It is not determinative of the present question that the commerce act as now construed will render the contract of no value for the purposes for which it was made. In Knox v. Lee, 12 Wall. 457, above cited, the court, referring to the Fifth Amendment, which forbids the taking of private property for public use without just compensation or due process of law, said: "That provision has always been understood as referring only to a direct appropriation, and not to consequential injuries resulting from the exercise of lawful power. It has never been supposed to have any bearing upon or to inhibit laws that indirectly work harm and loss to individuals. A new tariff, an embargo, a draft, or a war, may inevitably bring upon individuals great losses; may, indeed, render valuable property almost valueless. They may destroy the worth of contracts."

In Fitzgerald v. Grand Trunk Ry. Co., 63 Vermont, 169, 173, which was the case of a contract for the transportation of lumber through several States, the Supreme Court of Vermont said: "Such commerce is solely regulated by Congress, and when parties make contracts to engage in interstate commerce they are held to do so upon the basis and with the understanding that changes in the law applicable to their contracts may be made. There can, in the nature of things, be no vested right in an existing law which precludes its change or repeal, nor vested right in the omission to legislate upon a particular subject which exempts a contract from the effect of subsequent legislation upon its subject matter by competent legislative authority."

In Pomeroy on Contracts, § 280 (Specific Performance), after observing that an illegal contract cannot be made the basis of any judicial proceeding and that no action in law or equity could be maintained upon it, said: "This impossibility of enforcement exists, whether the agreement is illegal in its inception, or whether being valid when

made, the illegality has been created by a subsequent statute." Among the cases cited by the author in support of that view was Atkinson v. Ritchie, 10 East. 530, 534, in which the Chief Justice, Lord Ellenborough, delivering the opinion of the court, said: "That no contract can properly be carried into effect, which was originally made contrary to the provisions of law, or which being made consistently with the rules of law at the time, has become illegal in virtue of some subsequent law, are propositions which admit of no doubt." In Kentucky & Indiana Bridge Company v. Louisville & Nashville Railroad Co., 34 Am. & Eng. R. Cases, 630, Judge Cooley said: "But the act to regulate commerce is a general law, and contracts are always liable to be more or less affected by general laws, even when in no way referred to. But this incidental effect of the general law is not understood to make it a law impairing the obligation of contracts. It is a necessary effect of any considerable change in the public laws. If the legislature had no power to alter its police laws when contracts would be affected, then the most important and valuable reforms might be precluded by the simple device of entering into contracts for the purpose. No doctrine to that effect would be even plausible, much less sound and tenable." "If one agrees," said Mr. Parsons, "to do a thing which it is lawful for him. to do, and it becomes unlawful by an act of the legislature, the act avoids the promise.' Parsons on Contracts (6th Ed.), 675.

We forbear any further citation of authorities. They are numerous and are all one way. They support the view that, as the contract in question would have been illegal if made after the passage of the commerce act, it cannot now be enforced against the railroad company, even though valid when made. If that principle be not sound, the result would be that individuals and corporations could, by contracts between themselves, in anticipation

of legislation, render of no avail the exercise by Congress, to the full extent authorized by the Constitution, of its power to regulate commerce. No power of Congress can be thus restricted. The mischiefs that would result from a different interpretation of the Constitution will be readily perceived.

In our opinion, the relief asked by the plaintiffs must, upon principle and authority, be denied; that the railroad company rightly refused, after the passage of the commerce act, further to comply with the agreement of 1871; and, that the decree requiring performance of its provisions, by issuing annual passes, was erroneous.

Whether, without enforcing the contract in suit, the defendants in error may, by some form of proceeding against the railroad company, recover or restore the rights they had when the railroad collision occurred is a question not before us, and we express no opinion on it.

The judgment is reversed, and the cause is remanded for such further proceedings as may be deemed proper, not inconsistent with the views herein expressed.

Reversed.

CHICAGO, INDIANAPOLIS AND LOUISVILLE RAILWAY COMPANY v. UNITED STATES.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.

No. 74. Submitted December 16, 1910.-Decided February 20, 1911. Louisville & Nashville Railroad Company v. Mottley, ante, p. 467, followed to effect that under the act of June 29, 1906, c. 3591, 34 Stat. 584, amending the act of February 4, 1887, c. 104, § 2, 24 Stat. 379, a carrier cannot accept any compensation other than cash for interstate transportation, and the delivery of such transportation in exchange for advertising is a violation of the act; and it is no defense that such a transaction is permitted by a state statute.

