such person or a preference given by the schedule rate and thus cause the new rate carrier to another. Parsons v. Chicago & resulting from the action of the court to N. W. R. Co. 167 U. S. 447, 455, 42 L. ed. be applicable in future as to all. This sug. 231, 234, 17 Sup. Ct. Rep. 887; Interstate gestion, however, is manifestly without merCommerce Commission v. Baltimore & 0. it, and only serves to illustrate the absoR. Co. 145 U. S. 263, 275, 36 L. ed. 699, lute destruction of the act and the remedial 703, 4 Inters. Com. Rep. 92, 12 Sup. Ct. Rep. provisions which it created which would 844. That the act to regulate commerce arise from a recognition of the right aswas intended to afford an effective means serted. For if, without previous action by for redressing the wrongs resulting from un- the Commission, power might be exerted by just discrimination and undue preference is courts and juries generally to determine tue undoubted. Indeed, it is not open to con- reasonableness of an established rate, it troversy that to provide for these subjects would follow that, unless all courts reached was among the principal purposes of the an identical conclusion, a uniform standard act. Interstate Commerce Commission v. of rates in the future would be impossible, Cincinnati, N. 0. & T. P. R. Co. 167 U. S. as the standard would fluctuate and vary, 479, 494, 42 L. ed. 243, 251, 17 Sup. Ct. dependent upon the divergent conclusions Rep. 896. And it is apparent that the means reached as to reasonableness by the various by which these great purposes were to be courts called upon to consider the subject accomplished was the placing upon all car as an original question. Indeed, the recog. riers the positive duty to establish sched- nition of such a right is wholly inconsistent ules of reasonable rates which should have with the administrative power conferred a uniform application to all, and which upon the Commission, and with the duty, should not be departed from so long as the which the statute casts upon that body, of established schedule remained unaltered in seeing to it that the statutory requirement the manner provided by law. Cincinnati, as to uniformity and equality of rates is N. 0. & T. P. R. Co. v. Interstate Commerce observed. Equally obvious is it that the Commission, 162 U. S. 184, 40 L. ed. 935, existence of such a power in the courts, in5 Inters. Com. Rep. 391, 16 Sup. Ct. Rep. dependent of prior action by the Commis700, 167 U. S. 479, 42 L. ed. 243, 17 Sup. sion, would lead to favoritism, to the enCt. Rep. 896.

forcement of one rate in one jurisdiction When the general scope of the act is en- and a different one in another, would delightened by the considerations just stated stroy the prohibitions against preferences it becomes manifest that there is not only and discrimination, and afford, moreover, a relation, but an indissoluble unity, be- a ready means by which, through collusive tween the provision for the establishment proceedings, the wrongs which the statute and maintenance of rates until corrected in was intended to remedy could be successaccordance with the statute and the prohi- fully inflicted. Indeed, no reason can be bitions against preferences and discrimina- perceived for the enactment of the provision tion. This follows, because, unless the re-endowing the administrative tribunal which quirement of a uniform standard of rates the act created with power, on due proof, not be complied with, it would result that vio- only to award reparation to a particular lations of the statute as to preferences shipper, but to command the carrier to deand discrimination would inevitably follow. sist from violation of the act in the future, This is clearly so, for if it be that the thus compelling the alteration of the old standard of rates fixed in the mode provided or the filing of a new schedule, conformably by the statute could be treated on the com- to the action of the Commission, if the powplaint of a shipper by a court and jury as er was left in courts to grant relief on comunreasonable, without reference to prior ac- plaint of any shipper, upon the theory that tion by the Commission, finding the estab- the established rate could be disregarded and lished rate to be unreasonable, and ordering be treated as unreasonable, without referthe carrier to desist in the future from vio-ence to previous action by the Commission lating the act, it would come to pass that a in the premises. This must be, because, if shipper might obtain relief upon the basis the power existed in both courts and the that the established rate was unreasonable, Comṁission to originally hear complaints on in the opinion of a court and jury, and thus this subject, there might be a divergence such shipper would receive a preference or between the action of the Commission and discrimination not enjoyed by those against the decision of a court. In other words, the whom the schedule of rates was continued established schedule might be found reasonto be enforced. This can only be met by able by the Commission in the first instance the suggestion that the judgment of a court, and unreasonable by a court acting originalwhen based upon a complaint made by a ly, and thus a conflict would arise which shipper without previous action by the Com- would render the enforcement of the act mission, would give rise to a change of the impossible.

