never in the Indian country, on their way from Ft. Smith to Kiowa, which were neither of them in the Indian country. Clairmont v. United States, 225 U. S. 551, 32 Sup. Ct. 787, 56 L. Ed. 1201. Nothing was said in the opinion as to the character of the title to the right of way, and the most that can be said is that possibly the liquors there in question had to pass through the Indian country. With the exception of the Schaap Case there has never been any decision on the subject, so far as I can ascertain, aside from decisions of the District Courts and of the Territorial Court of Montana. Of course the trial court in this case has so held if the liquors were transported for a lawful purpose. The question first came before the Supreme Court of the Territory of Montana in United States v. Carr, 2 Mont. 234. In that case the opinion is little more extensive than the syllabus, which is as follows: "Citizens of the United States, and those who have declared their intention to become such, have the right to carry spirituous liquors through the Indian country for the purpose of lawfully selling the same in other places." The next case is United States v. Twenty-Nine Gallons of Whisky (D. C.) 45 Fed. 847. This opinion was delivered by Judge Hiram Knowles, who had sat upon the Supreme Court of Montana when the case of United States v. Carr, supra, was decided. In that case Judge Knowles said: "The purpose of the statute was undoubtedly to prevent the placing of whisky, or ardent or spirituous liquors, in such a place as would make it accessible to Indians. It was not the purpose of that statute to interfere in any manner with the commerce in spirituous liquors between sections of the country not Indian. The construction of that statute, which would allow the seizing of spirituous liquors found upon an Indian reservation without reference to the purposes in regard to which it came there, would prevent the transportation of such liquors from the East to the Pacific Coast on the line of the Northern Pacific Railroad. It would prevent such liquors from being transported to Montana, on the line of that road, or the Great Northern Road; for it is well known that all these roads traverse, before they reach the settled portions of Montana, Indian reservations. If the simple fact of the finding of such liquors within an Indian reservation, without license, is sufficient to make the same liable to forfeiture, and all conveyances in which the same may be found, then there is not a through passenger train on either the line of the Great Northern or Northern Pacific Railroads which would not be subject to seizure and forfeiture, under the above statute; for both carry, it is well known, more or less spirituous liquors across Indian reservations on the line of said roads. I do not think Congress in this statute contemplated any such result. For these reasons I hold that the proper construction of the above statute, as to the terms, 'no ardent spirits shall be introduced, under any pretense, into the Indian country,' is as follows: Whenever such liquors are taken into an Indian country, as their place of destination or use, then they have been introduced into such country. In other words, when such liquors reach an Indian country, as the end of their journey, they have, within the meaning of that statute, been introduced into such country. It is not necessary to show that they were brought there for the purpose of sale to Indians or any one. The transportation of such liquors through an Indian country, between places outside the same, as an article of commerce, is not, within the meaning of that statute, introducing them into said country." Much of this opinion was erroneous under the subsequent decision in Clairmont v. United States, 225 U. S. 551, 32 Sup. Ct. 787, 56 L. Ed. 1201, heretofore referred to. In United States v. Four Bottles Sour-Mash Whisky (D. C.) 90 Fed. 720, it is said: “A stock of liquors is not introduced into the Indian country by being transported across an Indian reservation to a place where the owner may lawfully dispose of it, and is not subject to seizure while in transit, nor after arrival at its place of destination." In United States v. Tadish, 211 Fed. 490, the District Court for Arizona held that evidence that a number of hunters passed through an Indian reservation with intoxicating liquors in their possession, presumptively for their own use, was insufficient to show the commission of the offense under the statute. That case is based upon the authority of United States v. Carr, 2 Mont. 234, and quotes it by saying that it was not intended * * * ** "to prohibit the exploration or settlement of the public domain by persons who were citizens of the United States, and might desire to carry with them spirituous liquors for legitimate purposes,' and it was held that 'if * * such a person passes through the Indian country with spirituous liquors in his possession, without any intent to dispose of the same contrary to law, neither the liquor, nor any other species of property accompanying the same, are liable to seizure or forfeiture.' He then quotes the opinion in United States v. Four Bottles SourMash Whisky, supra, as we have quoted it. He continues: "It is evident from these cases that the mere physical presence of a person having liquor in his possession in the Indian country is not enough to constitute the offense denounced by the statute." Now let us see what was the condition of these defendants. By the Enabling Act for the admission of Oklahoma into the Union in the second subdivision of section 3, 34 Stats. 