*190Dissenting the Opinion
by Judge Barker.The opinion of the majority of the court requires the Louisville & Nashville Railroad Company to turn over its ears, loaded with stock, to the Southern Railway Company, to be transported by it to the Central Stockyards Company, a depot on its line, there to be unloaded, without any requirement that the latter company shall pay for the use of the cars while it has them, and without any definite provision for their return to the owner after being unloaded. This, I hold, is taking private property in. violation of our State Constitution and the fourteenth amendment to the Constitution of the United States. The Kentucky Constitution provides in Section 13 of the Bill of Rights: “* * * Nor shall any man’s property be taken or applied to public use without the consent of his representatives, and without just compensation being previously made to him. ’ ’ And Section 2: “ Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.” The fourteenth amendment of the Constitution of the United States, in so far as it is applicable to the question in hand, provides: “* * * Nor shall any State deprive any person of life, liberty, or property, without due process of law. * * *” The conclusion of the majority of the court is rested upon Section 213 of the Constitution, which, it is said, justifies the judgment of the chancellor below. This is as follows: “Sec. 213. All railroad, transfer, belt lines and railway bridge companies, organized under the laws of Kentucky, or operating, maintaining or controlling any railroad, transfer, belt lines or bridges, or doing a railroad business in this State, shall receive, transfer, deliver and switch empty or loaded cars, and shah move, transport, receive, load or unload all the freight in car loads or less quantities, coming to or going from any railroad, transfer, belt line, bridge or siding thereon, with equal promptness and dispatch,' and *191without any discrimination as to charges, preference, draw-back or rebate in favor of any person, corporation, consignee or consignor, in any matter as to payment, transportation, handling or delivery; and shall so receive, deliver, transfer and transport all freight as above set forth, from and to any point where there is a physical connection between the tracks of said companies. But this section shall not be construed as requiring any such common carrier to allow the úse of its tracks for the trains of another engaged in like business.”
The fundamental error in the- opinion, as I see it, is in construing Section 213 to require appellants’to deliver its cars to a rival carrier. In reaching this construction, the court recites as an argument in its favor that the debates in the constitutional convention relative to Section 213 show, or tend to show, that that body desired to impose upon railroads the interchange of cars in the interest of public commerce, so that every such carrier would not only be obliged to receive and forward all car loads of freight brought to it by another, but to turn over its own ears to any connecting road for the purpose of transporting freight to points on the connecting road and beyond the line of the owner of the cars. I have carefully read the debates of the convention, and fail to find any trace of such an intention. Section 213 was prepared and introduced by the delegate from the Fourth district of the city of Louisville, who announced in the convention that he, alone, was the author, and responsible for its introduction. That there .may be no mistake upon this question, I quote his exact language: “I assume its entire responsibility. I wrote every line of it ;• not only that, but I submitted it to the ablest legal minds in the United States.” Debates Constitutional Convention, vol. 4, p. 5127. As. this assertion was unchallenged by any member, we may assume that there was no contrariety of opinion as to the authorship of the proposed section, which is-now 213; and, as the author was a learned lawyer *192wlio had been actively litigating the wrongs which the section was to remedy for many years prior to the meeting of the convention, it may be assumed that he understood what he desired to accomplish by the section, and what the language used in it meant. No one can read the thirty or forty pages of the reports of the convention on the subject of this section without being impressed with the fact that the trouble which had existed before, and which it was proposed to remedy, was the discriminatory refusal of certain railroads to receive and transport car loads of freight brought to them by certain other roads, and there is an. entire absence of any thought on the part of the convention that railroads should be forced to deliver their own cars to connecting lines, to be carried beyond the lines of the owners. The author and proposer of the section under discussion was allowed to debate his side of the proposition, that the proposed section should be adopted alone, and in explaining its meaning he spoke often, fully, and freely.
