and other railroad companies in the circuit court of the United States. But in the present case we have only to do with the question of the validity of the action of the railroad commission's proceeding under $ 218 of the Constitution and § 820 of the statutes, which prescribe uniformity of rates for all distances, long or short, and make penal disregard of such uniformity by rail[512] road companies, except when *authorized by the commission to charge less for longer than for shorter distances. As we have seen, this court held, on the appeals from the circuit court of the United States, that it was not competent for courts of equity to interfere with the action of the commission in respect to fixing rates before the rates were fixed at all, and when it could not appear whether the companies would have any reason to complain of them.

Our present duty is to consider only the objections to the validity of the long and short haul clauses in the Constitution and the statutes.

It is scarcely necessary to say that courts do not sit in judgment on the wisdom of legislative or constitutional enactments. This is a general principle; but it is especially true of Federal courts when they are asked to interpose in a controversy between a state and its citizens.

This court, then, is not concerned with the wisdom of the people of Kentucky when they declared in their Constitution that it should be unlawful for any person or corporation owning or operating a railroad in that state to charge or receive any greater compensation in the aggregate for the transportation of passengers, or of property of like kind, under substantially similar circumstances and conditions, for a shorter than for a longer distance over the same line, in the same direction, the shorter being included within the longer distance. Nor, as we have already seen, is it for us to say that the court of appeals of Kentucky erred in so construing that enactment as to forbid a railroad company from justifying a voluntary disregard of its command by claiming that competition between its road and other modes of transportation created substantially dissimilar circumstances and conditions.

It does not call for argument that railroad companies are incorporated to perform a public service, and that it is for the state to define their powers and to control their exercise of such powers. The question for us, in the present case, is whether the state, by enacting a rule of action for such companies, forbidding a greater rate of charges for a shorter than for a longer distance, and by establishing a railroad commission of the kind and with the functions disclosed in the [513] Constitution and statutes, *deprives the plaintiff in error of its property without due process of law, and denies to it the equal protection of the laws.

When the citizens of Kentucky voluntarily seek and obtain a grant from the state of a charter to build and maintain a public highway in the form of a railroad, it would

seem to be evident that it takes, holds, and operates its road subject to the constitutional inhibition we are considering, and are without power to challenge its validity. It may be that in a given case a railroad company may be able to show that the state has disabled itself from enforcing the provision by a contract previously made, and it may be that cases may arise in which the provision cannot be enforced because operating as an unlawful interference with commerce between the states. Indeed, those very positions are taken by the plaintiff in error in this case, and will receive our attention hereafter. But apart from such contentions, and looking only at the case of a company voluntarily formed to carry on business wholly within a state, we are unable to see how such a company can successfully contend that it can be exempted by the courts from the operation of the Constitution of the state.

It is said that, while it is true that railroad companies receive their rights to exist and to maintain their roads from the state, yet that their ownership of such roads is property, and, as such, is protected from arbitrary interference by the state. But, though it be conceded that ownership in a railroad is property, it is property of a kind that is subject to the regulations prescribed by the state. We do not wish to be understood as intimating that if, hereafter, the railroad commission should fix and establish rates of a confiscatory character, the company would be without the protection which courts of equity have heretofore given in cases of that description. What we now say is that a state corporation voluntarily formed cannot exempt itself from the control reserved to itself by the state by its Constitution, and that the plaintiff in error, if not protected by a valid contract, cannot successfully invoke the interposition of the Federal courts, in respect to the long and short haul clause in the state Constitution, on the ground simply that the railroad is property. Nor is there any foundation for the objection *that the provision in question [514 denies to the plaintiff in error the equal protection of the laws. The evil sought to be prevented was the use of public highways in such a manner as to prefer, by difference of rates, one locality to another; and the remedy adopted by the state was to declare such preferences illegal, and to prohibit any person, corporation, or common carrier from resorting to them. That remedy included in its scope every one, without distinction, whose calling, public in its character, gave an opportunity to do the mischief which the state desired to prevent. The practical inefficiency of this remedy to reach the desired end, and the resulting injury to the welfare of both the producers and the consumers of an article like coal, when brought into competition with coal brought from without the state, are strongly arged on behalf of the plaintiff in error; but however well founded such objections may be, they go to the wisdom and policy of the enactment, not to its validity in a Federal point

