would have to elapse before a house of this kind could fairly be called a tippling-house, it would surely seem that three weeks would or dinarily be sufficient. Be this as it may, however, that with which we are now called upon to deal was shown by the prosecution to be capable, on the last, if not upon the first, of the three Sundays in question, of fully performing its office as a house of this character; and this being so, it is to be treated as being then in existence, irrespective of the precise date of its inception. When once a house becomes a tippling house, and exists as such, "if the owner keep it open but for a moment" on the Sabbath, he will be guilty of a violation of the statute. Monses v. State, 78 Ga. 110. We have therefore reached the conclusion that for no reason assigned by the accused, or disclosed by the record brought to this court, should her conviction be set aside. Judgment affirmed. RALEIGH & GASTON RAILROAD COMPANY et al., Plffs. in Err., v. J. M. SWANSON. (........ Ga...------) *1. A contract entered into between a railroad company and a ticket broker, whereby the latter was enabled to sell tickets to individuals, over the company's lines leading from this to another state, at less than the established rate for the sale of tickets by its regular agents between the same points, and for the same accommodations, is in violation of the act of Congress "to Regulate Commerce," approved February 4, 1887. 2. A party to such a contract cannot recover in an action which does not seek to disaffirm, but to enforce, it, by suit for its breach. 3. A demurrer by the defendant upon the ground that such a suit set forth no cause of action should have been sustained. ern, the Carolina Central, and the Raleigh & Augusta Railroads, which constitute the system known as the Seaboard Air Line, extending from Atlanta, Georgia, to Norfolk, Virginia, for breach of contracts. In his petition he alleged, in substance, as follows: He being a ticket broker in Atlanta, Georgia, and in position to control a great amount of business over the various roads centering there and leading therefrom, defendants, desiring to have tickets over their system handled by him, procured the Suwanee River Railroad Company, a corporation of Florida, to issue a large number of tickets from Ellaville, in that state, via Atlanta, and over the Seaboard Air Line to Norfolk, Virginia, and others to Washington, District of Columbia, via Weldon, North Carolina, which tickets were not to be used from Ellaville to Atlanta, but only from Atlanta to the points above stated. Defendants agreed with plaintiff that, if he would purchase and handle these tickets, they would honor them for passage over their system of railroads to the points named. In pursuance to said agreement, he did purchase a large number of said tickets from the Suwanee River Railroad Company, at such prices as were agreed upon, and as would enable him to sell the same for passage over the Seaboard Air Line below the regular rates established by defendants and make a profit thereon, in the regular course of business as a ticket broker, and sold a great number of said tickets from time to time, all of which were duly honored by defendants over their said lines until September, 1894, when they notified him that said tickets would be withdrawn, and that they would no longer honor them. He then had on hand, undisposed of, a large number of said tickets, which he had purchased from the Suwanee River Railroad Company in accordance with this agreement with defendants, for which he had paid $909, and which were therefore worthless to him, and of no value whatever. same month, and shortly after the date when the tickets were so withdrawn, he notified defendants that he held them, and that they were worthless, and demanded that defendants should make them good, and reimburse him in the sum that he had paid for them, which defendants failed and refused to do, but, recog nizing their liability to him, proposed that if he would take the tickets he then had on hand, and get the Suwanee River Railroad Company, in lieu thereof, to issue what are known as "exchange orders" on the Seaboard Air Line each order to call for a first class ticket from Atlanta to Norfolk over the Seaboard Air Line, defendants would then honor, from time, as might be presented to them by plaintiff, as many of said exchange orders as would be necessary, at the rate of $9 each, to cover the value of the tickets which he then had on hand. This agreement was entered into on condition that he would guarantee to hold the defendants harmless against loss should the Suwanee River Railroad Company fail and refuse to pay and settle with defendants for said exchange orders. Plaintiff acceded to all these demands of defendants, obtained such exchange orders from the Suwanee River Railroad Company by surrendering to it said tickets which he then had on hand, and tendered In the one of said exchange orders, together with his | or shall willingly suffer or permit to be done written guaranty to defendants that he would hold them harmless against loss should the Suwanee River Railroad Company fail to settle with them for said orders, and demanded of defendants a ticket from Atlanta to Norfolk over the Seaboard Air