Opinion of the Court.

236 U. S.

involved, if given, a disregard not only of all the regulations concerning rates established under the Act to Regulate Commerce, but also, it may be, the prohibitions of that act concerning preference and discrimination. This condition is not escaped by the suggestion that such limitations if imposed would not have been in substance repugnant to the Act to Regulate Commerce since, as the rate from which the repugnancy would arise would only apply to business done by the combination and as the combination would have to be dissolved because of the repugnancy, therefore the repugnancy would cease to exist from the very fact that it arose. But this argument only restates the contention concerning another aspect of the case which we have previously disposed of and serves to emphasize the view that it is impossible to conceive that the decision of this court recognized the right of the Terminal Company to continue to exist provided certain features in its organization which were in conflict with the Anti-trust Act were removed, and yet at the same time provided that when such features were removed the right to continue should be lost by the fact of its exercise. The particular expression of disapproval of the form of rate stated in the clause relied upon could only have been based upon one of two conceptions: First, the intention if such a charge was attempted to be exacted under the future operation of the company which was permitted, to lay down a rule forbidding such a charge in the future by the Terminal Company and thereby expressing an opinion upon and controlling a subject plainly beyond the primary sphere of the judicial power and exclusively within the original cognizance of the Interstate Commerce Commission under the terms of the Act to Regulate Commerce; or second, as there was contention in the record as to whether such a form of rate was charged, and if it was, as to its legality, the expressions on that subject were used only to exclude all inference that the

judicial recognition of the right of the Terminal Company to continue in business on compliance with exactions which were required carried with it an implication of approval also to continue to exact the rate in question if it was being exacted, thus excluding all room for the contention that the provisions of the Act to Regulate Commerce were in any way interfered with. That the expressions relied upon did not have the first meaning and therefore solely had the second, so clearly results from the context of the mandate, that is, from its seventh paragraph, as to need no further consideration of the subject. The clause is as follows:

"Seventh. To avoid any possible misapprehension, the decree should also contain a provision that nothing therein shall be taken to affect in any wise or at any time the power of the Interstate Commerce Commission over the rates to be charged by the terminal company, or the mode of billing traffic passing over its lines, or the establishing of joint through rates or routes over its lines, or any other power conferred by law upon such Commission."

Comprehensively considering and once again weighing all the contentions pressed upon us by the United States, we are of the opinion they all in last analysis rest upon the following contradictory assumptions: (a) that the decision of this court destroyed one set of public rights upon the theory of protecting another set; (b) that it proposed to correct an abuse of one statute by conferring authority to violate another; (c) that while exerting the authority of enforcing one statute the power was assumed of setting aside the provisions of another statute. On the contrary, when the confusion upon which these views rest is disregarded we are of the opinion that the decision involved none of these contrarieties or conflicts since in the public interest and to open wide the avenues of commerce and make them free to the enjoyment of all, it commanded the correction of conditions impeding that result and VOL. CCXXXVI-14

Counsel for Appellants.

236 U. S.

which were in conflict with the Anti-Trust Act, thus bringing the assailed combination under the law of the land and leaving it to be controlled by such law.

It follows from what we have said that the decree below giving effect to the mandate of this court will be modified so as to recognize the right of the Terminal Company as an accessory to its strictly terminal business to carry on transportation as to business exclusively originating on its lines, exclusively moving thereon and exclusively intended for delivery on the same and in other respects the decree will be affirmed.

Modified and affirmed.

MR. JUSTICE HOLMES and MR. JUSTICE MCREYNOLDS took no part in the decision of this case.

EVENS AND HOWARD FIRE BRICK COMPANY v. UNITED STATES.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI.

No. 567. Argued October 20, 1914.—Decided February 23, 1915.

The court below, in settling the decree on the mandate of this court has no power to allow persons who were not parties to the action to intervene. This court, however, can take action on an original petition for intervention in this court. (See pp. 194, 199, ante.)

THE facts are stated in the opinion.

Mr. George M. Block, with whom Mr. John F. Lee was on the brief, for appellants.

Mr. Edward C. Crow, with whom The Solicitor General was on the brief, for the United States.

MR. CHIEF JUSTICE WHITE delivered the opinion of the court.

This appeal was taken from the order of the court refusing to allow an intervention on the ground that there was no jurisdiction to do so because as the result of a previous final decree and an appeal taken therefrom by the United States, the authority of the court over the subject-matter was ended. In effect the relief which was sought to be accomplished by the intervention below has been obtained as the result of an original petition for intervention here and our action this day taken thereon. As those applying to intervene were not parties to the record, we are of opinion that the court below had no power to allow them to intervene under the circumstances which existed and its judgment refusing their application was therefore right and is

Affirmed.

OLYMPIA MINING & MILLING COMPANY, LIMITED, v. KERNS.

ERROR TO THE SUPREME COURT OF THE STATE OF IDAHO.

No. 495. Motion to dismiss or affirm submitted January 25, 1915.Decided February 23, 1915.

This court has no jurisdiction under § 237, Judicial Code, to review the judgment of a state court, sustaining a demurrer to the complaint on the ground of statutory limitations, unless the Federal questions asserted as a basis for such jurisdiction were presented or suggested to the court below. Appleby v. Buffalo, 221 U. S. 524.

Argument for Plaintiff in Error.

236 U.S.

Even if the judgment of dismissal of the complaint was the result of sustaining a demurrer thereto, an express statement in the demurrer that it was based on the statute of limitation affords an opportunity for the plaintiff to assert that a Federal right would be impaired by applying the statute.

Writ of error to review 24 Idaho, 481, dismissed.

THE facts, which involve the jurisdiction of this court on writ of error under § 237, Judicial Code, to review judgment of the state court sustaining demurrer to and denying complaint, are stated in the opinion.

Mr. James H. Forney for defendant in error, in support of the motion.

Mr. Charles E. Miller for plaintiff in error, in opposition to the motion:

In denying the plaintiff in error, while under legal disability, the same rights the state law gives to minors, insane persons, criminals and married women, the plaintiff in error is deprived of its property without due process of law and is denied the equal protection of the laws. Barbier v. Connelly, 113 U. S. 27.

Under the construction of the Idaho Supreme Court in tolling the statutes of limitations against the plaintiff in error, while under legal disability (minority we might say), these statutes in their operation deprive it of its property without due process of law and deny to it the equal protection of the laws. Tregea v. Modesto Irr. Dist., 164 U. S. 179.

If a statute is so construed as to deprive one of his property without due process of law, it violates the constitutional provision and presents a Federal question. Castillo v. McConnico, 168 U. S. 674.

Where there is an abuse of law, amounting to confiscation of property or a deprivation of personal rights, the