It is further contended that the indictment and proceedings in this case were void because of the nature of the proviso in § 218 of the Constitution. That proviso is in the following words: "Provided that, upon application to the railroad commission, such common carrier, or person, or corporation owning or operating a railroad in this state, may in special cases, after investigation by the commission, be authorized to charge less for longer than for shorter distances for the transportation of passengers or property; and the commission may from time to time prescribe the extent to which such common carrier, or person, or corporation owning or operating a railroad in this state, may be relieved from the operations of this section."

The argument is that, "even if it were proper to prohibit absolutely the charging of more for short than long hauls, yet, where the law does not do so, but recognizes that there may be legitimate traffic which could thereby be interfered with, it is unconstitutional to intrust the dispensation of the [515]right to engage *in such legitimate traffic to a mere administrative tribunal, without any rules by which it may be guided, without specifying any conditions upon which the carriers shall be entitled to enjoy such legitimate traffic, and absolutely free to give or withhold its consent at its own pleasure or will, in any and all cases, without judicial review or control."

But if it be competent for the state, as this argument supposes, to wholly forbid, in every case and by every carrier, the charging of more for a short than a long haul, it is not easy to see why the state may not permit such charges through the action of a tribunal authorized to investigate the subject and to anord relief in cases deemed proper. Such a provision is ex gratia, and in the direction of exonerating the carrier from what the argument concedes to be a lawful limitation. Such an exercise of discretion by the railroad commission would be no more arbitrary than if the Constitution had authorized the legislature to allow in special cases a greater charge for the shorter than for the longer distance, and to prescribe the extent of such excess. We are not prepared to accept the view that the railroad commission, in acting under § 218, is merely an administrative body, and as such subject to judicial review. It is rather a constitutional tribunal, empowered, upon the application of the carrier, to investigate the special circumstances and conditions which are claimed to justify the relief of the carrier from the operation of this section. It is not compulsory upon the carrier to make such application for relief to the commission. If he does not choose to do so, he will continue to operate his railroad 183 U. S. U. S., Book 46.

a

mission, he can no more complain that its judgment is final, when it is against his contention, than the community affected can complain when its judgment is in his favor. Finality is a characteristic of the judgments of all tribunals, unless the laws provide ide for review. Nothing is more common than the appointment of juries or commissioners to find the value of lands taken for public use, or to assess damages to them whose findings are deemed final. Yet the evidence on which they act is not preserved, nor do the courts go into any inquiry into the various sources and grounds of judg ment *upon which the appraisers have pro-[516] ceeded. If there are charges of fraud or corruption, the courts may consider them; but it has never been held that the finality of their findings made the action of the appraisers unconstitutional or void. Shoеmaker v. United States, 147 U. S. 282, 305, 37 L. ed. 170, 187, 13 Sup. Ct. Rep. 361.

The plaintiff in error did not choose to avail itself of the right to apply for relief to the railroad commission, perhaps for the reason that doing so might be regarded as an acquiescence in or waiver of the right to object to the validity of the proviso.

However this may be, it is difficult to see how a Federal question is presented by the apprehensions which the plaintiff may entertain that a resort to the commission might be futile. As already said, the railroad company must be deemed to have accepted its grant, subject to the provisions of the Constitution; and this presumption is as applicable to the method provided for exoneration from the prohibition as to the prohibition itself.

We do not put the disability of the company to raise these questions upon the ground of an estoppel, strictly speaking, but upon the proposition that the company takes and holds its franchises and property subject to the conditions and limitations imposed by the state in its Constitution. Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77; Davidson v. New Orleans, 96 U. S. 97, 24 L. ed. 616; Railroad Commission Cases, 116 U. S. 307, sub nom. Stone v. Farmers Loan & T. Co. 29 L. ed. 636, 6 Sup. Ct. Rep. 334, 388, 1191.

We are next to inquire whether the plaintiff in error has been exonerated from these constitutional conditions and regulations by a valid contract subsisting between it and the state.

