Daily capital journal. (Salem, Oregon) 1903-1919, 1911-03-27

state commerce commission and pub
lished, the shipper is liable for the
full rate whether he actually knows
that the rate quoted is less than the
schedule rate or not.
We quote from Texas & Pacific Ry.
Co. v. Mugg. 2O2 U. s. 242: One who
has obtained from common carrier
transportation OF goods from one state
to another at a rate specified in the
bill of lading, less than the published
schedule rates filed with and ap-
proved by the interstate commerce
commission, and in force at the time,
whether or not he knew that the rate
obtained was less than the schedule
rate, is not entitled to recover the
goods, or damages for their detention,
upon the tender of payment of the
amount of charges named in the bill
of lading, or of any sum less than
the schedule charges" In view of
their decision it is needless to con-
slider the decisions of the various
state courts or the inferior courts
upon the same subject.
The most serious question that
presents itself is, whether the ques-
tion last adverted to is raised in this
case. The defendants, by further
and separate answers, set up that, at
the date of the shipment, there was
in existence a Joint tariff, which had
been heretofore promulgated by the
defendant companies, prescribing and
fixing the minimum rates on cars
loaded with sheep from all stations of
the Columbia Southern Railway to
the Missouri River common points,
which rate was $1S1 per car, and that
this rate applied to the shipment de-
scribed in plaintiffs complaint; that
at the time the shipment vas made,
the same had been published and filed
with the interstate commerce CON-
mission, as required by law, and was
also published and on file at defen-
dant's station at Biggs, and Hunting
ton, and at all intermediate stations;
that at the same time there was
Joint tariff in force and effect which
was promulgated and entered into in
connection with the Oregon Short
Line Railroad company and the Union
Pacific R. company, making rate of
SIG per car from Biggs, Oregon, to
Rawlins, Wyoming, and that such tar
iff at the time of the transaction was
set forth in the complaint published
and on file with the interstate COM
merce commission, as required by
law, and published and on file with
the different stations of the Oregon
Railroad C Navigation company, in
Guiding the station at Biggs De-
PENDANTS alleged that they had in good
faith quoted the lower rate claimed
by plaintiff, and that when the ship
ment was made they demanded the
tariff rate. A demurrer was sus-
tained by the court to this answer of
which but the mere skeleton is here
given, and defendants, without filing
any further or amended answer, went
to trial upon issues framed by their
denials. In our view the answers
filed stated complete defense, and
the court erred in sustaining the de-
murrer. But this error cannot be
corrected here and the question be-
fore us is, whether, in the mutilated
state of the pleadings, defendant
could show, under the general issue,
that the rate first quoted was less
than the established rate and there
fore illegal, and that the rate charged
was the regular tariff rate. The gen.
eral rule is that the illegality of
contract cannot be proved unless it