(Colo., 253 Pac. 386.) see fit to amend their complaint, as they might have done, to make it conform to the court's ruling, but suffered judgment of dismissal, which evidently was on this ground alone, and chose to test in the supreme court the sufficiency of their complaint in this respect. There is no discussion or decision in the majority opinion of the alleged improper union. As I think the ruling below is right, the judgment should be affirmed. The judgment of a court of record is presumed by a reviewing court to be right. The burden of showing error therein is upon the plaintiff in error. The improper union of several causes of action in the complaint, if such it was, fully justifies the court's dismissal of this cause, and, in the absence of affirmative showing to the contrary in the record, and there is none here, we should follow the usual rule of indulging the presumption that the trial court's judgment of dismissal was solely because of the improper union. It is therefore premature for this court, as it has done in the majority opinion, to pass upon the grave constitutional question. We do not know what the defense will be to the complaint, which the majority has held not subject to the special demurrer. It may be that the defendants will rely, in the event of a new trial, solely upon a denial of the allegations of the complaint, and will not attack the validity or applicability of the civil rights statute. We should therefore postpone our decision of a constitutional question until, if at all, such an issue is tried and determined in the district court after the cause is remanded. There will be time enough then to determine if it is necessary to a decision of the cause. My dissent is solely upon the ground that the judgment of dismissal was right, because of an improper union in the complaint of several causes of action. pression of opinion on the constitutional question is withheld, the same being reserved until a case or a record has been made, if at all, that necessitates it. Ex I am authorized by Mr. Justice Adams to say that he concurs in this dissent. Petition for rehearing denied February 28, 1927. ANNOTATION. Separation because of race, color, or religion in social activities in connection with public schools. [Schools, § 52.] No case has been found, other than the reported case (JONES v. NEWLON, ante, 1263), discussing the validity of regulations for separation because of race, color, or religion in social activities in connection with public schools. In the JONES CASE, under a state constitutional provision prohibiting any distinction or classification of pupils. on account of race or color, it was held that an order by the superintendent of public schools, providing for separate social functions for the pupils of the white and black races, was unconstitutional. Attention is called to the fact that two judges dissented, on the ground that the question was not properly before the court, and refused to express their opinion on the constitutionality of the order. R. L. M. WASHBURN-CROSBY COMPANY, Plff. in Err., Payment, § 101 through rates on foreign shipment effect of depreciated currency. Payment for freight carried from a foreign country into the United States on a joint through tariff rate approved in terms of American dollars by the Interstate Commerce Commission, at a time when currency in the foreign country is at a discount, may be exacted by the carrier in the United States for the full distance covered by the carriage, in American dollars, and it need not make allowance for the depreciated value of the currency for the portion of the carriers which occurs in the foreign country. [See annotation on this question beginning on page 1273.] (Symes, Dist. J., dissents.) ERROR to the District Court of the United States for the District of Minnesota (Sanborn, J.) to review a judgment in favor of plaintiff in an action brought to recover a balance alleged to be due for freight charges on shipments of grain. Affirmed. The facts are stated in the opinion of the court. Argued before Stone and Lewis, Circuit Judges, and Symes, District Judge. Messrs. John Junell, J. H. Colman, and Lancaster, Simpson, Junell, & Dorsey, for plaintiff in error: The joint tariffs published by the Canadian and United States carriers require payment in American funds for the portion of the charge representing transportation within the United States, and require payment in Canadian funds for the portion of the charge representing transportation within the Dominion of Canada. Re Payment of Charges in United States Currency, 59 Inters. Com. Rep. 263; Abrasive Co. v. Director Gen. 69 Inters. Com. Rep. 630; New York & P. Co. v. Davis (D. C.) 2 F. (2d) 858, (C. C. A. 3d) 9 F. (2d) 911; New York & P. Co. v. Davis (D. C.) 8 F. (2d) 662; Mountain Lumber Co. v. Davis (D. C.) 9 F. (2d) 478. Messrs. D. R. Frost and D. F. Lyons for defendant in error. Stone, Circuit Judge, delivered the opinion of the court: This is an action by the Northern Pacific Railway Company against the Washburn-Crosby Company, for a balance due for freight charges on various carload shipments of grain, from points in Canada to Minneapolis, shortly prior to January 22, 1921. From a judgment, favoring plaintiff, defendant sues this writ of error. All of these shipments were made under joint rates filed and participated in by the Canadian and American carriers moving the shipments. These rates were filed by the Canadian roads and established before the Board of Railway Commissioners of Canada and by the plaintiff before the Interstate Commerce Commission. They expressed the same amount in dollars and cents and at the time they were filed and established the Canadian and American dollars were upon a parity of value. As a result of the World War, Canadian dollars became of relatively less value than the American dollars, and, during the period of these shipments, this currency exchange value fluctuated from 8 to 17 per cent. Because of of this difference in value, it became a Defendant claimed the right to pay in American money for that portion of the charge belonging to the plaintiff and in Canadian money, or its American equivalent in value, for that portion of the charge belonging to the Canadian road, the Canadian portion being based on the current rate of exchange between the two currencies on the day of payment. The plaintiff insisted upon its right to collect the entire charge in American money. Without prejudice to either party, the defendant paid the plaintiff the amount conceded due under its theory. This action is for the balance, representing payment of the entire charge in American money. This question presented is simple in statement, but difficult of solution. Also it is novel and has been before the courts only in three cases. These cases are Mountain Lumber Co. v. Davis (D. C.) 9 F. (2d) 478 (Southern District New York), which was appealed to the circuit court of appeals for the second circuit, 11 F. (2d) 219; New York & P. Co. v. Davis (D. C.) 2 F. (2d) 858 (eastern district Pennsylvania), which was appealed