We do not understand that the counsel for the plaintiff in error claims that, by any provision of its charter, power was given to the company to fix its own rates of charge. or to discriminate in its rates between different places on its line of railroad, and that the constitutional prohibition as to the long and short haul, subsequently enacted, operates, if enforced, as a withdrawal or defeat of that power.

20

305

SOUTHERN PACIFIC RAILROAD COMPANY et al., Appts.,

v.

UNITED STATES, Appellee.

UNITED STATES, Appt.,

v.

States in a suit to quiet title to land. Revcrsed.

See same case below, 38 C. C. A. 619, 98 Fed. 27. The facts are stated in the opinion.

Mr. Joseph H. Call argued the cause

PANY et al., Appellees.

(See S. C. Reporter's ed. 519-535.)

The essence of estoppel by judgment being that there has been a judicial determination of the facts, the question always is, Has there been such determination? and not,

res judicata.

2. The construction by the Southern Pacific

Railroad Company of a railroad from San Francisco to the eastern boundary line of California, along the route approved by the joint resolution of January 28, 1870, as authorized by the act of July 27, 1866, making a land grant in aid of its projected line to connect with the Atlantic & Pacific Railroad at such

point near the boundary line of California as was deemed most suitable for a railroad to San Francisco, entitles it to an equal undivided moiety in all the alternate sections within the place or granted limits of such road so far as they conflict with the limits of the grant to the Atlantic & Pacific Railroad by

that act.

3. A determination in a sult to quiet title by

the United States against the Southern Pacific Railroad Company, that such railroad, claiming under the grant of March 3, 1871, took no title to lands within the conflicting place limits of the grant to it under that act and of that made to the Atlantic & Pacific Railroad Company by act of July 27, 1866, inas

much as the latter road had filed an approved

map of definite location, is not a bar to a claim in another suit between the same parties that the Southern Pacific Railroad Company by virtue of the construction of a railroad under the said act of July 27, 1866, had an equal undivided moiety in all the oddnumbered sections which lie within the conflicting place limits of the grant to it and

to the Atlantic & Pacific Railroad Company

by that act, such lands not being the same as those involved in the prior suit.

[Nos. 18 and 24.]

it reached?

A person, although not a formal party of record in an action, if represented in such litigation, is bound by the judgment to the same extent as if a party of record; and a judgment against a trustee or one acting in a representative capacity binds the cestui que trust.

Woods v. Woodson, 40 C. C. A. 525, 100 Fed. 515; Kerrison v. Stewart, 93 U. S. 155, 23 L. ed. 843; Van Vechten v. Terry, 2 Johns. Ch. 197; Davis v. Gray, 16 Wall. 203, 21 L. ed. 447; Corcoran v. Chesapeake & O. Canal Co. 94 U. S. 741, 24 L. ed. 190; Shaw v. Little Rock & Ft. S. R. Co. 100 U. S. 605, 25 L. ed. 757; Maloy v. Duden, 30 C. C. A. 137, 57 U. S. App. 161, 86 Fed. 402; Sanders v. Peck, 30 C. C. A. 530, 59 U. S. App. 248, 87 Fed. 61.

No rights attached in the Southern Pacific Railroad on filing its map of general route.

See Re Southern P. R. Co. 25 Land Dec. 223; Southern P. R. Co. v. McWharter, 14 Land Dec. 610: Morgan v. Southern P. R. Co. 11 Land Dec. 582.

The Southern Pacific grant, governed by the act of 1866, requires by § 6 a map of general route, and by § 3 one of definite location, and the former confers no rights to

lands.

United States v. Southern P. R. Co. 146 U. S. 570, 36 L. ed. 1091, 13 Sup. Ct. Rep. 152; Southern P. R. Co. v. United States, 168 U. S. 1, 42 L. ed. 355, 18 Sup. Ct. Rep.

.

uary 6, 1902.

The route laid down in the charter of the Southern Pacific company must be read into the congressional act making the land grant to that company, as it is conclusively presumed that Congress had such line of route

Denver & R. G. R. Co. v. Alling, 99 U. S.

