Argument for Plaintiffs in Error.

210 U. S. State of Mississippi "is a mere administrative agency of the State." Mississippi R. R. Comn. v. Illinois Central, 203 U. S. 335, 341. It has no powers beyond those given it by statute and is strictly limited in its exercise of power by the laws creating it. Commissioners v. Oregon Ry. Co., 17 Oregon, 65; Nashville R. R. Co. v. State, 137 Alabama, 439.

The statutes of Mississippi forbid the consolidation of parallel and competing lines of railroad and forbid the Railroad Commission to consent to the consolidation of such lines and confer no power upon the Commission to enter into contracts whereby such a consolidation of competing lines can be effected. The orders of railroad commissioners are not contracts. New Haven &c. R. Co. v. Hammersly, 104 U. S. 1.

The decision of the Supreme Court of Mississippi deprives, without due process of law, the Gulf and Chicago Railway Company, plaintiff in error, of its vested contract rights under chapter 143 of the laws of Mississippi of 1906, which was a valid exercise of legislative power constituting a contract between the State and the plaintiff in error. Blake v. McClung, 172 U. S. 239; Ex parte Virginia, 100 U. S. 339; Scott v. McNeill, 154 U. S. 34, 45; Douglas v. County of Pike, 101 U. S. 677, 686, 687; Edwards v. Kerzey, 96 U. S. 595; Gelpke v. Dubuque, 1 Wall. 175, 206, 207; Rowan v. Runnells, 5 How. 134, 139; Thompson v. Lee County, 3 Wall. 327; Olcott v. Supervisors, 16 Wall. 678; Guthrie National Bank v. Guthrie, 173 U. S. 528, 533.

The Gulf and Chicago Railway Company having located its line through the town of Pontotoc and established its station therein in strict conformity to § 187 of the constitution of Mississippi and in accordance with its line between its terminal points as established by its charter, the state Railroad Commission, and the courts of Mississippi are without power to compel it to abandon that line and that station and establish a different line over a different route and a different station at a different point.

This proposition having been thus judicially established in Mississippi v. Mobile, Jackson & Kansas City R. Co., 86 Mis

210 U.S.

Argument for Plaintiffs in Error.

sissippi, 172, the power of the state Railroad Commission over the line and station of the Gulf and Chicago Railway Company in the town of Pontotoc was exhausted and the Supreme Court of Mississippi, upon the final appeal, by its decision and decree affirming the decree of the Chancery Court of Pontotoc County, deprives the plaintiffs in error of their property without due. process of law, because although the proceeding was conducted under the guise of a judicial controversy, neither the State of Mississippi nor its Railroad Commission had authority to invoke the judicial power in confiscation of the property rights of the plaintiffs in error.

Statutes providing for enforcement by proceedings in chancery of the orders of the Commission, refer solely to the duties and powers enumerated in the statutory provisions under which a railroad commission is created and exists. Nashville

&c. Ry. Co. v. State, 137 Alabama, 439.

The Supreme Court of Mississippi in its final opinion in this case rests its decree entirely upon an alleged contract in the order of consolidation. As such a contract was beyond the power of the Railroad Commission to enter into, the decree of the Supreme Court predicated upon it is a taking of property without due process of law and a denial of the equal protection of the laws to the plaintiffs in error.

The laws of Mississippi creating the state Railroad Commission and conferring powers upon it, if such powers go to the extent established by the opinion of the Supreme Court of Mississippi in this case, are laws impairing the obligation of contracts in this, that § 8 of the "Act to Incorporate the Ripley Railroad Company" conferred upon that company and upon the Gulf and Chicago Railroad Company as its legal successor the right to change the location of its line through the town of Pontotoc and under the decision of the Supreme Court of Mississippi holding that the Railroad Commission under the Railroad Commission laws had power to abrogate this right, the laws creating the Railroad Commission as so construed are laws impairing the obligations of contracts.

Argument for Defendants in Error.

210 U. S.

Mr. R. V. Fletcher, Attorney General of the State of Mississippi, and Mr. Hannis Taylor, for defendants in error:

There is no Federal question presented by the record in this cause for the consideration of the court. The record shows that no right or question arising under the Fourteenth Amendment was claimed or raised until after the final judgment of the Supreme Court of Mississippi. It was raised for the first time in the petition for writ of error. Under the decisions of this court, this was too late. Montana v. Rice, 204 U. S. 291; Corkran Oil &c. Co. v. Arnaudet, 199 U.S. 182; Dewey v. Des Moines, 173 U. S. 193; Osborne v. Clark, 204 U. S. 565.