Line, in accordance with the agreement before stated. Defendants accepted said written guaranty of plaintiff, dated February 7, 1895, and now have the same. The defendants refused to honor said exchange order, but retained it, and refused to deliver to plaintiff a ticket therefor in accordance with said agreement, but, instead, notified plaintiff that they would not honor any of said exchange orders, and would not issue to plaintiff any tickets therefor, as they had agreed to do, until the Suwanee River Railroad Company had made good to them certain arrearages which had accrued prior to the time of the contract between plaintiff and defendants in reference to said exchange orders. Plaintiff, by reason of the breach of said contract, has been damaged $1,212, because the tickets which he would have received under said contract for said exchange orders were worth to him, and would have been sold for, $12 apiece, and he would have been entitled to 101 tickets under said contracts. Plaintiff, by amendment to his declaration to meet one of the grounds of the demurrer of the defendants, more specifically alleged the number or tickets on hand, and the price at which they were bought and the price at which they could have been sold. To this petition the defendants demurred, among others, upon the ground, that the contracts declared on were illegal, and contrary to pub lic policy and the laws of the United States and the state of Georgia, and that it therefore set forth no cause of action. This demurrer was overruled by the trial judge, and we are now to consider whether or not he erred in so doing. 1. Section 2 of the act of Congress entitled "An Act to Regulate Commerce," approved February 4, 1887 (24 Stat. at L. 379), provides as follows: "That if any common carrier subject to the provisions of this act shall, directly or in directly, by any special rate, rebate, draw back, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any service rendered, or to be rendered, in the transportation of passengers or property, subject to the provisions of this act, than it charges, demands, collects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful." Section 10 of the same act, as amended by the act of March 2, 1889 (25 Stat. at L. 857), provides as follows: "That any common carrier subject to the provisions of this act, or, when ever such common carrier is a corporation, any director or officer thereof, or any receiver, trustee, lessee, agent, or person, acting for or employed by such corporation, who, alone or with any other corporation, company, person, or party, shall wilfully do or cause to be done, any act, matter, or thing in this act prohibited or declared to be unlawful, or who shall aid or abet therein, or shall wilfully omit or fail to do any act, matter, or thing in this act required to be done, or shall cause or willingly suffer or permit any act, matter, or thing so directed or required by this act to be done not to be so done, or shall aid or abet any such omission or failure, or shall be guilty of any infraction of this act, or shall aid or abet therein, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof in any district court of the United States within the jurisdiction of which such offense was committed, be subject to a fine of not to exceed $5,000 for each offense: provided, that if the offense for which any person shall be convicted as aforesaid shall be an unlawful discrimination in rates, fares, or charges, for the transportation of passengers or property, such person shall, in addition to the fine herein before provided for, be liable to imprisonment in the penitentiary for a term not exceeding two years, or both such fine or imprisonment, in the discretion of the court." One purpose of this act was to prevent any railroad company engaged in the transportation of passengers from any state or territory to another from charging any person or class of persons a rate other than that established for others under substantially similar circumstances and conditions. Such discrimination is declared by the statute itself to be unjust, and cannot be effected, either directly or indirectly, by any device whatever. It would follow from this that any scheme entered into by such a railroad company with a view of placing upon the market tickets, over its line, to be sold to individuals at a less rate than they could be procured at its regular ticket office in the usual course relating to the transaction of such business, would be unlawful. Indeed, the parties to this case seem to recognize that it would be unlawful to place in the hands of a broker tickets direct from its terminus in Atlanta to other points outside of this state, and to charge there for less than its established rate. It would not necessarily have been in violation of the statute for the Florida corporation, acting in concert with the defendants, to have issued tickets from Ellaville, in that state, via Atlanta, to Norfolk, Virginia, at a less rate per mile than tickets could be procured over defendants' lines alone from Atlanta to Norfolk. Hence, in order to evade the statute, a device was entered into by the parties to this contract to have these tickets issue from Ellaville via Atlanta. The purpose of this was not to sell