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lotted land, is without merit, since the right of possession asserted of necessity is dependent upon the existence of an equitable title in the claimant under the legislation of Congress to the ownership of the allotted lands. Indeed, that such was the case plainly appears from the excerpt which we have made from the concluding portion of the opinion of the supreme court of Oregon.
Because, from the considerations previously stated, we are constrained to the conclusion that the court below was without jurisdiction to entertain the controversy, we must not be considered as intimating an opinion that we deem that the principles ap
essary result of the legislation of Congress, the United States retained such control over allotments as was essential to cause the allotted land to inure during the period in which the land was to be held in trust "for the sole use and benefit of the allottees." As observed in the Smith Case, 194 U. S. 408, 48 L. ed. 1043, 24 Sup. Ct. Rep. 676, prior to the passage of the act of 1894, "the sole authority for settling disputes concerning allotments resided in the Secretary of the Interior." This being settled, it follows that, prior to the act of Congress of 1894, controversies necessarily involving a determination of the title, and, incidentally, of the right to the possession, of Indian allot-plied by the court in disposing of the merits ments while the same were held in trust by the United States, were not primarily cog. nizable by any court, either state or Federal. It results, therefore, that the act of Congress of 1894, which delegated to the courts of the United States the power to determine such questions, cannot be construed as having conferred upon the state courts the authority to pass upon Federal questions over which, prior to the act of 1894, no court had any authority. The purpose of the act
of the case were erroneous.
The judgment of the Supreme Court of Oregon is reversed and the cause remanded to that court for further proceedings not inconsistent with this opinion.
The CHIEF JUSTICE, Mr. Justice Brewer, and Mr. Justice Peckham dissent.
of 1894 to continue the exclusive Federal TEXAS & PACIFIC RAILWAY COMPANY,
Plff. in Err.,
ABILENE COTTON OIL COMPANY.
Error to state court-Federal question. consistently with the act to regulate com1. The question whether a state court, merce, can grant relief to a shipper because of the exaction by a common carrier of an alleged unreasonable freight rate for an interstate shipment, when such rate has been filed with the Interstate Commerce Commission and promulgated as provided by the act to regulate commerce, and has not been found to be unreasonable by the Commission, will sustain a writ of error from the Federal Supreme Court to a state court, where such question was presented by the pleadings, was passed upon by the trial court, was expressly and necessarily decided by the highest state court, and is essentially involved in the case.
control over the subject is manifested by the provision of that act which commands that a judgment or decree rendered in any such controversy shall be certified by the court to the Secretary of the Interior. By this provision, as pointed out in the Smith Case, supra, the United States consented to submit its interest in the trust estate and the future control of its conduct concerning the same to the result of the decree of the courts of the United States, a power which such courts could alone exercise by virtue of the consent given by the act. The subsequent legislation of Congress, instead of exhibiting a departure from this policy, confirms it. By the amendments to the act of 1894, approved February 6, 1901, chap. 217 (31 Stat. at L. 760) it is expressly required that in suits authorized to be brought in the circuit courts of the United States respecting allotments of Indian lands, "the parties thereto shall be the claimant as 2. The question whether a schedule of plaintiff and the United States as party de- interstate freight rates filed with the Interfendant." Nothing could more clearly dem-state Commerce Commission was posted as onstrate than does this requirement, the conception of Congress that the United States continued, as trustee, to have an active interest in the proper disposition of allotted Indian lands, and the necessity of its being made a party to controversies concerning the same, for the purpose of securing a harmonious and uniform operation of the legislation of Congress on the subject.
The suggestion made in argument that the controversy here presented involved the mere possession, and not the title, to the al
Error to state court-question reviewable.
required by the act to regulate commerce is not open in the Supreme Court of the United States on writ of error to a state court, where the latter court in effect declared that such schedule was conceded to have been filed and published in conformity with the statute, and it does not appear that if the court, having the evidence before it, had not treated the case as presented, it might not have considered the facts in relation to the publication of the schedule, and affirmatively found facts compelling the conclusion that the statute had been complied with, even if such inference was not suffi
ciently sustained by the findings of the trial | carrier had exacted, over the protest of the court which the appellate court adopted. oil company, on the delivery of the cotton Carriers-remedy for exacting unreasonable seed, the payment of an unjust and unreainterstate rate-necessity of action by In-sonable rate, which exceeded, in the aggreterstate Commerce Commission.