The contention that the court has violated the clause of the Federal Constitution which prohibits a State from passing any law impairing the obligation of a contract, was raised for the first time in the assignment of errors filed in the Supreme Court of Mississippi on the second or final appeal of the case, and it is clear that this contention was rejected by the Mississippi court, if for no other reason than because is was raised too late. Cox v. Texas, 202 U. S. 446. See also, Chi., I. & L. Ry. Co. v. McGuire, 196 U. S. 127; Jacobi v. Alabama, 187 U. S. 131; Eastern Bldg. & Loan Assn. v. Welling, 181 U. S. 47.

Since the Supreme Court of Mississippi has declined to consider this assignment of error, solely upon the ground that it was not relied on in the Chancery Court, this court will respect the rules of practice in vogue in Mississippi, and will hold that the point was raised too late.

In any case, it is well settled that the prohibition of the Federal Constitution extends only to such judgments as give effect to statutes. New Orleans Water Works Co. v. Louisiana Sugar Ref. Co., 125 U. S. 18, 30, 31; St. Paul Gaslight Co. v. St. Paul, 181 U. S. 124, 148; M. & M. R. Co. v. Rock, 4 Wall. 177; M. & M. R. Co. v. McClure, 10 Wall. 511; Knox v. Exchange Bank, 12 Wall. 379; Lehigh Water Co. v. Easton, 121 U. S. 338, 392; New Orleans Water Works Co. v. Louisiana, 185 U. S. 334.

The action of the Railroad Commission and the decisions of the Mississippi courts herein, do not constitute an interference

with interstate commerce. The commerce clause of the Federal Constitution cannot be applied to the location of a line of railway. C., M. & St. Paul Ry. Co. v. Solan, 169 U. S. 133; Wabash, St. L. & P. R. Co. v. Illinois, 118 U. S. 557; Mo., Minn. & Pac. R. R. Co. v. Jackson, 179 U. S. 287.

MR. JUSTICE MCKENNA, after making the foregoing statement, delivered the opinion of the court.

The defendant railroad companies in their motion to dissolve the temporary injunction urged as grounds thereof, among others, that the injunction imposed a direct and unnecessary burden upon and was an interference with interstate commerce and an interference with the carrying of United States mail. To those grounds the court did not apparently respond, and the Supreme Court did not refer to them in either of its opinions.

Counter contentions are urged. Plaintiffs in error contend that the Federal questions set up by them were evaded. Defendants in error contend that such questions were not involved and are not now presented for consideration.

The opinion of the Supreme Court on the first appeal was very claborate, and we can only give a brief summary of the propositions decided. The court gives a summary of the facts of the bill, the averments of the petition to the Commission and the terms of its order, and says that "waiving minor considerations not sufficiently developed by the proof," and "passing at once to the very heart of the matter," the case divided into two main branches:

"1. What is the true interpretation to be given § 187 of our constitution and has it any application to the facts of this litigation? 2. What are the legal rights of the citizens of the town of Pontotoc and the duties of the appellees as to the narrow gauge road which was in use and active operation before and at the consolidation hereinbefore referred to and at the date of the leasing of its property by one appellee to the other?"

Under the first branch the court decided that appellants (defendants in error here) could, under the facts of the record, be "afforded no relief by the language or intendment of § 187 of the constitution." This branch of the case, therefore, needs no further consideration.

As elements in the discussion and decision of the second branch of the case, the court said that there had been no consolidation between the Gulf and Chicago Railroad Company and the Gulf and Chicago Railway Company, and if the latter company had constructed its road over the route in the direction specified in its application for incorporation, it would inevitably have been a parallel and a competing line with the narrow gauge line then in existence, and the consolidation of the roads would not have been permitted. "More than this," it was said, "an express grant of power by the legislature for the two companies to consolidate would have been void, as being in contravention of the general statutory inhibition against consolidation or purchase of competing lines of railroads, which cannot, without violating § 87 of the constitution of the State, be suspended 'for the benefit of any individual or private corporation or association."" And to sustain this proposition Y. & M. V. Ry. Co. v. So. Ry. Co., 83 Mississippi, 746, was cited. It was deduced from § 3587 of the code of the State of 1892, that the statement in the petition that the roads were "in no way parallel or competing lines," were statements of jurisdictional facts, "upon the existence of which depended the power of the corporations to consolidate." And following Lusby v. Railroad, 73 Mississippi, 364, the court held that the Gulf and Chicago Railroad Company was without power to abandon or relocate any portion of its line, "except on the score of 'imperious necessity."" An exception, it was said, not suggested by the facts of this record. These restraints and duties, it was further said, came to the consolidated corporation.

On the return of the case to the Chancery Court, and after a hearing on the merits, that court entered a decree making the