Light & P. Co. 172 U. S. 475, 488, 43 above-mentioned state law impairs the ob- L. ed. 521, 525, 19 Sup. Ct. Rep. 247; Mc. ligation of contracts, contrary to the Con- Cullough v. Virginia, 172 U. S. 102, 117, 43 stitution of the United States, although it L. ed. 382, 387, 19 Sup. Ct. Rep. 134. These does not show definitely what contract, or and similar cases, however, are not to be how that contained in the charter of Car- pressed to the point that, whenever it aprick Academy is impaired. It sets up, also, pears that the state law logically might that the act is repugnant to the act of Con- have been assailed as invalid under the gress of April 18, 1806; and it alleges that constitution of the United States, upon the plaintiffs in error specially set up and grounds more or less similar to those actuclaimed their rights in these respects in the ally taken, the question is open. If a case chancery court of the state.

is carried through the state courts upon arTo show that the Constitution of the guments drawn from the state Constitution United States was relied upon below, tne alone, the defeated party cannot try his plaintiffs in error refer to passages in the chances here merely by suggesting for the opinions of the court of chancery appeals first time when he takes his writ of error and the supreme court, in which Dartmouth that the decision is wrong under the ConCollege v. Woodward, 4 Wheat. 518, 4 L. ed. stitution of the United States. Crowell v. 629, was discussed, as establishing the point. Randell, 10 Pet. 368, 398, 9 L. ed. 458, 470; But we are unable to see that those passages Simmerman v. Nebraska, 116 U. S. 54, 29 prove the fact. The court of chancery ap- L. ed. 535, 6 Sup. Ct. Rep. 333; Hagar v. peals states the violations of the state Con-California, 154 U. S. 639, 24 L. ed. 1044, stitution set up in the bill, summarizes the 14 Sup. Ct. Rep. 1186; Erie R. Co. v. Purdy, questions presented by the bill and demur- 185 U. S. 148, 153, 46 L. ed. 847, 850, 22 rer, and then addresses itself to answering Sup. Ct. Rep. 635. those questions, suggesting no others, and We are the less uneasy at the conclusion saying nothing about the Constitution of to which we are forced, that we do not apthe United States. After a statement of prehend that the statute of Tennessee is inhistorical facts, it says that if the act au- valid for the reason now put forward. That thorizing the lease is constitutional, and the reason is that the general assembly of the subject-matter of the act was under the con- state had no authority to authorize the taktrol of the state, the case is at an end. If ing of the property of this corporation for Carrick Academy is a public corporation, the private use of another. This objection the state is assumed to have control. If it might be urged with some force, perhaps, to is a private corporation, the state Consti- the lease that was made. But the statute,

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which alone could be brought in questions duly issued to review a judgment rendered here, merely authorized the trustees of Car- | in such cause in favor of the defendant in rick Academy to let the academy property error in the circuit court of the United to the trustees of the Winchester Normal States for the southern district of Iowa, College for not more than fifty years, and discloses the following: required the trustees of the college to keep “The Code of Iowa, 1897, in a chapter rethe property in good condition and free from lating to the taking of private property for debt or encumbrance, if the lease was made. works of internal improvement, including It said nothing about terms. It left the the construction and repair of railways, conacademy free. There was no taking of prop- tains the following: erty, but, at most, an authority to change « ‘Sec. 1999. If the owner of any real esan investment. So far as the act shows on tate necessary to be taken for either of the its face, which is all that we have before us, purposes mentioned in this chapter refuses it might have contemplated a lease of the to grant the right of way or other necessary present grounds merely as a means to keep-interest in said real estate required for such ing up the academy with increased re- purposes, or if the owner and the corporasources in a better place elsewhere.

tion cannot agree upon the compensation to Writ of error dismissed.

be paid for the same, the sheriff of the county in which such real estate may be situated shall, upon written application of ei

ther party, appoint six freeholders of said MASON CITY & FORT DODGE RAILROAD county not interested in the same or a like COMPANY

question, who shall inspect said real estate,

and assess the damages which said owner C. D. BOYNTON.

