1. The provision of the Transportation Act, 1920, § 208a,
forbidding reductions of rates during six months following
termination of federal control unless approved by the Interstate
Commerce Commission was applicable to intrastate rates, was valid
as so applied, and included indirect reductions through reparation
orders attempted by state authority. P. 271 U. S.
2. Whether a federal right was lost by failure to comply with
state procedure is open to reexamination by this Court on review of
a state court's judgment. P. 271 U. S.
3. The state court sustained on appeal an order of a Commission
granting reparation in clear violation of the Transportation Act.
that the railroad was entitled to relief in this
Court on review of the judgment, although the state court based it
on the ground that the railroad waived its right by not appealing
Page 271 U. S. 125
an earlier order in which the Commission held the rate
unreasonable and announced that, upon presentation of a petition
with supporting data, it would grant reparation. P. 271 U. S.
281 Pa. 257 reversed.
Certiorari to a judgment of the Supreme Court of Pennsylvania
which affirmed a judgment enforcing an order of reparation granted
by the Public Service Commission of Pennsylvania to the respondent
against the railroad and based on alleged excess charges paid by
the respondent for the transportation of coal. Writ of error
dismissed and certiorari allowed.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a suit brought in a court of Pennsylvania to recover the
amount of alleged excess charged paid by the defendant in error for
the carriage of coal in commerce within the state, and ordered by
the Public Service Commission of Pennsylvania to be repaid by way
of reparation. A judgment on the order in favor of the defendant in
error was affirmed by the Supreme Court of Pennsylvania. New
York & Pennsylvania Co. v. New York Cent. R. Co.,
257. The charges in question were for shipments between March 1,
1920, and September 1, 1920, the six months following the
termination of federal control of the railroads. The rates charged
were those that were in effect on February 29, 1920. By § 208(a) of
the Transportation Act 1920 (Feb. 28, 1920, c. 91; 41 Stat. 456,
464), prior to September 1, 1920, no such rate could be reduced
unless the reduction was approved by the Interstate Commerce
Commission, the six months
Page 271 U. S. 126
concerned being the period during which the United States
guaranteed certain income to the railroads by § 209. The Interstate
Commerce Commission has not approved any reduction, and therefore
it is plain that the State Commission had no authority to
intermeddle with the rates that it undertook to cut down. It is
true that regulating rates and awarding reparation are different
matters. But the prohibition in the statute covers either method of
reducing the pay received by the roads. The language of the statute
and the reasons for the enactment too clearly apply to intrastate,
as well as to interstate, rates to admit debate. Missouri
Pacific R. Co. v. Boone, 270 U. S. 466
Whether the rates were right, or were wrong as the state Court
thinks, they could be changed only in one way.
It may be that some of the questions before us would be proper
matters for a writ of error, but as the rights asserted under the
statute of the United States are more fully open upon a writ of
certiorari, we shall consider the case upon the last mentioned
The state courts were of opinion that the plaintiffs in error
had waived their rights by their failure to appeal from a decision
on an earlier complaint to the State Commission in which that
Commission held that a lower rate was reasonable and stated that,
upon presentation of a petition accompanied by the supporting data,
reparation would be awarded for freight charges paid in excess of
the rates thus fixed. Whether the federal rights asserted were lost
in this way is open to examination here. Creswill v. Grand
Lodge Knights of Pythias, 225 U. S. 246
Ward v. Love County, 253 U. S. 17
253 U. S. 22
Davis v. Wechsler, 263 U. S. 22
263 U. S.
In our opinion, the failure to appeal from the former order is
no bar. We do not undertake to review the decision of the supreme
court as to state procedure, but if the railroads were too late to
argue their case before that
Page 271 U. S. 127
court, they are not too late to argue it here. There was no
order in the former hearing before the State Commission that the
railroads could have brought before us. This is the first moment
when they have had a chance to raise what we regard as a perfectly
clear point, as it is the first moment when their rights have been
infringed. There now is an order which is in the teeth of the
statute. It would not be reasonable to hold that they are precluded
from getting the protection that this Court owes them by their
having failed to go as far as they now learn that they might have
gone in a previous state proceeding which did not infringe their
rights and which could not be brought here.
"The judgment under review was the only final judgment . . .
from which plaintiff in error could prosecute a writ of error, and
until such final judgment, the case could not have been brought
here for review."
Chesapeake & Ohio Ry. Co. v. McCabe, 213 U.
, 213 U. S. 214
Smith v. McCullough, 270 U. S. 456
Writ of certiorari granted.
Writ of error dismissed.
MR. JUSTICE SUTHERLAND took no part in the consideration or
decision of this case.