225 U.S.

Argument for Plaintiff in Error.

631; Follmer & Co. v. G. N. R. Co., 15 I. C. C. Rep. 33; Nat. L. Co. v. S. P. L. A. & S. L. R. Co., 15 I. C. C. Rep. 434; Barrett Mfg. Co. v. Cent. R. Co., 17 I. C. C. Rep. 464; Armour Car Lines v. So. Pac. R. Co., 17 I. C. C. Rep. 461; Beale & Wyman, R. R. Rate Reg., § 748.

The giving of a greater service in consideration of the tariff rate than is noted in the tariff is unlawful. See the Hepburn Act of 1906, which provides specifically against the very thing which the Commission had already provided against by construction of the act before that amendment. Tex. & Pac. Ry. Co. v. Cotton Oil Co., 204 U. S. 447.

The Alton had complied in every respect with the provisions of the act with reference to filing and publishing its joint tariffs.

These tariffs consisted of three documents, all of which must be construed together to arrive at the rate, and the service to be given for that rate, viz., the Official Classification, the Joint Interstate Tariff, and the List of Stations Taking Percentage Rate Bases.

These documents must be read together to arrive at the rate and service to be performed for the rate. Man. Ins. Co. v. Erie & W. T. Co., 75 N. W. Rep. 62.

The classification sheet is binding on both carrier and shipper. Smith v. Gt. N. Ry. Co., 107 N. W. Rep. 56.

The elements of classification are those that "affect either the cost or risk of carriage to the carrier, or the value of carriage to the shipper."

So the elements must necessarily be important which impose a greater degree of care on the carrier. Beale & Wyman, R. R. Rate Reg., § 586; Millinery Jobbers' Asso. v. Am. Exp. Co., 20 I. C. C. Rep. 498.

The contract for the shipment of the horses was that implied by the law from the rate quoted, and no other condition or term could be added to that contract in consideration of that rate, and hence Kirby cannot re

Argument for Plaintiff in Error.

225 U. S.

cover. Smith v. Great Northern R. Co. (N. Dak.), 107 N. W. Rep. 56.

If the rate is duly published and thus called to the attention of shippers and consignees, they cannot depend for the lawful rate or charge on what may be quoted by the carrier's agent, but must be guided by the published tariffs themselves. Suffern v. I. D. & W. R., 7 I. C. C. Rep. 185; So. Ry. v. Harrison, 119 Alabama, 539; overruling M. & O. R. v. Dismukes, 94 Alabama, 131; Kinnavey v. Term. Asso., 81 Fed. Rep. 802; B. & O. v. Hamburger, 155 Fed. Rep. 849. See also Man. Ins. Co. v. Erie & W. T. Co., 75 N. W. Rep. 62; Church v. Minn. &c. R. Co., 14 So. Dak. 443.

The shipper is presumed to know, upon proof of the due filing and publication of the schedules, that they were in existence, open for his inspection. 16 Am. & Eng. Ency. (2d ed.), 161; Union Pac. R. Co. v. Goodridge, 149 U. S. 680, 690, etc.; Gulf &c. R. Co. v. Hefley, 158 U. S. 98; Tex. & P. R. Co. v. Cotton O. Co., 204 U. S. 426, 439; Armour P. Co. v. United States, 209 U. S. 56, 72, 80, 81; Tex. & P. R. Co. v. Mugg, 202 U. S. 242; L. & N. R. Co. v. Mottley, 219 U. S. 467, 476.

A contract to perform an additional and special service for a shipper for the regular schedule rate is a discrimination in his favor as completely as if he were given the regular schedule service for a lower rate than the tariff rate, or for a different compensation. Wight v. United States, 167 U. S. 512; Railroad Co. v. Mottley, 219 U. S. 467.

No action can be maintained in which the plaintiff, to make out his case, must necessarily invoke aid from an illegal demand or contract.

For a distinction between the cases in which a contract in contravention of a statute can be enforced and when it cannot, see Connolly v. U. S. P. Co., 184 U. S. 540; Miller v. Ammon, 145 U. S. 421; C. & O. R. R. Co. v. Maysville B.

225 U.S.

Argument for Defendant in Error.

Co., 116 S. W. Rep. 1183; Gerber v. Wabash R. Co., 63 Mo. App. 145.

Where the action is to affirm a contract made in violation of the Interstate Commerce Act, and to recover for a breach thereof, the court will deny any remedy. R. & G. R. Co. v. Swanson, 39 L. R. A. 275; B. & O. R. Co. v. Hamburger, 155 Fed. Rep. 849; S. F. & W. Ry. Co. v. Bundick, 21 S. E. Rep. 995. See also C. & D. R. Co. v. Maysville B. Co., 116 S. W. Rep. 1183, 1185, 1186.

The only contract authorized by the rate paid was for liability subject to official classification, i. e., limited to $100 per animal, or $1,200 per carload. Beale & Wyman, R. R. Rate Reg., §§ 590 et seq., 926; 17 Am. & Eng. Ency. (2d ed.), 133.

Carriers may make their rates depend on the value of the animals given by the shipper. Hart v. Pa. R. R. Co., 112 U. S. 331; Duntley v. B. & M. R. Co., 66 N. H. 263; 20 Atl. Rep. 327; Squire v. N. Y. Cent. R. Co., 98 Massachusetts, 245; T. & P. R. Co. v. Abilene C. O. Co., 204 U.S. 439.