267, 269, the new state was required to provide in its Constitution an absolute prohibition of the manufacture, sale, barter, giving away, or otherwise furnishing of intoxicating liquors within those parts of said state now known as the Indian Territory and the Osage Indian Reservation for the period for 21 years. It is true this was not an independent act of Congress prohibiting such sale, but was an act of Congress providing as a condition precedent to the admission of the state into the Union that the Constitutional Convention in drafting a new state Constitution embrace a prohibition of the sale of liquors throughout the Osage Indian Reservation and in the town of Avant. Without assuming that the state of Oklahoma would not have enacted such a constitutional provision and statutes to enforce it without the intervention of Congress, Congress made such provision in pursuance of its early treaties with the Osage Indians a condition precedent to the admission of the state into the Union, and the state in all respects complied with this act of Congress. There has never been an hour when a sale of intoxicating liquor by a proprietor or manager of a joint in Avant was not illegal since the admission of the state, and the same was true for a long period anterior to the admission of the state into the Union. Again by the Webb-Kenyon law (37 Stats. 699) the transportation of intoxicating liquors from one state to another for the purpose of sale in violation of the laws of that state is expressly prohibited. 241 F.-36 These liquors were undoubtedly being transported under the evidence to Avant to be there sold in violation of the laws of Oklahoma, and the transportation was in violation of the Webb-Kenyon law, which has recently been interpreted and construed by the Supreme Court of the United States in James Clark Distilling Co. v. Western Maryland Railway Co. et al., 242 U. S. 311, 37 Sup. Ct. 180, 61 L. Ed. 326. My Brethern are now about to construe rather than interpret the act of 1897 so that the hauling of liquors upon an Indian allotment and thereby clearly introducing into the Indian country in violation of the Enabling Act of the state of Oklahoma, of the Constitution and statutes of that state, and of the Webb-Kenyon law, shall not be construed to be an introduction into the Indian country, and thus turn these defendants free who have violated statute after statute of the United States. In this I cannot concur. I am content to abide with the decisions heretofore rendered that the transportation of liquors through an Indian reservation where the liquors are lawfully acquired to a place where they may be lawfully sold is not a violation of the spirit of the law against the introduction of liquors into the Indian country, but I cannot concur in holding that when defendants violated the plain letter of the act of January 30, 1897, by carrying liquors into the Indian country in a wagon, their route being largely through allotments and therefore a part of the Indian country, the liquors not being in unbroken original packages, but open, so that distribution could be made along the route, and in fact was made, as in this case, with intent to deliver the residue of the liquor for sale at a place where such sale would be illegal, not by interpretation, but wholly by construction, an exception shall be injected into the law in aid of the violation of the Enabling Act of Congress for the state of Oklahoma, the Constitution, and laws of Oklahoma and the Webb-Kenyon law. I think the case should be affirmed. MCFADDEN et al. v. ALABAMA GREAT SOUTHERN R. CO. (Circuit Court of Appeals, Third Circuit. April 26, 1917.) 1. CARRIERS 30-RATES-RIGHT OF ACTION BY CARRIER. When transportation is interstate, the interstate rate is the legal rate, and must be demanded and paid, and if a lesser rate is charged and paid, intentionally or innocently, recovery must be had against the shipper for the difference. [Ed. Note. For other cases, see Carriers, Cent. Dig. § 81.] 2. COMMERCE 33-INTERSTATE COMMERCE-TRANSPORTATION OF GOODS. Goods actually destined for points beyond the state of origin are necessarily in interstate commerce when they are delivered to the carrier and start in the course of transportation to another state, whether shipped on through bills of lading, or on initial bills to a terminal within the state. where they are transshipped on new bills of lading to a point beyond the state. [Ed. Note. For other cases, see Commerce, Cent. Dig. §§ 26, 81.] For other cases see same topic & KFY-NUMBER in all Key-Numbered Digests & Indexes 3. COMMERCE 33-INTERSTATE COMMERCE-TRANSPORTATION OF GOODS. Cotton consigned to the shipper's order was shipped to B. in the state of origin, where, without any delivery to the shipper, it was unloaded, compressed by the carrier, in accordance with a right reserved in tariffs filed and as a part of the transportation service rendered, reloaded, and rebilled to points outside the state. Held, that the shipment was interstate, as the stop at B. was merely to prepare the cotton for a continuance of the journey, and was a mere incident of the transportation. [Ed. Note. For other cases, see Commerce, Cent. Dig. §§ 26, 81.] 4. PLEADING 129(2)—ADMISSIONS BY FAILURE TO DENY. In a carrier's action for the difference between its legal interstate rate and the rate charged a shipper of cotton, compressed at B., a point within the state of origin, and then rebilled to points outside the state, the statement of claim alleged that the cotton was intended to be transported beyond B., and actually was transported to points in other states. The affidavit of defense admitted the transportation and delivery of the cotton, without alleging that it was delivered to the shipper at B. or elsewhere in the state of origin, or that it was intended for transshipment to points in that state. Held, that plaintiff's averments, indicating that the shipment was intended for interstate transportation and was so transported, were not denied, and were to be taken as true. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 271, 273; Damages, Cent. Dig. § 418.] 5. CARRIERS 30-TRANSPORTATION OF GOODS-RATES. Where cotton consigned to the shipper's order was shipped over the lines of connecting carriers to B. in the state of origin, where it was compressed by the carrier and rebilled to points outside the state, the through rate from point of shipment was the legal rate, and a rate consisting of the initial carrier's intrastate rate to the junction point and the connecting carrier's interstate rate from that point was not a lawful rate for such shipment, under Interstate Commerce Act Feb. 4, 1887, c. 104, 6, 24 Stat. 380 (Comp. St. 1916, § 8569), requiring the filing of through rates when established; such intrastate rate not being filed with the Interstate Commerce Commission. [Ed. Note. For other cases, see Carriers, Cent. Dig. § 81.] 6. PLEADING ~345(1)—JUDGMENT ON PLEADINGS-SUFFICIENCY OF. In a carrier's action for the difference between the legal rate under its schedules and tariffs filed with the Interstate Commerce Commission and the rate charged and paid, the statement of claim alleged that certain certificates of concurrence, by which one road bound itself to the published rates of another road, had been delivered, and certain schedules and tariffs filed, but did not set them out in full. Held, that the statement of claim was not insufficient to warrant judgment for want of sufficient affidavit of defense, as such certificates and schedules did not constitute the cause of action sued on, but were only evidence of the cause of action. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1055, 1057-1059.j In Error to the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge. Action by the Alabama Great Southern Railroad Company against George H. McFadden and others, formerly copartners trading as George McFadden & Bros. Judgment for plaintiff (232 Fed. 1000), and defendants bring error. Affirmed. John G. Johnson and James Wilson Bayard, both of Philadelphia, Pa., for plaintiffs in error. Allen S. Olmsted, 2d, and Robert D. Jenks, both of Philadelphia, Pa., for defendant in error. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Before BUFFINGTON, MCPHERSON, and WOOLLEY, Circuit Judges. WOOLLEY, Circuit Judge. The main question in this case is whether the aggregate of two rates, one intrastate for a part of a given transportation and the other interstate for the rest of it, is the legal rate for interstate shipments, when there is at the same time a duly established interstate through rate for the same transportation. The question had its rise doubtless in the fact that the two first named rates when combined were less in amount than the one through rate. A full statement of the case appears in the opinion of the District Court. 232 Fed. 1000. The pertinent facts briefly stated are these: The defendants are large cotton brokers operating in the State of Alabama. They purchased uncompressed cotton at various points in Alabama, shipped it to Birmingham where it was compressed and then transhipped it to points beyond the State. As typical of their transactions the defendants shipped quantities of cotton from Albertville, Alabama, by the Nashville, Chattanooga & St. Louis Railway Company, to Attalla, Alabama, a junction point, thence by the Alabama Great Southern Railroad Company (the plaintiff below) to Birmingham, Alabama, on through bills of lading to the last named point. At Birmingham the uncompressed cotton was unloaded, compressed by the carrier in accordance with a right reserved in tariffs filed and as a part of the transportation service rendered, and then re-loaded for continued. shipment. At Birmingham the original bills of lading were surrendered and the shipments re-billed by the defendants to points beyond the State; but they were re-billed not from Birmingham but back from Attalla. This was done not to select a particular route but to obtain a particular rate. The rate paid by the defendants upon the demand of the plaintiff railroad company, acting for itself and its connecting lines, for the entire interstate shipment begun and completed under the two bills of lading, was the aggregate of two rates both legally established for the transportation to which they severally related. The first was a rate of the Nashville, Chattanooga & St. Louis Railway Company for intrastate transportation from Albertville to Attalla, Alabama, and was 11.7 cents per 100 pounds. This rate appears in the Intrastate Commodity Tariff filed by the carrier in conformity with the laws of Alabama. The other was an interstate rate of the plaintiff railroad company from Attalla to certain points beyond the State for cotton originating on the line of the Nashville, Chattanooga & St. Louis Railway Company, duly filed with the Interstate Commerce Commission, and was 32 cents per 100 pounds. That rate was preferable to the interstate rate from Birmingham, but to obtain it, interstate shipments of course had to begin at Attalla. So the defendants, in transhipping their cotton from Birmingham, where it was physically present, rebilled it back from Attalla, as though originating at and moving out of that place, deducting from the Attalla through rate of 32 cents the local rate already paid from Attalla to Birmingham. The two rates when added together amounted to 43.7 cents per 100 pounds, and this aggregate was the rate charged and paid for the interstate transporta |