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. v. 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 Ky. 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.
Page 234 U. S. 594
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
Page 234 U. S. 595
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 for Kentucky, and the case was remanded for a new
trial in conformity to the opinion of that court (143 Ky. 73). The
case was again tried, and a decree for Higdon for damages was
affirmed by the Court of Appeals (149 Ky. 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 carload 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
Page 234 U. S. 596
afterwards the railroad company informed him that it would not
furnish cars at any price. This action was brought with the result
which we have stated.
No federal question was raised in the first trial or upon the
first appeal to the Kentucky Court of Appeals. The alleged federal
questions are said to arise because of two amended answers which
the plaintiff in error tendered, and which the circuit court
refused to permit it to file. In its first amended answer, the
plaintiff in error alleged that it had built side tracks and spurs
from its main track to certain industries in Henderson for the
delivery and receipt of freight to and from points beyond that
city; that it had constructed such a spur to the mine of the
Keystone Company, with the express understanding that the plaintiff
in error would not transport coal for the Keystone Company of for
anyone else between that spur and other spurs at Henderson, but
that it should be used solely for traffic coming into and going out
of Henderson; that it was not engaged and did not propose to engage
in the business of transportation as a common carrier between
industries at Henderson or any other station, or in transporting
coal from the Keystone Company's mine to spur tracks at Henderson,
and that, while it performed a switching service, it did so only
when it preceded or followed transportation beyond Henderson. It
further alleged that the service requested by Higdon was a
transportation service which the railroad company declined to
perform because it did not profess to and did not engage in that
business, and that it was not its duty as a common carrier so to do
or to furnish cars for such purpose. It also alleged that its
tariffs did not fix a rate for the movement of coal from the mine
of the Keystone Company to the spurs at Henderson, and that it did
not offer by such tariffs to perform such service, and that there
was no other demand for such service, and no other coal mine at
Henderson. And it alleged that it was not its duty to
Page 234 U. S. 597
perform such service for four dollars per car or for any other
sum, but that a rate of fifty cents a ton, which was the legal rate
in effect for hauling coal from points near Henderson to that city
and which was reasonable, would have been a reasonable charge for
the service requested by Higdon, and that a smaller rate would not
have been adequate compensation therefor, and concluded that to
compel the railroad company to perform the service asked by Higdon
at four dollars per car or for a rate less than fifty cents cents a
ton would be to compel it to perform a service which, under the
law, it was not its duty to perform, and at less than cost thereof,
and for less than the service was worth, with the result of
depriving the railroad company of its property without due process
of law, and denying it the equal protection of the law, contrary to
the Fourteenth Amendment to the Constitution of the United
States.
In its second amended answer, it set up, besides certain of the
allegations in the first amended answer to the effect that it was
not its duty to move freight between private spurs, that its
facilities at Henderson for delivering and receiving freight were
amply sufficient to accommodate the public, that it was engaged in
interstate commerce, and that to require the defendant to perform
the service asked by Higdon would impose upon it the duty of
performing like services at other points on its line in Kentucky,
and would impose upon it unreasonable, unjustifiable, and
unwarrantable duties which it as a common carrier was not required
to perform, and would be a direct and unreasonable and
unwarrantable interference with its interstate business and its
duties as a carrier of interstate commerce, and would impose an
unreasonable burden upon interstate commerce, contrary to ยง 8 of
Article I of the Constitution of the United States.
Had the Court of Appeals put its decision upon the ground that
the duty of the circuit court was simply to
Page 234 U. S. 598
give effect to the judgment of the Court of Appeals by enforcing
the rights of the parties upon the principles settled by it in its
first decision, and that the attempt to inject federal questions
into the record by amended pleadings after the case was remanded
did not seasonably raise federal questions reviewable by the Court
of Appeals, the case would be ruled by
Union Mutual Life Ins.
Co. v. Kirchoff, 169 U. S. 103, in
which this Court held that such attempts to raise federal questions
came too late to lay the foundation for review here.
See also
Yazoo & Mississippi Valley Ry. Co. v. Adams, 180 U. S.
1;
Bonner v. Gorman, 213 U. S.
86.
The Court of Appeals of Kentucky, in the opinion delivered in
the second case, did affirm the principle of the binding character
of its first decision, but as it gave consideration to the offered
amended answers in their federal aspect, and ruled concerning them,
we have concluded not to sustain the motion to dismiss, but to
regard the federal questions as so far passed upon by the Court of
Appeals as to present a case reviewable here.
Miedreich v.
Lauenstein, 232 U. S. 236,
232 U. S.
243.
Looking to the opinion of the Court of Appeals in the second
case, as we may properly do, to determine the nature of its ruling
concerning the offered amended answers, we find that it held that
the first part of the first amended answer was simply an
elaboration of the defense presented by the second paragraph of the
original answer, and that, on the former appeal, it had held that
those facts did not present a defense to the action, and that the
former opinion was the law of the case, and further consideration
of that matter was unnecessary. Coming, then, to consider the
conclusion of the averment of the first amended answer that a rate
of four dollars per car would be below the cost of the service, and
therefore confiscatory, it did not pass upon the effect of that
charge if required of the railroad company against its will, but
held that its rates as fixed
Page 234 U. S. 599
by its own tariffs, interpreted by its conduct, as held in the
first opinion of the Court of Appeals, had made that rate
applicable to the shipments requested by Higdon, and that therefore
the requirement of performing the service at four dollars per car
was not imposed upon the plaintiff in error except because of its
own tariff rate, which it might itself change at any time, but
which, while it was in force, should affect all shippers alike,
including Higdon. A reference to the former opinion of the court
shows that the question whether the published tariffs of the
railroad company applied to such service as Higdon required was
elaborately considered, and it was held that it did so apply, and
that, as the railroad company was performing that service for other
shippers similarly situated, to avoid discrimination, which the
Constitution and laws of Kentucky inhibited, it was required to
give the same rate to Higdon. It therefore results that in the
so-called denial of the federal right set up in the first amended
answer the court in effect held that the facts upon which it was
based had been concluded by the former decision, which was the law
of the case, and to permit the railroad company to relitigate these
facts because the result reached was alleged to violate
constitutional provisions would permit it to relitigate that which
the court held had been settled against it by the first decision of
the Court of Appeals, in which no infraction of federal right was
duly set up as required to lay the foundation for review.
As to the matter set up in the second amended answer, the court
held that it made no defense within the interstate commerce clause
of the Constitution of the United States, because all the court had
done was to make a decision which required the carrier to obey the
state constitution and laws which prevented discrimination as to
purely intrastate shipments. We think the court was right in this
conclusion. The state had full authority over shipments purely
intrastate, and the facts set up in the
Page 234 U. S. 600
second amended answer, that the requirement made at Henderson
might be made at other points in the state, and would result in an
unnecessary and unreasonable burden upon interstate commerce, only
avers an indirect effect upon such commerce of the exercise of a
right clearly within the authority of the state, and, being only of
that indirect and consequential character, it does not deprive the
railroad company of rights secured by the commerce clause of the
Constitution of the United States.
We conclude that the rulings made in the Court of Appeals of
Kentucky concerning the first and second amended answers which were
not permitted to be filed in the court of original jurisdiction did
not deprive the railroad company of rights secured by the federal
Constitution.
Affirmed.