tickets to parties desiring transportation from Ellaville, but to parties desiring transportation from Atlanta over defendants' lines alone. Therefore that portion of the ticket from Ellaville to Atlanta was discarded under the contract between the parties, and it could have been used only as a mere device to evade the statute; otherwise, why did not the defendant companies issue tickets to the plaintiff directly from Atlanta? To contend that a railroad company can offer tickets to individual passengers, through its brokers, at a less rate than that established for their sale by its regular ticket agents, would penal offense by its terms, a suit for the breach thereof cannot be maintained. enable common carriers, ad libitum, to defeat the case, the courts would have no difficulty the very purpose of the statute in question. In in discovering the purpose for which they the case of Smith v. Northern P. R. Co. 1 were issued, and applying the proper remedy." Inters. Com. Rep. 208, it was held that This being a contract, therefore, not only de"the sale of land explorers' tickets' and 'set-clared unlawful by the statute, but made a tlers' tickets' at less than the regular rates charged to passengers at the usual ticket offices, as practised by the Northern Pacific Railroad 2. It is further contended on behalf of the Company, is unjust discrimination," and that defendant in error that, even if the contract "the rule under which passenger transporta is illegal, it is not malum in se, but malum tion should be conducted requires absolute prohibitum, and that he can recover back the equality of payment from all persons enjoying money he paid the railroad. "A broker, or the same accommodations." Prior to the act other agent, employed to carry out an illegal of Congress above quoted, interstate commerce transaction, cannot recover for losses incurred traffic in this country was regulated by the or disbursements made by him in the course principle of common law applicable to common of the transaction, if he was privy to the carriers. There seems to be a conflict of principal's unlawful purpose.' Clark, Cont. authority as to whether or not, at common 213. The same author, on page 494, quotes law, common carriers would be bound to make from Lord Kenyon, to the effect that "there the same charges to all persons for the same is no case to be found where, when money service, the weight of authority in this country has been actually paid by one of two parties being in favor of equality of charges. See to the other upon an illegal contract, both Interstate Commerce Commission v. Baltimore being participes criminis, an action has been &0. R. Co. 145 U. S. 275. 276, 36 L. ed. 703, maintained to recover it back again." Some 4 Inters. Com. Rep. 92. Perhaps, on account exceptional cases, however, are recognized by of such conflict, and further for the reason that this author, and are undoubtedly sustained the several states were powerless to prevent by good authority. These he groups as folunjust discrimination as to traffic going beyond lows: (a) Cases in which a locus pœnitentiæ their respective boundaries, Congress took the remains; and while the agreement is unpermatter in charge, with a view of preventing formed, money or goods delivered in furtherunjust discrimination throughout the country. ance of it are allowed to be recovered. (b) It was contended by the able counsel for de- Cases in which the parties are not regarded fendant in error in this case that the trans- as being in pari delicto, as (1) where the party action in question was tantamount only to a sale asking relief was induced to enter into the of tickets at wholesale, and that, under the agreement under the influence of fraud or ruling in the case last above cited, the act strong pressure, or (2) where the law which of Congress was not intended to ignore the makes the agreement unlawful was intended principle that one can sell at wholesale cheaper for the protection of the party asking relief." than at retail. It will be seen from an inspec- This case falls within none of these exceptions. tion of that case that the question involved This is not an action to disaffirm an illegal contherein was the legality of the sale of what is tract, and seeking to recover back from the known as a "party-rate ticket;" that is, a defendants money had and received thereunder ticket for the transportation of a number of before its full execution. Upon the contrary, persons from a place in one state or territory it is a suit for damages growing out of a to a place situate in another state or territory breach of the contract. Instead, therefore, of at a rate less than that charged to a single in- being an effort to rescind the contract, it is dividual for a like transportation on the same really a proceeding to enforce it. Besides, it trip. There is no similarity in that respect appears from the plaintiff's petition in this between the present case and the one just cited. case that payment for these tickets was made, If, instead of issuing a single ticket for a com- not to any of the defendant railroad compapany of ten or more persons, the common car-nies, but to a railroad corporation in Florida; rier had issued in that case a number of tickets to a broker, at such price