points without this state through this state and to points in other states."

A jury being waived, the court rendered judgment upon each count for alleged overcharge, without penalty,on the first count $130.05, total upon all $16,504.19; and this action the state Supreme Court affirmed. 178 S. W. Rep. 1179.

The insistence here is that, as construed and applied § 12, Article XII Missouri constitution (1875), and, also, §§ 3173 and 3211, Revised Statutes (1909), deprive plaintiff in error of property without due process of law and deny it equal protection, contrary to the Fourteenth Amendment, and, also, conflict with § 8, Article 1, Federal Constitution.

Sections 3173 and 3211 originated in the Act of 1872. The first provides that no railroad corporation organized or doing business within the State shall "charge or collect, for the transportation of goods, merchandise or property over any portion of its road, a greater amount as toll or compensation than shall be charged or collected by it for the transportation of similar quantities of the same class of goods, merchandise or property over any other portion of its road of equal distance." And the second prescribes a penalty for violating the first, not exceeding one thousand dollars with costs, etc., to be recovered by aggrieved party.

The Supreme Court declared "each count of the petition is in legal effect identical with the counts of the petition in McGrew v. Railroad, 258 Mo. 23, and with those in the cases between the same parties cited in the opinion in that case, differing only in amounts, dates and destination of shipments and in distances used for purposes of comparison. The assignments of error in this case, in legal effect, and the points and authorities, verbatim, are identical with those in that case. The authorities cited are exactly the same." And upon the

opinion in the cause referred to, it affirmed the trial court.

In McGrew v. Missouri Pacific Ry. Co., 258 Missouri, 23, the court followed James C. McGrew v. Missouri Pacific Ry. Co., 230 Missouri, 496, where (the issues being the same as those here presented), after considering the whole subject, it was held that plaintiff's judgment could be sustained under § 12, Article XII, constitution of Missouri (1875) without reliance upon any statute. The court said (230 Missouri, 546): "The petition was framed upon the Act of 1872, but in view of the fact that the trial court denied the penalties asked, and allowed only the difference between the higher rates charged plaintiff and the lower rates charged by defendant for the longer distances, the judgment could be sustained upon section 12 of article 12 of the Constitution, without the aid of the Act of 1872, provided that said section of the Constitution is self-enforcing. Because if said section is self-enforcing, that is to say, if it, without the aid of any statutory enactment, makes it unlawful for a railroad company to charge more for a shorter haul than a longer one of the same class of property in any direction, the same or not, and under any or all circumstances and conditions, then clearly the measure of damages for doing the unlawful thing, in the absence of any statute upon the subject, is the amount of the excess charged for the shorter distance over that charged for the longer distance."

(561.) "Section 12 of article 12 of our Constitution clearly establishes an unconditional short-haul rule, without regard to direction or to circumstances and conditions. Said section declares that it shall be unlawful for any railroad company to charge for the transportation of freight or passengers a greater amount for a less distance than 'the amount charged for any greater distance.' That declaration establishes a rule, and creates a right in every passenger and shipper to a compliance with, and an

obedience to its terms. Said section has the same force and effect as if it read: 'It shall not be lawful in this State for any railroad company to charge, under penalties which the General Assembly shall prescribe, for freight or passengers a greater amount for the transportation of the same, for a less distance than the amount charged for any greater distance.' Had said section read that way, its effect as an operative law would have been too clear for controversy. To my mind it is equally clear under the present reading."

In view of this ruling, it is unnecessary for us to consider either terms, validity, or possible application of sections of Revised Statutes mentioned in the answer.

Section 12, Article XII, constitution of Missouri provides: "It shall not be lawful in this State for any railway company to charge for freight or passengers a greater amount, for the transportation of the same, for a less distance than the amount charged for any greater distance; and suitable laws shall be passed by the General Assembly to enforce this provision; but excursion and commutation tickets may be issued at special rates." As construed and applied in the present cause, this section prohibits the carrier from charging in respect of intrastate commerce more for a shorter haul than for a longer one over any portion of its line within the State without regard to direction, circumstance or condition; and if this inhibition is disobeyed the shipper acquires an absolute right to recover any overcharge paid by him.

The record does not disclose when plaintiff in error was incorporated, or what provisions its charter contains. There is no suggestion of anything therein amounting to a contract exempting it from legislation commonly within the police power. No claim is made that the cost of moving freight over its lines in Missouri is without substantial relation to distance; and no facts are alleged which indicate material differences between conditions and cir

cumstances under which the hauls from mines at Myrick were made and those surrounding the longer shipments for less charges over other portions of the road.

Arguments identical in principle with those now presented to show invalidity of the inhibition under consideration, because of conflict with the Fourteenth Amendment and interference with interstate commerce, were considered and rejected in Louisville & Nashville R. R. Co. v. Kentucky, 183 U. S. 503, approved in Intermountain Rate Cases, 234 U. S. 476, 489. And we think it must be accepted as settled that unless some controlling circumstance of a character not here disclosed is established, or a special protecting contract exists, there is nothing in the provisions of the Federal Constitution or laws presently relied on which necessarily restricts the power of a State by general rule to prohibit railway companies from receiving higher charges for shorter hauls than for longer ones when both are wholly within its borders. Such a prohibition is not necessarily an arbitrary, unreasonable or grossly oppressive measure for preventing discriminations and insuring equal and just treatment to all shippers. We find no error in the judgment below, and it is

Affirmed.

MISSOURI PACIFIC RAILWAY COMPANY
TABER, GUARDIAN OF SMALL ET AL.

v.

ERROR TO THE SUPREME COURT OF THE STATE OF MISSOURI.

No. 760. Submitted April 10, 1917.-Decided May 21, 1917.

The claim that the Federal Employers' Liability Act should have governed the action will not afford jurisdiction under Judicial Code, § 237, where the action was originally based upon a state statute and the federal act was not set up or relied upon in the answer or

otherwise called to the trial court's attention and where the state supreme court, following the state statutes and established practice, declined to pass upon the claim because not presented to the trial

court.

Writ of error to review 186 S. W. Rep. 688, dismissed.

THE case is stated in the opinion.

Mr. Edward J. White, Mr. Thomas Hackney and Mr. Martin Lyons for plaintiff in error.

Mr. John T. Wayland, Mr. R. J. Ingraham, Mr. L. E. Durham and Mr. Hale Houts for defendant in error.

MR. JUSTICE MCREYNOLDS delivered the opinion of the court.

Charles H. Small was killed at Kansas City while employed by plaintiff in error as a switchman. Relying upon a state statute, the guardian of his minor children sued for damages in the Jackson County Circuit Court and recovered a judgment which the Supreme Court of Missouri affirmed, May 15, 1916. We are asked to reverse that action because the Federal Employers' Liability Act was not applied, but rights and liabilities were determined according to state laws.

Unless some right, privilege, or immunity under the federal act was duly and especially claimed we have no jurisdiction. Judicial Code, § 237. Speaking for the court in Erie R. R. Co. v. Purdy, 185 U. S. 148, 154, Mr. Justice Harlan announced the applicable rule. "Now, where a party-drawing in question in this court a state enactment as invalid under the Constitution of the United States, or asserting that the final judgment of the highest court of a State denied to him a right or immunity under the Constitution of the United States-did not raise such question or especially set up or claim such right or immu