(148 N.E.)

quest therefor, and to establish through routes and just and reasonable rates applicable thereto. This act clearly declared the intention of Congress to impose a duty upon carriers in respect to furnishing cars for interstate traffic, and this assertion of its authority by Congress excluded the power of the state over the subject-matter. Chicago, Rock Island & Pacific Railway Co. v. Hardwick Farmers' Elevator Co., 226 U. S. 426, 33 S. Ct. 174, 57 L. Ed. 284, 46 L. R. A. (N. S.) 203. The charge for demurrage stands upon the same footing as any other charge made by a carrier in connection with the transportation of property, and was properly included in the schedule required to be filed by the Interstate Commerce Commission and published. Swift & Co. v. Hocking Valley Railway Co., 93 Ohio St. 143, 112 N. E. 212, L. R. A. 1917E, 916; affirmed in 243 U. S. 281, 37 S. Ct. 287, 61 L. Ed. 722.

but such as are convenient to the exercise of it, and such means may have the qualities of police regulations. Hoke v. United States, 227 U. S. 308, 33 S. Ct. 281, 57 L. Ed. 523, 43 L. R. A. (N. S.) 906, Ann. Cas. 1913E, 905. So Congress for the correction of the abuses of extortion and favoritism before mentioned, made substantial changes in the relations existing between carriers engaged in interstate commerce and shippers, which have materially limited the freedom of contract between them which originally existed. The terms of every contract of shipment, so far as the service to be rendered and the compensation to be received are concerned, are fixed by the schedule filed with and approved by the Interstate Commerce Commission. No agreement of the parties can modify these terms, though expressed in writing and actually performed. The collection by the carrier of less than the schedule rate, though [5] The retention of cars unloaded beyond expressly agreed on, will not prevent the the free time allowed by the demurrage rule recovery of the shortage from the schedule is a terminal service, forming a part of the rate. The rates defined by the tariff cannot transportation as defined in the act of Con- be varied or enlarged by either contract or gress. It is a facility of shipment or car- tort by the carrier. Texas & Pacific Railriage in the storage and handling of proper- road Co. v. Mugg, 202 U. S. 242, 26 S. Ct. ty transported provided for in the schedule 628, 50 L. Ed. 1011; Chicago & Alton Railof rates filed and published, for which the road Co. v. Kirby, 225 U. S. 155, 32 S. Ct. carrier has no right to charge, demand, col- 648, 56 L. Ed. 1033, Ann. Cas. 1914A, 501; lect, or receive a greater or less or different Louisville & Nashville Railroad Co. v. Maxcompensation than that so specified. The well, 237 U. S. 94, 35 S. Ct. 494, 59 L. Ed. parties cannot by agreement alter in any 853, L. R. A. 1915E, 665; Keogh v. Chicago particular the terms of the contract of trans- & Northwestern Railway Co., 260 U., S. 156, portation, including every form of instru- 43 S. Ct. 47, 67 L. Ed. 183. "This stringent mentality or facility of shipment or carriage, rule prevails," it is said in the case last citirrespective of ownership, or of any contracted, "because otherwise the paramount purin the care, handling, and storage of the pose of Congress-prevention of unjust disproperty transported, from the time the car crimination-might be defeated." The fixis delivered to the consignor for loading un- ing of rates by the Interstate Commerce til it is returned empty by the consignee. Commission establishes that they are reasonThe principle was applied in Southern Rail- able and not discriminatory. Keogh v. Chiway Co. v. Prescott, 240 U. S. 632, 36 S. Ct. cago & Northwestern Railway Co., supra; 469, 60 L. Ed. 836, and in Cleveland, Cin- Interstate Commerce Com. v. Atchison, Tocinnati, Chicago & St. Louis Railway Co. v. peka & Santa Fé Railway Co., 234 U. S. 294, Dettlebach, 239 U. S. 588, 36 S. Ct. 177, 60 34 S. Ct. 814, 58 L. Ed. 1319. Such interferL. Ed. 453, in holding that the parties to an ence with the freedom of contract is not an interstate shipment may not by special agree- unconstitutional interference with the liberty ment alter the conditions specified in the of the citizen to make contracts, or an unbill of lading in conformity with the car- constitutional deprivation of his property rier's published regulations governing the without due process of law. Congress has carrier's liability when a shipment is not re- the right to regulate commerce between the moved within 48 hours after notice to the states. It is, a proper exercise of this power consignee of its arrival. The schedule con- in order to prevent unreasonable extortion taining the terms upon which the service of and discriminatory rates and discriminations transportation was rendered was binding up- in the rendition of service and in preferences on both carrier and shipper, and must be to persons or localities, to prescribe the treated as though it were a statute. Penn- terms on which the services of carriers, in sylvania Railroad Co. v. International Coal connection with interstate transportation, Mining Co., 230 U. S. 184, 33 S. Ct. 893, 57 may be rendered, the nature of those servL. Ed. 1446, Ann. Cas. 1915A, 315; Swift & ices, the compensation for them, and the Co. v. Hocking Valley Railway Co., supra. character of the contract between the carrier [6-8] The power given to Congress by the and the shipper. Even existing contracts in Constitution to regulate commerce amongst regard to special rates, rebates, or for free the several states is complete in itself, and transportation in consideration of an execut as an incident of that power Congress may ed consideration, though valid at the time adopt not only such means as are necessary of the going into effect of the act, after that