will sustain by the appropriation of his. Removal of causes-diverse citizenship

land for the use of said corporation, and which party is defendant in condemna- make report in writing to the sheriff of said tion proceedings.

county; and, if the corporation shall, at any The express declaration in Iowa Code time before it enters upon said real estate 1897, § 2009, that, on the appeal to a dis- for the purpose of constructing said railtrict court, which either party may take way, pay to the sheriff, for the use of the from the commissioners' award in proceed owner, the sum so assessed and returned to ings to condemn land for railway purposes, him as aforesaid, it may construct and the "landowner shall be plaintiff and the corporation defendant,” does not fix the status maintain its railway over and across such of the parties under the removal act, but premises.' the landowner must be deemed the defend. “ 'Sec. 2009. Either party may appeal ant so far as the right of removal to a Fed from such assessment to the district court. eral circuit court on the ground of diverse within thirty days after the assessment is. citizenship is concerned, because, under the made, by giving the adverse party, or, if state statutes, the institution and continu such party is the corporation, its agent or ance of the proceedings depend upon the will attorney, and the sheriff notice in writing of the railroad company.*

that such appeal has been taken. The sher[No. 170.]

iff shall thereupon file a certified copy of

so much of the appraisement as applies to Argued January 22, 23, 1907. Decided Feb- the part appealed from, and said court shall ruary 25, 1907.

try the same as in an action by ordinary

proceedings. The landowner shall be plainNA CERTIFICATE from the United tiff and the corporation defendant.

States Circuit Court of Appeals for the Sec. 2010. An shall not delay Eighth Circuit presenting a question as to the prosecution of work upon said railway if whether the landowner in condemnation said corporation pays or deposits with the proceedings is the defendant for the pur- sheriff the amount assessed. The sheriff pose of removal to a Federal circuit court. shall not pay such deposit over to the perAnswered in the affirmative.

son entitled thereto after the service of no

tice of appeal, but shall retain the same Statement by Mr. Justice Holmes:

until the determination thereof. . . This case comes here on the following cer- “ 'Sec. 2011. On the trial of the appeal no tificate:

judgment shall be rendered except for costs.. “The United States circuit court of ap- The amount of damages shall be ascertained peals for the eighth circuit, sitting at the city and entered of record, and, if no money has of St. Louis, Missouri, on the 8th day of De-been paid or deposited with the sheriff, the cember, A. D. 1905, certifies that the record corporation shall pay the amount so asceron file in the above-entitled cause, which is tained, or deposit the same with the sheriff pending in such court upon a writ of error' before entering upon the premises. Should the corporation decline to take the property, the western division of the southern district and pay the damages awarded on final de- of Iowa, on the ground of diversity in cititermination of the appeal, then it shall pay, zenship. In his petition and bond to secure in addition to the costs and damages actual. such removal the owner referred to and ly suffered by the landowner, a reasonable treated himself as the defendant, and reattorney's fee, to be taxed by the court. ferred to and treated the railroad company

*Ed. Note.--For cases in point, see vol. 42, Cent. Dig. Removal of Causes, § 88. 27 S. C.-21.

'Sec. 2012. If, on the trial of the ap- as the plaintiff, in the case. peal, the damages awarded by the commis- “In due course the cause came on for sioners are increased, the corporation shall hearing in the circuit court, when the parpay or deposit with the sheriff the whole ties, by a written stipulation filed with the amount of damages awarded before enter-clerk, waived a jury and agreed to try the ing on or using or controlling the premises. case to the court. Both parties introduced The sheriff, upon being furnished with a evidence and fully submitted themselves to certified copy of the assessment, may remove the jurisdiction of the court (if they could said corporation, and all persons acting for do so). The trial resulted in an assessor under it, from said premises, unless the ment of the owner's damages at $11,445, and amount of the assessment is forthwith paid in a judgment against the railroad company or deposited with him.