as would have enabled him to have sold them to individuals at less than the established rate, and had used the term "party-rate ticket" as a device to evade the law, then we apprehend the ruling of the United States Supreme Court would have been entirely different; for the court in that case, on page 284, 145 U. S., and page 706, 36 L. ed., says: "The party-rate ticket, as it appears in this case, is a single ticket cover-realized thereunder; nor could the agents set ing the transportation of ten or more persons, and would be much less available in the hands of a ticket broker than an ordinary single ticket, since it could only be disposed of to a person who would be willing to pay two thirds of the regular fare for that number of people. It is possible to conceive that partyrate tickets may, by a reduction of the number for whom they may be issued, be made the pretext for evading the law, and for the purpose of cutting rates; but should such be and it does not appear that the defendants have in hand, or have ever received, any portion of the fund. There is a very patent distinction between this case and the case of Clarke v. Brown, 77 Ga. 606. In that case it appears that the principal deposited money in the hands of his agents, to be used for an illegal purpose, namely, the purchase of futures in pork and grain. It was there held: "He could not set up the illegal contract to recover profits up the illegal contract for the purpose of defeating a recovery by the principal of the money deposited with them, and which was held by them." The plaintiff in that case did not rely upon his illegal contract. He was not seeking to enforce the same, and hence the court very properly draws the distinction between that case and the previous rulings of this court on the subject of enforcing illegal contracts. It is true, in the case of Western U. Teleg. Co. v. Blanchard, 68 Ga. 300, 45 Am. Rep. 480, it is held that, | obligations thereunder. The law, in refusing "although a speculation in cotton futures may to enforce such contracts, has not in view the be an illegal contract, yet an agent who incurs benefit of the litigants themselves, but quesexpenses or loss on behalf of his principal, in tions of public policy, and the protection of carrying out such contract, may recover the the people against the violation of statutes enamount thereof from such principal." But acted for the public good. this court has never adhered to that ruling. On the contrary, the principle decided in that case was virtually overruled in the case of National Bank v. Cunningham, 75 Ga. 366, and Cothran v. Western U. Teleg. Co. 83 Ga. 25. It may seem a hardship, in some cases, to allow a party to insist upon his illegal contract as a reason why he should be relieved from his 3. From the above, we conclude that the petition in this case sets forth no legal cause of action, and that, therefore, the court erred in overruling the demurrer thereto. Judgment reversed. All the Justices concur except Cobb, J., disqualified. INDIANA SUPREME COURT. Peter L. BISHOP, Appl., v. STATE of Indiana, er rel. Daniel E. Ind...... 1. The postmaster of a local postoffice is a "deputy postmaster" within the meaning of Const. art. 2. § 9, providing that the office of a deputy postmaster whose compensation does not exceed $90 per annum shall not be deemed lucrative within the provision respecting the right to hold other offices. ment of ouster was rendered, from which appellant prosecutes this appeal. The errors assigned are: (1) That the court erred in overruling a demurrer to the information; (2) error in sustaining a demurrer to the answer. The information charges, substantially, that the defendant, Peter L. Bishop, at the November election of 1894, was elected township trustee of Bearcreek township, in Jay county, Indiana, for a term of four years, and that on the 6th day of August, 1895, he duly qualified as such trustee, and entered upon the discharge of the duties of the office; that subsequently, on the 9th day of October, 1896, the defendant was duly appointed and commissioned, by the postoffice department of the United States, 2. One who has surrendered or vacated one office by accepting another cannot be restored to any right or title under the first by sub-postmaster at the village of Bryant, in said sequently resigning the second. 3. The exception in favor of a postmaster whose annual compensation does not exceed $90, in Const. art. 2, § 9, probibiting a person from holding more than one lucrative office at the same time, must be negatived in an allegation that a person holding another office has forfeited it by becoming a postmaster. (January 4, 1898.) APPEAL by defendant from a judgment of the Circuit Court for Jay County in favor of relator in a quo warranto proceeding to oust defendant from the office of township trustee. Reversed. county of Jay, for a term of four years, and duly qualified as such postmaster at said time, and entered upon the discharge of the duties thereof, and from said day on has continued to hold said office of postmaster, and discharge the duties thereof. By reason of his accepting and entering upon the discharge of the duties of postmaster at Bryant, it is charged that he forfeited and surrendered the office of