I' have selected the following excerpts from his explanation as to what the proposed section meant, in order that there may be no doubt as to what he said on this subject: “All this section (213) means is that it shall do exactly the same business for one road that it does for another, upon the -same terms, and 1 hope that amendment will not prevail. Sou cannot use anybody’s property without paying for it, and the object of this is not to take people’s property without paying for it, but simply to declare, where they render service to one corporation or individual, they shall render the same service to another corporation or individual at the same price. I do not believe anybody can deny the justice of that provision.”' Volume 4, pp. 5118, 5119. “We'do not want to take it. We do not want to run trains across anything. We simply want to say that, when you offer to carry for one person, you shall, carry for another person at the same price.” Volume 4, pp. 5132, 5133. “We say they shall receive. The gentleman says you must *193not make them receive.” Volume 4, p. 5136. “I could do it, but you have discussed your substitute. I am on mine. All that this demands is that, when one road brings up freight to ahother, that it shall be compelled to take it alike for all.” Volume 4, p. 5136. ‘‘No, sir; I think every railroad should be compelled to receive freight at the.point of intersection. Anything else will amount to a destruction of interchange between them.” Volume 4, p. 5138. “Again and again he exclaims: ‘Why do you'not do that?' Because it has no application here. There is no provision in this section for one company to use the terminal facilities of any other company. It says not a word about any use.’ Nobody wants to use them; but we do want, when they take cars from one company, when they take freight from one individual, and haul them, that they shall take cars and freight from 'every other individual on exactly the same terms. There is no taking of terminals. There is no use of tracks. This section contains no such phrases, and is subject to no such interpretation. It only requires a fair, honest, equal, uniform conduct of business to all alike, from whomsoever or wherever they come, be they Jew, Greek, Gentile, bond or free, that all shall receive exactly the same treatment, and be put on the same footing.” Volume 4, pp. 5156, 5157. It will thus be seen that, while there is some general language as to serving the public alike and without-discrimination, it was all directed to the discrimination resulting from the refusal to carry freight for all alike. It is evident that the framers of the Constitution did not intend to place a new burden upon railroads, but to compel them to fully and fairly discharge an old duty imposed upon them by the common law.
At the common law there is no duty imposed upon railroads to carry freight beyond their own lines, or to furnish cars to any connecting road so to do. Central Stockyards Company v. Louisville & Nashville Railroad Company, 118 Fed. 113, 55 C. C. A. *19463, and the eases there cited. But it was, and is, their duty, growing out of the nature of their business, to carry all freight brought to them without discriminating in favor or against any person or corporation. It was strictly within the line of their duty to transport the loaded cars brought to them by connecting roads before the adoption of the Constitution. It was, therefore, no hardship to require them to take the freight in the loaded cars of other roads without discrimination. Indeed, it is very much to their interest so' to do, as it facilitates commerce, lessens their labors, and increases their remuneration. But it is a very different proposition to require a railroad, against its will, to deliver to a connecting line its rolling stock, to be taken out of its possession and control, and placed in- the possession and dominion of the connecting carrier. And it is too obvious to need elaboration that if a State can require a railroad to thus deliver to another its rolling stock, without regard to what it may receive in return from the connecting road, it is not only possible, but at times very probable, that a railroad will be so crippled by the loss of its cars as to be unable to perform its primary duty of transporting freight between its own termini. Without stopping at present to discuss this view of the question, it seems to me that it is a serious reflection upon the wisdom and the justice of the framers of the Constitution to assume that they intended to accomplish by Section 213 so radical and far-reaching an end, and yet made no provision for, or even allusion to, a railroad thus deprived of its rolling stock being remunerated in any way for its loss, or having any guaranty for the return of its property. There was no necessity for any guaranty if the section be limited in its meaning to receiving and carrying freight in car load lots, as' a railroad will only receive car loads of freight when the connecting carrier is willing to turn them over to it, and, presumably, when this is done by consent, the parties will take care of their own interest. But the converse of this proposition is not *195true; for, if a railroad may be deprived of its cars against its will without a provision for remuneration for their use or a guaranty of their return, then it is clear that it lies with the corporation receiving the property, and not with the owner, to say whether or not it shall be paid for or returned without a law suit.