Nor is there merit in the contention that this court, which, whilst not dealing direct§ 9 of the act compels to the conclusionly with the question here presented, yet that it was the purpose of Congress to con- necessarily concern the same. fer power upon courts primarily to relieve 1. In Swift & Co. v. Philadelphia & R. R. from the duty of enforcing the established Co. 5 Inters. Com. Rep. 116, 64 Fed. 59, it rate by finding that the same as to a par- was held that, in an action at law to reticular person or corporation was so un- cover damages for the exaction of an alreasonable as to justify an award of dam- leged unreasonable freight charge, the rate ages. True it is that the general terms of established in conformity with the act to the section, when taken alone, might sanc- regulate commerce must be treated by the tion such a conclusion, but, when the pro- courts as binding upon the shipper until vision of that section is read in connection regularly corrected in the mode provided by with the context of the act, and in the light the statute. And in Kinnavey v. Terminal of the considerations which we have enumer- R. Asso. 81 Fed. 802, in an able opinion, the ated, we think the broad construction con question was carefully considered and the tended for is not admissible. And this be- same doctrine was announced and applied. comes particularly cogent when it is ob- When it is considered that the act to reguserved that the power of the courts to award late commerce was enacted in 1887, and that damages to those claiming to have been in- neither the diligence of counsel nor our own jured, as provided in the section, contem- researches have brought into view any case plates only a decree in favor of the indi- except the one now under consideration vidual complainant, redressing the particu- holding that a court could, compatibly with lar wrong asserted to have been done, and the terms of that act, grant relief upon the does not embrace the power to direct the basis that the established rate could be discarrier to abstain in the future from simi- regarded as unreasonable, it would seem to lar violations of the act; in other words, follow that the terms of the act had generto command a correction of the established ally been treated in practical execution as schedules, which power, as we have shown, incompatible with the existence of such powis conferred by the act upon the Commis- er or right. sion in express terms. In other words, we And this is greatly fortified when it is think that it inevitably follows from the borne in mind that the reports of the decontext of the act that the independent right cisions of the Interstate Commerce Comof an individual originally to maintain ac mission show that many cases have been tions in courts to obtain pecuniary redress passed upon by that body concerning the for violations of the act, conferred by the unreasonableness of a rate fixed in an es9th section, must be confined to redress of tablished schedule, which have resulted in such wrongs as can, consistently with the awarding reparation to shippers and to the context of the act, be redressed by courts making of orders directing carriers to desist without previous action by the Commission, from future violation of the act; that is to and, therefore, does not imply the power in say, in necessary legal effect, correcting esa court to primarily hear complaints con- tablished schedules. concerning wrongs of the character of the 2. The cases of Cincinnati, N. 0. & T. P. one here complained of. Although an estab- R. Co. v. Interstate Commerce Commission, lished schedule of rates may have been al- | 162 U. S. 184, 40 L. ed. 935, 5 Inters. tered by a carrier voluntarily or as the re-Com. Rep. 391, 16 Sup. Ct. Rep. 700; Louissult of the enforcement of an order of the ville & N. R. Co. v. Behlmer, 175 U. S. 648, Commission to desist from violating the law, | 44 L. ed. 309, 20 Sup. Ct. Rep. 209; and rendered in accordance with the provisions Interstate Commerce Commission v. Louisof the statute, it may not be doubted that ville & N. R. Co. 190 U. S. 275, 47 L. ed. the power of the Commission would never- 1048, 23 Sup. Ct. Rep. 687, involved the theless extend to hearing legal complaints enforcement against carriers of orders of of, and awarding reparation to, individuals the Commission.

