dissenting. It is agreed that an order of the Federal court, remanding a case to the State court, can not have the effect of conferring jurisdiction upon the State court Avith respect to a matter over AAdiich it otherwise has no control. Consequently there can be no question that the process of injunction could not be employed in the State court against the railway company, in order to attack a permit granted to it by the Interstate Commerce Commission to discontinue a portion of its line engaged in interstate commerce. This is true for the reason that under the Federal law any such attack on such an order must be brought in the district court of the United States against the United States as party defendant. Still, since there has been no determination by the Interstate Commerce Commission as to the validity of the State’s contention under its alleged contract, it Avould not seem that an effort to establish such right in the State court could be taken as an effort to annul any action taken by the commission. IrrespectiAre of AAdiether or not the Interstate Commerce Commission Avas in fact clothed Avith the authority, which it disclaimed, to determine the alleged contractual right of the State of Georgia, it has nevertheless plainly-and specifically declined to do so, and by its opinion has limited it's order accordingly. The result is that its permit thus became conditional in character, and has thus been confined solely to questions of public convenience and necessity. All this being true, can it then be properly said that the State, in noAv seeking to assert its alleged contractual rights, is undertaking to annul or enjoin the order of the Interstate Commerce Commission, which plainly and specifically refrained from passing upon the very question which the State is now seeking to have adjudicated? Were it to be assumed that the commission was in error in holding itself to be without authority to adjudicate such a contractual matter, even then .it is one thing to possess *580authority, and quite another thing to exercise it. Whatever authority the commission might or might not have had to determine the contractual rights of the State of Georgia, one thing is certain, and that is it has expressly failed to exercise any. If it should be assumed that the commission had authority to deal not only with matters pertaining to public convenience and necessity, but with the State’s contractual rights, must it also be assumed that it did so, despite its solemn declaration to the contrary; and must this court then proceed to speculate as to what conclusion it would have reached had it in fact done so, and that its conclusion would have been adverse to the State’s contention P The commission having excluded matters of contractual right, and having thus in effect confined the purport and extent of its order to questions concerning public convenience and necessity, it would seem that any effort by the State to assert its contractual rights can not properly be construed as either a direct or indirect attack upon the conditional and restricted order of the commission. In the case dealt with by the Supreme Court of the United States (Illinois Central B. Co. v. State Public Utilities Commission, 245 U. S. 492, supra), which has been cited in the majority opinion, the order of the Interstate Commerce Commission was not so restricted as to render it conditional in effect. Not only this, but it has been judicially determined by the district court of the United States in this case, in an unappealable and conclusive judgment, passed in connection with the removal proceeding, that the present action is not an attempt to enjoin or annul the order of the Interstate Commerce Commission. Under the order of that commission, qualified and limited as has been indicated, this ruling by the district court would seem to be in accordance with law; but even were it to be assumed otherwise, the parties to this litigation were properly before that court, and it had authority to pass upon all questions relating to the subject-matter of removal, with the result that its decision, which remains unappealed from, is binding.
Accordingly, without making any attempt to reach a conclusion on the merits of the State’s case, which has not been dealt with in the majority opinion, it would seem, since the State’s contention is based solely upon a matter of contractual right, which has never been adjudicated, but which, on the contrary, was expressly excluded from the scope of the order of the Interstate Commerce *581Commission, and since there has been a .conclusive judgment by a court of competent jurisdiction that the present suit is not an attack upon the order of the commission, — since all this appears on the face of the record, it would seem that the .present action was properly allowed to proceed. in. order to determine that which no other court or tribunal had previously dealt with, to wit, the validity of the State’s rights under its alleged contract. If the order passed by the. Interstate Commerce Commission, restricted as it was, nevertheless, under the .laws of .the United States, constituted a good defense to the .action.in the State court, it was within the province of the State court so to declare. Likewise, if the order of the commission did not constitute a good defense, the State court was not deprived of its jurisdiction so to adjudge. As was said by the. Supreme Court of the United States, In re Winn, 213 U. S. 458, 465 (29 Sup. Ct. 515, 53 L. ed. 873) : “It is not enough, as,the law now exists, that it appeal’s that the defendant may find in the constitution or laws of the United States some ground of defense. Louisville & Nashville Railroad v. Mottley, 211 U. S. 149 [29 Sup. Ct. 42, 53 L. ed. 126], and cases cited. If the defendant has any such defense to the plaintiff’s claim, it may be set up. in- the State courts, and, if. properly set up and denied by the highest court of the State, may ultimately be brought to. this court for decision.”