My construction of Section 213, that it is limited to receiving and transporting ears, is strengthened by the precaution of the framers of the Constitution to protect the receiving railroad by this language: “But this section shall not be construed as requiring any such common carrier to allow the use of its tracks for the trains of another engaged in like business.” This accentuates the view that the convention had in mind only the receiving of freight, and not the delivery of cars against the consent of the owner; and shows a disposition to guard against loss wherever there was danger of its being inflicted. It seems to me unbelievable that these wise and conservative men would have placed one carrier so completely in the power of another without any provision looking to the ultimate protection and remuneration of the corporation against the loss, and for the use, of its property. Section 216 of the Constitution is as follows: “All railway, transfer, belt lines and railway bridge companies shall allow the'tracks of each other to unite, intersect and cross at any point where such union, intersection and crossing is reasonable or feasible.” Here we have a provision which requires every railroad in the State to permit a physical connection with any other railroad at'any feasible point along its line; and, if the court’s construction of Section 213 is sound, it is very clear that any railroad in the State may become the prey of any other road which chooses to make a connection with it. To illustrate : A railroad is built between Bowling Green and Louisville. The company is organized for the purpose and with the view of serving the public along the line of its road between those points. In order to *196discharge the duty imposed upon it by the common law, it procures a sufficient number of cars to carry all freight that is brought to it for transportation. Now, let us suppose that another railroad connects with it; whose stockholders do not choose to purchase a sufficient' quantity of rolling stock to carry on its business. It is easy to see that under the rule laid down here it would not be difficult for the second railroad to soon get possession of any number of cars belonging to the first, and put them to use in its business, and practically the first will be helpless, as an action in trover or detinue will not furnish an adequate remedy. Before the process of the court could be enforced, or other cars purchased to supply the loss, incalculable injury might be done by the failure of the first road to have the use of its rolling stock. The law in one breath requires a railroad to keep on hand a sufficient quantity of rolling stock to discharge all of the business brought to it. It ought not in the next to make this impossible by placing it in the power of another railroad to deprive it of its equipment for an indefinite time. And certainly the court ought not to reach the conclusion that the framers of the Constitution meant to do this without providing some remedy against ultimate loss, unless the language used excludes by its rigor a more reasonable construction.
It is no answer to all this to say that it is the custom of railroads to interchange cars, and that they have a fixed agreement for the remuneration of the owner when a connecting carrier uses its rolling stock. That is a matter of contract, and leaves every road free to protect itself in making its contract of interchange. The basic principle running through the custom, where it exists, is that the interchanging roads will receive from each other approximately the same number of cars, and with this in view the remunJeraltion is fixed more as a matter of bookkeeping than of rental, and it must not to be forgotten that this custom is based upon the right of each road to *197keep its own ears within its termini whenever its interest demands this to be done. It leaves eaqji carrier free to refuse to deliver its cars to any road whose business does not supply in exchange an equal number, of cars which it receives. In other words, each road has the power of protecting itself, and keeping its. own property when it desires so to do. It seems to me a poor argument that, because the owner rents his house for a number of months when he does not need it, he should, therefore, be required, against his consent, to give it to another when he needs it himself. In Lake Shore, etc., Railway v. Smith, 173 U. S. 697, 19 Sup. Ct. 565, 43 L. Ed. 858, in referring to a statute of Michigan which sought to compel the issue of a certain class of tickets with certain designated privileges attached, the Supreme Court of the United States, in holding the act unconstitutional, said: “It is no answer to the objection to this legislation to say that the company has voluntarily sold thousand-mile tickets good for a year from the time of their sale. What the company may choose voluntarily to do furnishes no. criterion for the measurement of the power of a Legislature. Persons may voluntarily contract to do what no- Legislature would have the right to compel them to do. Nor does it furnish a standard'by which to measure the reasonableness of the matter exacted by the Legislature. The action of the company upon its own volition, purely as a matter of internal administration, and in regard to the details of its business which it has the right to change at any moment, furnishes no argument for the existence of a power, in a Legislature to pass a statute in relation to the same business imposing additional burdens upon the company.” It was this consideration, doubtless, that induced the Supreme Court, when the interstate branch of this case was before it, to construe Section 213 to relate entirely to the receiving of cars, and to conclude that it did not. require the enforced turning over by one road of its rolling stock to another. Central Stock*198yards Company v. Louisville & Nashville Railroad Company, 192 U. S. 568, 24 Sup. Ct. 339, 48 L. Ed. 565. This litigation was divided into two branches, one brought in the Federal court and the other in the Jefferson Circuit Court — the first to restrain the Louisville & Nashville Railroad from refusing to deliver its cars loaded with interstate commerce to the Southern Railway to be unloaded at the Central Stockyards, and this in the State court to restrain it from refusing to deliver its cars loaded with interstate commerce to the same road for the same purpose, the only difference being that in the first the ears were loaded with stock from Tennessee, and in the second they were loaded with stock shipped from points in Kentucky. The same questions made here were made in the Federal court.
