from mine to market, while here the merchandise was transported from market to mine. But the statute relates to 'all commodities, except lumber, owned by the company,' and includes inbound as well as outbound shipments. Both classes of transportation are within the purview of the evil to be corrected, and therefore subject to the power of Congress to regulate interstate commerce. The exercise of that power is, of course, limited by the provisions of the 5th Amendment (Monongahela Nav. Co. v. United States, 148 U. S. 336; McCray v. United States, 195 U. S. 27; Union Bridge Co. v. United States, 204 U. S. 364), but the commodity clause does not take property, nor does it arbitrarily deprive the company of a right of property. The statute deals with railroad companies as public carriers, and the fact that they may also be engaged in a private business does not compel Congress to legislate concerning them as carriers so as not to interfere with them as miners or merchants."

§ 88. Billings v. U. S.37-Imposition of an excise tax based on gross tonnage upon the use of foreign built pleasure yachts does not deny due process. The constitutional contention of plaintiff in error was that the classification in 37 of the tariff act of August 5, 1909, violated the Fifth Amendment; that such violation resulted from the imposition of an excise tax based upon gross tonnage upon the use of foreign built pleasure yachts owned by American citizens in the absence of a like imposition upon the use of domestic yachts under like conditions. In rejecting that contention the Court said: "It has been conclusively determined that the requirement of uniformity which the Constitution imposes upon Congress in the levy of excise taxes is not an intrinsic uniformity but merely a geographical one. Flint v. Stone, Tracy Co., 220 U. S. 107; McCray v. United States, 195 U. S. 27; Knowlton v. Moore, 178 U. S. 41. It is also settled beyond dispute that the Constitution is not self

37-232 U. S. 261.

destructive. In other words, that the powers which it confers on the one hand it does not immediately take away on the other; that is to say, that the authority to tax which is given in express terms is not limited or restricted by the subsequent provisions of the Constitution or the Amendments thereto, especially by the due process clause of the 5th Amendment. McCray v. United States, 195 U. S. 27, and authorities there cited. Nor is there anything in Carroll v. Greenwich Ins. Co., 199 U. S. 401, or Twining v. New Jersey, 211 U. S. 78, which in the remotest degree nullifies or restricts the principle thus stated. Indeed it is apparent, if the suggestion as to the meaning of those cases were assented to, it would result in rendering the Constitution unconstitutional. This certainly was the view entertained by the pleader when the answer in the case was prepared, since the sole attack on the constitutionality of the statute was based upon the assertion. that it was repugnant to the due process clause of the 5th Amendment. And such also is the line of the argument at bar where the fundamental rights secured by the 5th Amendment are constantly referred to as the basis upon which the unconstitutionality of the statute is urged. Is there foundation for this claim under the 5th Amendment, is then the issue, and that, of course, requires a statement of the grievances which it is asserted resulted from the upholding the tax. They all come to this, that to impose a burden in the shape of a tax upon the use of a foreign built yacht when a like tax is not imposed on the use of a domestic yacht under similar circumstances is so beyond the power of classification, so abhorrent to the sense of justice, and so repugnant to the conception of free government as to be void even in the absence of express constitutional limitation. we are of opinion the conclusion can not be escaped that the propositions, each and all of them, whatever may be their form of expression, are in substance and effect but an assertion that the tax which the statute imposes is void because of a want of intrinsic uniformity;

and therefore all the contentions are adversely disposed of by the previous decisions of this court on that subject." See to the same effect, United States v. Bennett, 232 U. S. 299; Rainey v. United States, 232 U. S. 310.

