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operation, nor is there any provision for filing and publishing such con-
tracts, and the fact that a contract was at the published rate when
made does not legalize it after the carrier has advance:1 the published
rate. The provisions as to rates, being in force in a constitutional act
of Congress when the contract is made, are read into the contract and
become a part thereof, and the shipper, who is a party to such a contract,
takes it subject to any change thereafter made in the rate to which he
must conform or suffer the penalty fixed by law. Ib.

5. Rates; competition may be considered in fixing-Relation of public to rail-

roads.
Railroads are the private property of their owners, and while the public

has the power to prescribe rules for securing faithful and efficient ser-
vice and equality between shippers and communities, the public is in no
proper sense a general manager. The companies may, subject to change
of rates provided for in the Interstate Commerce Act, contract with
shippers for single and successive transportations and in fixing their
own rates may take into account competition, provided it is genuine
and not a mere pretense. "Interstate Commerce Commission v. Chicago
Great Western Ry. Co., 108.

6. Rates; presumption of good faith of carrier in changing.
There is no presumption of wrong arising from a change of rate made by

a carrier. The presumption of good faith and integrity attends the
action of carriers as it does the action of other corporations and individ-
uals and those presumptions have not been overthrown by any legisla-
tion in respect to carriers. Ib.

7. Rates; unreasonable discrimination; difference in rates for packing-house

products and livestock not unreasonable.
A rate on the manufactured article resulting from genuine competition

and natural conditions is not necessarily an undue and unreasonable
discrimination against a manufacturing community because it is lower
than the rate on the raw material; and, under the circumstances of this
case, there was no undue and unreasonable discrimination against the
Chicago packing-house industries on the part of the railroads in making,
as the result of actual competition and conditions, a lower rate for manu-
factured packing-house products than for livestock from Missouri River
points to Chicago. Ib.

8. When merchandise ceases to be, and becomes subject to taxing and police

powers of State.
Merchandise may cease to be interstate commerce at an intermediate point

between the place of shipment and ultimate destination, and if kept at
such point for the use and profit of the owners and under the protection
of the laws of the State it becomes subject to the taxing and police power
of the State. The act of 1899 of Tennessee providing for the inspection
of oil is not an unconstitutional burden on interstate commerce as ap-
plied to oil coming from other States and ultimately intended for sale
and distribution in other States but meanwhile stored in Tennessee for
convenience of distribution and for reshipping from tank cars and bar-

reling. General Oil Co. v. Crain, 211.
9. What constitutes; right of State to tax persons engaged in buying and selling

cotton for future delivery where such delivery made by means of interstate

carriage.
Contracts for sales of cotton for future delivery, which do not oblige inter-

state shipments, are not subjects of interstate commerce, nor does the
fact that a delivery may be made by means of interstate carriage make
them so; and a state tax on persons engaged in buying and selling cotton
for future delivery held in this case not to be a regulation of interstate
commerce and as such beyond the power of the State. Paul v. Vir-
ginia insurance policy case), 8 Wall. 168, followed; Lottery Case, 188
U. S. 321; Rearick v. Pennsylvania, 203 U. S. 507, distinguished. Ware
& Leland v. Mobile County, 405.

10. Constitutionality of police regulation of State interfering with.
While the State may not legislate for the direct control of interstate com-

merce, a proper.police regulation which does not conflict with congres-
sional legislation on the subject involved is not necessarily unconstitu-
tional because it may have an indirect effect upon interstate commerce..
Asbell v. Kansas, 251.

11. State inspection of cattle moving in.
Until Congress acts on the subject a State may, in the exercise of its police

power, enact laws for the inspection of cattle coming from other States.
(Reid v. Colorado, 187 U. S. 137.) Ib.

12. As to whether exclusion by State of products of other States is an exercise of

police power or regulation of interstate commerce.
A State may not under pretense of protecting the public health exclude the

products or merchandise of other States, and this court will determine
for itself whether it is a genuine exercise of the police power or really
and substantially a regulation of interstate commerce. Ib.