The Supreme Court, after pointing out that the third section of the interstate commerce act did not authorize the granting of the prayer of the bill, said: “We also lay on one side the question whether the section of the Constitution of Kentucky (213) is or not invalid as an attempt to regulate commerce among the States; for we are of opinion that the defendant’s conduct is not within the prohibitions or requirements of either the act of Congress or the Constitution of Kentucky, as those provisions fairly should be' construed.” Again it is said: “In view of the course taken by the argument, we may add that we do not find a requirement that the railroad company shall deliver its own cars to another road. The earlier part of Section 213 provides that all railroads ‘shall receive, transfer, deliver and switch empty or loaded cars, and shall move, transport, receive, load or unload all the freight in car loads or less quantities, coming to or going from any railroad. * * * with equal promptness and dispatch, and without any discrimination. * * *” Promptness and the absence of discrimination are the point, and that shows that the words ‘coming to or going from any railroad,’ qualify the words ’empty or loaded cars’ as well as *199‘freight,’ and therefore that the cars referred to are cars from other roads. The same thing is shown by the word ‘receive,’ which is the starting point of all that relates to cars. See Louisville & Nashville R. R. Co. v. Commonwealth, 108 Ky. 628, 633, 57 S. W. 508, 22 R. 328. The other sections of the Constitution need no special remark. ” It is true that this court is not bound by the construction of the Supreme Court of the United States of our Constitution or statutes. On the contrary, it is true that after this court has construed our Constitution or statutes the Supreme Court for the purposes of any Federal question which may arise thereon, will adopt the construction of this court; but it seems to me that where, as here, our Constitution has come before the Supreme Court of the United States in advance of an adjudication from our ora court, and that tribunal has been forced to place a construction upon a section of it, this' construction should, at least, be highly persuasive when the same 'section afterwards comes before us. In my opinion, taking into consideration the debates of the constitutional convention, the wrong to be remedied, and the language used, as well as the hardship arising from a contrary construction,- the view of the Supreme Court of the United States as to the meaning of Section 213 is sound. As, however, the court has declined to follow the construction of the Supreme Court, "and holds that Section 213 authorizes the taking of appellant’s cars from its possession, and turning them over to the possession hnd control of the Southern Railway Company, it remains to consider whether or not this section, as thus construed, is in conflict with the fourteenth amendment of the Federal Constitution, which forbids the taking of property without due process of law.. I presume it will not be questioned that the cars are the private property of the owner witbin the meaning of the Federal Constitution, and that it is only necessary, therefore, to ascertain whether the judgment under discussion is a “taking” within the meaning.of the due-process *200clause of the fourteenth amendment. I do not believe that if the Southern Railway should take the cars of the Louisville & Nashville Railroad without the judgment of the court, and do with them just what it does under the judgment, anybody would doubt that that was a wrongful taking of the property, for which the owner could at once institute an action at law, either to recover the property itself or damages for its- wrongful conversion. The effect of the Constitution, as embodied in the judgment, on the property of the Louisville & Nashville Railroad, produces the precise result, so far as the loss is concerned, that would take place if the Southern