his election a citizen of the United States and shall have been a resident of the territory embraced within the State for a period of two years, and of the territory com prising the district from which he is elected for a period of one year, and unless he shall have attained the age of thirty years and shall have been a lawyer licensed by some court of record, or shall have been a judge of some court of record, or such judge and lawyer at least five years.

The terms of office of the justices of the Supreme Court shall be six years, except as herein provided. Each member of such court shall be a conservator of the peace throughout the State, and in case of a vacancy in the membership of said court, the Governor shall, by appointment from the district, fill such vacancy until the next general election for State officers, and at such general election the vacancy for the unexpired term shall be filled by election by the qualified voters of the State.

Sec. 4. The terms of office of the Justices of the Supreme Court shall commence on the first Monday of January following their election: Provided, however, That the terms of office of the justices elected at the first election under this Constitution shall commence upon the admission of the State into the Union, and shall continue as hereinafter provided. Those appointed or elected to fill vacancies shall enter upon the discharge of their duties as soon as they qualify.

Sec. 5. The sessions of the Supreme Court shall be held at the seat of Government, and the sessions and duration thereof shall be fixed by rule of said court, until fixed by the Legislature; but the first term of the Supreme Court shall be held within ninety days after the admission of the State. The Supreme Court shall render a written opinion in each case within six months after said case shall have been submitted for decision.

Sec. 6. At the first session of the Supreme Court the Justices thereof shall elect one of their number Chief Justice, who shall serve as Chief Justice until the expiration of his terra of office. Thereafter the Chief Justice shall be elected in the manner prescribed by law. Of the justices elected at the first election, the term of two of them shall expire at the close of the day next preceding the first Monday in January, nineteen hundred and nine; and the term of two of the others shall expire at the close of the day next preceding the first Monday in January nineteen hundred and eleven; and the term of the other justice shall expire at the close of the day next preceding the first Monday in January, nineteen hundred and thirteen. The Supreme Court shall, by order duly entered in the minutes, provide the means of determining by lot the expiration of the terms of each of the justices as herein before provided, and shall determine, in accordance therewith, and enter in the minutes of the court its order showing the expiration of the term of each of such justices. After the first election, Justices of the Supreme Court shall be elected at the general biennial election next preceding the beginning of their respective terms.

Sec. 7. There shall be elected by the qualified electors of the State at each election for Governor, a clerk of the Supreme Court, who shall be at least 25 years of age and a qualified elector of the State, and whose term shall be the same as that of the Governor, and he shall give bond for the faithful performance of his duty as may be prescribed by law.

Sec. 8. The appellate and original jurisdiction of the Supreme Court shall be invoked in the manner now prescribed by the laws of the Territory of Oklahoma until the Legislature shall otherwise provide.

CURRENT OKLAHOMA DECISIONS.

THE ATCHISON, TOPEKA & SANTA FE
RAILWAY COMPANY, Plaintiff in Error

VS.

P. M. HOLMES, Defendant in Error,

No, 1814.

(Supreme Court of Oklahoma. Filed Feb., 13th, 1907.) Error from District Court of Oklahoma County.

B. F. Burwell, Trial Judge.

Reversed.

1. Where a rate agreed upon between a station agent and a shipper for an interstate shipment was for less than the published tariff rate, but the published rate was demanded and collected at the destination, the difference between the rate agreed upon and the published tariff cannot be recovered in an action by the shipper.

2. No action can be founded upon a contract that is forbidden by law; and where an illegal contract has been executed, in whole or in part, by the payment of money, the court will not lend its aid to one of the parties to such illegal transaction to recover it back.

Statement of the Case.

This was an action brought by P. M. Holmes, defendant in error, against the Atchinson, Topeka and Santa Fe Railway Company, to recover the sum of $44.30, claimed to be due for an alleged overcharge of freight on a car of potatoes from Jewell City, Kans., to Edmond, Oklahoma. The cause was brought in the

the Justice court, judgment was had for the plaintiff, and the defendant appealed. In the district court the case was tried upon the following agreed statement of facts:

"Agreed Statement of Facts."

It is agreed by the parties hereto that the court may consider the following statements as the facts in this case, and from them may make conclusions of law, and render judgment herein. Either party reserving the right to except to said conclusions of law, and judgment and have the right to an appeal to the Supreme Court of this Territory, the same as though this case was tried by a jury.

No. 1. On November 1st, 1899, Alonzo McKinley was station agent for the defendant company at Edmond Oklahoma.

No. 2. On said date said McKinley as such agent told plaintiff that the rate on a car of potatoes from Jewell City, Kansas, to Edmond, Oklahoma, of 30,000 pounds weight, if shipped during the month of November, 1899, would be 29 cents per 100 pounds.

No. 3. That relying on said statement the plaintiff purchased a car of potatoes of 30,000 pounds weight at Jewell City, Kansas, and shipped them to Edmond.

No. 4. On arrival of said car at Edmond, the defendant demanded $131.00 freight on said car, which plaintiff was compelled to pay, to get the car, and did pay under protest.

No. 5. That at the original rate named by such agent, the freight would have been $87.00 on such car, plaintiff being compelled to pay $131.00 was $44.00 in excess of the amount named and this suit is brought to recover the difference in the freight named, and the amount collected.

No. 6. That at the time said freight rate was

named, by said agent the plaintiff explained to such agent that his reason for inquiring the rate was that he wanted to buy potatoes in Northern Kansas and ship them to Edmond, and expected to use the freight rates named to determine whether he could buy, ship and sell at a profit and expected to rely on the rate named for that purpose, which said agent fully understood at the time.

No. 7. That said car of potatoes was shipped on Nov. 2, 1899, from Jewell City, Kansas, on the line of Mo. Pacific Railway to Concordia, Kansas, which was a junction point with the defendant's line. That for its service for hauling said car from Jewell City to Concordia, the Mo. Pacific Railway Company charged $32.00, which was paid to said company in cash by defendant on Nov. 6, 1899, when said car was delivered to the defendant by the Mo. Pacific Railway Co. That on said date, nor during the month of November 1901, the defendant and the Mo. Pacific Railway Co. had no joint tariff rate in force between Jewell City, Kansas and Edmond, Okla.

No .8. That on said date the regular interstate tariff rate on defendant's line covering freight on car of potatoes between Concordia, Kansas, and Edmond, O. T., was 33 cents per 100 pounds.

No. 9. That on arrival of said car at Edmond, O. T., on the 13 day of November, 1899, the defendant collected from plaintiff as freight on such car the $32.00 it had paid to the Mo. Pacific Railway Company and an addition 33 cents per 100 pounds on 30,000 pounds weight the same being its regular tariff rate covering said shipment.

No. 10. At the time said agreement was made by said agent, McKinley as specified in paragraph No. 2, of this agreed statement of facts, the plaintiff did not know the tariff rate established and in force by defend