made, notice of the same shall immediately be publicly posted and the changes made shall immediately be made public by printing new schedules, or shall immediately be plainly indicated upon the schedules at the time in force and kept for public inspection."

Paragraph 4 of said section 6 is as follows: "And when any such common carrier shall have established and published its rates, fares, and charges in compliance with the provisions of this section, it shall be unlawful for such common carrier to charge, demand, collect, or receive from any person or persons a greater or less compensation for the transportation of passengers or property, or for any service in connection therewith than is specified in such published schedule of rates, fares and charges as may at the time be in force."

Section 10 of said act provides as follows: "That any common carrier subject to the provisions of this act or whenever such common carrier is a corporation, any director or officer thereof, or any receiver, trustee, lessee, agent, or person acting for or employed by such corporation, who, alone, or with any other corporation, company, person, or party, shall wilfully do or cause to be done, or shall willingly suffer or permit to be done, any act, matter or thing in this act prohibited or declared to be unlawful, or who shall aid or abet therein, or shall wilfully omit or fail to do any act, matter or thing in this act required to be done, or shall cause or willingly suffer or permit any act, matter or thing so directed or required by this act to be done not to be so done, or shall aid or abet any such omission or failure, or shall be guilty of any infraction of this act, or shall aid or abet therein shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof in any district court of the United States, within the jurisdiction of which such offense was committed, be subject to a fine of not to exceed five thousand dollars for each offense."

The manifest purpose of these provisions Is to require the railway company to have one uniform published tariff rate for all interstate shipments, and any other rate, by the positive provisions of the statute, is declared to be unlawful, and is made a high penal offense. Hence, any contract or agreement which directly or indirectly violates the plain provisions of the interstate commerce act is absolutely void, and nonenforceable in the courts. The Supreme Court of the United States, in a very recent opinion, in the case of New Haven R. R. v. Interstate Commerce Commission, 200 U. S. 361, 26 Sup. Ct. 272, 50 L. Ed. 515, has held that the interstate commerce act was enacted to secure equality of rates and to destroy favoritism, and for those purposes is a re medial statute, to be interpreted so as to reasonably accomplish them. Its prohibitions against directly or indirectly charging less than published rates are all-embracing and

applicable to every method by which the forbidden results could be brought about. And that the application of these prohibitions depends, not upon whether the carrier intends to violate them, but upon whether it actually does so. The decision in this case was delivered by Mr. Justice White, and in the course of the opinion he uses this language: "Concludng, therefore, that both the contracts made by the Chesapeake & Ohio with the New Haven were contrary to public policy and void because in conflict with the prohibitions of the act to regulate commerce, it obviously follows that such contracts were not susceptible of being enforced by the New Haven, and afforded no legal basis for a claim of the New Haven against the Chesapeake & Ohio, and therefore the court below was correct in so deciding." In Gulf, Colorado & Santa Fé Railway Company v. Hefley, 158 U. S. 98, 15 Sup. Ct. 802, 39 L. Ed. 910, the Supreme Court of the United States held that: "The Texas statute of May 6, 1882, making it unlawful for a railroad company in that state to charge and collect a greater sum for transporting freight than is specified in the bill of lading, is, when applied to freight transported into the state from a place without it, in conflict with the provision of section 6 of the interstate commerce act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]), as amended by Act March 2, 1889, c. 382, 25 Stat. 855 [U. S. Comp. St. 1901, p. 3156], that it shall be unlawful for such carrier to charge and collect a greater or less compensation for the transportation of the property than is specified in the published schedule of rates provided for by the act, and in force at the time; and, being thus in conflict, it is not applicable to interstate shipments. When a state statute and a federal statute operate upon the same subject-matter, and prescribe different rules concerning it, and the federal statute is one within the competency of Congress to enact, the state statute must give way."

This same question was before the Court of Appeals of the Indian Territory as early as June 7, 1897, and that court, in the case of Missouri, K. & T. Ry. Co. v. Bowles, 40 S. W. 899, 1 Ind. T. 250, laid down this rule: "Where a rate lower than the interstate commerce rate was agreed on for a shipment from a territory to a state, but the regular rate was demanded and collected at its destination, the excess cannot be recovered by the shipper, though he did not know his contract was illegal." Chief Justice Springer, speaking for the court, uses the following language: "The contention of appellee's counsel that appellee was in delicto himself, but not in pari delicto, is also not tenable. If there was an oral contract entered into, it must have been upon a basis upon which the minds of both the contracting parties met, and, if so, and the contract upon which they entered was one forbidden by law, whether they had knowledge of that