After deciding that the for wrongs unlawfully suffered from the ap- orders of the Commission were not entitled plication of the unreasonable schedule dur- to be enforced because of errors of law coming the period when such schedule was in mitted by that body, this court declined to force.

consider the question of the reasonableness And the conclusion to which we are thus per se of the rates as an original question; constrained by an original consideration of in other words, the correction of the esthe text of the statute finds direct support, tablished schedule without previous confirst, in adjudged cases in lower Federal sideration of the subject by the Commission, courts, and in the construction which the It was pointed out that by the effect of the act has apparently received from the be- act to regulate commerce it was peculiarly ginning in practical execution; and, second, within the province of the Commission to is persuasively supported by decisions of primarily consider and pass upon a controversy concerning the unreasonableness per a recovery of the excess collected over the se of the rates fixed in an established sched- quoted rate was allowed by a court of the ule. It was, therefore, declared to be the state of Texas. Reversing the judgment, it duty of the courts, where the Commission was here held that the rate fixed in the had not considered such a disputed ques- schedule filed pursuant to the act to regution, to remand the case to the Commission late commerce was controlling, that it was to enable it to perform that duty,-a con- beyond the power of the carrier to depart clusion wholly incompatible with the con- from such rates in favor of any shipper, ception that courts, in independent proceed- and that the erroneous quotation of rates ings, were empowered by the act to regulate made by the agent of the railroad did not commerce, equally with the Commission, justify recovery, since to do so would be, primarily to determine the reasonableness in effect, enabling the shipper, whose duty of rates in force through an established it was to ascertain the published rate, to schedule.

secure a preference over other shippers, conIn Gulf, C. & S. F. R. Co. v. Hefley, 158 trary to the act to regulate commerce. U. ed, , esthe facts were these: A rate had been fixed tablished rates upon both the carrier and by a carrier in a bill of lading for an inter- the shipper, as expounded in the two destate shipment, which rate was less than that cisions of this court just referred to, the established under the provisions of the act to contention now made, if adopted, would regulate commerce. On arrival of the goods necessitate the holding that a cause of acat destination the carrier refused to deliver tion in favor of a shipper arose from the on tender of payment of the bill of lading failure of the carrier to make an agreement, rate, and demanded payment of and collect- when, if the agreement had been made, both ed the higher established schedule rate. For the carrier and the shipper would have been so doing, the carrier was proceeded against guilty of a criminal offense and the agreeunder a statute of the state of Texas, im- ment would have been so absolutely void as posing a penalty upon a carrier for char- to be impossible of enforcement. Nor is ging more than the rate fixed in a bill of lad- there force in the suggestion that a like diing. A judgment of the state court, en- lemma arises from the recognition of power forcing the penalty, was reversed, upon the in the Commission to award reparation in ground that the state statute, as applied, favor of an individual because of a finding was repugnant to the act to regulate com- by that body that a rate in an established merce, the court saying (p. 102, L. ed. p. schedule was unreasonable. As we have 911, Sup. Ct. Rep. p. 803):

shown, there is a wide distinction between “The carrier cannot obey one statute

the two cases.

When the Commission is without sometimes exposing itself to the called upon, on the complaint of an indipenalties prescribed by the other. Take the vidual, to consider the reasonableness of an case before us: If, in disregard of the joint established rate, its power is invoked not tariff established by the defendant and the merely to authorize a departure from such St. Louis & San Francisco Railway Com- rate in favor of the complainant alone, but pany and filed with the Interstate Com to exert the authority conferred upon it by merce Commission, the latter company, as the act, if the complaint is found to be a matter of favoritism, had issued this bill just, to compel the establishment of a new of lading at a rate less than the tariff rate, schedule of rates applicable to all. And both the defendant company and its agent like reasoning would be applicable to the would, by delivering the goods upon the re- granting of reparation to an individual after ceipt of only such reduced rate, subject the establishment of a new schedule because themselves to the penalties of the national of a wrong endured during the period when law; while, on the other hand, if the tariff the unreasonable schedule was enforced by rate was insisted upon, then the corpora- the carrier and before its change and the tion would become liable for the damages establishment of a new one. In other words, named in the state act. In case of such the difference between the two is that which, a conflict the state law must yield.”

on the one hand, would arise from destroy. In Texas & P. R. Co. v. Mugg, 202 U. S. ing the uniformity of rates which it was the 242, 50 L. ed. 1011, 26 Sup. Ct. Rep. 628, object of the statute to secure, and, on the the facts were as follows: On an interstate other, from enforcing of that equality which shipment a given rate, less than the lawful the statute commands. schedule rate, was quoted to the shipper by

But it is insisted that, however, cogent the agent of the railroad at the point of may be the views previously stated, they shipment. On the arrival of the goods at should not control, because of the following their destination the road exacted the sched- provision contained in § 22 of the act to ule rate, whilst the shipper insisted he was regulate commerce, viz.: ". Nothing entitled to the lower and quoted rate. And I in this act contained shall in any way

