the carrier necessarily involves a violation of the law by the carrier that illegally conveys it to him. The receipt, then, should fairly be deemed to be in violation of the law of Iowa, whether the carrier alone or the recipient as well be punishable therefor. And while the West Virginia act considered in the Clark Distilling Co. Case, supra, expressly forbade the receipt or possession of liquor, irrespective of the use to which it was to be put, the Iowa act, in our judgment, no less effectually covers the same ground.

Furthermore, both the carrier and the consignee to the carrier's knowledge intend that the receipt from the carrier shall be in violation of Iowa law; that is, they intend that the carrier shall convey to the consignee in violation of the express statutory prohibition, and thus shall effectuate the receipt of the liquor by the consignee in violation of the law.

[5] The interest of the consignee is clear. But the carrier, too, has an interest, both in the transportation and in the liquor itself; as bailee, it is vested with legal rights and subjected to obligations in respect thereto; it has possession, and if charges are not prepaid a lien therefor. No reason is apparent for requiring the "interest" of the person whose intention in respect to the receipt of the liquor is made controlling to be greater or other than that of a carrier or bailee. Reference, however, is made to Van Winkle v. Delaware, 4 Boyce (27 Del.) 578, 91 Atl. 385, Ann. Cas. 1916D, 104, in which the form of the bill as it was originally introduced was considered as demonstrating that the construction here adopted is unsound. The bill in its original form consisted of two sections. The first provided that the shipment or transportation of liquor from one state into another, which liquor "is intended by any person interested therein, directly or indirectly, or in any manner connected with the transaction," to be received, possessed, or kept, or in manner used in violation of any law of such state, "enacted in the exercise of the police power of such state," is prohibited, and any contracts pertaining to such transactions are declared to be null and void," and "no suit or action shall be maintained upon any such contract or for the enforcement or protection of any alleged rights" based upon such contract, "or for the protection in any manner whatsoever of such prohibited transaction." The second section provided that any liquor transported into any state, or remaining therein for use, consumption, sale, or storage shall, upon arrival within the boundaries of such state, and before delivery to the consignee, be subject to the operation and effect of the laws of such state enacted in the exercise of its reserved police powers, to the same extent and in the same manner as though such liquor had been produced in such state. H. R. 17593, 62d Congress.

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It should be observed at the outset that whatever argument may be made, based upon the changes that the text underwent in its course through Congress, in support of the proposition that the phrase "any person interested therein" refers exclusively and necessarily to one interested in the property other than as mere carrier or bailee, will with equal strength support the contention that the Webb-Kenyon Law prohibited the shipment of intoxicants "only when the liquor is intended to be used in violation of the law of the state"-a contention which the Supreme Court, in commenting on Van Winkle v. State, said rested upon an entire misconception of the text of the act.

The importance of textual changes made during the progress of a bill through a Legislature can easily be overemphasized. Motives other than the conscious desire or deliberate intent of the legislative body thereby to obtain a distinctly different result are readily conceivable. The Webb-Kenyon Law is not a criminal statute; if it were, the argument that only those acts clearly and expressly denounced as crimes could be deemed within its purview would be cogent. But when the manifest object of the federal law is to give a free rein to the several commonwealths to make effective experiments in accordance with the wishes of their respective communities in checking the liquor traffic and its attendant evils, the contention that the receipt of intoxicants cannot be deemed to be in violation of any law of the state by virtue of the fact that only the transportation and delivery of such intoxicants, the necessary complement of the receipt, is prohibited, cannot be sustained.

The object of the federal enactment was not to prohibit the personal use or the public sale of liquor, but to remove a federal incumbrance from the police power of the state and to deprive interstate shipments of intoxicants of the immunity and privilege which they had theretofore enjoyed. Each state could then determine the extent of regulation or prohibition deemed by it to be best suited to the needs of its people. Since the decision in Clark Distilling Co. v. Western Maryland Railway, supra, there can be no question that the Webb-Kenyon Act removes any impediment that the federal supremacy over interstate commerce would interpose to the exercise of this power by the state. There is nothing in Adams Express Co. v. Kentucky, supra, contrary to the conclusion here reached. That case decided only:

"That, as the court of last resort of Kentucky, into which liquor had been shipped, had held that the state statute did not forbid shipment and receipt of liquor for personal use, therefore the Webb-Kenyon Act did not apply, since it only applied to things which the state law prohibited."

See Clark Distilling Co. v. West Maryland Railway, 242 U. S. 311, 324, 37 Sup. Ct. 180, 61 L. Ed. 326, L. R. A. 1917B, 1218.

Attention should be called to the Postal Department Appropriation Act of March 3, 1917, and to Resolution No. 57 of March 4, 1917, postponing the effective date of section 5 thereof to July 1, 1917. This act forbids the interstate transportation of intoxicating liquors into any state the laws of which prohibit the manufacture or sale therein of intoxicating liquors for beverage purposes.

The decree will be reversed, and the cause remanded, with directions to dismiss the bill.

(243 Fed. 149) MORGAN'S LOUISIANA & T. R. & S. S. CO. et al. v. ISAAC JOSEPH IRON CO.

(Circuit Court of Appeals, Sixth Circuit. June 5, 1917.)

No. 2964.

1. COMMERCE 98-INTERSTATE COMMERCE COMMISSION-FINDINGS-REVIEW. A finding of the Interstate Commerce Commission that a through rate from Houston to Chicago was unreasonable, so far as it exceeded the sum of the local rates, will not be disturbed, when supported by evidence, though the local rate from Houston to New Orleans, used as a basis of comparison, applied only to shipments destined to points beyond New Orleans to which no through rates were published; no other rate from Houston to New Orleans being shown, and there being no attempt to show any reason for any distinction between Chicago and other points beyond New Orleans.

[Ed. Note.-For other cases, see Commerce, Cent. Dig. § 148.]

2. EVIDENCE 46-JUDICIAL NOTICE-ORDERS OF INTERSTATE COMMERCE COм

MISSION.

Where, in an action to enforce an order of reparation by the Interstate Commerce Commission, a demurrer was sustained to an answer alleging that the Commission had rescinded such order, and an appeal was taken, the Circuit Court of Appeals may judicially notice subsequent proceedings of the Interstate Commerce Commission, resulting in the reinstatement of such order, though not brought to the attention of the court below, especially where they are practically admitted by counsel.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 68.]

8. APPEAL AND ERROR 170(1)-REVIEW-MATTERS NOT PRESENTED BELOW. Such later proceeding of the Interstate Commerce Commission would be passed on by the Circuit Court of Appeals, rather than to subject the parties to the delay and expense of taking further steps in the court below, especially since the question concerning the setting aside of the order of reparation becomes one of a moot character, in view of the later proceeding, and no attempt was made, and no purpose was expressed, by the railroads, either before the Commission or in the lower court, to offer evidence tending to overcome the prima facie effect of the order of reparation.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1035.]

4. COMMERCE 88-INTERSTATE COMMERCE-ORDERS-SUCCESS OF ORDERS. Where the Interstate Commerce Commission made three reports on an application for reparation, the first of which granted reparation and was rescinded by the second report, and the last report affirmatively showing that it was supplementary to the other reports and designed to give effect to them, and provided for re-entry of the order for reparation, the three reports should be read together.

[Ed. Note.-For other cases, see Commerce, Cent. Dig. §§ 139, 141.]

5. APPEAL AND ERROR 719(9) - ASSIGNMENTS OF ERRORS-ALLOWANCE OF COUNSEL FEES.

The contention that an allowance of counsel fees in a judgment sustaining a demurrer was premature will not be passed on, where error is not assigned to this feature of the judgment.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3490.]

In Error to the District Court of the United States for the Southern District of Ohio; Howard C. Hollister, Judge.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Action by the Isaac Joseph Iron Company against Morgan's Louisiana & Texas Railroad & Steamship Company and others. Judgment for plaintiff, and defendants bring error. Affirmed.

Fred H. Wood, of New York City, Denegre, Leovy & Chaffe, of New Orleans, La., and Harmon, Colston, Goldsmith & Hoadly, of Cincinnati, Ohio, for plaintiffs in error.