time were invalid and could not be enforced, | Schaff (C. C. A.) 275 F. 769, 21 A. L. R. 1466, for the reason that all contracts are subject to the possibility that they may, by the exercise of its constitutional power by the legislative authority when the public interest demands it, become illegal. Hoke v. United States, supra; Louisville & Nashville Railroad Co. v. Mottley, 219 U. S. 467, 31 S. Ct. 265, 55 L. Ed. 297, 34 L. R. A. (N. S.) 671; Hite v. Cincinnati, Indianapolis & Western Railroad Co., 284 Ill. 297, 119 N. E. 904; Bullard v. Northern Pacific Railroad Co., 10 Mont. 168, 25 P. 120, 11 L. R. A. 246.

[9] Since the demurrage was a proper terminal charge, for which the appellant was liable as a part of the transportation of the cars, it was payable by the appellant in accordance with the demurrage rules and the average agreement and it was the duty of the appellee to collect it unless the existence of the strike excused the payment. The rules make some exceptions to demurrage charges, such as in case of certain weather conditions, delay or irregularity of the carrier in delivery, resulting in the bunching of cars errors in notices or other railroad errors, none of which apply to the circumstances of this case, but no mention is made of failure to load or un

load because of a strike. The duty of the consignee to unload is positive. Certain exceptions are stated. The duty to unload is therefore absolute in the absence of the expressed exceptions. The appellant claims that the delay was without its fault, that the charge is in the nature of a penalty imposed by law, that it had no voice in the making of the rules, and that the construction of the rules which denies any defense not provided for in the rules is a violation of the constitutional prohibition of the deprivation of property without due process of law. It is true that the rules and rates of demurrage were established by the schedule filed with the Interstate Commerce Commission and approved by it, and the defendant had no more to do with making them than with making the other charges constituting the whole charge for transportation. The demurrage was a part of the charge for transportation. The approval of the schedule by the Commission is conclusive that the charge was reasonable. The liability of the appellant must be determined according to the terms of the contract which by the acts of the parties under the act of Congress was entered into. It was the contract of the par

ties though its terms were prescribed by Con

the question whether a strike in the plant of the shipper which prevented him from moving cars, and the order of the sheriff forbidding any attempt to move them on account of the strike, would relieve the shipper from liability for demurrage charges, was presented. The facts in the case were very similar to the facts in the present case. The United States Circuit Court of Appeals for the Eighth Circuit affirmed the judgment against the defendant, referring in its opinion to the holding of the Interstate Commerce Commission in Conference Ruling No. 8, declaring that:

carriers from the obligation of tariffs provid"The Commission has no power to release ing for demurrage charges, on the ground that such charges have been occasioned by a strike,"

-and concluding:

"In view of the prohibitions of the statute, it is clear that courts are equally without power to release parties from the obligation of tariffs providing for demurrage charges on the ground that such charges have been occasioned by a strike. Congress alone has the power to write such an exception into the statute."

In Southern Railway Co. v. White, 284 F. 560, 26 A. L. R. 1429, the United States Circuit Court of Appeals for the Sixth Circuit held that a shipper who was prevented from returning cars within the time fixed by the demurrage rules for loading because of the destruction of a bridge, caused by an unprecedented storm, between the loading point of his logging railroad and the connection with the railway from which the cars were received, was relieved from demurrage while the impossibility of returning the cars continued. This was on the ground that the storm was of such extraordinary character and violence that the destruction of the bridge should be regarded as an act of God, the court saying:

"We think it is a safe statement of the

general rule to say that when a duty is imposed by law, and its performance becomes impossible on account of an act of God, there can be no recovery of damages for the breach."

Whether this decision was right or not, it is not applicable to this case.

delivered by the Peoria & Pekin Union Rail

The demurrage accrued on account of cars

road Company and the Peoria Railway Terminal Company during the war, while the railroads were being operated by the Direc

gress under its power to regulate commerce between the states, and in so doing to interfere with the right of private contract when the public interest in interstate trans-tor General of Railroads under the proclamaportation demands it. That contract did not excuse the appellant from liability for demurrage because of interference with its business by a strike.

In the case of Sinclair Refining Co. v.

tion of the President and the provisions of the Federal Control Act. It is immaterial whether the demurrage accrued on interstate or intrastate shipments, because authority to enforce intrastate rates as well as inter

(148 N.E.)

state rates was conferred on the President by | 6. Adoption

the act of Congress of August 29, 1916, and
the act of March 21, 1918-the Federal Con-
trol Act.

The judgment will be affirmed.
Judgment affirmed.

3-Statute conferring right of 13. Adoption adoption to be strictly construed.

