The appellants deny the jurisdiction of the circuit court in this case. There is no diverse citizenship in the case of this particular company, and the jurisdiction must depend upon the presence of a Federal question. The bill filed by the company herein attacked the validity of the act of the legislature of Kentucky of March 10, 1900 (above set forth in full), on several grounds, as in violation of § 1 of the 14th Amendment. It was also averred that the act was a violation of § 4, article 4, of the Federal Constitution, in that it constituted an abandonment by the state of Kentucky of a republican form of government, in so far as it vested legislative, executive, and judicial powers of an absolute and arbitrary nature over railroad carriers in one body or tribunal, styled the railroad commission. The company also contended that the act was in violation of the Federal Constitution, on account of the enormous fines and penalties provided in the act as a punishment for a violation of any of its provisions; also that the enforcement of the act would operate to deprive the company of its property without due process of law, and would deny to it the equal protection of the laws, in violation of § 1 of article 14 of the Amendments to the Constitution of the United States. Other grounds of alleged invalidity of the act in question, as in violation of the Federal Constitution, are set up in the bill. The bill also contained the averment that the order of the railroad commission of Kentucky, in making a general schedule of maximum rates for the railroads mentioned in its order, was invalid, as unauthorized by the statute. This is, of course, a local or state question.
The Federal questions as to the invalidity of the state statute because, as alleged, it was in violation of the Federal Constitution, gave the circuit court jurisdiction, and, having properly obtained it, that court had the right to decide all the question in the case, even though it decided the Federal questions adversely to the party raising them, or even if it omitted to decide them at all, but decided the case on local or state questions only.
This court has the same right, and can, if it deem it proper, decide the local questions only, and omit to decide the federal questions, or decide them adversely to the party claiming their benefit. Horner v. United States, 143 U.S. 570, 576, 36 L. ed. 266, 268, 12 Sup. Ct. Rep. 522; Fallbrook Irrig. Dist. v. Bradley, 164 U.S. 112, 154, 41 L. ed. 369, 387, 17 Sup. Ct. Rep. 56; Penn Mut. L. Ins. Co. v. Austin, 168 U.S. 685, 694, 42 L. ed. 626, 630, 18 Sup. Ct. Rep. 223; Burton v. United States, 196 U.S. 283, 295, 49 L. ed. 482, 485, 25 Sup. Ct. Rep. 243; Williamson v. United States, 207 U.S. 425, 52 L. ed. 278, 28 Sup. Ct. Rep. 163; People's Sav. Bank v. Layman, 134 Fed. 635; Michigan R. Tax Cases, 138 Fed. 223. Of course, the Federal question must not be merely colorable or fraudulently set up for the mere purpose of endeavoring to give the court jurisdiction. Penn Mut. L. Ins. Co. v. Austin, 168 U.S. 695, 42 L. ed. 630, 18 Sup. Ct. Rep. 223; Michigan R. Tax Cases, supra.
The character of some of the Federal question raised is such as to show that they are not merely colorable, and have not been fraudulently raised for the purpose of attempting to give jurisdiction to a Federal court.
The appellants, however, contend that the jurisdiction of the circuit court did not attach under the 14th Amendment, because of the allegations contained in the bill of the company, in which was contained an averment that the defendants below (the appellants here) had not been vested with the power, by either the Constitution of the state of Kentucky or by any act of its legislature, or by any law, to make and enter the order of July 20, 1906, complained of in the company's bill. The argument of the appellants is that, in order to violate the 14th Amendment, the action complained of must be under the authority of the state; and where the allegation of the bill was that 'no power or authority had been vested in or conferred upon the appellants by the act of March 10, 1900, or by any law, to make or fix the rates complained of,' such allegation swept away the foundation for the claim of Federal jurisdiction, inasmuch as, in such case, the action of the railroad commission was not the action of the state, and the principle decided in Barney v. New York, 193 U.S. 430, 437, 48 L. ed. 737, 739, 24 Sup. Ct. Rep. 502, was applicable.