fact or not, they were both in pari delicto. Neither the ignorance of one or both of the parties, nor finely drawn subtleties as to which of the parties was more in fault than the other, change the legal status of their liability. If the contract which they entered into was prohibited by law, they were both at fault, and the courts will not give validity to or carry into effect such a contract." In Houston & T. C. R. Co. v. Dumas, 43 S. W. 609, the Court of Civil Appeals of Texas, in passing upon this question, says: "A contract between a station agent and a shipper for an interstate live-stock shipment was entered into on authority from railway headquarters, acting under the mistaken supposition that the shipment was to be within the state. The rate agreed on was less than the rate posted in the depots of the railways over which the shipment was to be made, in accordance with the law creating the interstate commerce commission, which law (25 Stat. 857) provides that it shall be unlawful for a common carrier to charge or receive a greater or less compensation than is specified in such published schedule. Held, that the rate agreed on was in violation of the interstate commerce act, and the contract could not be enforced." In Southern Ry. Co. v. Harrison, 24 South. 552, 119 Ala. 539, 43 L. R. A. 385, 72 Am. St. Rep. 936, the Supreme Court of Alabama has held that parties to an interstate shipment are presumed to contract with reference to the acts of Congress on that subject, and such contracts cannot be construed with reference to any other law. And hence, under section 6 of the interstate commerce act, requiring interstate carriers to post their tariffs, and prohibiting them from charging rates other than those published, a contract for the transportation of an interstate shipment at less than the published rate approved by the interstate commerce commission is invalid, and the carrier may collect the rate as published, regardless of that fixed by the bill of lading. In Chicago, R. I. & P. Ry. Co. v. Hubbell, 38 Pac. 266, 54 Kan. 232, the Supreme Court of Kansas held that a contract for the transportation of freight from a point in Missouri to a point in Kansas for a rate less than that demanded and collected from other persons for a like service at the same time, where the usual rate is not unreasonable nor excessive, violates the provisions of the interstate commerce act, and is utterly void. And the fact that a special rate was offered the plaintiff by mistake of the agent of one of two connecting lines of railroad cannot give any added force to the contract. A contract made by mistake can have no greater validity than one intentionally entered into. In Gerber v. Wabash Railroad Company, 63 Mo. App. 145, the rule is stated as follows: "When a contract is made for an interstate shipment, the shipment must be held to have contracted with reference to and in accordance with the rates fixed by the schedules provided for

by the interstate commerce law, regardless of the terms of the contract. Accordingly, the schedule rate of freight is payable on the shipment, though the carrier has by mistake given a lower rate."

In the course of the opinion, the court uses the following language, which we think is directly applicable to the case under consideration: "The sole question is whether the courts will, under any circumstances, enforce contracts of interstate shipments which are in violation of the provisions of the interstate commerce act. By that act it is made unlawful for a common carrier to issue bills of lading at, or receive or demand a rate of freight variant from, the rates or terms for such shipment as shown by the schedules which are required to be posted and also filed with the interstate commerce commission, and, if such an offense is committed knowingly, the offender subjects himself to severe penalties. And the act further provides that, if any person by connivance with the carrier knowingly secures transportation at less than the regular rates, he is likewise subject to the penalties of the act. Now, in the case at bar, it is conceded that the original bill of lading was not issued in accordance with the terms and conditions of the published schedule, but it is argued in support of the judgment that the schedules are no part of the law, and that, as it is conceded that neither Porter Bros. nor the plaintiff had personal knowledge of their contents, the contract, though illegal, will be enforced. This is upon the principle which courts sometimes apply that, unless the parties were in pari delicto as well as particeps criminis, an Illegal contract will be enforced where its enforcement is necessary for the protection of the more innocent party. This rule, however, can only be invoked under circumstances which show that a wise public policy would be advanced by allowing the more innocent party to succeed. Considering the evils which the interstate commerce law was intended to remedy, would it, under any circumstances, be good policy to allow contracts made in violation of it to be enforced specifically? We think not. Prior to its enactment the complaint was almost universal that the common carriers were discriminating in their rates in favor of favored shippers. To remedy this evil as to interstate shipments, Congress enacted the law, and it should be construed and enforced so as not in the least to thwart its purpose. Strictly speaking, the published schedules are not a part of the law itself, but are the results of the acts of the carrier and the interstate commerce commissioners in execution of the law. But every shipper must be presumed to know of the existence of the schedules, and that they are open for his inspection, and also of the terms of the act rendering invalid every contract of affreightment not made in accordance therewith. Therefore, when a contract for an interstate shipment has been

made and is sued upon, or property rights are made dependent thereon, the shipper must be held to have contracted with reference to and in accordance with the rates fixed by the schedules, regardless of the terms of his contract. In other words, the rates of Interstate shipments are not the subject of contract, but are in effect fixed under the law. To hold differently would be subversive of good policy, and it would tend to nullify the law."

