Charles D. Goldsmith and Wright, Cummings & Wright for appellee.

BECK, J.-1. In the thirteenth count of defendant's answer it pleaded the following defence: "Further answering, defendant says that, during all the time for which plaintiff claims overcharges, he was the station agent of defendant, and was employed by the month as such station agent, and that, among other duties, it was his special duty to collect freight and passenger charges at Alta, a station on defendant's line of road, and this suit is brought to recover back overcharges under chapter 68, Acts of the Fifteenth General Assembly of Iowa, and the amounts claimed are for alleged overcharges under that law, on goods shipped by and to plaintiff while such station agent; and that, if any of the charges complained of were overcharges collected by said plaintiff while agent of defendant, in violation of said law, and such charges were charged by said plaintiff in violation of said law, and said charges were demanded by said plaintiff in violation of said law, and said plaintiff, as such agent, was the agent of a corporation operating a line of railroad within this State, and the collection receipt demanded for and charging of said sum claimed by plaintiff is so charged, collected, received, or demanded in violation of said law, as claimed by plaintiff, was done by plaintiff as agent of said corporation, this defendant, and the doing of the said several acts and of each of said several acts so done by plaintiff, was a criminal act, and each of said acts were criminal acts, and subjected plaintiff to fine or imprisonment for each of the several violations of said law, at the discretion of the court, as provided by section 11 of said chapter 68 aforesaid; whereupon defendant says that the plaintiff is estopped from recovering back any portion of said overcharges, if any, so as aforesaid made by him as agent of said corporation defendant, criminally, and by said act made a misdemeanor, and punishable as aforesaid by fine or imprisonment."

As the conclusions we reach upon the defence thus pleaded are decisive of the case, other allegations of the answer need not be recited. The circuit court found the facts applicable to this branch of the case in the following language: "The court further finds that during all the time for which plaintiff claims overcharges herein, he was the station agent of defendant at Alta station, employed by the month as such agent, and that, among other duties, it was his special duty to collect freight and passenger charges at such station on defendant's line of road; that this action is brought to recover overcharges under chapter 68 of the Acts of the Fifteenth General Assembly of Iowa; that the amounts claimed are all for overcharges under that law, for goods shipped by and to plaintiff while he was acting as such agent; and that all

of such overcharges were paid over by said plaintiff, while acting as the agent of defendant, to defendant."

The circuit court's conclusion of law upon the facts thus found is expressed by the record as follows: "Upon the sixth finding of fact the court finds the legal conclusion that, upon the facts therein found, the acts of the plaintiff in collecting and remitting such charges against himself, while acting in the capacity of agent for the defendant, did not render him criminally liable under the provisions of section 11 of chapter 68 of the Laws of the Fifteenth General Assembly; and the court further finds this conclusion on said finding of fact: that plaintiff, by reason of facts so found, is not estopped from recovering back all or any part of the overcharges claimed for herein." There is no ground for disturbing the finding of facts as above set out.

2. The question for our determination, which in our view is decisive of the case, is this: Does the doctrine of par delictum defeat recovery by plaintiff in this action? Under this familiar doctrine parties equally in fault or equally violators of law can have no remedy against each other based upon contracts or transactions which are esteemed unlawful. Thus, while one has paid money to the other, when such payment was unlawfully made or exacted, the party making it cannot maintain an action to recover it back. The law provides no remedy for one who bases his claim to recover upon the violations of its provisions. Chapter 68, Acts of the Fifteenth General Assembly, provided for the maximum rates of charges for the transportation of persons and property by the railroads of the State. Section 11 declares that "any officer, agent, or employee of any railroad company, person, or corporation operating a line of railroad within the State, who shall violate, or be a party to the violation of, any of the provisions of this act, or instrumental therein, shall be guilty of a misdemeanor, and shall be punished by fine and imprisonment; and that any person, corporation, or railroad company operating a railroad within the State, authorizing, directing, causing, permitting, or allowing any violation of the act by any officer, agent, or employee shall forfeit and pay to the person injured five times the amount, compensation, or charge illegally taken or demanded, or five times the amount of the damage caused."