.

abridge or alter the remedies now existing and the acts amendatory thereof, “or strictly at common law or by statute, but the pro- to observe such tariffs until changed acvisions of this act are in addition to such cording to law," was made a misdemeanor, remedies.” This clause, however, cannot in and it was also made a misdemeanor to reason be construed as continuing in ship-offer, grant, give, solicit, accept, or receive pers a common-law right, the continued any rebate from published rates or other existence of which would be absolutely in concession or discrimination. And in the consistent with the provisions of the act. closing sentence of 1 it was provided as In other words, the act cannot be held to follows: destroy itself. The clause is concerned alone "Whenever any carrier files with the Inwith rights recognized in or duties imposed terstate Commerce Commission or publishes by the act, and the manifest purpose of a particular rate under the provisions of the the provision in question was to make plain act to regulate commerce or acts amendatory the intention that any specific remedy given thereof, or participates in any rates so filed by the act should be regarded as cumulative, or published, that rate, as against such when other appropriate common-law or carrier, its officers, or agents, in any prosestatutory remedies existed for the redress cution begun under this act, shall be conof the particular grievance or wrong dealt clusively deemed to be the legal rate, and with in the act.

any departure from such rate or any offer The proposition that, if the statute be to depart therefrom shall be deemed to be construed as depriving courts generally, at an offense under this section of this act.” the instance of shippers, of the power to And, by $ 3, power was conferred upon grant redress upon the basis that an estab- the Interstate Commerce Commission to inlished rate was unreasonable without pre- voke the equitable powers of a circuit court vious action by the Commission great harm of the United States to enforce an observe will result, is only an argument of incon- ance of the published tariffs. venience which assails the wisdom of the Concluding, as we do, that a shipper seeklegislation or its efficiency, and affords no ing reparation predicated upon the unreajustification for so interpreting the statute sonableness of the established rate must as to destroy it. Even, however, if, in any under the act to regulate commerce, pricase, we were at liberty to depart from the marily invoke redress through the Interstate obvious and necessary intent of a statute Commerce Commission, which body alone is upon considerations of expediency, we are vested with power originally to entertain admonished that the suggestions of expe- proceedings for the alteration of an estabdiency here advanced are not shown on this lished schedule, because the rates fixed record to be justified. As we have seen, al- therein are unreasonable, it is unnecessary though the act to regulate commerce has for us to consider whether the court below been in force for many years, it appears would have had jurisdiction to afford relief that, by judicial exposition and in practi- | if the right asserted had not been repugnant cal execution, it has been interpreted and to the provisions of the act to regulate applied in accordance with the construction commerce. It follows, from what we have which we give it. That the result of such said, that the court below erred in the con

. long-continued, uniform construction has struction which it gave to the act to regunot been considered as harmful to the pub- late commerce. lic interests is persuasively demonstrated by The judgment below is, therefore, reversed, the fact that the amendments which have and the case remanded for further proceedbeen made to the act have not only ings not inconsistent with this opinion. not tended to repudiate such construction, but, on the contrary, have had the direct effect of strengthening and making, if possible, more imperative, the provisions of TEXAS & PACIFIC RAILWAY COMPANY, the act requiring the establishment of rates

Plff. in Err., and the adhesion by both carriers and ship

CISCO OIL MILL. pers to the rates as established until set aside in pursuance to the provisions of the Carriers-interstate freight rates-posting. act. Thus, by § 1 of the act approved Feb

Interstate freight rates are estabruary 19, 1903, commonly known as the El-lished when a schedule thereof is filed by a kins act [32 Stat. at L. 847, chap. 708, U. carrier with the Interstate Commerce ComS. Comp. Stat. Supp. 1905, p. 599], which, mission and copies are furnished by the railalthough enacted since the shipments in way company to its freight offices, although question, is yet illustrative, the wilful fail. such rates may not be “posted” as required ure upon the part of any carrier to file and by $ 6 of the act to regulate commerce, as ure upon the part of any carrier to file and amended March 2, 1889°(25 Stat. at L. 875, publish "the tariffs or rates and charges,"chap. 382, U. S. Comp. Stat. 1901, p. 3158), as required by the act to regulate commerce which is not made a condition precedent to

the establishment and putting in force of , with appellee's rate sheets and freight schedthe tariff of rates, but is a provision based ule which had been filed with the Interstate upon the existence of an established rate, Commerce Commission and promulgated as which has for its object the affording of spe provided by the act of Congress.” Deciding, cial facilities to the public for ascertaining however, that the case before it presented the rates actually in force.*

"substantially the same questions, upon sub[No. 79.)

stantially the same state of facts," which

had been passed on in the case of Abilene Submitted November 2, 1906. Decided Feb. Cotton Oil Co. v. Texas & P. R. Co. [(Tex. •ruary 25, 1907.