3. A shipper cannot maintain an action gate, by the sum sued for, a just and reasonable charge. There were, moreover, averagainst a common carrier to obtain relief from an alleged unreasonable freight rate ments that the rate exacted was discrimexacted from him for an interstate ship- inatory, constituted an undue preference, ment, without reference to any previous ac- and amounted to charging more for a shorter tion by the Interstate Commerce. Commis- than for a longer haul. Besides a general sion, where such rate has been filed with traverse, the railway company defended on that Commission and promulgated as pro- the ground that the shipments were intervided by the act to regulate commerce, and state, and were, therefore, covered by the is the rate which it is the duty of the car-act of Congress to regulate commerce. rier, under that act, to enforce against shippers until changed in accordance with the provisions of that statute, since the independent right of an individual originally to maintain actions to obtain pecuniary redress for violations of the act, conferred by § 9,1 must be confined to such wrongs as can, consistently with the context of the act, be redressed without previous action by the Commission, and the provision of § 22,2 that nothing therein "shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies," cannot be construed as continuing in shippers a common-law right the continued existence of which would be absolutely inconsistent with the provisions of the statute.
Argued November 2, 1906. Decided February 25, 1907.
ERROR to the Court of Civil Appeals for the Second Supreme Judicial District for the State of Texas to review a judgment which reversed a judgment of the District Court of Taylor County, in that state, in favor of defendant in a suit to obtain relief from an alleged unreasonable interstate freight rate exacted by a common carrier from a shipper, and rendered judgment in favor of the plaintiff for the recovery of the excessive charges. Reversed and remanded for further proceedings.
See same case below (Tex. Civ. App.) 85
S. W. 1052.
The facts are stated in the opinion. Messrs. David D. Duncan, John F. Dillon, Winslow S. Pierce, and Thomas J. Freeman for plaintiff in error.
Mr. Hannis Taylor for defendant in error.
was averred that, as the rate complained of was the one fixed in the rate sheets which the company had established, filed, published, and posted, as required by that act, the state court was without jurisdiction to entertain the cause, and, even if such court had jurisdiction, it could not, without disregarding the act to regulate commerce, grant relief upon the basis that the established rate was unreasonable, when it had not been found to be so by the Interstate Commerce Commission.
The trial court made findings of fact. Those relating to the subject of the establishing, filing, and publishing by the railway company of rate sheets containing the rate which was complained of were as follows:
"7th. That the Western Classification Committee, agent and representative of numerous railways and of defendant, filed with the Interstate Commerce Commission what is known as the Western Classification, giving classifications of different articles or items of merchandise, and in same cotton seed is classed as 'A;' that this was the joint act of a number of roads, and the defendant adopted said joint classification; that on May 30, 1901, the Southwestern Freight Committee, agent of a number of roads and agent of defendant, filed with the said Commission a supplement for numerous roads in connection with defendant, whereby the
rate on cotton seed from all points in Louisiana east of Alexandria was fixed at 67 cents per 100 pounds to all points in Texas from all points in Louisiana east of Alexandria and west of Alexandria.
"8th. That said classification and said rate schedule was adopted by defendant and was filed by said S. W. Freight Committee
with said Interstate Commerce Commission in behalf of defendant.
The oil company, the defendant in error, sued to recover $1,951.83. It was alleged "9th. That copies of said schedule and that, on shipments of car loads of cotton said tariffs and classifications were kept in seed, made in September and October, 1901, the cffice of said defendant at said points over the line of the defendant's road from of shipment and at said Abilene, that is, various points in Louisiana east of Alex- in the freight office and depots, for the andria, in that state, to Abilene, Texas, the inspection of the public, as admitted by
plaintiff, which admission is found in the court as to the unreasonableness of the rate, statement of facts. it was said:
"10th. That, other than said schedule and classification, nothing has been filed with the Interstate Commerce Commission by or in behalf of defendant in the way of classifications, schedules, or rates on cotton seed from points on its road in Louisiana to points on its road in Texas."
"So that we are relieved from a consideration of the difficulties discussed in some of the cases in ascertaining the fact, and therefore now have squarely before us the questions whether, in a state court, a shipper in cases of interstate carriage can, by the principles of the common law, be ac
From the facts found the court stated the corded relief from unjust and unreasonable following as its conclusions:
freight rates exacted from him, or shall re
"1st. The facts so found show that this lief in such cases be denied merely because was an interstate shipment.
"2d. The facts so found show that the defendant complied with the interstate commerce law, and said rates and classifications were thereby properly established and in force, except that the rate charged on cotton seed in car load lots was unreasonable and excessive.
"3d. I find that the rate charged by the defendant was that established under the interstate commerce law."
As nothing in these conclusions relates to the averments of discrimination, undue preference, or a greater charge for a shorter than for a longer haul, those subjects, it may be assumed, were considered to have been eliminated in the course of the trial.