Under this act plaintiff seeks to recover in this action, which is founded on the payment by plaintiff, and the execution and receipt by defendant, of illegal charges for the transportation of property. The plaintiff, as agent of defendant in receiving illegal charges, was guilty of a misdemeanor; the defendant, as a corporation, in requiring and exacting the payment of the charges, was guilty of a violation of law, and subjected to a penalty therefor. The difference in the punishments to be inflicted upon the agent and the corporation is accounted for by the fact that offences committed

by corporations cannot be punished by imprisonment. The doctrine of par delictum is not modified by the degree of guilt of the violators of the law, or the turpitude of the offence. Nor does it have respect to the punishment inflicted. When, therefore, the expression is used that the parties shall be equally guilty, in order to demand its application, the thought is conveyed that each party must be guilty of the violation of law. Of the guilt of the defendant there can be no question. Does plaintiff share in the guilt of violating the law? The facts are these: Plaintiff, as agent of defendant, received illegal charges from himself, and paid the same to defendant. He occupied a double position. He was agent of defendant, and an individual shipper. It is insisted that he paid the money to defendant as a shipper. Let this be admitted. But to whom did he pay it? To himself, as agent. The charges first went into his hands as agent, and as agent he paid them to defendant. In receiving the illegal charges as agent, he violated the law. He cannot shield himself from the consequences thereof by insisting that any of his acts in respect to the charges were individual transactions. The law has no respect to the relations of one who violates its provisions; and it will not make curious distinctions in order to relieve a law-breaker from the consequences of his act. It will not inquire whether the act was done as an agent or as an individual. Guilt follows the purpose to violate the law. The animus determines guilt, and it does not depend upon the relations of the individual.

3. It is insisted that defendant and plaintiff in the transaction were independent actors; that defendant was the oppressor and plaintiff the subject of oppression; and that, in the language of Lord Ellenborough (Smith v. Cuff, 6 Maule & S. 160), the defendant held the rod and plaintiff bowed to it. This would all be quite true were the fact of agency out of the way. But as agent plaintiff acted in receiving and remitting the illegal charges; he was himself the instrument of whatever oppression there is in the case; he held with his own hand the rod with which he chastised himself. His act was of the character of the act of the felo de se, who commits the crime of murder upon himself. The law will give him no remedy based upon his offence.

4. It is argued that as the statute was intended for the protection of shippers of goods by railways, and in the public interest, it ought to be enforced in this case. But the plaintiff, by his violation of the statute, as we have seen, cannot have its protection, and the public interest does not require that a law-breaker shall receive benefit through his own offence.

5. Finally, the plaintiff cannot make out his case except through the medium of the transaction wherein the illegal charge was paid and received, in which he was a party to the violations of the

statute. Under these circumstances the law will give him no remedy. Broom, Leg. Max. *692.

We reach the satisfactory conclusion that upon the facts as found by the circuit court plaintiff is not entitled to recover in this action. The judgment appealed from is therefore reversed.

Overcharges in Freight.-As to the right to recover overcharges in freight or penalties for making such overcharges, see Scott v. Erie Ry. Co., 24 N. J. Eq. 354; Kenneth et al. v. South Carolina R. Co., 15 S. C. 284; McGregor v. Erie R. Co., 35 N. J. L. 289; State v. Winona & St. Peter R. Co., 19 Minn. 434; Fuller v. Chicago & N. W. R. Co., 31 Iowa, 187; Paxton v. Illinois, etc., R. Co., 6 Am. & Eng. R. R. Cas. 591.

ATCHISON, TOPEKA AND SANTA FÉ R. R. Co. v. DENVER AND NEW ORLEANS R. R. Co.

DENVER AND NEW ORLEANS R. R. Co. v. ATCHISON, TOPEKA AND SANTA FE R. R. Co.

