right to obtain a writ of mandamus, nor does it appear that the municipal corporation has been in anywise prejudiced by the delay. In some form legal warfare seems to have been waged for the collection of these warrants by various holders in different courts without beneficial results until the present action. than a forfeiture or penalty,' to six years. | asserting their rights such as would bar the 14. This provision is found in title 2 of the Code, the object of which is to define and prescribe the time of commencing civil actions.' The civil action of the Code is a substitute for all such judicial proceedings as, prior thereto, were known either as actions at law or suits in equity. § 3. By § 8, the limitations of this title are expressly confined to civil actions. But proceedings in mandamus were never regarded as an action at law, or a suit in equity, and are not, therefore, a civil action within the meaning of the Code. Mandamus is an extraordinary or supplementary remedy, which cannot be resorted to if the party has any adequate, specific remedy. The Code provides for and regulates this remedy, but does not recognize it as a civil action." This language is no less applicable to the Oklahoma Code. The proceeding in mandamus is not a civil action, and therefore not within the terms of the statute of limitations. Following, then, the rule recognized and approved in Chapman v. Douglas County, supra, the question is, Should the writ be refused because the relator has slept upon his rights for an unreasonable time, and has the delay caused prejudice to the defendant, or to the rights of other interested persons? We perceive nothing in the record to warrant that conclusion. Gray, as receiver of the National Bank of Guthrie and successor of Cunningham, to whom the warrants were payable, on September 7, 1895, began a suit in mandamus in Logan county, Okla homa. The He prevailed in that court. case was reversed on February 12, 1897, by the supreme court of the territory (5 Okla. 188, 48 Pac. 106), and was remanded and refiled in the district court, April 7, 1897. The validity of the act was in controversy in the case of Guthrie Nat. Bank v. Guthrie, and sustained in this court, April 3, 1899 (173 U. S. 528, 43 L. ed. 796, 19 Sup. Ct. Rep. 513), reversing the supreme court of the territory. While we do not put our decision upon the same grounds as the Supreme Court of the territory, we think its conclusion was right, and its judgment will be affirmed. (204 U. S. 565) D. S. OSBORNE, J. K. P. Carroll, A. J. Error to state court-Federal question-how raised. 1. References to the Dartmouth College Case in the opinions of the state courts in educational institution is public or private, discussing the question whether a certain the decision of which question would determine the validity of state legislation under the state Constitution, do not show that the contract clause of the Federal Constitution was relied upon to invalidate such legislation, so as to sustain a writ of error from the Supreme Court of the United States. Error to state court-Federal question how raised. state law under the Federal Constitution is 2. The question as to the validity of a not necessarily involved so as to sustain a the United States to a state court merely writ of error from the Supreme Court of because the state law logically might have been assailed as invalid under the Federal Constitution upon grounds more or less similar to those actually taken. [No. 159.] On the 28th day of June, 1901, Turner and Kirkwood, as the successors in inter- Argued January 16, 1907. Decided Febru est to Gray, having purchased the warrants, as they allege, on January 5, 1901, filed ary 25, 1907. their motion to dismiss the original action, IN ERROR to the Supreme Court of the which was sustained. They then (on June 28, 1901) brought suit against the city of Guthrie for judgment upon the warrants against the city, in which they failed in the district court, and on appeal to the supreme court, that court holding that the remedy, if any, was by mandamus. 13 Okla. 26, 73 Pac. 283. On the 23d day of July, 1903, this mandamus proceeding was begun. These facts do not disclose any laches in State of Tennessee to review a decree which reversed a decree of the Court of Chancery Appeals in that state, affirming a decree of the Chancery Court of Franklin County, overruling a demurrer to a bill to set aside a lease of the property of an educational institution. Dismissed for want of jurisdiction. See same case below, 112 Tenn. 483, 80 S. W. 64. The facts are stated in the opinion. *568 $467 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 obligation 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 ap pears 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. 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, 371 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: which alone could be brought in question | duly issued to review a judgment rendered 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 encumbrance, 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 "'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. Writ of error dismissed. (204 U. S. 570) tion 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 COMPANY C. D. BOYNTON. Removal of causes-diverse citizenshipwhich party is defendant in condemnation proceedings. 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 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 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.* [No. 170.] ""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 Argued January 22, 23, 1907. Decided Feb- the part appealed from, and said court shall 0 ruary 25, 1907. N A CERTIFICATE from the United 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: 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 "The United States circuit court of appeals for the eighth circuit, sitting at the city 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 on file in the above-entitled cause, which is pending in such court upon a writ of error Ed. Note.-For cases in point, see vol. 42, Cent. Dig. Removal of Causes, 88. 27 S. C.-21. corporation shall pay the amount so ascertained, or deposit the same with the sheriff before entering upon the premises. Should *573 of Iowa, on the ground of diversity in citi zenship. 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. 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.' "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 But, "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? *575 829. "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. Mr. Justice Holmes delivered the opinion 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 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 plaintiff none the less. Whichever party 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 |