to the circuit court of appeals of the third circuit, 9 F. (2d) 911, and over. New York & P. Co. v. Davis (D. C.) Neither of these two theories is American roads should have a fixed established interstate rate and should charge that rate and only that rate for the service which those roads furnished. As to the second ground, no quarrel can be made as to the rule of law stated, but can it be fairly said that the parties have agreed that the payment shall be made in the United States, when the shipper is insisting upon his right to payment in Canada and makes the shipment and the contract under the duress of having to accept the carrier's terms. It can hardly be said that such a contract has been freely entered in a way to bind the shipper to terms which he is strenuously opposing but is forced by circumstances, created by the carrier, to accept. We think the determination of Paymentthrough rates on foreign shipment-effect of depreciated currency. the trial court was right, but that there is a more real and rational basis therefor than those found sufficient by the district courts in the above cases. All rates are naturally and legally expressed in the currency of the country where made and established. Payments of of all rate charges are made in accordance with the currency which governs that rate the carrier may require and it must accept payment therein. No difficulty is encountered in applying this rule where the rate is purely national. Where the rate is international, there enter two special considerations which may be disturbing factors. Those are the presence of independent jurisdictions of partial control and of different national currencies. Where there is harmony in these controls and where the currencies remain normal, these factors are dormant; but where discord in controls, or where abnormal divergence in the relative currency values occurs, there arise situations peculiar to international rates. Such variances are aggravated in effect when the rate is a joint through rate of carriers of different nations and that rate is divided (as is usually true) upon a percentage basis. In such instances, divergence in currency values between the countries creates a situation which is of vital bearing and which is peculiar to such international rates. Such situations are very different from any which could arise as to purely national rates and they should be considered and determined, as they really exist, upon the particular elements and problems which they present. When these joint rates for international shipments were filed and established with the Canadian Board and with the Interstate Commerce Commission, the standard coin (the dollar) of each country was of the same value. It made no difference, then, either to the carrier or shipper, where or in which coinage the charge was paid. While the Canadian carrier filed its tariffs in terms of Canadian dollars and. the American carrier filed its tariffs in terms of American dollars, both carriers intend to specify the same value for the service and the result was as intended. Both the Board and the Commission understood this intention and this result. This intention and result was understood by the public. There was no thought that the rate would be unstable or uncertain. There was no thought that the charge under the rate should fluctuate with changes in value between the currencies of the two countries and, even upon the same shipment, be different according to the country in which the charge might be paid. No such uncertainty would have been tolerated, either by the Board or by the Commission. Suppose that the tariffs filed, at a time when the two dollars were equal, had provided that if the charge was paid in Canada the payment should be 90 per cent of the rate, and if in the United States the full rate, can it be thought that either the Board or the Commission would have allowed such a discrimination and uncer tainty to have been established? -particularly between principal shipping or terminal points. A difference (as above suggested) in charge as to the Canadian haulage would directly result in favor of Canadian roads having the longest haul under the joint rates. The reaction of such a condition would be a rearrangement of tariffs to meet this new competitive feature. This would occur if the discount on the Canadian divisional portion were fixed on some definite basis. The derangement would be much more if that discount depended upon the fluctuation of a restless exchange rate which changed, not only from day to day, but within a single day (as shown by this record to be true at the time of these shipments). Again, this constantly changing exchange rate would introduce adAt ditional confusion of its own. what time should the rate applywhen the freight was delivered to the carrier, while it was in transit, when it reached destination, when it was delivered by the carrier, when payment of the charges was demanded or when such payment was made? Obviously, no accurate determination could be made and no arbitrary determination was allowable at the time of these shipments. Later, the Board undertook to remedy this situation by permitting Canadian carriers, when collecting charges, to add to the total through charges, a surcharge of 60 per cent of the difference in exchange value; this percentage being based upon such difference as of the 1st and Even that 14th of each month. plan, which was stated by the Chief Commissioner to be "the best solution of the problem so far advanced by any person" was admitted by him to be imperfect, a matter of "averages" and, in some respects, arbitrary. The confusion and complexity of such a situation defied any satisfactory workable plan or adjustment. All of this confusion was occasioned by the endeavor (not blamable) of the shipper to secure the advantage of the fluctuating exchange rate by paying the charge in Canada in Canadian money. As the carriers are bound by the tariffs filed and cannot depart therefrom, the only practical way in which this confusion and discrimination could be avoided was to require all charges to be paid either in Canada or in the United States. . To require payment in Canada, would discriminate against the Canadian carriers and, because the American carriers are entitled to and are required to demand payment of their part of the charge in United States money (Abrasive Co. v. Director Gen. 69 Inters. Com. Rep. 630), would result in the Canadian carriers receiving less than their real portion of the divisional charge. If the shipper has the choice of place of payment, the same result would follow, as Canada would be chosen by him. If the payment were made in the United States, the shipper would pay only the tariff rate although the charge would be higher than if paid in Canadian money and there would be no confusion or discrimination between shippers or carriers and no disturbance of Canadian tariff situations. As the Canadian carriers had the right to refuse prepayment (File No. 29674.2, Refusal of Railways to Allow Prepayment of Charges on Freight to United |