Railway should take it on its own initiative. The Louisville & Nashville Railroad is deprived of its property to the same extent in each case. It must, then, be true that the judgment of. the court enforcing the constitutional provision under discussion is a taking of the property of appellant within the meaning of the due-process clause of the Federal Constitution. Blackstone, in his Cóinmentaries (volume 2, p. 2), says: “There is nothing which so generallv strikes the imagination, and engages the affections of mankind, as the right of property, or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe. ’ ’ Any aicit, then, which deprives the owner of the sole and despotic dominion of his property, which he claims and exercises in total exclusion of the right of any other individual in the universe, must be a “taking,” since that act violates the fundamental definition of property as laid down by the learned author above quoted. McGrehee, in his word on Due Process of Law (page 291), thus states the requirements of a “taking” within the meaning of the Constitution: “According to the broad and equitable doctrine of modern cases, it is not necessary to constitute a ‘taking’ of property for public purposes that the actual occupancy or possession of the property should be *201assumed and its title 'acquired. A physical interference with property which substantially abridges the owner’s right to use and enjoy it.and to exclude others from its use takes his property to jxist the extent that he is deprived of its enjoyment. A serious interruption to the common and necessary use of property has been said to be" equivalent to taking it within the constitutional provision, and it is not necessary that the land be absolutely taken.” In the case of United States v. Lynah, 188 U. S. 445, 23 Sup. Ct. 379, 47 L. Ed. 539, it was held that the flooding of the owner’s lands by a public improvement carried on by the United States government, whereby he was temporarily deprived, of its use, was a taking of private .property within the inhibition of the fifth amendment of the United States Constitution. The ease of Missouri Pacific Railway v. Nebraska, 164 U. S. 403, 17 Sup. Ct. 130, 41 L. Ed. 489, involved this question; .under' the Constitution and a statute of Nebraska, the effect of which,' as construed by the State court, fully authorized what was done under them, the railway company was required to permit certain private parties to build grain elevators on its right of way, which it was not using at the. time. It also appeared that others had been permitted to build elevators on the right of way near the railroad tracks. On writ of error to the Supreme Court of the United States, the question arose as to whether or not this was a taking of . private property without due process of law. In the opinion it was said: ‘ ‘ This court, confining itself to what is necessary for the decisión of the case before it, is unanimously of opinion that the order in question; so far as it required the railroad corporation to surrender a part of its land to the petitioners for the purpose of building and maintaining their elevator upon it, was, in essence and effect a taking of private property of the railroad corporation, for the private use of the petitioners. The taking by a State of the private property of one person or corporation, without the owner’s *202consent, for the private use of another, is not clue process of law, and is a violation of the fourteenth article of amendment of the Constitution of the United States. Wilkinson v. Leland, 2 Pet. (U. S.) 627, 658, 7 L. Ed. 542; Murray v. Hoboken Co., 18 How. 272, 276, 15 L. Ed. 372; Loan Association v. Topeka, 20 Wall. (U. S.) 655, 22 L. Ed. 455; Davidson v. New Orleans, 96 U. S. 97, 102, 24 L. Ed. 616; Cole v. La Grange, 113 U. S. 1, 28 L. Ed. 896; Falibrook District v. Bradley, 164 U. S. 112, 158, 161, 17 Sup. Ct. 56, 41 L. Ed. 369; State v. Chicago, Milwaukee & St. Paul Railway, 36 Minn. 402, 31 N. W. 365.”
