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213 U.S. Argument for Louisville & Nashville R. R. Co.

to be unconstitutional and void, L. & N. R. R. Co. v. McChord, 99 Kentucky, 132, and there is no suggestion looking to the granting of power to the commission to make schedules of maximum rates. It is impossible to conceive that the legislature would require a road like the Louisville & Nashville with 1,300 miles of road and 700 stations to publish and put into force a rate schedule in ten days. The legislature is presumed to have had before it the acts of other States creating railroad commissions and defining their powers, and apt and clear language would have been employed, if it had been the intention to clothe the commission with this important and far-reaching power. No railroad commission of any State has ever assumed such power except where expressly granted.

Powers of railroad commissions are limited, and the statutes granting such powers must be strictly construed. Chicago, I. & L. Ry. Co. v. R. R. Commissioners of Indiana, 38 Ind. App. 439; State v. Chicago, M. & St. P. Ry. Co., 16 S. D. 517; S. C., 94 N. W. Rep. 407; Board of R. R. Commrs. v. Oregon Ry. & Nav. Co., 17 Oregon, 65; S. C., 19 Pac. Rep. 702; Interstate Com. Comm. v. C., N. O. & T. P. Ry. Co., 167 U. S. 479; Chicago, B. & Q. Ry. Co. v. Dey, 38 Fed. Rep. 656; Louisville & Nashville R. R. Co. v. McChord, 103 Fed. Rep. 216.

The complaints on which the rate order was made were insufficient to give jurisdiction to or authorize said commission to make such order or to prescribe and establish maximum rates even if the act empowered the commission to establish and prescribe maximum rates on complaints of any character or under any circumstances.

The commission acted beyond its power in attempting to prohibit the railroad company from increasing or advancing any rate or rates it had or has in force and effect on any commodity or commodities belonging to either of the classes set out in the commodity clause in "Standard Tariff No. 1," notwithstanding the fact that such rates had not been found by said commission to be extortionate.

The said order shows on its face that the maximum rates

Opinion of the Court.

213 U. S.

therein prescribed were made applicable to some roads and not for the same distances and on the same classes of freight to all the other railroad companies operating lines in Kentucky, thereby depriving this appellee of equal protection of the laws. Louisville & Nashville R. R. Co. v. McChord, 103 Fed. Rep. 216; Dow v. Beidelman, 125 U. S. 680; Cotting v. Kansas City Stock Yards Co., 183 U. S. 79; Yick Wo v. Hopkins, 118 U. S. 356; Interstate Commerce Comm. v. Chicago Great Western Ry. Co., 209 U. S. 108; L. & N. R. R. Co. v. R. R. Comm. of Tennessee, 19 Fed. Rep. 679; Terre Haute & Indianapolis R. R. Co. v. State, 159 Indiana, 438.

Mr. Edmund F. Trabue, with whom Mr. John C. Doolan, Mr. Attilla Cox, Junior, and Mr. J. M. Dickinson were on the brief, for Illinois Central Railroad Company.

Mr. John Galvin, with whom Mr. Edward Colston and Mr. Maurice L. Galvin were on the brief, for the Cincinnati, New Orleans and Texas Pacific Railway Company.

Mr. Alexander Pope Humphrey, filed a brief in behalf of the Southern Railway Company in Kentucky.

MR. JUSTICE PECKHAM, after making the foregoing statement, delivered the opinion of the court.

The appellants deny the jurisdiction of the Circuit Court in this case. There is no diverse citizenship in the case of this particular company, and the jurisdiction must depend upon the presence of a Federal question. The bill filed by the company herein attacked the validity of the act of the legislature of Kentucky of March 10, 1900 (above set forth in full), on several grounds, as in violation of § 1 of the Fourteenth Amendment. It was also averred that the act was a violation of 4, Art. IV, of the Federal Constitution, in that it constituted an abandonment by the State of Kentucky of a repub

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lican form of government, in so far as it vested legislative, executive and judicial powers of an absolute and arbitrary nature over railroad carriers in one body or tribunal, styled the railroad commission. The company also contended that the act was in violation of the Federal Constitution, on account of the enormous fines and penalties provided in the act as a punishment for a violation of any of its provisions; also that the enforcement of the act would operate to deprive the company of its property without due process, of law, and would deny to it the equal protection of the laws, in violation of § 1 of Art. XIV, of the Amendments to the Constitution of the United States. Other grounds of alleged invalidity of the act in question, as in violation of the Federal Constitution, are set up in the bill. The bill also contained the averment that the order of the railroad commission of Kentucky, in making a general schedule of maximum rates for the railroads mentioned in its order, was invalid, as unauthorized by the statute. This is, of course, a local or state question.