In Hawley v. Kansas & Texas Coal Co., 30 Pac. 14, 48 Kan. 593, the Supreme Court of Kansas, in construing a similar contract, speaking by Mr. Justice Valentine, says: "It has been the uniform rule of this court, and, indeed, in all courts, to hold that contracts tainted with illegality are absolutely void; and certainly no person can be permitted to go into a court of justice with a demand founded only upon an illegal transaction in which he has been an active participant.” And in Bass v. Smith, 12 Okl. 485, 71 Pac. 628, this court has laid down the following rule: "No action either at law or in equity can be maintained on a contract that is forbidden by law. The sound policy of the law is to leave the parties in all such cases without a remedy, since the courts will not lend their aid to a party who bases his action on a contract in violation of the organic law or the statute, or upon an act that is immoral, or is in contravention of sound public policy. No legal right can arise from such a source." This doctrine is clearly enunciated in that excellent treatise, Cyclopedia of Law & Procedure (volume 9, p. 546), as follows: "No principle of law is better settled than that a party to an illegal contract cannot come into a court of law and ask to have his illegal objects carried out; nor can he set up a case in which he must necessarily disclose an illegal purpose as the groundwork of his claim. The rule is expressed in the maxims, 'Ex dolo malo non oritur actio,' and 'In pari delicto potior est conditio defendentis.' The law, in short, will not aid either party to an illegal agreement. It leaves the parties where it finds them. Therefore neither a court of law nor a court of equity will aid the one in enforcing it, or give damages for a breach of it, or set it aside at the suit of the other, or, when the agreement has been executed in whole or in part by the payment of money or the transfer of other property, lend its aid to recover it back. The object of the rule refusing relief to either party to an illegal contract, where the contract is executed, is not to give validity to the transaction, but to deprive the parties of all right to have either enforcement of, or relief from, the illegal agreement."

It follows that the agreement between the agent of the railway company and the shipper in this case was in contravention of the federal interstate commerce act, and is therefore against public policy and void, which precludes the plaintiff from recovering in

this action. The judgment of the district court is therefore reversed, and the cause remanded, with directions to enter judgment for the defendant in the court below.

BURWELL, J., who presided in the court below, not sitting. All the other Justices concurring.

GARBER and GILLETTE, JJ., dissent on the ground that it does not appear that the shipper acted or intended to act in violation of the interstate commerce act, holding that the company cannot give a rate forbidden, and then rely on the law to allow it to injure the shipper. The company should stand by its agreements, and answer to the offended law for its violation.

PANCOAST, J. I concur, but not in the principle stated in the opinion. I do not think the information given by the agent of the rates in force amounted to a contract to ship at such rate.

BURFORD, C. J., I concur in results, but not in all the reasonings.

(18 Okl. 32)

MARKWARDT v. CITY OF GUTHRIE. (Supreme Court of Oklahoma. Feb. 13, 1907.) WATERS AND WATER COURSES-MUNICIPAL CORPORATIONS SEWERS POLLUTION OF WATER COURSE-LIABILITY.

Where a municipal corporation discharges sewage into a river or creek, polluting the water of the stream, causing it to become foul, and impregnated with noxious and poisonous substances, rendering it unfit for domestic and other uses, and thereby creating and maintaining a nuisance, which is detrimental to the health, comfort, and repose of a lower riparian proprietor, and diminishes the value of his land, such municipal corporation is liable for damages arising from the maintenance of such nuisance.

[Ed. Note. For cases in point, see Cent. Dig. vol. 48, Waters and Water Courses, § 55; vol. 36, Municipal Corporations, §§ 1552, 1786, 1787.]

(Syllabus by the Court.)

Error from District Court, Logan County; before Justice John H. Burford.

Action by Catherine Markwardt against the city of Guthrie. Judgment for plaintiff, and defendant brings error. Reversed.

