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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.
Mr. Justice Holmes delivered the opinion of the court:
yields to the weight of the decision in the Dartmouth College Case, or, at least, to the principle of that case, according to which, as he conceives, the academy is a private corporation, and therefore exempt from a diversion from its original charter purposes, such as the act authorizing the lease is as
diversion that he is considering are those that he has stated as presented by the bill. The supreme court, after stating the nature of the corporation and the relations and course of dealing of the state with it, and citing cases to prove that Carrick Academy is a public agency, refers to the decision below and the citation there of the Dartmouth College Case only in order to show that that case was misapplied.
This is a bill to set aside a lease made by former trustees of Carrick Academy to the trustees of the Winchester Normal College, in pursuance of an act of the general assem-sumed to effect. The objections to such a bly of Tennessee, authorizing the letting of the academy property to said lessees. The bill alleged that the act was contrary to the Constitution of the state for various reasons, but said nothing of the Constitution of the United States, and in no way implied a reliance upon any of its terms. An act of Congress of April 18, 1806 [2 Stat. at L. 381, chap. 31], was referred to, but was not alleged to be contravened. The defendants demurred, and the demurrer, after being overruled by the court of chancery appeals, was sustained by the supreme court of the state. 112 Tenn. 483, 80 S. W. 64. The case then was brought here by writ of error, and was argued both on the merits and upon a motion to dismiss.
The assignment of errors sets up that the above-mentioned state law impairs the ob: ligation of contracts, contrary to the Constitution of the United States, although it does not show definitely what contract, or how that contained in the charter of Carrick Academy is impaired. It sets up, also, that the act is repugnant to the act of Congress of April 18, 1806; and it alleges that the plaintiffs in error specially set up and claimed their rights in these respects in the chancery court of the state.
To show that the Constitution of the United States was relied upon below, tne plaintiffs in error refer to passages in the opinions of the court of chancery appeals and the supreme court, in which Dartmouth College v. Woodward, 4 Wheat. 518, 4 L. ed. 629, was discussed, as establishing the point. But we are unable to see that those passages prove the fact. The court of chancery appeals states the violations of the state Constitution set up in the bill, summarizes the questions presented by the bill and demurrer, and then addresses itself to answering those questions, suggesting no others, and saying nothing about the Constitution of the United States. After a statement of historical facts, it says that if the act authorizing the lease is constitutional, and the subject-matter of the act was under the control of the state, the case is at an end. If Carrick Academy is a public corporation, the state is assumed to have control. If it is a private corporation, the state Consti
But the plaintiffs in error say further that the question of their rights under the Constitution of the United States necessarily was involved in a decision upon the bill, and that that is enough when the validity of a state law is concerned. Columbia Water Power Co. v. Columbia Electric Street R. Light & P. Co. 172 U. S. 475, 488, 43 L. ed. 521, 525, 19 Sup. Ct. Rep. 247; McCullough v. Virginia, 172 U. S. 102, 117, 43 L. ed. 382, 387, 19 Sup. Ct. Rep. 134. These and similar cases, however, are not to be pressed to the point that, whenever it appears that the state law logically might have been assailed as invalid under the Constitution of the United States, upon grounds more or less similar to those actu ally taken, the question is open. If a case is carried through the state courts upon arguments drawn from the state Constitution alone, the defeated party cannot try his chances here merely by suggesting for the first time when he takes his writ of error that the decision is wrong under the Constitution of the United States. Crowell v. Randell, 10 Pet. 368, 398, 9 L. ed. 458, 470; Simmerman v. Nebraska, 116 U. S. 54, 29 L. ed. 535, 6 Sup. Ct. Rep. 333; Hagar v. California, 154 U. S. 639, 24 L. ed. 1044, 14 Sup. Ct. Rep. 1186; Erie R. Co. v. Purdy, 185 U. S. 148, 153, 46 L. ed. 847, 850, 22 Sup. Ct. Rep. 635.
We are the less uneasy at the conclusion to which we are forced, that we do not apprehend that the statute of Tennessee is invalid for the reason now put forward. That reason is that the general assembly of the state had no authority to authorize the taking of the property of this corporation for the private use of another. This objection might be urged with some force, perhaps, to the lease that was made. But the statute,
which alone could be brought in question;
duly issued to review a judgment rendered in such cause in favor of the defendant in error in the circuit court of the United States for the southern district of Iowa, discloses the following:
"The Code of Iowa, 1897, in a chapter relating to the taking of private property for works of internal improvement, including the construction and repair of railways, contains the following:
"Sec. 1999. If the owner of any real estate necessary to be taken for either of the purposes mentioned in this chapter refuses to grant the right of way or other necessary interest in said real estate required for such purposes, or if the owner and the corporation cannot agree upon the compensation to be paid for the same, the sheriff of the county in which such real estate may be situated shall, upon written application of either party, appoint six freeholders of said
MASON CITY & FORT DODGE RAILROAD county not interested in the same or a like
C. D. BOYNTON.
Removal of causes-diverse citizenshipwhich party is defendant in condemnation proceedings.