Civ. App.) 85 S. W. 1052], the court, for

the reason given by it in that case, reversed N ERROR to the Court of Civil Appeals the trial court and rendered judgment in I

for the Second Supreme Judicial District favor of the Cisco Oil Mill. of the State of Texas to review a judgment The considerations which made necessary which reversed a judgment of the District our decision, just announced, reversing the Court for Eastland County, in that state, in judgment of the court of civil appeals in favor of defendant in a suit to obtain relief the Abilene Case, equally apply in the infrom an alleged unreasonable interstate stant case and compel like action. And this freight rate exacted by a common carrier result follows despite the contention that from a shipper, and rendered judgment in a right of action existed because it is asfavor of the plaintiff for the recovery of sumed no schedule rate was in existence the excessive charges. Reversed and re-when the shipments were made. This was manded for further proceedings.

based on the claim that it was not affirmaThe facts are stated in the opinion. tively found below that the schedule of rates

Messrs. John F. Dillon, Winslow. S. Pierce, applicable to the shipments in question had David D. Duncan, and Thomas J. Freeman been posted as required by § 6 of the act for plaintiff in error.

to regulate commerce, noted in margin. Mr. J. J. Butts for defendant in error. The assumption, it is insisted, is author.

ized because, it is asserted, the conclusion Mr. Justice White delivered the opinion that the schedule of rates became legally of the court:

operative was not justified by the finding This writ of error is prosecuted to ob- that such schedule had been filed with the tain the reversal of a judgment for $641.69, Interstate Commerce Commission and copies with interest, entered in favor of the Cisco thereof furnished to the freight officers of Oil Mill by the court of civil appeals of Tex- the railroad company at Cisco and other as upon the reversal of a judgment of a

points. The contention is without merit. district state court in favor of the Texas & Pacific Railway Company. The action † First paragraph of § 6 of the act to reg. was brought by the oil company to recover ulate commerce, as amended March 2, 1889 of the railway company the principal sum (25 Stat. at L. 855, chap. 382, U. S. Comp. just stated, because of alleged overcharges

Stat. 1901, p. 3158): by the railway company, paid by the oil the provisions of this act shall print and

“That every common carrier subject to company under protest at the time of the keep open to public inspection schedules delivery of four cars of cotton seed, shipped showing the rates and fares and charges for in the month of September, 1901, from the transportation of passengers and proptowns in Louisiana east of Alexandria, in erty which any such common carrier has esthat state, to Cisco, Texas. The appellate tablished and which are in force at the time

The schedules printed as court, after excluding as surplusage aver. upon its route. ments in the petition “evidently designed to aforesaid by any such common carrier shall bring the case within the provisions of the plainly state the places upon its railroad

between which property and passengers will Interstate Commerce Act,” was of opinion be carried, and shall contain the classificaand decided the case upon the hypothesis tion of freight in force, and shall also state that the petition stated a valid cause of ac- separately the terminal charges and any tion at common law for the recovery of the rules or regulations which in anywise sums coercively collected upon the delivery change, affect, or determine any part or the of the merchandise, in excess of a reasonable aggregate of such aforesaid rates and fares rate, and adopted the finding of the trial and charges. Such schedules shall be plaincourt as to the amount of the unreasonable ly printed in large type, and copies for the

use of the public shall be posted in two pubexaction. In its opinion the court of civil appeals station, or office of such carrier where pas,

lic and conspicuous places in every depot, expressly declared that the trial court had station, or office of such carrier where pas

sengers or freight, respectively, are received rendered judgment in favor of the railway for transportation, in such form that they company because the rate demanded and shall be accessible to the public and can be collected of the oil company "was in accord conveniently inspected."

Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, $ 81.