Neither can claim more than grows out of the payment of the rate, which has annexed to it a valuation basis. Mannheim Ins. Co. v. E. & W. T. Co., 75 N. W. Rep. 602. The question was not raised or passed upon in the case of Penn. R. Co. v. Hughes, 191 U. S. 477.

This rate, so imposed, cannot be departed from until changed by the legal method. Poor Grain Co. v. C., B. & Q. R. Co., 12 I. C. C. Rep. 418.

There was an erroneous construction and application of Federal cases by the Supreme Court of Illinois.

Mr. Albert Salzenstein, with whom Mr. James M. Graham was on the brief, for defendant in error:

There was no unlawful discrimination under the Interstate Commerce Act. Southern Pacific Co. v. Int. Com. Comm., 200 U. S. 585, does not deny the right of common

Argument for Defendant in Error.

225 U. S.

carriers to adopt a rule under which the right of routing beyond its own terminal is reserved to the initial carrier, as the condition of guaranteeing the through rates of the shipper.

The shipper having the right to use the Horse Special in shipping had the right to select the place he desired to connect with it, and in according him that right no privilege or preference of any kind was given him, but he was given what he or any shipper had a right to demand.

This being true it cannot be said that if the carrier agrees with such shipper to handle his shipment so as to connect with the Horse Special at such place selected by him, such agreement constitutes a contract prohibited by the Interstate Commerce Act.

There was nothing in this arrangement which in any way violated either the spirit or letter of the Interstate Commerce Act. Foster v. Cleveland, C., C. & St. L. Ry. Co., 56 Fed. Rep. 434; Texas & P. R. Co. v. Int. Com. Comm., 162 U. S. 197; Int. Com. Comm. v. B. & O. Ry. Co., 43 Fed. Rep. 37, aff'd, 145 U. S. 263. The language of this case is quoted with approval and applied in subsequent cases. Cincinnati, N. O. & T. P. R. Co. v. Int. Com. Comm., 162 U. S. 197; Int. Com. Comm. v. Cincinnati &c. R. Co., 167 U. S. 479, 493; Int. Com. Comm. v. Alabama Midland R. Co., 168 U. S. 144, 165; Southern Pacific Co. v. Int. Com. Comm., 200 U. S. 536, 554; Int. Com. Comm. v. Chicago, G. W. R. Co., 209 U. S. 108, 119; Gamble-Robinson Com. Co. v. C. & N. W. Ry. Co., 94 C. C. A. 217; 168 Fed. Rep. 16; United States v. Oregon R. & N. Co., 159 Fed. Rep. 975; Int. Com. Comm. v. C. G. N. Ry. Co., 141 Fed. Rep. 1003; Hutchinson on Carriers (3d ed.), § 538.

If the contract had violated the Interstate Commerce Act the right to recover damages occasioned by the neglect and failure of the railroad to notify the Michigan Central in reasonable time to provide for the connection,

225 U.S.

Argument for Defendant in Error.

would still exist. Merchants' Cotton Press Co. v. Insurance Co. of N. A., 91 Tennessee, 538; S. C., 151 U. S. 368; Central of Georgia v. Sim (Ala.), 53 So. Rep. 826; Standard Oil Co. v. United States, 164 Fed. Rep. 376.

The general rule that an illegal contract is void and unenforcible is qualified by the exception that where a contract is not evil in itself and its invalidity is not denounced as a penalty by the express terms or by rational implication from the language of the statute which it violates, and that statute prescribes other specific penalties, it is not the province of the courts to do so, and they will not thus affix an additional penalty not directed by the law-making power. Dunlap v. Mercer, 156 Fed. Rep. 545, 551; Logan Bank v. Townsend, 139 U. S. 67; Fritts v. Palmer, 132 U. S. 282; Xenia Bank v Stewart, 107 U. S. 676; Bank v. Mathews, 98 U. S. 621; Fackler v. Ford, 24 How. 322; Harris v. Runnels, 12 How. 79; People v. Rose, 219 Illinois, 46, 63; Bea v. People, 101 Ill. App. 132; Pangborne v. Westlake, 36 Iowa, 546; Wenninger v. Mitchell, 139 Mo. App. 420; Hobbs v. Boatright, 195 Missouri, 663; Duval v. Wellman, 124 N. Y. 156; Mitchner v. Watts (Ind.), 96 N. E. Rep. 127; Brady v. Central Western R. Co. (Neb.), 130 N. W. Rep. 575; 9 Cyc. 550.

There is nothing in the holding of the Illinois courts that the limitation of recovery to $100 for each animal was not binding, that in any way condicts with any provisions of the Interstate Commerce Act.

In Illinois, the law is well established that a carrier cannot limit its common-law liabilities unless the shipper knowingly assented and agreed to such limitation, and whether there was such assent or not, is a question of fact. Chicago & Northwestern Railway Co. v. Calumet Stock Farm, 194 Illinois, 9; C., C., C. & St. L. Ry. Co. v. Patton, 203 Illinois, 376; Wabash Railroad Co. v. Thomas, 222 Illinois, 337. See also Richmond A. R. Co. v. Patterson T. Co., 169 U. S. 311; Latta v. Chicago, St. P. & M. O. Ry. VOL, CCXXV-11