Musical Fund Soc. (Cal.) 7 L. R. A. 577; Morrill. v. Morrill (Or.) 11 L. R. A. 155; Bank of United States v. Beverly, 11 L. ed. U. S. 76; Johnson Steel Street Rail Co. v. Wharton, 38 L. ed. U. S. 429, and Southern P. R. Co. v. United States, 42 L. ed. U. S. 355.

463, 25 L. ed. 438; Washington & I. R. Co. v. Coeur D'Alene R. & Nav. Co. 160 U. S. 77, 40 L. ed. 346, 16 Sup. Ct. Rep. 231.

Where the termini of a land-grant-aided

Wilcox v. Jackson ex dem. M'Connel, 13 Pet. 513, 10 L. ed. 271; United States v. Missouri, K. & T. R. Co. 141 U. S. 374, 35 L. ed. 771, 12 Sup. Ct. Rep. 13; Barden v.

gress, the railroad must be constructed upon the shortest practicable route; and if there is an unnecessary deviation it will be rejected.

St. Paul & P. R. Co. v. Northern P. R. Co. 139 U. S. 1, 35 L. ed. 77, 11 Sup. Ct. Rep. 389; United States v. Southern P. R. Co. 146 U. S. 570, 36 L. ed. 1091, 13 Sup. Ct. Rep. 152; United States v. Northern P. R. Co. 152 U. S. 284, 38 L. ed. 443, 14 Sup. Ct. Rep. 598.

The grant of 1870 cannot be antedated as of the date of the act of July 27, 1866.

United States v. Southern P. R. Co. 146 U. S. 570, 36 L. ed. 1091, 13 Sup. Ct. Rep. 152; St. Paul & P. R. Co. v. Northern P. R. Co. 139 U. S. 1, 35 L. ed. 77, 11 Sup. Ct. Rep. 389; United States v. Northern P. R. Co. 152 U. S. 284, 38 L. ed. 443, 14 Sup. Ct. Rep. 598.

The general-route location gave no right to any tract of land, and the right of disposal remained with the government.

Kansas P. R. Co. v. Dunmeyer, 113 U. S. 629, 28 L. ed. 1122, 5 Sup. Ct. Rep. 566; United States v. Southern P. R. Co. 146 U. S. 570, 36 L. ed. 1091, 13 Sup. Ct. Rep. 152; Southern P. R. Co. v. United States, 168 U. S. 1, 42 L. ed. 355, 18 Sup. Ct. Rep. 18; New Orleans P. R. Co. v. Parker, 143 U. S. 42, 36 L. ed. 66, 12 Sup. Ct. Rep. 364; United States v. Oregon & C. R. Co. 176 U. S. 28, 44 L. ed. 358, 20 Sup. Ct. Rep. 261; Northern P. R. Co. v. Sanders, 166 U. S. 620, 41 L. ed. 1139, 17 Sup. Ct. Rep. 671.

• Lands reserved by executive orders, when the map of definite location is filed, cannot be operated upon by the grant subsequently made.

Wilcox v. Jackson ex dem. M'Connel, 13 Pet. 498, 10 L. ed. 264; Northern P. R. Co. v. Musser-Sauntry Land, Logging & Mfg. Co. 168 U. S. 604, 42 L. ed. 596, 18 Sup. Ct. Rep. 205; Wolcott v. Des Moines Nav. & R. Co. 5 Wall. 681, 18 L. ed. 689; Wolsey v. Chapman, 101 U. S. 756, 25 L. ed. 915; United States v. Missouri, K. & T. R. Co. 141 U. S. 374, 35 L. ed. 771, 12 Sup. Ct. Rep. 13; Hamblin v. Western Land Co. 147 U. S. 531, 37 L. ed. 267, 13 Sup. Ct. Rep. 353; Wisconsin C. R. Co. v. Forsythe, 159 U. S. 46, 40 L. ed. 71, 15 Sup. Ct. Rep. 1020.

The fact that the Atlantic & Pacific company claimed these lands as a part of its grant by virtue of what it claimed were maps of definite location, which claim was made effective from the year 1872, when the maps were filed, down to the forfeiture of the grant in 1886, would in itself operate to exclude these lands from the grants.