This was an action commenced in the district court of Logan county, by Catherine Markwardt against the city of Guthrie, to recover damages alleged to have been sustained by her in consequence of the maintenance of a public sewer by said city. The petition in the case, omitting the caption, is as follows: "The plaintiff, above named, complains of the defendant, and alleges: First. That the defendant is a municipal corporation of the territory of Oklahoma, duly organized, and a city of the first class, having a population of twenty-five (25,000) thousand inhabitants, and through which flows

a stream of water, to wit, Cottonwood creek. Second. That she is and prior to, and at the time of, the commission of the grievances hereinafter mentioned was, lawfully seised in fee simple in and to the real property described as follows, to wit: Ten (10) acres in lot four (4), of section five (5), township sixteen (16), north of range two (2) west, in Logan county, Oklahoma Territory, included within the following boundary lines, viz.: Commencing at the northwest corner of said lot four (4); thence running east along the north line of said lot four (4), thirty-two (32) rods; thence south fifty (50) rods; thence west thirty-two (32) rods; thence north along the west line of said lot four (4), fifty rods, to the place of beginning, through which flows the said Cottonwood creek, which with its shores and banks are included within said boundary lines and owned by plaintiff. Third. That the plaintiff with her family is, and was during the time above mentioned, in the possession of said property and in the occupation of the dwelling house erected thereon. Fourth. That prior to the commission of the grievances aforesaid the plaintiff at great expense improved said real estate, especially for gardening purposes in raising vegetables for market. The said improvements consist of a water reservoir 240 feet long, 65 feet wide, and 14 feet deep, located near the bank of said creek, near which was, and is also erected and in operation, a large windmill and water pump connecting said stream and reservoir, drawing an 11-inch stream of water from said creek to said reservoir, keeping the same full of water, from which reservoir were also constructed, to all parts of said land, ditches and drains used in irrigating said land from the waters of said creek through said reservoir; and also a cold storage house and a warm storage house for the preservation of vegetables, both summer and winter; also hothouse for the early propagation of esculent plants; also houses and barns for horses, cows, hogs, and poultry, necessary for the home and conduct of the gardening business; also the said reservoir was to its capacity stocked with a great supply of fish; also was kept thereon horses, cattle, and hogs, which had free access to said creek and reservoir for water-from which said land, improved and used as aforesaid, through the sale of vegetables, milk, butter, and fish, the plaintiff realized and received large money profits and returns, and also supplies for family use. Fifth. That the waters of said Cottonwood creek flow north through and from the defendant city about one and a half (12) miles to and through the plaintiff's land aforesaid, and that the plaintiff was entitled to have had, and ought still to have, the use and benefit of the water of said stream for her horses, hogs, and cattle, irrigation, and other purposes, yet the said defendant, by its officers, agents, and employés, well knowing the premIses, did on the day of 1902,

wrongfully and unlawfully connect its sewer system with said Cottonwood creek at a point between said land and defendant city, so that all the excrement from the inhabitants of said city and their dwellings was and ever since has been wrongfully and unlawfully discharged into said creek. And the said defendant did then and thereby wrongfully and unlawfully pollute and disturb the water of said creek, so that it became foul and impregnated with poisonous and noxious substances and emitted a noisome and poisonous stench, injurious to the health of plaintiff and her family and almost unbearable, whereby the enjoyment by said plaintiff and her family of the said land as a home and dwelling place has been and is interfered with, and the same has been rendered uncomfortable, unwholesome, and unfit for habitation; and the water of said stream has become unfit for stock, and the plaintiff will be compelled to resort to artificial means for water for his horses, cattle, and hogs, and the ground has become so impregnated with the water of said stream that water from wells thereon is injurious to health and dangerous for domestic use; and the water of said stream has been rendered unfit for irrigation purposes by reason of the increased danger to health, and also rendering vegetables raised thereon largely unmarketable through fear by consumers of contracting disease therefrom; and whereby the fish in said reservoir have died, and the said premises rendered useless for the purpose for which they were purchased and improved as aforesaid-by reason of which and all of which aforesaid the value of said land and premises was greatly depreciated to her damage in the sum of three thousand ($3,000.00) dollars. Wherefore, plaintiff prays judgment against said defendant for the sum of three thousand ($3,000.00) dollars and costs of suit."

To this petition the city interposed a demurrer, on the ground that the petition did not state facts sufficient to constitute a cause of action, which demurrer was sustained by the court, and, the plaintiff declining to plead further, the cause was dismissed, at the plaintiff's costs. From this ruling, order, and judgment, the plaintiff appeals.

F. H. McGuire and Devereux & Hildreth, for plaintiff in error. James Hepburn, for defendant in error.

HAINER, J. (after stating the facts). There is but one question presented by the record: Does the petition state facts sufficient to constitute a cause of action? And this presents for our consideration the question whether a municipal corporation, which empties its sewage into a river or creek at a point some distance below the city limits, and on account of which sewage the water becomes foul and impregnated with noxious and poisonous substances, and unfit for domestic and other purposes, is liable to a low