Adoption being in derogation of common law, statute conferring right must be strictly construed.

12-Court held without jurisdiction of mother in adoption proceedings, where summons served was returnable 27 days after date.

Court was without jurisdiction of mother of child in adoption proceedings under Adoption Act, where summons served on her was returnable 27 days after its date. 14. Courts

32-Jurisdiction of person not acquired, where notice not given as required by law.

Court does not acquire jurisdiction of the person, where record shows that notice was not given as required by law.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Court was without jurisdiction of nonresident father of child in adoption proceedings under Adoption Act, where notice of proceedings was published on three different dates and bore a date different from all dates of publication, and last date was less than 20 days before decree was entered.

15. Adoption 12-Court held without juris- | name, age, sex, and residence of the child,. diction of nonresident father of child in adop- the name of the mother and that she was tion proceedings, in view of defects in publi- insane and confined in the Kankakee State cation of notice. Hospital, the name of the father and that his residence was unknown, and that the child had no legal guardian. The father and mother of the child were made defendants to the petition, and summons was issued commanding them to appear March 27, 1916, and answer the petition. Summons was served upon the mother, Ellen R. Rhydderck, March 4, 1916, by the sheriff of Kankakee county. The sheriff of Douglas county made a return on the summons for the father, David Rhydderck, that he could not be found in his county. Thereupon the county clerk caused to be published in the Tuscola Jour52-Must be mutual to be nal, a weekly newspaper, a notice to David

16. Adoption 14-Decree held subject to attack at any time.

Decree of adoption entered without jurisdiction of subject-matter or persons of defendants to petition is coram non judice, and sub

ject to attack at any time.
17. Estoppel
binding.

Estoppels must be mutual to be binding.

18. Estoppel 97-One not bound by estoppel cannot take advantage of it.

Rhydderck and others stating that the petition to adopt Thomas John Rhydderck was filed, and containing this warning:

"Now unless you appear within 20 days after

An estoppel must bind, and one who is not the date of this notice, and show cause against bound by it cannot take advantage of it.

19. Infants 55-Generally, estoppel in pais inapplicable to infants.

Generally, doctrine of estoppel in pais is inapplicable to infants.

20. Adoption 16-Doctrine of estoppel in pais held inapplicable in proceedings to revoke adoption.

Doctrine of estoppel in pais held inapplicable in proceedings by adoptive mother and heirs of adoptive father to revoke adoption proceedings, since doctrine was inapplicable to child, and hence element of mutuality was wanting. Farmer, Stone, and Heard, JJ., dissenting.

Error to Circuit Court, Douglas County; Franklin H. Boggs, Judge.

such application, the petition shall be taken as confessed and a decree of adoption entered."

This notice was dated March 1, 1916, and was published on the second, ninth and sixteenth days of the same month. March 27, a guardian ad litem appointed for Ellen R. Rhydderck filed a formal answer to the petition, and the petitioners filed a formal replication thereto. David Rhydderck was defaulted. After hearing evidence the court entered its decree finding that it had jurisdiction of the subject-matter and of the parties; that the mother of the child was insane and confined in the Kankakee State Hospital; that the residence of the father of the child was unknown; that the child was in the custody of James W. and Ruth B. Keal, husband and wife, who were fit

Bill for partition by Frederick Harry Keal and others against Thomas John Rhydderck and proper persons and of sufficient ability

and others. Decree for defendants, and complainants bring error. Reversed and remanded.

W. W. Reeves, S. S. Du Hamel, and P. M. Moore, all of Tuscola, and C. H. Swick, of Champaign, for plaintiffs in error.

John H. Chadwick, of Tuscola, guardian ad litem, for defendants in error.

to furnish nurture and education for the child; that said persons desired to adopt the child, and decreeing the child to be their adopted child and changing his name to Thomas Ervin Keal. August 6, 1922, James W. Keal was killed in an automobile accident. He died intestate, seized of farm lands located in Douglas county. In addition to the child, Thomas, living in his home at the time of his death, Keal left surviving him his widow, Ruth B. Keal, his sisters, Mae Osborn, Cora Cox, and Gertrude Shaffer, his brothers, Frederick and George, a half-broth

THOMPSON, J. The defendant in error Thomas John Rhydderck (now known as Thomas Ervin Keal) was born October 27, 1909. In February, 1910, his mother was adjudged insane and committed to the Kan-er, Earl, and two nieces, daughters of a dekakee State Hospital, and Thomas was placed by his father in the care of the Illinois Children's Home and Aid Society. In August, 1910, the society delivered Thomas to James W. and Ruth B. Keal, husband and wife, of Tuscola. On March 1, 1916, they filed in the county court of Douglas county a petition to adopt the child. The petition stated the

ceased sister. There was filed in the circuit court of Douglas county a bill for the partition of the real estate of which Keal died seized, alleging that the adoption proceedings were void, and that Thomas J. Rhydderck is not the adopted son of James W. and Ruth B. Keal, and praying that the lands be partitioned among the widow and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes