fense was based upon a provision of the bill of lading which required "claims for loss, damage, or delay" to be made in writing within four months "after the delivery of the property, or, in case of failure to make delivery, then within four months after a reasonable time for delivery has elapsed." The carrier also contended that plaintiff's exclusive remedy was, by virtue of the Carmack Amendment, against the initial carrier. This latter contention, being clearly without merit, was summarily rejected by the Supreme Court. Upon the other point the court declared that the question of the proper construction of the provisions of the bill of lading was one of federal law; that the case was one of "failure to make delivery;" and that the four months clause was applicable and binding. It was argued that the carrier, in misdelivering the goods, abandoned the contract and therefore could not avail itself of the contractual defense based on the provision as to the making of claims, but the court declared that the parties could not waive conditions "fixed by the agreement made under the published tariffs and reg-pend upon the circumstances surrounding ulations." The court, however, reached the conclusion that a telegram sent by the plaintiff to the defendant to the effect that the shippers "would make claim against railroad for entire contents of car at invoice price," taken in connection with other telegrams identifying the shipment, was a substantial compliance with the bill of lading provision in question and therefore affirmed the Georgia courts. ing that knowledge on the part of the carrier of the condition of the peaches when they reached destination did not dispense with the necessity of the written notice. The court took occasion to declare that "whether such stipulations are reasonable or not depends on the circumstances of each case." In this connection it should. be noted that it does not appear that the carrier introduced evidence that the provisions of its bill of lading had been filed with the Interstate Commerce Commission and the court seems to have decided the case without reference to any question of duly established tariffs. If a stipulation such as that involved in this case had been duly filed as a tariff with the Interstate Commerce Commission in accordance with section 6 of the Act, it would seem that the question of the reasonableness of such provision is (like the question of the reasonableness of a rate) for the determination of the Commission and not a matter for judicial consideration. See the Carl case, 227 U. S., at page 654. If the question of reasonableness of bill of lading provision is to de In St. Louis, &c., R. Co. v. Starbird,22 (1917), the Supreme Court enforced a bill of lading provision requiring claims for damages to be reported in writing within thirty-six hours after notice of arrival, shipments of peaches being involved, declaring that the lower court was in error in hold (22) Decided April 30, 1917. See also Chesapeake, etc., Ry. Co. v. McLaughlin, 242 U. S. 142 and Northern Pac. Ry. Co. v. Wall, 241 U. S. 87; dealing with bill of lading provisions as to giving notice of damage or making of claims within a specified time. cach particular case, we are thrown back to the old conditions of uncertainty, discriminations will inevitably arise, and litigation over such matters, much of which will require decision by the United States Supreme Court, will flourish. It is not believed that the court intended to modify the doctrine that. regulations and provisions filed with the Commission under the authority of section 6 of the Act have the force of statutory law until set aside by the Commission, unless on their face repugnant to law. In Cincinnati, &c., Ry. Co. v. Rankin,23 involving damage to an interstate shipment of cattle, it was held that a stipulation in the bill of lading for a limited valuation was binding notwithstanding the absence of affirmative proof that the published tariffs of the carriers contained alternative rates based on different valuations, the bill of (23) 241 U. S. 319. lading accepted by the shipper reciting that | plaintiff to prove negligence on the part of alternative rates based on specified value the carrier. The Supreme Court apparentwere offered. ly upholds this contention, but affirmed the decision in favor of the plaintiff on the ground that there was sufficient evidence of negligence to justify the submission of that issue to the jury. It was also held that the Carmack Amendment gives the cause of action to the "lawful holder" of the bill of lading although he may not be the owner. In Atchison, &c., Ry. Co. v. Harold," the doctrine that by the Carmack Amendment Congress took exclusive control over the subject of interstate shipments was reaffirmed and applied, and the decision of the Kansas courts investing the innocent holder of a bill of lading with rights not available to the shipper was reversed as being inconsistent with the general commercial law obtaining in the federal courts. In Western Transit Co. v. A. C. Leslie, &c., Co.,25 25 tons of copper ingots were delivered to the defendant (below) at a point in Michigan consigned to New York City, with directions to store same at Buffalo awaiting further orders, this storage in transit privilege without extra charge being provided for in the tariffs. The bill of lading contained the stipulation, “value not to exceed $100.00 per net ton." A ton of the ingots was stolen while the property was in storage in Buffalo under circumstances found to be accompanied by negligence on the part of the carrier. The Supreme Court held that the bill of lading governed the storage in transit as well as the actual transportation and that the released valuation applied; and it construed the valuation agreement as fixing "not an arbitrary limit of recovery but a ratio," so that only $100 was recoverable for the stolen ton of ingots. In Pennsylvania R. Co. v. Olivit Bros., decided by the United States Supreme Court April 30, 1917, involving delay to interstate shipments of melons, the carrier set up bill of lading provisions exempting it from liability for damage resulting from strikes, congestion, and other causes beyond its control, and undertook to prove that the damage was due to such causes. The carrier contended that after it had proved these causes, the burden (24) 241 U. S. 371. (25) 242 U. S. 448. was upon We have seen that provisions of the Hepburn Act other than the Carmack Amendment have had a far-reaching effect in revolutionizing the law of interstate carriers. Several cases applying the provisions of section 1 and of section 6 of the Act have been referred to. Several other interesting cases involving provisions of the Act other than the Carmack Amendment may be referred to. In A. J. Phillips Co. v. Grand Trunk Western Ry. Co.,26 where a shipper sued in a federal court for the difference between the charges paid upon interstate shipments at the tariff rate and the amount accruing at the rate subsequently, in a proceeding to which plaintiff was not a party, found to be the reasonable charge by the interstate Commerce Commission, the court was called upon to construe that provision of section 16 of the Act which provided: "All complaints for the recovery of damages shall be filed with the Commission within two years from the time the cause of action accrues, and not after." The court held that this two-year limitation not only barred the remedy but destroyed the liability and that it applied equally to a suit instituted in a court of competent jurisdiction as to a complaint filed with the Interstate Commerce Commission. It may be remarked that the doctrine laid down in this decision would seem equally applicable to a "straight over (26) 236 U. S. 662. charge," that is, to a charge in excess of that prescribed in the tariff in effect at the time. The court pointed out in this case that "to permit a railroad company to plead the statute of limitations as against some and discriminate against others would be to prefer some and discriminate against others in violation of the terms of the Commerce Act which forbids all devices by which such results may be accomplished;" and that "The prohibitions of the statute against unjust discrimination relate not only to inequality of charges and inequality of facilities, but also to the giving of preferences by means of consent judgments or the waiver of defenses open to the carrier." 27 the Commission. Accordingly judgment "all damage that properly may be attributed to an overcharge, whether it be the keeping of the plaintiff out of its money, dwelt upon by the trial court, or the damage to its business following as a remote result of the same cause, must be taken to have been considered in the award of the Commission and compensated when that award was paid." This decision overrules the Commission's interpretation of the Act, uniformly adhered to, under which the award of general damages was thought to be beyond tthe Commission's power under the Act. In Louisville, &c., R. Co. v. Ohio Valley Tie Co., suit had been brought in the Kentucky court for damages alleged to have been caused account of injury to plaintiff's business by reason of the maintenance and collection by the carrier of a higher rate for the transportation of cross ties (in interstate commerce) than for lumber, it being charged that the establishment and maintenance of the higher cross-tie rate was for the purpose of discouraging plaintiff from competition with the defendant in the purchase of cross ties. Prior to institution of the suit, plaintiff had, in a proproceeding before the Interstate Commerce Commission, obtained reparation upon a number of shipments of cross ties and an order requiring the establishment of a rate for ties not to exceed the rate on lumber of the same kind of wood. The state court held that under the Act to Regulate Commerce the Interstate Commerce Commission had gone to the limit of its powerly or prior action by the Interstate Comin granting reparation in the amount of the difference between the amount charged and that accruing at the rate held to be reasonable and that it was open to the court to award (so-called) general damages for the injury to plaintiff's business in addition to the reparation awarded by The delimitation of the respective powers of the Interstate Commerce Commission and of the courts in matters involving