There was judgment for the railway company. When the controversy came to be disposed of by the court of civil appeals, to which the cause was taken, that court deemed there was only one question presented for decision; that is, whether, consistently with the act to regulate commerce, there was power in the court to grant relief upon the finding that the rate charged for an interstate shipment was unreasonable, although such rate was the one fixed by the duly published and filed rate sheet, and when the rate had not been found to be unreasonable by the Interstate Commerce Commission. In opening its opinion the court said (85 S. W. 1052):
"Adopting the construction of the pleadings evidently given them in the briefs, and treating it as presented, the case, briefly stated, is an action by appellant for damages for a violation of an alleged commonlaw right, in that appellee demanded and coercively collected from appellant freight charges in excess of a reasonable compensation, for the transportation of a number of car loads of cotton seed from the town of Cottonport and other designated towns in the state of Louisiana to the city of Abilene
in the state of Texas."
After referring to the findings as to the unreasonableness of the charge exacted, and after pointing out that the railway company had not, by a cross assignment, challenged the correctness of the findings of the trial
such unreasonable rate has been filed and promulgated by the carrier under the interstate commerce act?"
Proceeding in an elaborate opinion to dispose of the question thus stated to be the only one for consideration, the conclusion was reached that jurisdiction to grant relief existed, and that to do so was not repugnant to the act to regulate commerce. Applying these conclusions to the findings of fact, the relief prayed was allowed. The court said:
"We therefore adopt the trial court's findings of fact, and, applying thereto the principles of law we have deduced, reverse the judgment, and here render judgment in appellant's favor for the said sum of $1,951.83, excessive freights charged, together with interest. .
The assigned errors are addressed exclusively to the operation of the act to regulate commerce upon the jurisdiction of the court below to entertain the controversy, and its power in any event to afford relief to the oil company, based upon the alleged unreasonableness of the rate under the cirBefore we take up cumstances disclosed. the consideration of that subject, however, two questions must be disposed of: First, it is insisted that this court is without jurisdiction, because no Federal question is presented. We think it suffices to say that it obviously results from the statements previously made that a question of that character was presented by the pleadings, was passed upon by the trial court, was expressly and necessarily decided by the court below, and is also essentially involved in the cause as it is before us. Second, it is urged that the effect of the act to regulate commerce upon the right of the oil company to recover need not be passed upon, since, even if error on that subject was committed below, a review of the decision in that regard is unnecessary, because, if the correct legal inference be drawn from the facts found by the trial court, which were adopted by the appellate court, it will result that the railway company had not established a legal schedule of rates in compliance with the act to regulate commerce, and therefore the jurisdiction of the court and its right to
afford relief was not at all affected by the provisions of the act. We do not presently stop to consider whether the consequences as to jurisdiction and right to recover which are asserted would result if the premise was well founded, because we think the premise is either shown by the findings to be unfounded or it is not open for contention on the record. The premise rests upon two propositions of fact: a. That the findings of the trial court show that the rate sheet filed was joint and therefore did not necessarily relate to a shipment entirely over the road of the railway company. This contention, we think, is shown by the findings to be without merit, since those findings clearly point out that the rate sheet was filed by an agent of the defendant railroad, was by it adopted, and constituted the only rate sheet embracing the traffic in question. b. Although it is conceded that the evidence showed that the schedule of rates was established and filed with the Interstate Commerce Commission, and was kept at the stations of the railway company for public inspection, and that the oil company had knowledge of the fact, it is insisted that the facts found do not justify the conclusion that there was a compliance with the requirements of the act to regulate commerce as to the posting of the established schedule. We think this contention is not open on this record. As we have seen, the trial court expressly concluded that the railway company had complied with the act to regulate commerce in the matter of filing, etc., its schedule of rates, and the appellate court opened its opinion by the statement that the course of the trial and the briefs of counsel confined the issue for determination to the question of the effect of the act to regulate commerce upon the rights of the parties, manifestly upon the assumption that the correctness of the conclusion of the trial court as to compliance with the act was conceded by both parties. In other words, as the court below, in deciding the case, expressly declared that the course of the argument and briefs of counsel before it had confined the case to the issue of whether there was a right to recover upon the hypothesis that a schedule of rates had been filed and published, we do not think that it is now open to contend that that which the court below in effect declared was conceded in the briefs of counsel to be a lawful schedule of rates was not such. Non constat, that if the court of civil appeals, having the evidence before it, had not treated the case as presented, it might not have considered the facts in relation to the publication of the schedule and affirmatively found facts inevitably compelling the conclusion that the act to regulate commerce 27 S. C.-23.
had been fully complied with, even if such inference was not sufficiently sustained by the findings of the trial court which the appellate court adopted. Because we thus find the question not open for consideration we must not be considered as conceding the correctness of the conclusion attempted to be drawn from the supposed failure to post.