§ 89. Herbert v. Bicknell 38-Due process not denied when judgment by default is rendered against absent defendant on summons left at last and usual place of abode. This action was begun in the District Court of Honolulu against the defendant at a time when it is admitted he was absent from the territory. The summons was left at a place which, according to the return, was the defendant's last and usual place of abode. He claimed however that he had changed his domicile to Australia before the beginning of the suit; that his last and usual place of abode, before his change of domicile, was at Waikiki; and that the place at which the summons was left was a lodging house at which he was temporarily stopping, and was not therefore his last and usual place of abode within the meaning of 2114 of the Revised Laws of Hawaii. Upon that state of facts the defendant claimed that the provision for substituted service by leaving the notice "at his last and usual place of abode" referred either to one who was inhabitant, or a resident at the time of the service. Therefore, as the defendant was in neither category, that the attempted constructive or substituted service gave the court no jurisdiction. In rejecting that contention the Court said: "The argument for the plaintiff in error assumes a wider range than is open upon this motion. The supreme court says that the question whether the evidence was sufficient to support the judgment can not be raised in this way, and we would follow the decision below even if it seemed less obviously reasonable than it does. Montoya v. Gonzales, 232 U. S. 375. Moreover, the only errors assigned here are in holding that the service prescribed by 2114 of the Revised Laws of Hawaii, as construed by the court, and

38-233 U. S. 70.

that leaving a copy of the summons as above stated after garnishment of a debt due to the defendant, were sufficient to meet the requirements of the 5th Amendment (the court having assumed that the defendant referred to the 5th when he mentioned the 14th in his motion below). The Supreme Court was of opinion that, if the question was open, leaving copy of the summons at the place where the defendant last had stopped was leaving it at his last and usual place of abode within 2114. On that point we see no sufficient reason for disturbing the judgment. Phoenix R. Co. v. Landis, 231 U. S. 578, 579." See the instructive note to this case, entitled "Service of process on resident in action in personam by leaving copy at residence as due process of law" in Co-op. ed. of S. C. Reports, 58 Law ed. p. 854, where it is said that "the doctrine that a personal judgment upon constructive or substituted service upon a nonresident who does not appear is contrary to due process is not generally regarded as applicable to a judgment in personam rendered upon constructive or substituted service upon a resident of the state, even though he may have been absent from the state at the time." Citing notes to Pinney v. Providence Loan & Invest. Co., 50 L. R. A. 585, and Raher v. Raher, 35 L. R. A. (N. S.) 292.

§ 90. U. S. v. Atchison, T. and S. F. R. Co.89—Act of February 4, 1887, § 4, as amended by act of June 18, 1910, § 8, not repugnant to Fifth Amendment. These appeals were taken to review an interlocutory order and final decree of the Commerce Court, enjoying the enforcement of an order of the Interstate Commerce Commission based upon the long and short haul clause of the act to regulate commerce. In holding that the statute as amended is not made repugnant to the Fifth Amendment, as denying due process of law, by the imperative enforcement of its provisions prohibiting common carriers to charge a lesser rate for a longer than for a

39-234 U. S. 476.

shorter haul, which results when the Interstate Commerce Commission has performed the duty imposed upon it by the statute to refuse in a proper case an application by a carrier for relief from such long and short haul clause, the Court said: "It is said in the argument on behalf of one of the carriers that as in substance and effect the duty is imposed upon the Commission in a proper case to refuse an application, therefore the law is void because in such a contingency the statute would amount to an imperative enforcement of the long and short haul and would be repugnant to the Constitution. It is conceded in the argument that it has been directly decided by this court that a general enforcement of the long and short clause would not be repugnant to the Constitution (Louisville & N. R. Co. v. Kentucky, 183 U. S. 503), but we are asked to reconsider and overrule the case, and thus correct the error which was manifest in deciding it. But we are not in the remotest degree inclined to enter into this inquiry, not only because of the reasons which were stated in the case itself, but also because of those already expounded in this opinion, and for an additional reason, which is, that the contention by necessary implication assails numerous cases which, from the enactment of the act to regulate commerce down to the present time, have involved the adequacy of the conditions advanced by carriers for justifying their departure from the long and short haul clause. We say this because the controversies which the many cases referred to considered and decided by a necessary postulate involved an assertion of the validity of the legislative power to apply and enforce the long and short haul clause."

§ 91. Pennsylvania Co. v. U. S. In this case (236 U. S. 351), the Court held: first, that the Interstate Commerce Commission has jurisdiction to compel an interstate carrier to receive and transport over its terminals carload interstate freight from one carrier having a physical connection with its lines on the same terms on which it