The opinion
WILBUR, Circuit Judge
(concurring).
I concur. Plaintiff’s contention throughout has been that he is acting as a private, and not as a public carrier. That matter was decided adversely to him in the litigation before the Railroad Commission and before the state Supreme Court. He correctly contends that the jurisdiction of the Railroad Commission is confined to public carriers and that it has no> jurisdiction over private carriers. It does, however, have jurisdiction to determine whether or not a carrier is public or private. Such determination is essential to the exercise of its jurisdiction. The Supreme Court of the state has power to review the matter of the jurisdiction of the Railroad Commission. The present attack upon the orders of the Railroad Commission and of the state Supreme Court are collateral, and in such a proceeding the determination of the' state court upon the question of jurisdiction is conclusive. In addition to the cases cited upon this point by Judge COS GRAVE, the recent decision of the Supreme Court in American Surety Company v. Baldwin (Baldwin v. American Surety Company), 287 U. S. 156 , 53 S. Ct. 98 , 77 L. Ed. 231 , 86 A. L. R. 298, and Johnson v. Manhattan R. Co., 289 U. S. 479 , 53 S. Ct. 721 , 77 L. Ed. 1331 , may be cited.