interstate transportation by carriers subject to the Act to Regulate Commerce, has received considerable consideration at the hands of the Supreme Court. The leading case is Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co.,28 (1907), where it was held that the courts have no power to consider the question of the reasonableness of duly established interstate rates nor, independent merce Commission, to entertain suit seeking damages based on having been forced to pay excessive rates. In Interstate Commerce Commission v. Illinois Central R. Co.,29 (1910), the carrier undertook to enjoin the enforcement of an (28) 204 U. S. 426. order of the Commission prescribing a method for the distribution of coal cars in times of car shortage, the order requiring the carrier to count cars delivered to a mine for the carrier's own fuel to be counted against the mine's share of the available supply. The court, in refusing to set aside the order of the Commission, laid down the following as the only question for judicial consideration in determining whether an order of the Commission should be set aside (p. 470): "(a), all relevant questions of constitutional power or right; (b), all pertinent questions as to whether the administrative order is within the scope of the delegated authority under which it purports to have been made; and (c), a proposition which we state independently, although in its essence it may be contained in the previous one, viz. whether, even although the order be in form within the delegated power, nevertheless it must be treated as not embraced therein, because the exertion of authority which is questioned has been manifested in such an unreasonable manner as to cause it, in truth, to be within the elementary rule that the substance, and not the shadow, determines the validity of the exercise of the power." This case was immediately followed by Baltimore & Ohio R. Co. v. Pitcairn Coal Co.,30 where the coal company sought to obtain a writ of mandamus requiring the carrier to distribute its coal cars in time of car shortage in accordance with a method deemed by the coal company to be required by law. The court, in holding that mandamus would not lie because its issuance would trench upon the exclusive power of the Interstate Commerce Commission conferred by the Act, declared that the remedies offered by section 23 of the Act "must be limited either to the performance of duties which are so plain and so independent of previous administrative action of the Commission as not to require a prerequisite exertion of power by that body, or to compelling the performance of duties. which plainly arise from the obligatory force which the statute attaches to orders of the Commission, rendered within the scope of its authority, until such orders are set aside by the Commission or enjoined by the courts."31 JOHN K. GRAVES. (31) For other cases involving the spheres of the commission and of the courts, respectively, as marked out by the Supreme Court, see: Pennsylvania R. Co. v. Puritan Coal Co., 237 U. S. 121; Illinois Central R. Co. v. Mulberry Hill Coal Co., 238 C. S. 275; Pennsylvania R. Co. v. Clark Coat Co., 238 U. S. 456; Pennsylvania R. Co. v. Sonman Shaft Coal Co., 242 U. S. 120; Pennsylvania R. Co. v. Stineman Coal Mining Co., 242 U. S. 298. BİLLS AND NOTES-ILLEGALITY. WHITEHEAD et al. v. COKER. Court of Appeals of Alabama, April 3, 1917. Rehearing Denied June 4, 1917. 76 So. 484. Any contract made in violation of Code 1907, § 1644, providing that a physician shall not be entitled to compensation for services where his certificate has not been recorded, and section 7564, prescribing a penalty for practicing medicine without a license, is void ab initio; and hence it is a good defense to a note given for services of a physician that the physician is acting in violation of such sections, though the plaintiff was an innocent purchaser of the note before maturity. The note sued upon was executed by Coker to Dean & Dean, and by Dean & Dean transferred by indorsement to the present plaintiff. Defendant set up that the note was given in consideration that Dean & Dean would treat plaintiff's wife by a system of treatment known as "Chiropractics." Said note was given in Alabama, and that said treatment was given in Alabama, and that at the time the note and the treatment were given the payees of said note had not obtained a certificate of qualification from the board of medical examiners, and were, in the matter of rendering treatment to said wife of defendant, acting in violation of the criminal statutes of Alabama. The foregoing is the substance of the second plea. The third plea is similar to the second, except that it alleges additionally that W. K. Dean, one of the payees of said note, resided in Etowah county, Ala., and was treating and offering to treat diseases of human beings contrary to law, and in violation of the criminal statutes of Alabama, in that at that time, and prior thereto, said W. K. Dean had not filed in the office of the judge of probate of Etowah county a certificate of qualification issued by the state board of medical examiners of the state of Alabama. The replication filed to plea 2 is that the title to