1. A judgment of the Supreme Court of Ohio affirmed, upon review
under Gen.Code, §§ 544, 545, an order of the state Public Utilities
Commission which, in granting to the appellant a license to operate
a line of passenger motor buses within the state, forbade his
adding to the route a loop to a point in an adjacent state near the
state line and back. Held
conclusive as res
in a suit in the federal court upon the questions
whether the prohibition in the order violated rights of the
appellant under the commerce clause of the federal Constitution and
under the privileges and immunities clause of the Fourteenth
Amendment. P. 281 U. S.
Page 281 U. S. 471
2. The state and federal courts have concurrent jurisdiction
over civil suits arising under the Constitution and laws of the
United States, including the commerce clause, save in exceptional
instances where the jurisdiction has been restricted by Congress to
the federal courts. P. 281 U. S.
3. Where control over specific property is not involved, the
fact that suit is begun first in a federal court does not preclude
a state court from entertaining a suit involving the same subject
and parties. The final judgment first rendered in either case
becomes conclusive in the other as res judicata.
281 U.S. 476
4. In determining the effect of a judgment of a state court as
an estoppel in the federal court, the state court's decision as to
the jurisdiction intended to be conferred on it by state statutes
is conclusive in the district court and in this Court on appeal. P.
281 U. S.
5. A judgment of a state court affirming an order of a state
commission over an objection distinctly raised under the
Constitution is necessarily an adjudication of the federal
question, although that question be not mentioned by the court in
its opinion. Id.
6. Upon a judicial review attacking the validity of an order of
an administrative body, the party attacking must present every
available ground of which he has knowledge. He is not at liberty to
prosecute his right by piecemeal. P. 281 U. S.
7. A judgment upon the merits in one suit is res
in another where the parties and subject matter are
the same not only as respects matters actually presented to sustain
or defeat the right asserted, but also as respects any other
available matter which might have been presented to that end. P.
281 U. S. 479
33 F.2d 323 affirmed.
Appeal from a decree of the district court of three judges
dismissing the bill in a suit to enjoin, in part, an order of the
Public Utilities Commission of Ohio defining the appellant's right
to operate a line of passenger buses.
Page 281 U. S. 472
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
The appellant applied to the Public Utilities Commission of Ohio
for a certificate to operate, solely in interstate commerce, a line
of passenger motor busses over certain public highways in that
state as part of an intended route between Columbus, Ohio, and
Huntington, W.Va. In his application, he described the route as
including a short loop at Portsmouth, Ohio, whereby the busses, on
reaching that point would cross the Ohio River to a village at the
Kentucky end of the interstate bridge and then recross to
Portsmouth before proceeding towards their destination. Several
carriers likely to be affected if the application was granted
intervened and filed protests. A hearing was had, after which the
Commission made an order granting the requested certificate but
excluding the loop at Portsmouth from the intended route -- the
exclusion being put in the form of an express prohibition,
commission explaining that, in its opinion, the loop was intended
to be merely a device to enable the appellant to carry passengers
between Portsmouth and other points in Ohio and, by giving that
service the appearance of an interstate service, to avoid
compliance with the laws of that state relating to intrastate motor
transportation. A rehearing was sought by the appellant because the
loop at Portsmouth was excluded, and by the protestants because the
certificate was granted; but the Commission adhered to its
The appellant then brought a suit in equity against the
Commission in the district court of the United States for
Page 281 U. S. 473
the Southern District of Ohio to restrain and prevent the
enforcement of so much of the order as excluded from the intended
route the loop at Portsmouth. The protestants and some police
officers who might be called on to assist in enforcing the order
were made codefendants with the Commission. The parties were all
citizens of Ohio, and the sole ground advanced for invoking the
jurisdiction of the federal court was that the suit was one arising
under the Constitution of the United States and involving more than
§§ 41(1) and 380, Title 28, U.S.C.
In the bill, so much of the order as excluded the loop at
Portsmouth was assailed as an attempted restriction and regulation
of interstate commerce by a state agency contrary to the commerce
clause of the Constitution of the United States and to § 614-101 of
the General Code of Ohio, and as denying to the appellant rights,
privileges and immunities guaranteed by the Fourteenth Amendment.
The prayer was for both an interlocutory and a permanent injunction
to be granted conformably to § 380, Title 28, U.S.C.
Three judges were called pursuant to that section to act in the
suit; an interlocutory injunction was granted, and, upon the final
hearing, there was a decree dissolving the injunction and
dismissing the bill upon the ground that, in a litigation between
the same parties, had in the Supreme Court of Ohio while the suit
in the district court was pending, the Commission's order had been
adjudged valid, and that the appellant was barred and estopped by
that adjudication from further litigating the same matter. 33 F.2d
323. After the decree was entered, the appellant sought, and the
district court allowed, a direct appeal to this Court under §§ 345
and 380, Title 28, U.S.C.