219 U.S.

Argument for Appellant.

No state enactment can avail when the subject has been covered by an act of Congress acting within its constitutional powers. In such a case the act of Congress is paramount and the state law must give

way.

THE facts, which involve the construction of provisions of the Interstate Commerce Act relating to payment of fare on railways, are stated in the opinion.

Mr. E. C. Field, with whom Mr. H. R. Kurrie was on the brief, for appellant:

There is no unreasonable discrimination in contracting with certain publications and refusing to do so with others.

The law recognizes the right of a carrier to discriminate between persons, the only restraint upon such discriminations being that they shall not be unreasonable. Cincinnati &c. Ry. Co. v. Int. Comm. Comm., 162 U. S. 197; Int. Comm. Comm. v. Baltimore &c. R. R. Co., 145 U. S. 263; Northern Pacific Ry. Co. v. Adams, 192 U. S. 440; Texas & Pac. Ry. Co. v. Int. Comm. Comm., 162 U. S. 197, 220.

There is nothing in the record to show that there was any discrimination by the appellant. Appellant insists that it has the right to make this kind of a contract with publications of its own selection, provided, always, that it actually receives the money value of the transportation which it gives. Advertising is just as essential to successful operation as good train service.

Section 6 does not require the manner in which charges shall be paid to be stated in the tariffs filed by a carrier. Int. Comm. Comm. v. Detroit R. R. Co., 167 U. S. 633; Southern Pacific Co. v. Int. Comm. Comm., 200 U. S. 536. It has been held that the time when charges shall be paid is not required to be stated; and that the carrier may require one shipper to pay in advance, and allow another to pay at destination, and that by so doing it does not unjustly discriminate. Little Rock &c. R. R. Co. v. St. Louis

Argument for the United States.

219 U.S.

&c. R. R. Co., 63 Fed. Rep. 775; Oregon &c. R. R. Co. v. Northern &c. R. R. Co., 51 Fed. Rep. 465, 472.

It has always been the law that charges may be paid in money value as well as in money. Marsh v. Union &c., 9 Fed. Rep. 873; Miami &c. Ry. Co. v. Port Royal &c. Ry. Co., 25 S. E. Rep. 153; Gleadell v. Thompson &c., 56 N. Y. 194; Bearse v. Ropes, Fed. Cas. No. 1192; Snow v. Carruth, Fed. Cas. No. 13,144; Bancroft v. Peters, 4 Michigan, 619; Relyea v. New Haven &c. Ry. Co., 42 Connecticut, 579; Boggs v. Martin, 13 B. Mon. 239; Page v. Munroe, 18 Fed. Cas. 10,665; Jones v. Hoyt, 25 Connecticut, 374; Aldrich v. Cargo, 117 Fed. Rep. 757; The Success, 7 Blatch. 551; Woodward v. Int. Comm. Comm., 1 Biss. 403; Elliott, Railway, 2d ed., 1558; Missouri Pac. Ry. Co. v. Peru &c. Ry. Co., 87 Pac. Rep. 80; S. C., 85 Pac. Rep. 408; Curry v. Kansas &c. Ry. Co., 48 Pac. Rep. 579; Dempsey v. N. Y. Central &c. Ry. Co., 40 N. E. Rep. 867; Chicago & Alton Ry. Co. v. United States, 156 Fed. Rep. 558.

The insertion of the word "different" does not change the legal effect of § 6. Endlich, § 378; McDonald v. Hovey, 110 U. S. 619.

The construction contended for would lead to absurd consequences; even checks, drafts or other evidences of credit could not be received.

Mr. Attorney General Wickersham, with whom Mr. Barton Corneau was on the brief, for the United States:

Literally interpreted, § 6 of the act to regulate commerce as amended, plainly forbids the acceptance of compensation which is different either in kind or amount from that specified in the published tariffs, viz., money; and it therefore prohibits the exchange of transportation for advertising.

The word "different" in the phrase "greater or less or different compensation" means different in kind. Washington Market Co. v. Hoffman, 101 U. S. 112, 115; End