To the same effect is State of Minnesota v. Chicago, Milwaukee & St. Paul Railway Co., 36 Minn. 402, 31 N. W. 365. In the case of Chicago, Burlington, etc., Railroad v. Chicago, 166 U. S. 226, 17 Sup. Ct. 581, 41 L. Ed. 979, it was said: “It is proper now to inquire whether the due process of law enjoined by the fourteenth amendment requires compensation to be made or adequately secured to the owner of private property taken for public use under the authority of a State.” Then, after reviewing a great number of authorities bearing upon the question, the court concluded: “In our opinion, a. judgment of a State court, even if it be authorized by,statute, whereby private property is taken for the State or under its direction for public use, without compensation made or secured to the owner, is upon principle and authority, wanting in the due process of law required by the fourteenth amendment of the Constitution of the United States, and the affirmance of such judgment by the highest court of the State is a denial by that State of a right secured to the owner by that instrument.” See, also, Davidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 616; Fletcher v. Peck, 6 Cranch (U. S.) 135, 136; Loan Association v. Topeka, 20 Wall. (U. S.) 655, 22 L. Ed. 455; Gardner v. Newburgh, 2 Johns, Ch. (N. Y.) 162, 7 Am. Dec. 526; Searl v. School District, 133 U. S. 553, 10 Sup. Ct. 374, 33 L. Ed. 740; Scott v. Toledo, 36 Fed. 385-396, 1 L. R. A. *203688; Mt. Hope Cemetery v. Boston, 158 Mass. 509, 33 N. E. 695, 35 Am. St. Rep. 515; Cooley’s Edition of Story on Constitution, Sec. 1596.
From the foregoing authority the rule is deduced that in order for a State to take'private property for public use consistently with the due-process clause of the Federal Constitution, it must establish a .mode of ascertaining the damage and providing for payment to the owner. If this is not done, the statute is void. It is also clear that while State governments may regulate corporations under the police power, yet, as said in Lake Shore, etc., Railway Company v. Smith, 173 U. S. 689, 19 Sup. Ct. 565, 43 L. Ed. 858: “This power must, however, be exercised in subordination to the provisions of the Federal Constitution. If, in the assumed exercise of its police power, the Legislature of the State directly and plainly violates a provision of the Constitution of the United States, such legislation would be void.” Again: “A railroad company; although a quasi public corporation, and although it operates a public highway (Cherokee Nation v. Southern Kansas Railway, 135 U. S. 641, 10 Sup. Ct. 965, 34 L. Ed. 295; Lake Shore, etc., Railway v. Ohio, 173 U. S. 285, 301, 19 Sup. Ct. 465, 43 L. Ed. 702), it has nevertheless rights which the Legislature cannot take away without a violation of the Federal Constitution, as stated in Smyth v. Ames, 169 U. S. 466, 544, 18 Sup. Ct. 418, 42 L. Ed. 819. A corporation is a person within the protection of the fourteenth amendment. Minneapolis & St. Louis Railway v. Beckwith, 129 U. S. 26, 9 Sup. Ct. 207, 32 L. Ed. 585; Smyth v. Ames, 169 U. S. 466, 522, 526, 18 Sup. Ct. 418, 42 L. Ed. 819. Although it is under governmental control, that control must be exercised with due regard to constitutional gaurantees for the protection of its property. ’ ’ In the case of Central Stockyards Company v. Louisville Railroad Company, supra, on the question we have in hand the Supreme Court said: “On the other hand, if the cattle are to remain in the defend*204ant’s cars, it cannot be required .to hand those cars over to another railroad without a contract, and the courts have no authority to dictate a contract to the defendant, or require it to.make one.” (Authorities omitted.) It seems to me to require no argument to show that the net result of the court’s action in this case is to take the property of the appellant and give it to the Southern Railway; that after it is so given the Southern Railway may use it as long as it chooses, perhaps destroy it in a railroad wreck, and leave the owner with only an action at law to recover its property, or its value, taking the chance of the Southern Railway being solvent. After being unloaded, it is easy to see that these cars instead of being returned, may be put in use by the Southern Railway, carried out of this State, and therefore beyond the jurisdiction of this court, or any court in Kentucky. If the Southern Railway desires the cars of the Louisville and Nashville Railroad, it now has an endless chain, through the operation of the opinion of this court, with which it can draw from it all of the rolling stock that it needs, leaving the denuded corporation, perhaps, unable to perform its duty to the public, or to earn dividends for the stockholders. In other words, it is not going beyond the language of conservatism to say that it is entirely within the power of the Southern Railway, considering the general shortage of cars existing all over the-country, to bankrupt the Louisville & Nashville Railroad by taking its cars under the order of this court, leaving it with only a claim for their rental at a sum which may be entirely nominal. The rate fixed for the rental of a. railroad’s surplus cars affords no just criterion by which to gauge the loss of those necessary to perform the business for which it was chartered.
