diction:*'const!tutionai Question: Colorable. (After stating the facts as above). — An examination of the entire record discloses that the theory of appellant on the trial below was, that no' jurisdiction was acquired over it by the service °f process in this case, for the reason that ft had no railroad or business office in Au- . ..... . dram county, where this action was bet gun, and that the statute (R. S. 1909, sec. 5446) which *60provides that suits against one or more connecting carriers may be prosecuted in any county in this State in which a suit against either of them might be maintained, is unconstitutional. We gather this from two of its instructions requested in the court below. If this statute is valid, then jurisdiction was rightfully acquired in the court below, because the record shows that the common carrier joined as a connecting carrier — Wabash Railroad — did have a line of railroad extending through Audrain county and kept a business office there; and, hence, the right to sue both of the defendants was within the provision of the above statute. Appellant has filed a brief in this court in which the only errors assigned are (1st) that no jurisdiction was acquired over it; (2nd) that the demurrer to the evidence should have been sustained In the court below; and (3rd) that the court erred in failing to direct the jury that plaintiffs were required to give the written notice specified in the shipping contract. The two latter assignments of error do not suggest any constitutional question, and in its brief in this, court appellant does' not suggest in the remotest way that any constitutional question arises upon its second and third assignments of error. All that is said in appellant’s brief is, that the constitutionality of the statute under which this suit was brought was challenged below. The. whole subject is then abandoned, and there is not another word nor an intimation in the brief and argument which suggests any reason why the aforesaid statute should be held unconstitutional. Counsel for appellant have thus left us in Cimmerian darkness as to why they think the statute obnoxious to the Constitution. If they considered the point to be debatable, it was their duty to make; it on the submission of the case to this court. Instead, they have omitted to point to any provision of the Constitution of this State which is violated by the terms, intendment or effect of the statute in question. The conclusion *61is irresistible that if they entertained that idea in the court below, they have not thought it worthy of presentation to this court. An objection to the constitutionality of a statute made in the trial court, which is abandoned after appeal taken to this court, or which is not attempted to be maintained either by argument or specification of the constitutional invalidity of such statute, is merely colorable and meritless; and if held sufficient ground to vest jurisdiction in this court, would necessarily divest courts of appeal of their lawful jurisdiction in any case where the counsel saw fit to make such claim during the trial. The appellate jurisdiction of the courts of appeal cannot be destroyed by the injection of sham questions of unconstitutionality in the trial courts, which are not deemed worthy of presentation or argument after the case has been gotten here by that process. That is what the record shows was done in this case. This performance does not present any real constitutional question for review in this court. This case is transferred to. the St. Louis Court of Appeals.