(110 United States Reports, 607.)

The provision in the Constitution of Colorado, that "all individuals, associations, and corporations shall have equal rights to have persons and property transported over any railroad in this State, and no undue or unreasonable discrimination shall be made in charges or facilities for transportation of freight or passengers within the State, and no railroad company, nor any lessee, manager, or employee thereof, shall give any preference to individuals, associations, or corporations in furnishing cars or motive power,” imposes no greater obligation on a railroad company than the common law would have imposed upon it.

The provision in the Constitution of Colorado that "every railroad company shall have the right with its road to intersect, connect with, or cross any other railroad," only implies a mechanical union of the tracks of the roads so as to admit of the convenient passage of cars from one to the other, and does not of itself imply the right of connecting business with business.

At common law a railroad common carrier is not bound to carry beyond its own line; and if it contracts to carry beyond it, it may, in the absence of statutory regulations, determine for itself what agencies it will employ; and there is nothing in the provisions of the Constitution of Colorado which takes away such right, or imposes any further obligation.

A railroad company has authority to establish its own stations for receiving and putting down passengers and merchandise, and may regulate the time and manner in which it will carry them, and in the absence of statutory obligations, it is not required in Colorado to establish stations for those purposes at a point where another railroad company has made a mechanical union with its road.

A provision in a State Constitution which prohibits a railroad company from discriminations in charges and facilities does not, in the absence of legislation, require a company which has made provisions with a connecting road for the transaction of joint business at an established union junction station, to make similar provisions with a rival connecting line at another

near point on its line, at which the second connecting line has made a mechanical union with its road.

A provision in a State Constitution which forbids a railroad company to make discrimination in rates is not violated by refusing to give to a connecting road the same arrangement as to through rates which are given to another connecting road, unless the conditions as to the service are substantially alike in both cases.

THIS was a bill in equity filed by the Denver & New Orleans R. R. Co., a Colorado corporation, owning and operating a railroad in that State between Denver and Pueblo, a distance of about one hundred and twenty-five miles, against the Atchison, Topeka & Santa Fé R. R. Co., a Kansas corporation, owning and operating a railroad in that State from the Missouri River, at Kansas City, westerly to the Colorado State line, and also operating from there, under a lease, a road in Colorado from the State line to Pueblo, built by the Pueblo & Arkansas Valley R. R. Co., a Colorado corporation. The two roads so operated by the Atchison, Topeka & Santa Fé Co. formed a continuous line of communication from Kansas City to Pueblo, about six hundred and thirty-four miles. The general purpose of the suit was to compel the Atchison, Topeka & Santa Fé Co. to unite with the Denver & New Orleans Co. in forming a through line of railroad transportation to and from Denver over the Denver & New Orleans road, with all the privileges as to exchange of business, division of rates, sale of tickets, issue of bills of lading, checking of baggage and interchange of cars, that were or might be customary with connecting roads, or that were or might be granted to the Denver & Rio Grande R. R. Co., another Colorado corporation, also owning and operating a road parallel to that of the Denver & New Orleans Co. between Denver and Pueblo, or to any other railroad company competing with the Denver & New Orleans for Denver business.

It appeared that when the Atchison, Topeka & Santa Fé Co. reached Pueblo with its line it had no connection of its own with Denver. The Denver & Rio Grande road was built and running between Denver and Pueblo, but the gauge of its track was different from that of the Atchison, Topeka & Santa Fé. Other companies occupying different routes had at the time substantially the control of the transportation of passengers and freight between the Missouri River and Denver. The Atchison, Topeka & Santa Fé Co., being desirous of competing for this business, entered into an arrangement, as early as 1879, with the Denver & Rio Grande Co. for the formation of a through line of transportation for that purpose. By this arrangement a third rail was to be put down on the track of the Denver & Rio Grande road, so as to admit of the passage of cars continuously over both roads, and terms were agreed on for doing the business and for the division of rates. The object of the parties was to establish a new line, which could