for costs, including a fee of $300 for the “ 'Sec. 2013. If the amount awarded by owner's attorneys. In due time the rail. the commissioners is decreased on the trial road company regularly sued out a writ of of the appeal, the reduced amount only shall error to the end that the record and probe paid the landowners.'

ceedings in the circuit court might be re“Section 3497 of the Code of Iowa, 1897, viewed by this court. The assignment of also provides :

errors which accompanied the petition for “ 'An action may be brought against any the writ of error alleged that the circuit railroad corporation, . in any coun- court erred in ascertaining and fixing the ty through which such road or line passes amount of damages to be paid by the railor is operated.'

road company for its appropriation of the “The Mason City & Fort Dodge Railroad owner's lots, in that there was an entire abCompany, plaintiff in error, hereinafter sence of evidence to support the award and called 'railroad company,' was a railroad finding. At no time during the pendency of corporation organized and existing under the proceedings in the circuit court did the the laws of the state of Iowa, and, as such, railroad company question the jurisdiction entitled to avail itself of the provisions of of that court or the right of the owner to the foregoing statutes of Iowa. C. D. Boyn- remove the cause into that court, but both ton, defendant in error, hereinafter called parties participated in the trial up to a the owner, was the owner of certain lots of final judgment, and in the proceeding to seground in the town of Carroll, Carroll coun- cure a writ of error, as if there was no ty, in the state of Iowa, and was, at all times question of jurisdiction in the case. Not mentioned herein, a citizen of the state of until the railroad company filed its brief Missouri. Prior to February 18, 1902, the, in this court was the jurisdiction of the cirrailroad company, requiring Boynton's lots cuit court in any manner challenged. But, as a right of way for the construction of its in its brief, as also in the oral argument railroad, filed an application in the office of made in its behalf, the chief point relied the sheriff of Carroll county, asking for the upon by the railroad company to secure a appointment of six freeholders to inspect the reversal of the finding and judgment of the lots and assess the damages which the own- circuit court is that the owner was the er would sustain by the appropriation of his plaintiff in said cause and proceeding, and lots for the use of the railroad company. did not have the right to remove the same On February 18, 1902, the commissioners into the circuit court, and that therefore were duly appointed by the sheriff and made that court could not entertain jurisdiction their report, assessing the owner's damages thereof. occasioned by the appropriation of his lots “And the circuit court of appeals for the by the railroad company at $4,750. eighth circuit further certifies that the fol.

“On the same day the railroad company lowing questions of law are presented in paid the sheriff that amount of money for this cause, that their decision is indispensathe use of the owner.

ble to a decision of the cause, and that to “Afterwards, and within the time fixed by the end that such court may properly decide the state statute, the owner appealed from the issues of law so presented it desires the the commissioners' award to the district instruction of the Supreme Court of the court of Carroll county. In due time, the United States upon such questions, to wit: owner filed in the last-mentioned court a “1. Was the landowner a defendant withpetition for the removal of the cause into in the meaning of the removal statute, when the circuit court of the United States for the suit was removed into the circuit court? "2. If the landowner was not a defendant, wrong party. The railroad company relies within the meaning of the removing stat- upon the words of the Iowa Code, $ 2009, ute, could the circuit court take cognizance quoted above, and upon a decision of the of the suit through a removal by him? supreme court of the state in a case like Stated in other words, the question is this: the present, except that the railroad was a Is the provision of the removal statute, to foreign company, in which it was held that the effect that the removal, on the ground the railroad had a right to remove. Myers of diverse citizenship, may be by the de- v. Chicago & N. W. R. Co. 118 Iowa, 312, fendant or defendants therein, being non- 324, 91 N. W. 1076. See also Kirby v. Chiresidents of that state,' restrictive and ju-cago & N. W. R. Co. 106 Fed. 551. It is risdictional in the sense that cognizance of said that this court is bound by the conthe suit can be taken by the circuit court struction given to the state law by the state through a removal only when it is by the court. Indeed, the above $ 2009 does not defendant, or is the provision only modal need construction; it enacts, in terms, that and formal in the sense that noncompliance the landowner shall be plaintiff. As the therewith, or nonconformity thereto, may be right to remove a suit is given only to the waived ?

