Whether a shipment was at a given time interstate is a question
of fact. P.
249 U. S.
477.
Evidence
held insufficient to prove that a traveling
show was moving interstate at the time of proceedings before a
state commission to require transportation within the state and fix
the rate.
Id.
The mere intention to continue the tour of a traveling show
beyond the state where it was performing
held not enough
to give interstate character to a contemplated journey within the
state.
Id.
A claim of federal right which was not set up in the state court
and made in the assignments of error
held not open in this
Court. P.
249 U. S.
478.
Semble that, when required by a state commission to
transport a
Page 249 U. S. 473
traveling show at a rate which is not objected to and upon terms
the same as it has habitually and voluntarily agreed to in like
cases, a railroad company has no ground to complain that it is thus
deprived of its liberty to make or refuse a contract as a private
carrier in violation of the equal protection and due process
clauses of the Fourteenth Amendment. P
249 U. S.
478.
19 Ariz. 20 affirmed.
The case is stated in the opinion.
Page 249 U. S. 474
MR. JUSTICE CLARKE, delivered the opinion of the Court.
An agent for Campbell's United Shows applied to the Southern
Pacific Company to transport eighteen cars, carrying a carnival
show equipment, including employees and animals, from Tucson, via
Maricopa, to Phoenix, Arizona.
In reply to this application, the company gave two reasons for
refusing the request. The first of these was that the company had
contracted for the transportation of another show, under an
agreement not to carry a second one within thirty days, which had
not expired, and the second, that the company was not a common
carrier of shows, and would not make the customary contract with
Campbell, but would serve him only at certain published interstate
rates, which it regarded as applicable. These were many times
greater than had been charged for the same show and than had been
the customary charge by the Southern Pacific and other companies
for similar service.
Upon receiving this refusal, an application by the owner of the
shows to the Arizona Corporation Commission for relief resulted in
an order to the Southern Pacific Company and the Arizona Eastern
Railroad Company, operating a connecting line, to show cause why
they should not publish, on one day's notice a special rate,
designated in the order of the Commission, for the transportation
of the shows between the points named. The reasonableness of the
required rate is not contested, and the order permitted the
Southern Pacific Company to make the special terms for
transportation of the shows which had been customary with it in
like cases.
Page 249 U. S. 475
The company refused to obey the order, and the Commission issued
to it a second rule to show cause why it should not be punished for
contempt for such disobedience. On this second rule, a hearing was
had, and the company was adjudged in contempt and fined $1,500,
which it refused to pay.
Thereupon, the State of Arizona instituted this suit in a
Superior Court of that state to recover the amount of the fine.
In its answer to the complaint of the state, the Southern
Pacific Company alleged:
That the proposed movement of the shows was "interstate in
character" because they were engaged in a tour, beginning at the
City of El Paso, Texas, and designed to extend through the States
of Arizona and New Mexico into the State of California, of which
tour the movement from Tucson to Phoenix was a part; that, in its
necessary operation, the order would require the company to accept
a rate lower than its published interstate rate would be a direct
burden upon interstate commerce, and that, for these reasons, the
order for the transportation was in contravention of the provisions
of Article I, ยง 8, of the Constitution of the United States, and
the fine for contempt was unlawfully imposed and void.
The judgment of the superior court was in favor of the state,
the company appealed to the Supreme Court of Arizona, which
affirmed the judgment, and the case is here on writ of error.
The only claim of error argued in this Court which is properly
presented by the record is whether the persons and property which
the Commission ordered the railroad company to carry were in
interstate transportation when the order was made for the service
between two stations in Arizona. If the shipment was then in
interstate commerce, the order was void, and if
Page 249 U. S. 476
it was not, the order was valid and the judgment of the Supreme
Court of Arizona must be affirmed.
The evidence which was before the courts and the Commission was
as follows:
Early in February, 1914, an agent for the shows applied to the
Southern Pacific Company for their transportation from El Paso,
Texas, to various towns in Arizona where it was desired to exhibit,
and ultimately to Cochise, Arizona, from which point another line
would be taken into Tucson. Nothing came of this application, and
an arrangement was made for carriage to Tucson by another road.