On the subject of the interstate commerce feature of this case, I have only this to say: This litigation was begun by bringing the present suit in the State court. After the granting of the preliminary' injunction, a question - arose in the circuit court as to *205whether the terms of the injunction covered interstate shipments, as well as intrastate shipments, or covered only the latter class of shipments. The circuit court interpreted its own order as covering both classes of shipments, and accordingly imposed a fine on the railroad company for disobeying the order of injunction in refusing to switch certain cars which had come from another State. The railroad company applied to this court for an order of prohibition against the judge of the circuit court to prevent him from enforcing the order of punishing for conxempc of court on the ground that the preliminary injunction did not cover interstate shipments; and this court held that the order did not cover such shipments, and therefore granted the prohibition asked for. Louisville & Nashville Railroad Company v. Miller, 66 S. W. 5, 23 Ky. Law Rep. 1714. Immediately following this proceeding the stockyards company, instead of moving the circuit court to extend its order of injunction, filed a bill in the United States Circuit Court, in which it is alleged exactly the same facts and sought exactly the same relief, so far as the interstate shipments of stock were concerned,. as it sought in the State court. The.United States Circuit Court dismissed the bill, whereupon the case was appealed to the United States Circuit Court of Appeals, where the judgment was affirmed, and from which judgment a further, appeal was taken to the Supreme Court of the United States, where again the judgment was affirmed; the affirmance' by the Circuit Court of Appeals being upon the ground that Section 213 of the Kentucky Constitution, if given the ■construction contended for by the stockyards company, is a regulation of interstate commerce, and therefore void, while the affirmance by the Supreme Court was upon the ground that the section in question was not properly susceptible of the interpretation contended for by the stockyards company, and that the acts of the railroad company were not in violation of that section, when properly construed. *206The bill filed in the Federal Court expressly sought to accomplish the purpose of the stockyards company by claiming the right to stop the interstate shipments in transit, and to change the destination thereof, so as to require the delivery of the stock after reaching the State of Kentucky, in accordance with section ■213 of the Kentucky Constitution; it being alleged in the Federal Court bill that the railroad company refused to permit the consignor or the consignee, or both, to change the destination of shipments, and to have same switched and transferred to the Southern Kailway Company for delivery at the Central Stock Yards, and a part of the prayer of the bill being that the railroad company be required to recognize the right of parties to change destination of shipments and to make delivery as demanded pursuant to such change. But this relief, as well as all other relief sought by the bill in the Federal Court, was, of course, denied in the dismissal of the bill. After this decision by the Federal Courts the railroad company offered in the State Court an amende'd and supplemental ¡answer, pleading the litigation in the Federal Court, and the judgment therein as res adjudicata, making a copy of the bill in the Federal Court and a copy of the opinion of the Circuit Court' of Appeals exhibits with the amended answer (the pleading being offered before the final affirmance by the Supreme Court), so as to show exactly what was invtolveld in that litigation. The Circuit Court refused to allow this pleading to be filed, on the ground that it did not present any defense; but by an order of court made the pleading and its exhibits a part of the record' for the purposes of appeal and thereafter entered the judgment now appealed from, requiring the railroad company to recognize the right of the shipper to change destination of shipments, and to make delivery in accordance with such change. Thus the State. Court has wholly disregarded and treated as (a nulíálty a judgment! of the Federal Court between the identical parties and upon exactly the *207same alleged cause of action. If the judgment of the Federal Courts refusing the relief sought is not final and conclusive between the parties, as res adjudicata, then I do not see how the judgment of the State Court granting the relief will be any more conclusive; for 1 take it that a judgment refusing certain relief on a certain state of facts is just as conclusive a» a judgment granting the relief between the same parties upon the same state of facts. And, if neither of these