Northern P. R. Co. v. Sanders, 166 U. S. 620, 41 L. ed. 1139, 17 Sup. Ct. Rep. 671; Menotti v. Dillon, 167 U. S. 703, 42 L. ed. 333, 17 Sup. Ct. Rep. 945.

Lands set apart and reserved by Congress, or by other competent authority, cannot be taken or operated upon by any subsequent grant.

992, 14 Sup. Ct. Rep. 1030; Sioux City & St. P. R. Co. v. United States, 159 U. S. 349, 40 L. ed. 177, 16 Sup. Ct. Rep. 17; Chicago, M. & St. P. R. Co. v. United States, 159 U. S. 372, 40 L. ed. 185, 16 Sup. Ct. Rep. 26; Northern P. R. Co. v. Musser-Sauntry Land, Logging, & Mfg. Co. 168 U. S. 604, 42 L. ed. 596, 18 Sup. Ct. Rep. 205.

Lands within the forfeited Atlantic & Pacific grant cannot be selected as indemnity by the Southern Pacific company.

Re Southern P. R. Co. 6 Land Dec. 816; Moore v. Kellogg, 17 Land Dec. 391; Southern P. R. Co. v. Moore, 11 Land Dec. 534; Re Southern P. R. Co. 15 Land Dec. 460; Southern P. R. Co. v. United States, 168 U. S. 1, 42 L. ed. 355, 18 Sup. Ct. Rep. 18; United States v. Missouri, K. & T. R. Co. 141 U. S. 374, 35 L. ed. 771, 12 Sup. Ct. Rep.

13.

The indemnity lands of the Atlantic & Pacific railroad appertain to the grant to that company, and were not operated upon by any grant to the Southern Pacific company.

United States v. Southern P. R. Co. 146 U. S. 570, 36 L. ed. 1091, 13 Sup. Ct. Rep. 152; Southern P. R. Co. v. United States, 168 U. S. 1, 42 L. ed. 355, 18 Sup. Ct. Rep. 18.

The Atlantic & Pacific indemnity lands set apart and reserved in 1872 cannot be taken by the Southern Pacific under its grants of 1871 or 1870.

Wolcott v. Des Moines Nav. & R. Co. 5 Wall. 681, 18 L. ed. 689; Hamblin v. Western Land Co. 147 U. S. 531, 37 L. ed. 267, 13 Sup. Ct. Rep. 353; Northern P. R. Co. v. Musser-Sauntry Land, Logging. & Mfg. Co. 168 U. S. 604, 42 L. ed. 596, 18 Sup. Ct. Rep. 205; Wisconsin C. R. Co. v. Forsythe, 159 U. S. 46, 40 L. ed. 71, 15 Sup. Ct. Rep. 1020; Spencer v. McDougal, 159 U. S. 62, 40 L. ed. 76, 15 Sup. Ct. Rep. 1026; Chicago, M. & St. P. R. Co. v. United States, 159 U. S. 372, 40 L. ed. 185, 16 Sup. Ct. Rep. 26.

Messrs. Maxwell Evarts and L. E. Payson argued the cause and filed a brief for the Southern Pacific Railroad Company:

The Southern Pacific Railroad Company is entitled to a moiety of the conflicting place lands granted to it and the Atlantic & Pacific Railroad Company under the act of 1866.

Sioux City & St. P. R. Co. v. United States, 159 U. S. 349, 40 L. ed 177, 16 Sup. Ct. Rep. 17; Donahue v. Lake Superior Ship Canal R. & Iron Co. 155 U. S. 386, 39 L. ed. 194, 15 Sup. Ct. Rep. 115; Sioux City & St. P. R. Co. v. Chicago, M. & St. P. R. Co. 117 U. S. 406, 29 L. ed. 928, 6 Sup. Ct. Rep. 790; St. Paul & S. C. R. Co. v. Winona & St. P. R. Co. 112 U. S. 720, 28 L. ed. 872, 5 Sup. Ct. Rep. 334; Re Southern P. R. Co. 6 Land Dec. 349.

The failure to assert a defense in an ac tion does not preclude the party from setting it up in a subsequent action between the