The express declaration in Iowa Code 1897, § 2009, that, on the appeal to a district court, which either party may take from the commissioners' award in proceedings to condemn land for railway purposes, the "landowner shall be plaintiff and the corporation defendant," does not fix the status of the parties under the removal act, but the landowner must be deemed the defendant so far as the right of removal to a Federal circuit court on the ground of diverse citizenship is concerned, because, under the state statutes, the institution and continuance of the proceedings depend upon the will of the railroad company.*
question, who shall inspect said real estate, and assess the damages which said owner will sustain by the appropriation of his land for the use of said corporation, and make report in writing to the sheriff of said county; and, if the corporation shall, at any time before it enters upon said real estate for the purpose of constructing said railway, pay to the sheriff, for the use of the owner, the sum so assessed and returned to him as aforesaid, it may construct and maintain its railway over and across such premises.'
"Sec. 2009. Eitner party may appeal from such assessment to the district court. within thirty days after the assessment is made, by giving the adverse party, or, if such party is the corporation, its agent or attorney, and the sheriff notice in writing that such appeal has been taken. The sheriff 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.
N A CERTIFICATE from the United 0 States Circuit Court of Appeals for the Eighth Circuit presenting a question as to whether the landowner in condemnation proceedings is the defendant for the purpose of removal to a Federal circuit court. Answered in the affirmative.
Statement by Mr. Justice Holmes: This case comes here on the following certificate:
"The United States circuit court of appeals for the eighth circuit, sitting at the city of St. Louis, Missouri, on the 8th day of December, A. D. 1905, certifies that the record on file in the above-entitled cause, which is pending in such court upon a writ of error
try the same as in an action by ordinary proceedings. The landowner shall be plaintiff and the corporation defendant.
"❝Sec. 2010. An appeal shall not delay the prosecution of work upon said railway if said corporation pays or deposits with the sheriff the amount assessed. The sheriff shall not pay such deposit over to the person entitled thereto after the service of notice of appeal, but shall retain the same until the determination thereof.
"Sec. 2011. On the trial of the appeal no judgment shall be rendered except for costs.. The amount of damages shall be ascertained and entered of record, and, if no money has been paid or deposited with the sheriff, the corporation shall pay the amount so ascertained, or deposit the same with the sheriff' before entering upon the premises. Should
*Ed. Note.-For cases in point, see vol. 42, Cent. Dig. Removal of Causes, § 88. 27 S. C.-21.
the corporation decline to take the property, the western division of the southern district and pay the damages awarded on final determination of the appeal, then it shall pay, in addition to the costs and damages actually suffered by the landowner, a reasonable attorney's fee, to be taxed by the court.
"'Sec. 2012. If, on the trial of the appeal, the damages awarded by the commissioners are increased, the corporation shall pay or deposit with the sheriff the whole amount of damages awarded before entering on or using or controlling the premises. The sheriff, upon being furnished with a certified copy of the assessment, may remove said corporation, and all persons acting for or under it, from said premises, unless the amount of the assessment is forthwith paid or deposited with him.
""Sec. 2013. If the amount awarded by the commissioners is decreased on the trial of the appeal, the reduced amount only shall be paid the landowners.'
of Iowa, on the ground of diversity in citizenship. In his petition and bond to secure such removal the owner referred to and treated himself as the defendant, and referred to and treated the railroad company as the plaintiff, in the case.
"In due course the cause came on for hearing in the circuit court, when the parties, by a written stipulation filed with the clerk, waived a jury and agreed to try the case to the court. Both parties introduced evidence and fully submitted themselves to the jurisdiction of the court (if they could do so). The trial resulted in an assessment of the owner's damages at $11,445, and in a judgment against the railroad company for costs, including a fee of $300 for the owner's attorneys. In due time the railroad company regularly sued out a writ of error to the end that the record and proceedings in the circuit court might be re
"Section 3497 of the Code of Iowa, 1897, viewed by this court. The assignment of also provides:
"An action may be brought against any railroad corporation, . in any county through which such road or line passes or is operated.'