defendants therein, being nonresidents of "3. Is the judicial proceeding which the the state, it is argued that the state decilandowner is authorized by the statutes of sion ends the case. Iowa to initiate in the district court of the But this court must construe the act of state, by way of a so-called appeal from the Congress regarding removal. And it is obassessment of the commissioners selected by vious that the word "defendant” as there the sheriff, a suit which can be originally used is directed toward more important instituted in the circuit court of the United matters than the burden of proof or the States, when the citizenship of the parties right to open and close. It is quite conceivand the sum or value of the matter in disable that a state enactment might reverse pute are such as to make the suit otherwise the names which, for the purposes of recognizable in that court?

moval, this court might think the proper “4. If the circuit court could not have ones to be applied. In condemnation protaken cognizance of the suit through the re-ceedings the words "plaintiff” and “defendmoval by the landowner, and if the circuit ant" can be used only in an uncommon and court could have taken cognizance of the liberal sense. The plaintiff complains of suit through its original institution in that nothing. The defendant denies no past or court after the assessment by the commis-threatened wrong. Both parties are actors: sioners, did the parties, by appearing in the one to acquire title, the other to get as large circuit court and there litigating to a final pay as he can. It is not necessary, in order conclusion the matter in dispute, without to decide that the present removal was right, any objection to the jurisdiction of the to say that the state decision was wrong. court or to the manner in which its juris. We leave the latter question where we find diction was invoked, authorize the circuit it. But we are of opinion that the removal court to exercise jurisdiction and to proceed in this case was right for reasons which it to final judgment in like manner and with will not take long to state. like effect as if the suit had been originally It is said the proceedings only become a instituted in that court, the citizenship of case, within the meaning of the act of Conthe parties and the sum or value of the gress, after the preliminary assessment and matter in dispute being such as to make the the appeal, and that then the landowner is suit otherwise cognizable in that court ?” in the position of one demanding pay for

property which he has lost. If we take a Messrs. Thomas D. Healy, A. G. Briggs, general view of the Iowa statutes, this conJohn L. Erdall, M. F. Healy, and Robert clusion is not correct. The railroad might Healy for the Mason City & Fort Dodge have taken the appeal. If it had, the landRailroad Company.

owner would have been on the defensive in Mr. Benjamin I. Salinger for Boynton. endeavoring at least to uphold the assess

ment, but he would have been called the Mr. Justice Holmes delivered the opinion plaintiff none the less. Whichever party of the court:

appeals, it is not true that the landowner In Madisonville Traction Co. v. St. Ber- is seeking pay for what he has lost. By g nard Min. Co. 196 U. S. 239, 49 L. ed. 462, 2011 the railroad is free to decline to take 25 Sup. Ct. Rep. 251, it was decided that the property if it thinks the price too large. proceedings of this character could be re- Even if, as in this case, it deposits the moved to the United States circuit court. amount first assessed with the sheriff, the The question to be decided now is only latter is not to pay it over until the deterwhether the removal in this case can be up. mination of the appeal. § 2010. We see set on the ground that it was asked by the l no reason to suppose that the deposit im. pairs the railroad's right to withdraw, al- | Fees of United States commissioner-in civthough the supreme court of Iowa says ubi il-rights cases.