Before the shows arrived at Tucson, the application out of which
this suit arose was mad e. The agent for the shows testified that
the tentative purpose of the management was to go from Tucson to
Prescott, to Clarkdale, to Kingman, all in Arizona, and then to
Needles, California, exhibiting in each town, but when testifying
on March 23d when his show was exhibiting in Tucson, he said that,
although he had made application to the Santa Fe Railroad Company
for a contract for transportation beyond Phoenix, he had not at
that time received a reply.
The agent for the Santa Fe Company at Phoenix testified that
about March 20th, an application was made to him for a rate and
contract for the transportation of the shows over his line from
Phoenix to Prescott, "possibly to Clarkdale and to Needles,
California."
Two contracts with the Santa Fe Company were introduced in
evidence, one dated April 3rd providing for the transportation of
the shows from Phoenix to Prescott, to Kingman and to Needles, and
the other dated April 16th, providing for transportation from
Prescott direct to Bakersfield, California.
The shows were actually carried by the Southern Pacific Company
on March 29th or 30th from Tucson to Phoenix, but at an interstate
rate insisted upon in
Page 249 U. S. 477
defiance of the Commission's order. At Phoenix, the
transportation ended so far as the Southern Pacific Company was
concerned, and the contract with the Santa Fe Company to carry the
shows beyond that city was not concluded, as we have seen, until
April 3rd -- in its modified form not until April 16th.
This statement of the case decides it. Whether a shipment was at
a given time in interstate commerce is a question of fact,
Railroad Commission of Ohio v. Worthington, 225 U.
S. 101,
225 U. S. 108,
and it is plainly impossible to say that the property and persons
constituting the shipment of the shows here involved were in
progress of interstate transportation when the Arizona Commission
entered its order on March 25th that the company should accept the
intrastate shipment from Tucson to Phoenix. For, at that time, the
shows were in the exclusive possession and control of the owner,
exhibiting for six days at Tucson, and the application to the
Southern Pacific Company which was refused shows incontrovertibly
that the transportation to Tucson had terminated and that no other
transportation had then been contracted for. The company itself
proved that interstate transportation was not subsequently arranged
for until April 3rd certainly, and probably not until April 16th,
and then was via another line from Phoenix after two weeks for
exhibition in that city.
The mere intention of the shipper to ultimately continue his
tour beyond the State of Arizona did not convert the contemplated
intrastate movement into one that was interstate. The case is ruled
by
Coe v. Errol, 116 U. S. 517;
Chicago, Milwaukee & St. Paul Ry. Co. v. Iowa,
233 U. S. 334;
Gulf, Colorado & Santa Fe R. Co. v. Texas,
204 U. S. 403;
Arkadelphia Milling Co. v. St. Louis Southwestern Railway Co.,
ante, 249 U. S. 134.
It is further argued by the plaintiff in error that the
Page 249 U. S. 478
order of the state Commission deprived it of its right to make
or refuse to make a contract as a private carrier for the
transportation of traveling shows, and thereby deprived it of the
equal protection of the laws and of its property without due
process of law.
It would be enough to say of this contention that no such claim
was asserted in the answer of the company in the state court, or
even in the assignments of error in this Court, and that therefore
it cannot be considered here. But this omission is not an
oversight, for the record shows that it had been in prior practice
of the plaintiff in error to transport such shows on application
under special contract -- a short time before it had transported
another show and the year before it had accepted these same shows
for transportation -- and that the order of the Commission was:
"It is understood . . . that the . . . company may enter into a
contract covering this transportation, the terms of which shall not
be in substantial variance with the contract now existing between
the Arizona & Eastern Railroad Company and the Sells-Floto
Shows Company, with respect to details, as to the responsibility,
service, and conditions,"
which contract was on file with the Commission, and was dated
March 4, 1914. This form of contract was one also used by the
Southern Pacific Company.
Thus, this second claim, obviously an afterthought, is so
clearly without merit that it cannot be considered, and the
judgment of the Supreme Court of Arizona is
Affirmed.