"The Mason City & Fort Dodge Railroad Company, plaintiff in error, hereinafter called 'railroad company,' was a railroad corporation organized and existing under the laws of the state of Iowa, and, as such, entitled to avail itself of the provisions of the foregoing statutes of Iowa. C. D. Boynton, defendant in error, hereinafter called the owner, was the owner of certain lots of ground in the town of Carroll, Carroll county, in the state of Iowa, and was, at all times mentioned herein, a citizen of the state of Missouri. Prior to February 18, 1902, the railroad company, requiring Boynton's lots as a right of way for the construction of its railroad, filed an application in the office of the sheriff of Carroll county, asking for the appointment of six freeholders to inspect the lots and assess the damages which the owner would sustain by the appropriation of his lots for the use of the railroad company. On February 18, 1902, the commissioners were duly appointed by the sheriff and made their report, assessing the owner's damages occasioned by the appropriation of his lots by the railroad company at $4,750.
"On the same day the railroad company paid the sheriff that amount of money for the use of the owner.
"Afterwards, and within the time fixed by the state statute, the owner appealed from the commissioners' award to the district court of Carroll county. In due time, the owner filed in the last-mentioned court a petition for the removal of the cause into the circuit court of the United States for
errors which accompanied the petition for the writ of error alleged that the circuit court erred in ascertaining and fixing the amount of damages to be paid by the railroad company for its appropriation of the owner's lots, in that there was an entire absence of evidence to support the award and finding. At no time during the pendency of the proceedings in the circuit court did the railroad company question the jurisdiction of that court or the right of the owner to remove the cause into that court, but both parties participated in the trial up to a final judgment, and in the proceeding to secure a writ of error, as if there was no question of jurisdiction in the case. Not until the railroad company filed its brief in this court was the jurisdiction of the circuit court in any manner challenged. But, in its brief, as also in the oral argument made in its behalf, the chief point relied upon by the railroad company to secure a reversal of the finding and judgment of the circuit court is that the owner was the plaintiff in said cause and proceeding, and did not have the right to remove the same into the circuit court, and that therefore that court could not entertain jurisdiction thereof.
"And the circuit court of appeals for the eighth circuit further certifies that the following questions of law are presented in this cause, that their decision is indispensable to a decision of the cause, and that to the end that such court may properly decide the issues of law so presented it desires the instruction of the Supreme Court of the United States upon such questions, to wit:
"1. Was the landowner a defendant within the meaning of the removal statute, when 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 the state, it is argued that the state decision ends the case.
"3. Is the judicial proceeding which the landowner is authorized by the statutes of Iowa to initiate in the district court of the state, by way of a so-called appeal from the assessment of the commissioners selected by the sheriff, a suit which can be originally instituted in the circuit court of the United States, when the citizenship of the parties and the sum or value of the matter in dispute are such as to make the suit otherwise cognizable in that court?
"4. If the circuit court could not have taken cognizance of the suit through the removal by the landowner, and if the circuit court could have taken cognizance of the suit through its original institution in that court after the assessment by the commissioners, did the parties, by appearing in the circuit court and there litigating to a final conclusion the matter in dispute, without any objection to the jurisdiction of the court or to the manner in which its jurisdiction was invoked, authorize the circuit court to exercise jurisdiction and to proceed to final judgment in like manner and with like effect as if the suit had been originally instituted in that court, the citizenship of the parties and the sum or value of the matter in dispute being such as to make the suit otherwise cognizable in that court?"
Messrs. Thomas D. Healy, A. G. Briggs, John L. Erdall, M. F. Healy, and Robert Healy for the Mason City & Fort Dodge Railroad Company.
Mr. Benjamin I. Salinger for Boynton.
But this court must construe the act of Congress regarding removal. And it is obvious that the word "defendant" as there used is directed toward more important matters than the burden of proof or the right to open and close. It is quite conceivable that a state enactment might reverse the names which, for the purposes of removal, this court might think the proper ones to be applied. In condemnation proceedings the words "plaintiff" and "defendant" can be used only in an uncommon and liberal sense. The plaintiff complains of nothing. The defendant denies no past or threatened wrong. Both parties are actors: one to acquire title, the other to get as large pay as he can. It is not necessary, in order to decide that the present removal was right, to say that the state decision was wrong. We leave the latter question where we find it. But we are of opinion that the removal in this case was right for reasons which it will not take long to state.
