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234 U. S.

Opinion of the Court.

pliance with the laws of Kentucky and had removed its office from the State, but that it had continued through its agents, the party served in this case being one of them, to solicit orders to be accepted outside of the State for the sale of machines which were to be delivered in Kentucky, and that its agents were authorized to receive money, checks and drafts in payment therefor, or take the notes of purchasers payable at any bank in Kentucky.

There are two questions in this case. The Court of Appeals, deciding that this case was governed by the previous case from Breckenridge County (147 Kentucky, 655), held that the service was good and that the antitrust act was not unconstitutional and violative of the Fourteenth Amendment to the United States Constitution. 149 Kentucky, 41. Since the Federal question involving the validity of the anti-trust act was considered and decided adversely in the Court of Appeals, it, as well as the question of due service, is properly before us. Miedreich v. Lauenstein, 232 U. S. 236, 243, and cases there cited.

As we have just dealt with the sufficiency of service in the previous case, involving the same question, it may be disposed of here by merely referring to that decision. And as the constitutional validity of the anti-trust act was specifically determined in cases Nos. 276, 291 and 292, entitled International Harvester Company of America v. The Commonwealth of Kentucky, decided June 8, 1914, ante, p. 216, that question is also concluded.

We therefore reach the conclusion that the plaintiff in error was doing business in Kentucky and that the service was sufficient, but that the law under which the action was brought is unconstitutional and that the judgment of the Court of Appeals must be reversed, and accordingly remand the case to that court for further proceedings not inconsistent with this opinion.

Reversed.

Counsel for Plaintiff in Error.

234 U. S.

LOUISVILLE & NASHVILLE RAILROAD COMPANY v. HIGDON, DOING BUSINESS UNDER THE NAME OF CRESCENT COAL COMPANY.

ERROR TO THE COURT OF APPEALS OF THE STATE OF

KENTUCKY.

No. 322. Submitted March 19, 1914.-Decided June 22, 1914.

Attempts to inject Federal questions into the record by filing amended

pleadings after the case has been remanded by the appellate court come too late to lay the foundation for review by this court, Mutual Life Insurance Co. 7. Kirchoff, 169 U. S. 103, except so far as the appellate court gives consideration to, and passes upon, such questions when the case again comes before it. Miedreich v. Lauenstein, 232

U. S. 236. In this case held, that defendant had not been deprived of Federal rights

because the state court had refused to allow him to file an amended pleading and relitigate a question already decided by setting up

alleged violations of Federal rights. The State has full authority over shipments purely intrastate, and an

averment that a service required at one point as to intrastate shipments might be required at other points in regard to interstate shipments only avers an indirect effect upon interstate commerce; and a defendant carrier denied leave to file an amended pleading to that effect is not deprived of rights secured by the commerce clause of the

Federal Constitution. 149 Kentucky, 321, affirmed.

The facts, which involve the validity under the due process provision of the Fourteenth Amendment of the Constitution of the United States of a judgment of the state court for damages for refusal to transport coal between intrastate points, are stated in the opinion.

Mr. Benjamin D. Warfield, Mr. Charles H. Moorman, Mr. Malcolm Yeaman, Mr. Edward S. Jouett, Mr. William A. Colston and Mr. Henry L. Stone for plaintiff in error:

234 U. S.

Argument for Plaintiff in Error.

The judgment of the Court of Appeals deprives the plaintiff in error of the reasonable control of its property and facilities used in the conduct of its business in violation of the Fourteenth Amendment. Am. and Eng. Ency: 158; C. & 0. Ry. Co. v. Hall, 136 Kentucky, 379; Constitution of Kentucky, S$ 214, 215; Clark Co. v. Lake Shore R. R. Co., 11 I. C. C. 558; Dixon v. Central R. R. of Georgia, 35 S. E. Rep. 369; Elkins v. Boston &c. R. R. Co., 28 N. H. 275; Elliott on Railroads, $ 1466; Grand Trunk Ry. Co. v. Michigan R. R. Comm., 231 U. S. 457; Hoover v. Penna. R. R. Co., 156 Pa. St. 229; Harp v. Choctaw, 118 Fed. Rep. 169; Hutchinson on Carriers, 88 59, 60, 144; Int. Com. Comm. v. Balt. & Ohio R. R. Co., 145 U. S. 263; Int. Com. Comm. v. Alabama Ry. Co., 69 Fed. Rep. 227; Johnson v. Midland R. R. Co., 4 Exch. 367; Kansas Pac. R. Co. v. Nichols, 19 Kansas, 247; Kentucky R. R. Commission v. L. & N. R. R. Co., 10 I. C. C. 173; Lake Shore &c. Ry. Co. v. Smith, 173 U. S. 684; Lake Shore &c. Ry. v. Ohio, 173 U. S. 285; Laurel Cotton Mills v. Gulf & S. I. R. Co., 37 So. Rep. 134; Lee v. Burgess, 9 Bush, 652; L. & N. R. R. Co. v. Kentucky, 105 Kentucky, 179; 108 Kentucky, 628; L. & N. R. R. Co. v. Cent. Stock Yards, 212 U. S. 132; Miner v. New York &c. R. R. Co., 11 I. C. C. 422; Moore on Carriers, p. 98; Oxlade v. N. E. R. Co., 1 C. B. N. 454; Pitlock v. Wells, Fargo & Co., 109 Mass. 452; Pfister v. Cent. Pac. R. Co., 59 Am. Rep. 404; Santa Fe &c. Ry. Co. v. Grant, 108 Pac. Rep. 467; Ellis y. Atlantic Coast Line, 12 L. R. A. (N. S.) 506; Tex. & Pac. Ry. Co. v. Int. Com. Comm., 162 U. S. 197; Varble v. Bigley, 14 Bush, 698; Wilson Produce Co. v. Penna. R. R. Co., 14 I. C. C. 170; Wisconsin R. R. Co. v. Jacobson, 179 U. S. 287.