judgments is final or settles the controversy between these parties, then it may go on forever. In the opinion written for the court by Mr. Justice Day, in the Circuit Court of Appeals (118 Fed. 113, 55 C. C. A. 63, 63 L. R. A. 213), it was decided that the very acts and shipments which the opinion here undertakes to regulate was interstate commerce, and beyond the power of state regulation; and while the Supreme Court affirmed the judgment on a different ground from that upon which the opinion of the Circuit Court of Appeals was in part, at least, rested, the Supreme Court has, in a later case (McNeil v. Southern Railway Company, 202 U. S. 562, 26 Sup. Ct. 726, 50 L. Ed. 1142), expressly approved what was said in the opinion, in the following language: “The direct burden and resulting regulation of interstate commerce operated by an alleged assertion of State authority similar in character to the one here involved was passed upon by the Circuit Court of Appeals for the Sixth Circuit in Central Stockyards Company v. Louisville & Nashville R. R. Co., 118 Fed. 113, 55 C. C. A. 63. The court in that ease was called upon to determine whether certain laws of Kentucky imposed a direct burden upon interstate commerce and were a regulation of such commerce, upon the assumption that those laws compelled a common carrier engaged in interstate commerce transportation to deliver cars of live stock moving in the channels of interstate commerce at a particular place beyond its own line different from the general place of delivery established by the railway company. In pointing *208out that, if the legislation in question was entitled to the construction claimed for it, it would amount to a state regulation of interstate commerce, it was aptly and tersely said (page 120 of 118 Fed., page 69 of 55 C. C. A.): ‘It is thoroughly well settled that a State may not regulate interstate commerce, using the terms in the sense of intercourse and the interchange of traffic between the States. In the case at bar we think the relief sought pertains to the transportation and delivery of interstate freight. It is not the means of making a physical connection with other railroads that is aimed at, but it is sought to compel the cars and freight received from one state to be delivered to another at a particular place and in a particular way. If the Kentucky Constitution could be given any such construction, it would follow it could regulate interstate commerce. This it cannot, do.' ”
I do not propose to question the right of the owner of property to stop it in transit where this imposes no additional expense or trouble on the carrier ; but I do question his right to change the contract between him and the carrier while .the goods are in transit so as to evade the Constitution and laws of the United States. The particular contract before us is that the .Louisville & Nashville Railroad would haul stock loaded on its cars in Tennessee and deliver it at its depot, the Bourbon Stockyards, in Louisville, Ky. This was interstate commerce, expressly so decided by the Federal Courts with this very record before them. After the cars cross the imaginary line between Tennessee and Kentucky, the shipper proposes to have the carrier deliver his stock at a place and in a manner which it is conceded he had no right to require when the stock was loaded in Tennessee. And we are gravely informed that after the cars containing the stock cross the imaginary line between Tennessee and Kentucky the shipment ceases to be interstate and becomes intrastate commerce. • In *209other words, that the laws of Kentucky meet the train at the line between Kentucky and Tennesse, and from that point on take charge of and control it. If this can be done in Kentucky, it can also be done in Tennessee, and Tennessee laws can take charge of the stock loaded in that state, conduct, manage, and control them until they get to the line between that state and Kentucky, and after the train crosses, as said before, the laws of Kentucky will take charge of, manage and control it. This, it must be conceded, reduces the sphere of action of the Constitution and laws of the national government, concerning interstate commerce, to a very narrow space.
In conclusion, no court of last resort has enunciated often er, or more forcibly, or adhered more consistently to, the doctrine of res adjudicata than our own. Beginning with the leading case of Davis v. McCorkle, 14 Bush, 746, this court has consistently held that, when a matter is once put in issue and is passed upon b;> a court of competent jurisdiction, it cannot be again litigated between the same parties as long as the former decision continues in force. Por the first time in its history, so far as I am advised, this court has departed from that rule.
Por these reasons I dissent from the opinion of the majority of the court.