It is said the proceedings only become a case, within the meaning of the act of Congress, after the preliminary assessment and the appeal, and that then the landowner is in the position of one demanding pay for property which he has lost. If we take a general view of the Iowa statutes, this conclusion is not correct, The railroad might have taken the appeal. If it had, the landowner would have been on the defensive in endeavoring at least to uphold the assessment, but he would have been called the
Mr. Justice Holmes delivered the opinion plaintiff none the less. Whichever party
of the court:
In Madisonville Traction Co. v. St. Bernard Min. Co. 196 U. S. 239, 49 L. ed. 462, 25 Sup. Ct. Rep. 251, it was decided that proceedings of this character could be removed to the United States circuit court. The question to be decided now is only whether the removal in this case can be upset on the ground that it was asked by the
appeals, it is not true that the landowner is seeking pay for what he has lost. By § 2011 the railroad is free to decline to take the property if it thinks the price too large. Even if, as in this case, it deposits the amount first assessed with the sheriff, the latter is not to pay it over until the determination of the appeal. 2010. We see no reason to suppose that the deposit im
2. Fees cannot be allowed a commissioner of a Federal circuit court for certify
ing complaints in civil-rights cases, as re-
3. A set-off in favor of the United
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. supra, that, by payment and entry, the railroad appropriates the land. See § 2013. Probably, too, the position of the parties under the act of Congress should be determined upon general considerations, without regard to what has happened. Looked at as a whole, the Iowa statutes provide a process by which railroads and others may acquire land for their purposes which the owner refuses to sell. The first step is the valuation. W nether it is part of the case or not, it is a necessary condition to the procedings in court. Against the will of the owner the title to the land is not acquired until the case is decided and the price paid. The intent of the railroad to get the land is the mainspring of the proceedings from beginning to end, and the persistence of that intent is the condition of their effect. The state is too considerate of the rights of its citizens to take from them their land in exchange for a mere right of action. The land is not lost until the owner is paid. Therefore, in a broad sense, the railroad is the plaintiff, as the institution and continuance of the proceedings depend upon its Argued January 29, 30, 1907. Decided Febwill. Hudson River R. & Terminal Co. v. Day, 54 Fed. 545.
It is not argued that this is any the less
a suit because the railroad is free to decline to take the property. The adjudication fixes the right of the railroad to take the land at the price adjudged, and charges it with costs and attorney's fees taxed by the court, in case it elects not to take. The question is not discussed in Madisonville Traction Co. v. St. Bernard Min. Co. supra, where, if there had been anything in it, possibly it might have been raised. As what we have said is sufficient to dispose of the matter of the certificate, we think it unnecessary to consider other arguments, or to answer any question but the first.
The first question is answered "Yes."
JOHN J. ALLEN, Appt.,
Fees of United States commissioner-in civil-rights cases.
States against the demand of a commissioner of a Federal circuit court for 5 cents more per folio for drawing complaints in civil-rights cases than the amount he had been paid as in full for such services may be allowed by the court of claims, under 1059, U. S. Comp. Stat. 1901, p. 734; act of the broad provisions of U. S. Rev. Stat. § March 3, 1887 (24 Stat. at L. 505, chap. 359, U. S. Comp. Stat. 1901, p. 752), § 1, to the extent of fees improperly and unlawfully paid him in the settlement of his former account, which was approved by the circuit court "subject to revision by the accounting officers of the United States Treasury," even though some of such illegal payments were made later than the filing of the claim. [No. 192.]
ruary 25, 1907.
APPEAL from the Court of Claims to re
view a judgment disallowing certain claims made by a commissioner of a Federal circuit court for services rendered in connection with complaints in civil-rights cases. Affirmed.
The facts are stated in the opinion.
Messrs. Charles Calvert Lancaster and Herbert E. Smith for appellant.
Assistant Attorney General Van Orsdel, Special Assistant Attorney Ashford, and Solicitor General Hoyt for appellee.
Mr. Justice Holmes delivered the opinion of the court:
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 disallowed by the officers of the Treasury Department. It is necessary to state only the items and matters now in controversy. claims, is for drawing complaints which Item 1, so far as disallowed by the court of charged offenses under the Revised Statutes, title "Crimes" (70) chap. 7 (U. S. Comp. Stat. 1901, p. 3711) (Crimes against the Elective Franchise and Civil Rights of Citizens) and upon which warrants never were served "because inquiry developed no offense had been committed." The disallowed portion of item 2 is for drawing jurats to simall services incident to the arrest and examination," 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
1. A commissioner of a Federal circuit court is not entitled to compensation for services rendered in connection with complaints in civil-rights cases in which there has been no arrest and examination, since the fee of $10 allowed him by U. S. Rev. Stat. § 1986, U. S. Comp. Stat. 1901, p. 1265. "for his services in each case, inclusive of