The judgment of the Court of Appeals in this case is contrary to the Fourteenth Amendment because it requires plaintiff in error to perform a service at a rate that does not afford reasonable compensation for such service.

VOL. CCXXXIV–38

Opinion of the Court.

234 U. S.

Atlantic Coast Line v. North Carolina Corp. Comm., 206 U. S. 1; Attorney General v. Old Colony R. R. Co., 22 L. R. A. 112; Chi., Mil. & St. P. Ry. Co. v. Minnesota, 134 U.S. 418; Dow v. Beidelman, 125 U. S. 680; Georgia R. R. Co. v. Smith, 128 U. S. 179; Lake Shore &c. Ry. Co. v. Smith, 173 U. S. 684; Minn. & St. L. R. R. Co. v. Minnesota, 186 U. S. 257; Mo. Pac. Ry. Co. v. Nebraska, 164 U. S. 403; Railroad Commission Cases, 116 U. S. 307; Smyth v. Ames, 169 U. S. 466.

The decision of the Court of Appeals and $8 214 and 215 of the constitution of Kentucky as construed by the court in that decision impose an unreasonable burden upon the interstate commerce of plaintiff in error, and are therefore repugnant to the commerce clause of the Federal Constitution. Atlantic Coast Line v. Wharton, 207 U. S. 328; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196; Herndon v. Chicago &c. Ry. Co., 218 U. S. 135; 1. & N. R. R. Co. v. Eubank, 184 U. S. 27; McNeill v. Southern Ry. Co., 202 U. S. 543; Mississippi R. R. Comm. v. Ill. Cent. R. R. Co., 203 U. S. 305; St. Louis &c. Ry. Co. v. Arkansas, 217 U. S. 136; West. Un. Tel. Co. v. Pendleton, 122 U. S. 347.

Mr. James W. Clay, Mr. J. F. Clay and Mr. A. Y. Clay for defendant in error.

MR. JUSTICE Day delivered the opinion of the court.

The defendant in error, Joe Higdon, doing business under the name of the Crescent Coal Company, brought suit in the Henderson Circuit Court, of Kentucky, to recover damages for alleged loss because of the failure of the Railroad Company to furnish him with cars at the Keystone Mining & Manufacturing Company's mine at Henderson, Kentucky, with which to perform certain contracts which he had made and which he was prevented

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from fulfilling by the refusal of the Railroad Company. While the action was originally brought at law it was transferred upon motion of the plaintiff in error to the equity docket. The decree of the Circuit Court dismissing the petition was reversed in the Court of Appeals of Kentucky, and the case was remanded for a new trial in conformity to the opinion of that court (143 Kentucky, 73). The case was again tried and a decree for Higdon for damages was affirmed by the Court of Appeals (149 Kentucky, 321), and the case was brought here on writ of error. A motion to dismiss the writ for want of jurisdiction was, on December 16, 1912, postponed to the hearing upon the merits.

From the facts found and apparent in the record it appears: Higdon, doing business as the Crescent Coal Company, was engaged in buying and selling coal in the City of Henderson, and the Railroad Company was a common carrier having its main line running in and through that city. It had a belt line and various spurs and tracks leading from its main and belt lines into industrial plants in Henderson. The Keystone Company was operating a coal mine in Henderson, which was connected with the main and belt lines of the plaintiff in error's road by a spur which the latter operated and controlled. Higdon contracted with the Keystone Company for 20,000 tons of coal to be delivered to him on the spur track, and afterwards contracted with various plants having spur connections to deliver coal in car-load lots at certain prices. Thereafter he applied to the Railroad Company to furnish him cars at the Keystone Company's mine and to transport coal in them to other spurs at Henderson, offering to pay therefor four dollars per car or at the rate of about ten cents a ton, which he contended was according to the published rates of the Railroad Company. It refused to furnish him cars except at the rate of fifty cents a ton, which Higdon declined, and

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