It is undoubtedly true that the question whether the commerce is intrastate or interstate is to be determined by the essential characteristics of the commerce and not by mere billing or forms of contracts. Railway Commission v. Worthington, 225 U.S. 101, 32 Sup. Ct. 653, 56 L.Ed. 1004; Texas N. O. R. Co. v. Sabine Tram Co., 227 U.S. 111, 33 Sup. Ct. 229, 57 L.Ed. 442; Railway Commission v. Texas P. R. Co., 229 U.S. 336, 33 Sup. Ct. 837, 57 L.Ed. 1215; Chicago, M. St. P. R. Co. v. Iowa, 233 U.S. 334, 34 Sup. Ct. 592, 58 L.Ed. 988. But the answer of the railroad company, while it refers to having received from the Midland Valley Railway Company at Muskogee "a shipment of cattle consigned by plaintiff from Mena, Ark., to J.H. Williamson, Wynona, Okla.," goes further and charges that the shipment was received and forwarded by virtue of the terms of three written contracts of shipment, copies of which are attached. These contracts all cover a shipment from Muskogee to Wynona, Okla., and are therefore intrastate. It is not charged that the shipment was a continuous one, nor are we informed in respect to the terms or conditions of the interstate contract of shipment. For a defense the answer relies wholly upon the terms and conditions of the intrastate bills of lading. These provisions are void under section 9, art. 23, of the Constitution, and therefore state no grounds of defense. If, in fact, the shipment was originally in interstate commerce, and had not lost that character, then the carrier, if it had a defense arising thereunder, should have set it up in bar of a recovery. Having relied upon a different defense, and the court having no means of knowledge of the terms of the interstate shipment, of course the defense, if it be such, is not available at this time.
Application for leave to file an additional petition for rehearing is therefore denied.
All the Justices concur.