The Federal questions, as to the invalidity of the state statute because, as alleged, it was in violation of the Federal Constitution, gave the Circuit Court jurisdiction, and, having properly obtained it, that court had the right to decide all the questions in the case, even though it decided the Federal questions adversely to the party raising them, or even if it omitted to decide them at all, but decided the case on local or state questions only.

This court has the same right, and can, if it deem it proper, decide the local questions only, and omit to decide the Federal questions, or decide them adversely to the party claiming their benefit. Horner v. United States (No. 2), 143 U. S. 570, 576; Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112, 154; Penn Mutual Life Insurance Co. v. Austin, 168 U. S. 685, 694; Burton v. United States, 196 U. S. 283, 295; Williamson v. United States, 207 U.S. 425; People's Savings Bank v. Layman, 134 Fed. Rep. 635; Michigan Railroad Tax Cases, 138 Fed. Rep. 223. Of course, the Federal question must not be merely colorable or

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fraudulently set up for the mere purpose of endeavoring to give the court jurisdiction. Penn Mutual Life Insurance Co. v. Austin, 168 U. S. 685, 695; Michigan Railroad Tax Cases, 138 Fed. Rep. 223, supra.

The character of some of the Federal questions raised is such as to show that they are not merely colorable, and have not been fraudulently raised for the purpose of attempting to give jurisdiction to a Federal court.

The appellants, however, contend that the jurisdiction of the Circuit Court did not attach under the Fourteenth Amendment, because of the allegations contained in the bill of the company, in which was contained an averment that the defendants below (the appellants here) had not been vested with the power, by either the constitution of the State of Kentucky or by any act of its legislature, or by any law, to make and enter the order of July 20, 1906, complained of in the company's bill. The argument of the appellants is that in order to violate the Fourteenth Amendment the action complained of must be under the authority of the State, and where the allegation of the bill was that "no power or authority had been vested in or conferred upon the appellants by the act of March 10, 1900, or by any law, to make or fix the rates complained of," such allegations swept away the foundation for the claim of Federal jurisdiction, inasmuch as in such case the action of the railroad commission was not the action of the State, and the principle decided in Barney v. City of New York, 193 U. S. 430, 437, was applicable.

If the averment as to the invalidity of the order of the commission were the only ground upon which a Federal question was founded, and if the bill alleged that the order was invalid because it was not authorized by the State, either by statute or in any other way, the objection might be good, but the bill sets up several Federal questions. Some of them are directed to the invalidity of the statute itself, on the ground that it violates various named provisions of the Federal Constitution in addition to and other than the Fourteenth Amendment, while some of the other Federal questions are founded upon.the

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terms of the order made by the commission, under what is claimed by the commission to be the authority of the statute. The bill also sets up several local questions arising from the terms of the order, and which the company claims are unauthorized by the statute. The various questions are entirely separate from each other. Under these circumstances there can be no doubt that the Circuit Court obtained jurisdiction over the case by virtue of the Federal questions set up in the bill, without reference to the particular violation set up in regard to the Fourteenth Amendment.

Where a case in this court can be decided without reference to questions arising under the Federal Constitution, that course is usually pursued and is not departed from without important reasons. In this case we think it much better to decide it with regard to the question of a local nature, involving the construction of the state statute and the authority therein given to the commission to make the order in question, rather than to unnecessarily decide the various constitutional questions appearing in the record.

The commission has assumed the power under this statute of making what are termed general maximum rates for the transportation of all commodities upon all railroads to and from all points within the State, and this company is included in the general order made by the commission. This is an enormous power. Jurisdiction so extensive and comprehensive as must exist in a commission in the making of rates by one general tariff upon all classes of commodities upon all the railroads throughout the State is not to be implied. The proper establishment of reasonable rates upon all commodities carried by railroads, and relating to each and all of them within the State depends upon so many facts which may be very different in regard to each road, that it is plain the work ought not to be attempted without a profound and painstaking investigation, which could not be intelligently or with discrimination accomplished by wholesale. It may be matter of surprise to find such power granted to any commission, although it would seem VOL. CCXIII-13

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