The fact that a state statute which was assailed in the state
court as invalid under the constitution of the state might have
been assailed on similar grounds as also invalid under the
Constitution of the United States does not give this Court
jurisdiction to review under § 709, Rev.Stat., on writ of error
where the objections to the decision under the Constitution of the
United States were suggested for the first time on taking the writ
The facts are stated in the opinion.
Page 204 U. S. 567
MR. JUSTICE HOLMES delivered the opinion of the Court.
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 Assembly 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, 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. 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, the plaintiffs in error refer to passages in the
opinions of the court of chancery appeals and the supreme court in
which Dartmouth College v.
4 Wheat. 518, was discussed, as
establishing the point. But we are
Page 204 U. S. 568
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
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
172 U. S. 488
McCullough v. Virginia, 172 U. S. 102
172 U. S. 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
Page 204 U. S. 569
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.
10 Pet. 368, 35 U. S. 398
Simmerman v. Nebraska, 116 U. S. 54
Hagar v. California, 154 U. S. 639
Erie Railroad v. Purdy, 185 U. S. 148
185 U. S.
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 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 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.