2. Fees cannot be allowed a commissupra, that, by payment and entry, the railroad appropriates the land. See $ 2013. sioner of a Federal circuit court for certifyProbably, too, the position of the parties ing complaints in civil-rights cases, as reunder the act of Congress should be deter- quired by U. S. Rev. Stat. $ 2027, to himself

as chief supervisor of elections. mined upon general considerations, without Set-off-in court of claims-fees illegally regard to what has happened. Looked at

paid. as a whole, the Iowa statutes provide a

3. A set-off in favor of the United process by which railroads and others may states against the demand of a commissionacquire land for their purposes which the er of a Federal circuit court for 5 cents owner refuses to sell. The first step is the more per folio for drawing complaints in valuation. Whether it is part of the case civil-rights cases than the amount he had or not, it is a necessary condition to the been paid as in full for such services may procedings in court. Against the will of be allowed by the court of claims, under the owner the title to the land is not ac

the broad provisions of U. S. Rev. Stat. $ quired until the case is decided and the March 3, 1887 (24 Stat. at L. 505, chap. 359,

1059, U. S. Comp. Stat. 1901, p. 734; act of price paid. The intent of the railroad to get U. S. Comp. Stat. 1901, p. 752), § 1, to the the land is the mainspring of the proceedings extent of fees improperly and unlawfully from beginning to end, and the persistence of paid him in the settlement of his former that intent is the condition of their ef- account, which was approved by the circuit fect. The state is too considerate of we court subject to revision by the accounting rights of its citizens to take from them their officers of the United States Treasury, land in exchange for a mere right of action. even though some of such illegal payments The land is not lost until the owner is paid.

were made later than the filing of the claim. Therefore, in a broad sense, the railroad is

[No. 192.] the plaintiff, as the institution and continuance of the proceedings depend upon its Argued January 29, 30, 1907. Decided Feb. will. Hudson River R. & Terminal Co. v.

ruary 25, 1907. Day, 54 Fed. 545. It is not argued that this is any the less

A

PPEAL from the Court of Claims to rea suit because the railroad is free to decline view a judgment disallowing certain to take the property. The adjudication fixes claims made by a commissioner of a Federthe right of the railroad to take the land at al circuit court for services rendered in conthe price adjudged, and charges it with nection with complaints in civil-rights cases. costs and attorney's fees taxed by the court, Affirmed. in case it elects not to take. The question The facts are stated in the opinion. is not discussed in Madisonville Traction Messrs. Charles Calvert Lancaster and Co. v. St. Bernard Min. Co. supra, where, if Herbert E. Smith for appellant. there had been anything in it, possibly it Assistant Attorney General Van Orsdel, might have been raised. As what we have Special Assistant Attorney Ashford, and said is sufficient to dispose of the matter of Solicitor General Hoyt for appellee. the certificate, we think it unnecessary to consider other arguments, or to answer any Mr. Justice Holmes delivered the opinion question but the first.

of the court: The first question is answered “Yes." This is a claim made by a commissioner

of the United States circuit court for services rendered between January 29, 1886, and

January 20, 1892, charges for which were JOHN J. ALLEN, Appt.,

disallowed by the officers of the Treasury

Department. It is necessary to state only UNITED STATES.

the items and matters now in controversy.

Item 1, so far as disallowed by the court of Fees of United States commissioner-in civil-rights cases.

claims, is for drawing complaints which 1. A commissioner of a Federal circuit charged offenses under the Revised Statutes, court 'is not entitled to compensation for title “Crimes” (70) chap. 7 (U. S. Comp. services rendered in connection with com- Stat. 1901, p. 3711) (Crimes against the plaints in civil-rights cases in which there Elective Franchise and Civil Rights of Citihas been no arrest and examination, since zens) and upon which warrants never were the fee of $10 allowed him by U. S. Rev. served "because inquiry developed no offense Stat. & 1986, U. S. Comp. Stat. 1901, p. 1265. I had been committed.” The disallowed por"for his services in each case, inclusive of all services incident to the arrest and exam- tion of item 2 is for drawing jurats to simination," when earned, covers all services, ilar complaints of which the same facts and, unless earned, he gets no other fee. were true. Item 11 is for certifying com

v.

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