township trustee, and the prayer is that he be ousted therefrom. The state bases its right to expel appellant from the office in question on 9 of art. 2 of the Constitution, which is as follows: "No person holding a lucrative office or appointment under the United States, or under this state, shall be eligible to a seat in the general assembly; nor shall any person hold more than one lucrative office at the same time, except as by this Constitution expressly permitted: provided that officers in the militia to which there is attached no annual salary, and the office of deputy postmaster, where the compensation does This action was prosecuted in the lower not exceed ninety dollars per annum, shall not court upon information, in the name of the be deemed lucrative; and provided, also, that state, on the relation of the prosecuting attor- counties containing less than one thousand polls ney, for the purpose of ousting the appellant may confer the office of clerk, recorder, and aufrom the office of township trustee. A judg-ditor, or any two of said offices, upon the same The facts are stated in the opinion. Messrs. D. T. Taylor and D. E. Griner for appellee. Jordan, J., delivered the opinion of the court: NOTE. As to incompatibility of offices, see also: 670; People, Sherwood, v. State Bd. of Canvassers 1898. BISHOP V. STATE, ex rel. GRINER. Kerlin, 105 Ind. 221, 55 Am. Rep. 197, and person." The contention of counsel for appellee is that appellant, by accepting the office of postmaster, when he was an incumbent of another lucrative office created by the laws of In order to discover the true sense of the this state, violated the above provision of the Constitution, prohibiting one from holding two lucrative offices; and it is claimed that by this term in question, and thereby determine if the unlawful act be ipso facto surrendered his right exception in controversy can be of any avail to to longer hold the office of trustee, and the lat- the appellant in this action, we may properly This prop examine the postal laws of the United States ter office thereby became vacant. osition counsel for appellant to an extent con- passed by Congress prior to the constitutional trovert, and they insist that the information is convention of 1850, which framed our present insufficient for its failure to negative the ex-fundamental law, and learn from such facts if ception in 9, supra, which provides that the the term "deputy postmaster" was employed office of deputy postmaster, where the compen- therein, and what duties were assigned to such sation does not exceed $90 per annum, shall officer. An inspection of the several acts of not be deemed lucrative. Their insistence is Congress relative to the postal affairs of the that the pleading, upon any view of the case, national government passed between the years must affirmatively disclose that the postoffice 1789 and 1827 discloses that the term "deputy in question does not fall within this excep- postmaster" was used therein, and in other acts tion. Counsel, in their brief, say: "When subsequently passed, and that it was intended our Constitution was constructed and cre- to, and did, apply to the persons who were inated, there was one 'general post office at Wash- trusted with the distribution of the United ington, District of Columbia,' and the Postmas- States mail at the various localities where it was ter General was in charge, and denominated delivered. The Postmaster General was con'postmaster,' and the different officers through-sidered the executive head of the postoffice deout the country were known, and in fact designated, as 'deputy postmasters,' by the Federal This was true until 1876, when the statute. postoffices were designated as 1st, 2d, 3d, and 4th class, and the lower class only are appointed by the Postmaster General. The others are appointed by the President. In this latter statute the word 'deputy' was dropped, and the offices classified as we have said." In support of their contention they argue that the term "deputy postmaster," as employed in the Constitution, means and includes what is now generally denominated "postmaster," and if the state relies on the positive prohibition of the Constitution, to oust appellant from the office of trustee, it must, at least, by proper averments, show that the annual compensation of the postoffice accepted and held by him exceeded $90, and thereby place him beyond the exception. On the other hand, counsel for the state contended that the information is sufficient, and in sup port of their contention they say that, at the time of the adoption of the Constitution, the various postoffices throughout the state were filled by officials denominated and known as "postmasters," and the term "deputy postmaster," as used in the Constitution, was understood and intended to apply only to a person who was an assistant or deputy of a local postmaster, and for whose acts the latter officer was liable. Therefore they contend that inasmuch as the appellant was a postmaster, and not a deputy postmaster, he in no manner can avail himself of the exception to the prohibition against holding at the same time more than one lucrative office. 9 partment, and those who served under him at We regret that counsel in this appeal have |