The appellees now have interposed a motion, under section 4 of
rule 7 of the Rules of this Court, that the
Page 281 U. S. 474
decree be affirmed without awaiting oral argument upon the
ground that the objections taken to the decree are so unsubstantial
as not to admit of debate, and the parties have submitted full
briefs in this connection.
The laws of Ohio make provision for a review of final orders of
the Commission by the supreme court of the state -- a judicial
review culminating in a judgment. Gen.Code, §§ 544, 545;
Hocking Valley Ry. Co. v. Public Utilities Commission,
O.St. 9, 14; Hocking Valley Ry. Co. v. Public Utilities
100 O.St. 321, 323; Ohio Utilities Co. v.
Public Utilities Commission, 267 U. S. 359
Shortly after the Commission denied their respective
applications for a rehearing, the appellant and the protestants, by
two distinct petitions, sought and obtained a review of the
Commission's order by the supreme court of the state -- the
appellant complaining of the exclusion of the loop at Portsmouth,
and the protestants of the granting of the certificate. The
Commission was made a party defendant to both petitions, and the
petitions were consolidated and heard together. Thus, the court had
before it the entire order, the Commission, the appellant, and the
protestants. In that court, the appellant charged in his petition
that so much of the order as excluded the loop from the intended
route was unlawful, and should be reversed upon the grounds, among
others, that it was not sustained by the evidence, denied to the
appellant rights, privileges, and immunities guaranteed by the
Fourteenth Amendment, was in conflict with the commerce clause of
the Constitution of the United States, and was in violation of §
614-101 of the General Code of Ohio. The grounds on which the
protestants challenged the order are only obscuredy indicated in
the present record -- possibly because having no bearing here.
Page 281 U. S. 475
After a hearing in which all of the parties participated, the
state court rendered a judgment sustaining and affirming the
Commission's order in its entirely. 119 O.St. 264, 163 N.E. 713,
715. No effort was made to have the judgment reviewed by this
Court, and after the three months allotted for applying for such a
review had elapsed, the defendants in the suit in the district
court, by leave of that court, interposed answers setting up the
judgment as a bar to the further prosecution of the suit. A hearing
upon this plea resulted in the decree now under review, which
sustained the plea and dismissed the bill.
The case in the state court was so far identical with the suit
in the federal court as respects subject matter and parties that
there can be no doubt that the judgment in the former, unless
invalidated by some jurisdictional infirmity, operated to bar the
further prosecution of the latter. That the state court had
jurisdiction of the parties is plain, and not questioned. But the
appellant does question that it had jurisdiction of the subject
matter, and this although, at the outset, he treated that
jurisdiction as subsisting, and invoked its exercise. Of course, he
is entitled to raise this question notwithstanding his prior
inconsistent attitude, for jurisdiction of the subject matter must
arise by law, and not by mere consent. We turn, therefore, to the
grounds on which that jurisdiction is questioned.
The appellant relies on the commerce clause of the Constituion
as in some way operating to commit to the federal courts and to
withhold from the state courts jurisdiction of all suits relating
to the regulation or attempted regulation of interstate commerce.
This view of that clause is quite inadmissible. It has no support
in any quarter; is at variance with the actual practice in this
class of litigation, Gibbons v.
9 Wheat. 1; Western
Page 281 U. S. 476
Union Telegraph Co. v. Foster, 247 U.
; Pennsylvania Gas Co. v. Public Service
225 N.Y. 397; s.c. 252 U. S. 252
23; People's Gas Co. v. Public Service Commission,
270 U. S. 550
Public Utilities Commission v. Attleboro Co., 273 U. S.
; Murray v. Chicago & Northwestern Ry.
62 F. 24, 42, 43, and is in conflict with the doctrine
often sustained by this Court that the state and federal courts
have concurrent jurisdiction of suits of a civil nature arising
under the Constitution and laws of the United States, save in
exceptional instances where the jurisdiction has been restricted by
Congress to the federal courts. Claflin v. Houseman,
93 U. S. 130
93 U. S.
-137; Robb v. Connolly, 111 U.
, 111 U. S.
-637; Second Employers' Liability Cases,
223 U. S. 1
223 U. S. 56
Minneapolis & St. Louis R. Co. v. Bombolis,
241 U. S. 211
241 U. S.
-223. There is no such restriction which is
It next is said that the suit in the federal court was begun
before resort was had to the state court, and therefore that the
jurisdiction of the federal court was exclusive, and precluded
action in the state court. In this, the appellant is invoking a
rule which is applicable to suits dealing with specific property
and involving actual or potential control over the same, where
necessarily the court (whether federal or state) first obtaining
jurisdiction of the res must hold it to the exclusion of another.
Here, the litigation was not of that class, but was of such a
nature that it could proceed in both courts, in virtue of their
concurrent jurisdiction, until there was a final judgment in one,
Kline v. Burke Construction Co., 260 U.