Harry C. Barnes, of Cincinnati, Ohio, for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

WARRINGTON, Circuit Judge. This was an action to recover $682.34 with interest, as damages resulting from the exaction of an alleged unreasonable and unjustly discriminatory joint through rate for the transportation of certain shipments of scrap iron in carloads from Houston, Tex., to Chicago, Ill. An order of reparation for payment of this sum and interest had previously been made by the Interstate Commerce Commission on complaint of the present defendant in error, herein called the Iron Company, against the plaintiffs in error, here called the Railroads. The complaint was filed with the Commission May 14, 1914, and the report and order of the Commission finding such through rate to be unreasonable were entered November 2, 1915. The ground of this finding was that the rate charged exceeded the sum of the intermediate rates concurrently charged over the same lines between Houston and Chicago. An application made to the Commission on behalf of the Railroads for authority to continue higher through rates on scrap iron between the points mentioned than the sum of the intermediate rates was heard with the complaint of the Iron Company and was denied at the time the finding and award of reparation were made. The amount embraced in the Commission's order of reparation was the difference between the through rate exacted and a combination rate based on the intermediate rates. The petition alleges that the Railroads did not comply with the order of the Commission and that they refuse to pay the sum awarded. The answer of the Railroads is confined to an allegation that on March 16, 1916, the Interstate Commerce Commission set aside the order mentioned in the petition, and to a prayer for dismissal, with costs. The Iron Company demurred to the answer on the ground that it does not constitute a defense; and, upon the familiar rule that a demurrer searches the record, the Railroads insisted that the petition fails to state a cause of action. The demurrer was in terms overruled as to the petition and sustained as to the answer; and, the Railroads not desiring to amend the answer, judgment was entered for the Iron Company, with interest and costs, including an attorney's fee. The Railroads bring the questions here upon the writ of error.

The Railroads base their contention upon two grounds. One concerns a rate from Houston to New Orleans which was employed in making up the sum of the intermediate rates, and the other relates to the effect of the alleged setting aside of the reparation order. The contention in respect of the rate so employed grows out of this state of fact: A proportional rate of 91/2 cents per 100 pounds in carloads was at this time in effect from Houston to New Orleans, "when destined to points beyond to which no through rates" were published; and since the through rate in question of 30 cents per 100 pounds, or $6 per ton, prevailed between Houston and Chicago, via New Orleans, it is urged that the application of the proportional rate mentioned was restricted to points beyond New Orleans, between which and Houston no through rates had been published. No rate other than 911⁄2 cents per 100 pounds from Houston to New Orleans is shown. As respects this rate and the through rate from Houston to Chicago the Commission said:

"We hold that the 91⁄2 cents proportional rate was not so restricted or limited as to make it inapplicable as a factor in constructing a through rate to Chicago had there been no joint rate in effect. We find upon consideration of all the facts that joint through rate of 30 cents per 100 pounds was unreasonable to the extent that it exceeded the combination of intermediate [rates] concurrently in effect, i. e., $5.21 per ton."

This was in harmony with the holding of the Commission in Windsor Turned Goods Co. v. C. & O. Ry. Co. (1910) 18 Interst. Com. Com'n Rep. 162, 164, where it was said:

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The fair measure of the reasonableness of a joint through rate that exceeds the combination between the same points via the same route is, and will hereafter be held to be, the lowest combination that would lawfully apply if the joint rate were canceled."

[1] Whether the conclusion so reached by the Commission was intended to be one of law, rather than one of fact, touching the application of the proportional rate of 91/2 cents, is not entirely clear. Nor need we consider this feature of the case; for it is plain that the Commission's conclusion of fact that the 30-cent through rate was unreasonable, so far as it exceeded the sum of the proportional rate per 100 pounds from Houston to New Orleans and the existing local rate per 100 pounds from New Orleans to Chicago (261/20 cents), is not without support in the evidence and must be accepted by us. The fact that the Railroads were willing to accept 911⁄2 cents to New Orleans on traffic extending beyond New Orleans certainly had a tendency to show that this was a reasonable rate for all such traffic regardless of the destination; and there was no attempt to show a good reason for any distinction between Chicago and other points.

It remains to consider whether we are bound to conclude that the order of reparation was intended permanently to be set aside. It is true, as we have seen, that the answer alleges that on March 16, 1916, the Commission set aside the order, and that according to the transcript this was met simply by demurrer. We assume that if the Commission had intended to rescind its order permanently, for instance, as an improvident order, the demurrer to the answer should have been overruled; but it appears that the Commission had no such intention.