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 constitution is assumed to invalidate the statute by one of the clauses set up in the bill. The judge, speaking for himself, would regard the academy as a public corporation, but he 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 assumed to effect. The objections to such a 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.

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 Ry., Light & Power Co., 172 U. S. 475, 488; McCullough v. Virginia, 172 U. S. 102, 117. 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 actually 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. 367, 398; Simmerman v. Nebraska, 116 U. S. 54; Hagar v. California, 154 U. S. 639; Erie Railroad v. Purdy, 185 U. S. 148, 153.

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 here, merely authorized the trustees of Carrick Academy to let the academy property to the trustees of the Winchester Normal College for not more than fifty years, and required the trustees of the college to keep the property in good condition and free from debt or incumbrance, if the lease was made. It said nothing about terms. It left the academy free. There was no taking of property, but at most an authority to change an investment. So far as the act shows on its face, which is all that we have before us, it might have contemplated a lease of the present grounds merely as a means to keeping up the academy with increased resources in a better place elsewhere.

Writ of error dismissed.

MASON CITY AND FORT DODGE RAILROAD COMPANY v. BOYNTON.

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

No. 170. Argued January 22, 23, 1907.—Decided February 25, 1907.

In condemnation proceedings the words plaintiff and defendant can only be used in an uncommon and liberal sense, and although a state statute may describe the landowner and the condemning corporation as plaintiff and defendant respectively, and the state court may hold them to be such, this court is not bound by that construction in construing the act of Congress regarding removal of causes and may determine the relation of the parties and who is entitled to remove the suit. A condemnation proceeding is a suit even though the condemning corporation may be free to decline to take the property after the valuation, it being charged with costs in case it elects not to take.

Under the Iowa statute, in a condemnation proceeding, the landowner is the defendant within the meaning of the act of Congress regarding removal of causes, and may remove the proceeding to the proper United States Circuit Court, notwithstanding the state statute provides that he is the plaintiff in such proceedings.

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 eighth 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 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 county not interested in the same or a like 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. Either 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 the part appealed from, and said court shall try the same as in an action by ordinary proceedings. The land owner 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 the corporation decline to take the property 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 land owner, 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.'

"Section 3497 of the Code of Iowa, 1897, 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 and 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