13. State regulation; validity of $ 27, c. 495 of laws of Kansas of 1905, regulat-

ing importation of cattle.
Section 27 of Chap. 495 of the laws of Kansas of 1905, prohibiting the trans-

portation of cattle from any point south of the State into the State except
for immediate slaughter which have not been passed as healthy by the
proper state officials or by the National Bureau of Animal Industry is a
proper police regulation within the power of the State, is not in conflict
with the act of February 2, 1903, 32 Stat. 791, or the act of March 3,
1905, 33 Stat, 1204, in regard to inspection of cattle, and is not unconsti-
tutional as a direct regulation of interstate commerce. Ib.
See CONSTITUTIONAL LAW, 3, 13; FEDERAL QUESTION, 2;
CRIMINAL LAW;

PROPERTY RIGHTS, 3.

· INTOXICATING LIQUORS.

See STATES, 5.

JURISDICTION.

A. OF THIS COURT.
1. Avoidance of.
While this court will not take jurisdiction if it should not, it must take

jurisdiction if it should. It cannot, as the legislature may, avoid meeting
a measure because it desires so to do. Ex parte Young, 123.

2. Amount in controversy; where judgment involves validity of other judgments,

latter considered.
While this court cannot review judgments of the Supreme Court of the

Territory of Oklahoma unless the amount involved exceeds $5,000,
where the judgment also directly involves the validity of other judg-
ments the amount in controversy may be measured by the aggregate
of such judgments. Beadles v. Smyser, 393.

3. Under 8 709, Rev. Stat.; denial of constitutional right.
Where complainant is entitled to equitable relief against the enforcement

by state officers of an unconstitutional state statute, the judgment of the
state court dismissing the bill for lack of jurisdiction on the ground that
the suit is one against the State gives effect to the statute, denies com-
plainant a constitutional right and is reviewable by this court under
$ 709, Rev. Stat. General Oil Co. v. Crain, 211.

4. Under $ 709, Rev. Stat.; sufficiency of Federal question.
In order to give this court jurisdiction under $ 709, Rev. Stat., to review

the judgment of a state court, the Federal question must be distinctly
raised in the state court, and a mere claim, which amounts to no more
than a vague and inferential suggestion that a right under the Constitu-
tion of the United States had been denied, is not sufficient-and so
held as to an exception taken as to certain parts of the charge to the jury
because in effect they deprived the accused of his liberty without due
process of law. Thomas v. Iowa, 258.

5. Limitation of review of judgment of reversal of Supreme Court of Territory.
Where the Supreme Court of the Territory of Oklahoma reverses the judg-

ment of the trial court, the reviewing power of this court is limited to
determining whether there was evidence supporting the findings and
whether the facts found were adequate to sustain the legal conclusions.
Shawnee Compress Co. v. Anderson, 423.

6. To review judgments of District Court for Porto Rico.
The power of this court to review judgments of the District Court of the

United States for Porto Rico given by $ 35 of the act of April 12, 1900,
31 Stat. 85, is the same as that to review judgments of the Supreme
Courts of the Territories and is controlled by $ 2 of the act of April 7,
1874, 18 Stat. 27; on writ of error, therefore, this court is confined to
such legal questions as necessarily arise on the face of the record, such as
exceptions to rulings on the rejection and admission of testimony and

VOL. CCIX-37

the sufficiency of the findings to sustain the decree based thereon. Gar-
zot v. de Rubio, 283.

7. Same.
In this case the facts sustained the plaintiff's contention that she was a

citizen of Spain and as to that point there was no ground for dismissal

for want of jurisdiction. Ib.
8. Certificate from Circuit Court of Appeals; defective certificate.
The authority given by $ 6 of the Judiciary Act of March 3, 1891, 26 Stat.

826, to the Circuit Court of Appeals, to certify propositions of law to
this court, cannot be used for the purpose of sending to this court the
whole case for its consideration and decision. A certificate which does
not set forth the propositions of law, clearly stated, which may be an-
swered without reference to all the facts, but which sets forth mixed
questions of law and fact requiring this court to construe acts of Con-
gress, and, in the light of all the testimony, to determine what should
be the judgment of the lower court, is defective and must be dismissed.
(C., B. & Q. Ry. Co. v. Williams, 205 V. S. 444, 454.) Hallowell v.
United States, 101.