We are thus brought to the underlying proposition in the case, viz., the effect of the act to regulate commerce upon the claim asserted by the oil company. As presented below and pressed at bar, the question takes a seemingly two-fold aspect, the jurisdiction of the court below as affected by the act to regulate commerce and the right to the relief sought consistently with that act, even if jurisdiction existed. We say that these questions are only seemingly different, because they present but different phases of the fundamental question, which is the scope and effect of the act to regulate commerce upon the right of a shipper to maintain an action at law against a common carrier to recover damages because of the exaction of an alleged unreasonable rate, although the rate collected and complained of was the rate stated in the schedule filed with the Interstate Commerce Commission and published according to the requirements of the act to regulate commerce, and which it was the duty of the carrier under the law to enforce as against shippers. We come, therefore, first, to the consideration of that subject.
Without going into detail, it may not be doubted that, at common law, where a carrier refused to receive goods offered for carriage except upon the payment of an unreasonable sum, the shipper had a right of action in damages. It is also beyond controversy that, when a carrier accepted. goods, without payment of the cost of carriage or an agreement as to the price to be paid, and made an unreasonable exaction as a condition of the delivery of the goods, an action could be maintained to recover the excess over a reasonable charge. And it may further be conceded that it is now settled that even where, on the receipt of goods by a carrier, an exorbitant charge is stated, and the same is coercively exacted, either in advance or at the completion of the service, an action may be maintained to recover the overcharge. 2 Kent, Com. 599, and note a; 2 Smith, Lead. Cas. pt. 1, 8th ed. (Hare & W. notes) p. 457.
As the right to recover, which the court below sustained, was clearly within the principles just stated, and as it is conceded that the act to regulate commerce did not, in so many words, abrogate such right, it follows that the contention that the right was taken away by the act to regulate commerce
rests upon the proposition that such result | ods of dealing, and generally to enforce the was accomplished by implication. In testing the correctness of this proposition we concede that we must be guided by the principle that repeals by implication are not favored, and, indeed, that a statute will not be construed as taking away a common-law right existing at the date of its enactment, unless that result is imperatively required; that is to say, unless it be found that the pre-existing right is so repugnant to the statute that the survival of such right would in effect deprive the subsequent statute of its efficacy; in other words, render its provisions nugatory.
Both parties concede that the question for decision has not been directly passed upon by this court, and that its determination is only persuasively influenced by adjudications of other courts. They both, hence, mainly rely upon the text of the act to regulate commerce as it existed at the time the shipments in question were made. The case, therefore, must rest upon an interpretation of the text of the act and is measurably one of first impression.
Let us, without going into detail, give an outline of the general scope of that act, with the object of fixing the rights which it was intended to conserve or create, the the wrongs which it proposed to redress, and the remedies which the act established to accomplish the purposes which the lawmakers
had in view.
The act made it the duty of carriers subject to its provisions to charge only just and reasonable rates. To that end the duty was imposed of establishing and publishing schedules of such rates. It forbade all unjust preferences and discriminations, made it unlawful to depart from the rates in the established schedules until the same were changed as authorized by the act, and such departure was made an offense punishable by fine or imprisonment, or both, and the prohibitions of the act and the punishments which it imposed were directed not only against carriers but against shippers, or any person who, directly or indirectly, by any machination or device, in any manner whatsoever, accomplished the result of producing the wrongful discriminations or preferences which the act forbade. It was made the duty of carriers subject to the act to file with the Interstate Commerce Commission created by that act copies of established schedules, and power was conferred upon that body to provide as to the form of the schedules, and penalties were imposed for not establishing and filing the required schedules. The Commission was endowed with plenary administrative power to supervise the conduct of carriers, to investigate their affairs, their accounts, and their meth
provisions of the act. To that end it was
"That any person or persons claiming to be damaged by any common carrier subject to the provisions of this act may either make complaint to the Commission, as hereinafter provided for, or may bring suit in his or their own behalf for the recovery of the damages for which such common carrier may be liable under the provisions of this act, in any district or circuit court of the United States of competent jurisdiction; but such person or persons shall not have the right to pursue both of said remedies, and must, in each case, elect which one of the two methods of procedure herein provided for he or they will adopt.
And by 22, which we shall hereafter fully consider, existing appropriate commonlaw and statutory remedies were saved.
When the act to regulate commerce was enacted there was contrariety of opinion. whether, when a rate charged by a carrier was, in and of itself reasonable, the person from whom such a charge was exacted had at common law an action against the carrier because of damage asserted to have been suffered by a discrimination against