the note on which the suit is founded, which note is complete and regular on its face, was before maturity acquired by them in due course, in good faith, for value, and that at the time it was negotiated to plaintiffs they had no knowledge or notice of any infirmity in said instrument, or defect in the title of the person negotiating it, and no knowledge or notice of the alleged acts set up in the plea of defendant as a defense to this action. BROWN, P. J. This is an action on a promissory note given by the defendant to Drs. Dean & Dean for professional services rendered as physicians, and the defense interposed is that such services were rendered by the payee of the note in violation of the criminal statutes prohibting the practice of medicine by anyone who has not obtained a certificate of qualification from the board of medical examiners. Code 1907, § 7564 (Acts 1915, p. 661); Smith v. State, 8 Ala. App. 352, 63 South. 28; Id., 183 Ala. 116, 63 South. 70; Fealy v. State, Ala. App. MS.; Bragg v. State, 134 Ala. 165, 32 South. 767, 58 L. R. A. 925. The statutory provisions found in chapter 39 of the Code, embracing §§ 1626-1646, are reg ulations for the benefit of the public as well as for persons dealing with those who hold themselves out to the public as professionally qualified to treat diseases of human beings; and it is the public policy of the state to punish the violation of these statutes, and contracts made in violation of these statutes are void in the hands of all persons involved in the guilt of the transaction. Harrison v. Jones, 80 Ala. 412; Sunflower Lbr. Co. v. Turner, 158 Ala. 191, 48 South. 510, 132 Am. St. Rep. 20; Woods v. Armstrong, 54 Ala. 150, 25 Am. Rep. 671; Jemison v. B. & A. R. Co., 125 Ala. 383, 28 South. 51; General Electric Co. v. Town of Ft. Deposit, 174 Ala. 179, 56 South. 802; Turner v. Merchants' Bank, 126 Ala. 397, 28 South. 469; Dudley v. Collier & Pinckard, 87 Ala. 431, 6 South. 304, 13 Am. St. Rep. 55; Campbell v. Segars, 81 Ala. 259, 1 South. 714; Code 1907, § 1644. In Wood v. Armstrong, supra, it was announced that: "It has been repeatedly determined that a penalty inflicted by statute upon an offense implies a prohibition, and a contract relating to it is void even when it is not expressly de * * clared by the statute that the contract shall be void. It would indeed be a strange anomaly if a contract made in violation of a statute, and prohibited by a penalty, could be enforced in the courts of the same country whose laws are thus trampled on and set at defiance. ** ** The rule above declared is not only founded in the soundest principles of morality and public policy, but its enforcement is necessary to maintain the supremacy of the law and the dignity of the state." Daniel, in his work on Negotiable Instruments (volume 1, p. 804, § 806) says: "There are some defenses which are as available against a bona fide holder for value and without notice as against any other party. They are those which go to show that the instrument was absolutely void, and not merely voidable, (1) by reason of the incapacity of the party assuming to contract; or (2) by reason of some positive inhibition of law; or (3) by reason of the want of consent of the party sought to be bound by the particular contract." In addition to interdiction of the act or transaction out of which the alleged cause of action arises, the statute (Code 1907, § 1644) provides: "A physician whose certificate of qualification is not on record in the county in which he resides shall not be entitled to recover at law any compensation for services rendered in treating diseases of human beings." As early as Saltmarsh v. Tuthill, 13 Ala. 388, the Supreme Court said: "It is laid down by elementary writers as well as the adjudged cases that a bona fide holder for value, without notice, is entitled to recover upon any negotiable instrument which he has received before its maturity, notwithstanding any defect or infirmity in the title of the person from whom he derived it, although such person may have acquired it by fraud or by theft or robbery. The same doctrine is in general applicable to one thus becoming the holder of the negotiable paper when the note or bill, or the indorsement thereof, is founded on an illegal consideration. The law upon this point is founded in public policy, and there is no distinction between a case of illegality where the consideration is tainted with moral crime, which is malum in se, and where it violates the positive prohibition of a statute, which is malum prohibitum; for in each case the innocent holder may be otherwise exposed to the most enormous consequences, and the circulation of negotiable instruments would be materially obstructed, if not altogether stopped. The only exception is where the statute creating the prohibition has, at the same time, either expressly or by necessary implication, made the instrument absolutely void in the hands of every holder, whether he has notice of the illegality or not." In Hanover National Bank v. Johnson, 90 Ala. 552, 8 South. 42, it was said: "The case made by this record was not materially different from that presented on the former appeal in respect to the place of the |