B. OF CIRCUIT COURTS.
1. Effect of State being party plaintiff in state court, on jurisdiction of Circuit

Court on removal.
The mere presence on the record of a State as a party plaintiff will not de-

feat the jurisdiction of the Federal court when it appears that the State
has no real interest in the controversy; and it is the duty of the Circuit
Court to ascertain whether the State is an actual party by consideration
of the nature of the suit and not by reference to the nominal parties.
Ex parte Nebraska, 436.

2. To determine sufficiency of railroad rate prescribed by state statute.
Although the determination of whether a railway rate prescribed by a state

statute is so slow as to be confiscatory involves a question of fact, its
solution raises a Federal question, and the sufficiency of rates is a judi-
cial question over which the proper Circuit Court has jurisdiction, as one
arising under the Constitution of the United States. Ex parte Young,
123. Hunter v. Wood, 205.

3. To inquire whether railroad rates prescribed by state statute are confiscatory,

and enjoin enforcement thereof.
A state railroad rate statute which imposes such excessive penalties that

parties affected are deterred from testing its validity in the courts denies
the carrier the equal protection of the law without regard to the ques-
tion of insufficiency of the rates prescribed; it is within the jurisdiction,
and is the duty, of the Circuit Court to inquire whether such rates are
80 low as to be confiscatory, and if so to permanently enjoin the railroad
company, at the suit of one of its stockholders, from putting them in
force, and it has power pending such inquiry to grant a temporary
'njunction to the same effect. Ib.

4. To determine whether state statute unconstitutional as preventing person

affected from resorting to courts.
Whether a state statute is unconstitutional because the penalties for its

violation are so enormous that persons affected thereby are prevented
from resorting to the courts for the purpose of determining the validity
of the statute and are thereby denied the equal protection of the law
and their property rendered liable to be taken without due process of
law, is a Federal question and gives the Circuit Court jurisdiction.
Ib.

5. Diversity of citizenship; alignment of parties by court; proper alignment of

corporation and others in suit by stockholder.
While the court, in determining whether diverse citizenship exists, may

disregard the pleader's arrangement of parties and align them according
to actual interest, if the plaintiff's controversy is actually with all the
parties named as defendants, all of whom are necessary parties, none of
them can for jurisdictional purposes be regarded otherwise than as
defendants; and so held, in an action against a corporation and others
by one of the stockholders, that where the complaint alleges joint fraud-
ulent conduct on the part of the corporation and the other defendants
with whom it jointly resists that charge, the corporation cannot be re-
aligned as a party plaintiff even if it might be to its financial interest to
have the plaintiff prevail. (Doctor v. Harrington, 196 U. S. 579.) Ven-
ner v. Great Northern Ry. Co., 24.

6. Distinction between right to sue and right to prosecute particular bill. Action

by stockholder against corporation.
The right to bring a suit is distinguishable from the right to prosecute the

particular bill; and, where the other jurisdictional essentials exist, the
Circuit Court has jurisdiction of an action against a corporation by one
of its stockholders although the bill does not comply with Equity Rule 94
and for that reason must be dismissed. Ib.

7. Legislative prescription; power of this court to regulate manner of exercise of

jurisdiction.
The jurisdiction of the Circuit Court is prescribed by laws enacted by Con-

gress in pursuance of the Constitution and while this court may, by rules
not inconsistent with law, regulate the manner in which that jurisdiction
shall be exercised, that jurisdiction cannot by such rules be enlarged or
diminished. Ib.

8. Acceptance of jurisdiction on removal to.
In either case, the filing by the defendant of a petition for removal, the

filing by the plaintiff after removal of an amended complaint or the
giving of a stipulation for continuance, amounts to the acceptance of
the jurisdiction of the Circuit Court. In re Moore, 490.

See CONTEMPT OF COURT, 2;

MANDAMUS, 2.

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