, when that judgment would become conclusive in
the other as res judicata. Chicago, Rock Island &
Pacific Ry. Co. v. Schendel, 270 U. S. 611
270 U. S. 616
Mutual Life Insurance Co. v. Harris, 97 U. S.
, 97 U. S.
By way of further questioning the state court's jurisdiction, it
is said that the state statutes, rightly understood,
Page 281 U. S. 477
do not invest that court with power to review orders of the
Commission relating to interstate commerce, but only such as relate
to other subjects, §§ 502, 614-89, 614-101 of the Ohio General Code
being cited. And, by way of questioning that court's power to
render the judgment in question, it is said that the state statute,
§ 544, General Code, although distinctly empowering the court to
reverse, vacate, or modify orders of the Commission found unlawful
or unreasonable, contains no provision for an affirmance of those
not so found. The powers of the state court in these particulars
are questions of local law only. That court resolved them against
the present contentions, for it both reviewed and affirmed the
order. And that resolution is in accord with its earlier and later
rulings. Cannon Ball Transportation Co. v. Public Utilities
113 O.St. 565; Detroit-Cincinnati Coach Line,
Inc. v. Public Utilities Commission,
119 O.St. 324;
Wheeling Traction Co. v. Public Utilities Commission,
O.St. 481. Plainly its solution of these questions of local law
must be accepted as controlling in this Court, as they were in the
district court. Standard Oil Co. v. Missouri, 224 U.
, 224 U. S. 281
Gasquet v. Lapeyre, 242 U. S. 367
242 U. S. 369
Iowa Central Ry. Co. v. Iowa, 160 U.
, 160 U. S.
In the opinion of the state court, there is no express mention
of the constitutional grounds on which the appellant asked a
reversal of the order excluding the loop over the Ohio River at
Portsmouth, and from this it is argued that the constitutional
validity of the order was not determined, and therefore, as to that
matter, the judgment is not res judicata.
But the argument
is not sound. The question of the constitutional validity of the
order was distinctly presented by the appellant's petition, and
necessarily was resolved against him by the judgment affirming the
order. Omitting to mention that question in the opinion did not
eliminate it from the case or
Page 281 U. S. 478
make the judgment of affirmance any the less an adjudication of
it. But, while the opinion makes no specific reference to the
attack on the constitutional validity of the order, it leaves no
doubt that the court regarded that and other objections to the
order as untenable, and, on that basis, affirmed it; for, in the
opinion, the court says,
"The finding of fact by the commission as to the intent and
purpose of Grubb in seeking this side loop from Portsmouth to South
Portsmouth and return was amply sustained by the records of the
commission, and we see no error in the action of the commission
denying that part of the application."
In his bill, the appellant assails the validity of the order
upon one ground not brought to the attention of the state court --
a ground arising out of the granting to another interstate motor
line of a certificate to operate busses over a route including the
loop at Portsmouth, and he insists that this ground of objection is
not concluded by the judgment of the state court, and therefore is
open to examination and adjudication upon its merits by the
district court. But the judgment has a broader operation as res
than is thus suggested. The certificate referred to
was granted several months before the appellant applied for a
certificate, and he had personal knowledge of it from the time it
was granted. It was shown upon the records of the Commission, and
was easily accessible when the hearing was had upon his
application. Thus, it is a matter which, if having the bearing now
suggested, could have been brought to the attention of the
Commission either at that hearing or in his request for a
rehearing, § 543, General Statutes, and, if it was not then given
proper effect, he could have brought it to the attention of the
state court and have made the same claim in respect of it that is
now made in his bill.
The thing presented for adjudication in the case in the state
court was the validity of the order, and it was incumbent
Page 281 U. S. 479
on the appellant to present in support of his asserted right of
attack every available ground of which he had knowledge. He was not
at liberty to prosecute that right by piecemeal, as by presenting a
part only of the available grounds and reserving others for another
suit, if failing in that. Werlein v. New Orleans,
177 U. S. 390
177 U. S. 398
et seq.; United States v. California & Oregon Land
Co., 192 U. S. 355
192 U. S.
As the ground just described was available but not put forward,
the appellant must abide the rule that a judgment upon the merits
in one suit is res judicata
in another, where the parties
and subject matter are the same, not only as respects matters
actually presented to sustain or defeat the right asserted, but
also as respects any other available matter which might have been
presented to that end. Baltimore S.S. Co. v. Phillips,
274 U. S. 316
274 U. S. 319
United States v. Moser, 266 U. S. 236
266 U. S. 241
Cromwell v. County of Sac, 94 U. S.
, 94 U. S.
We think it follows from what has been said that the objections
taken to the decree below are so unsubstantial that the motion to
affirm without awaiting oral argument should be sustained.
"Ordered that the said applicant be, and hereby he is,
prohibited from incorporating with in the regular route, upon which
he will herein be granted a certificate to operate within the State
of Ohio, any movement which shall provide for the crossing and
recrossing of the Ohio River at Portsmouth, Ohio."