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 sug231, 234, 17 Sup. Ct. Rep. 887; Interstate gestion, however, is manifestly without merCommerce Commission v. Baltimore & O. 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 the 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. O. & 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 recogriers 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. O. & 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 and a different one in another, would destroy the prohibitions against preferences and discrimination, and afford, moreover, a ready means by which, through collusive proceedings, the wrongs which the statute was intended to remedy could be successfully inflicted. Indeed, no reason can be perceived for the enactment of the provision

When the general scope of the act is enlightened by the considerations just stated it becomes manifest that there is not only a relation, but an indissoluble unity, between the provision for the establishment and maintenance of rates until corrected in accordance with the statute and the prohibitions against preferences and discrimination. This follows, because, unless the re-endowing the administrative tribunal which quirement of a uniform standard of rates be complied with, it would result that violations of the statute as to preferences and discrimination would inevitably follow. This is clearly so, for if it be that the standard of rates fixed in the mode provided by the statute could be treated on the complaint of a shipper by a court and jury as unreasonable, without reference to prior action by the Commission, finding the established rate to be unreasonable, and ordering the carrier to desist in the future from violating the act, it would come to pass that a shipper might obtain relief upon the basis that the established rate was unreasonable, in the opinion of a court and jury, and thus such shipper would receive a preference or discrimination not enjoyed by those against whom the schedule of rates was continued to be enforced. This can only be met by the suggestion that the judgment of a court, when based upon a complaint made by a shipper without previous action by the Commission, would give rise to a change of the

the act created with power, on due proof, not only to award reparation to a particular shipper, but to command the carrier to desist from violation of the act in the future, thus compelling the alteration of the old or the filing of a new schedule, conformably to the action of the Commission, if the power was left in courts to grant relief on complaint of any shipper, upon the theory that the established rate could be disregarded and be treated as unreasonable, without reference to previous action by the Commission in the premises. This must be, because, if the power existed in both courts and the Commission to originally hear complaints on this subject, there might be a divergence between the action of the Commission and the decision of a court. In other words, the established schedule might be found reasonable by the Commission in the first instance and unreasonable by a court acting originally, and thus a conflict would arise which would render the enforcement of the act impossible.

1. In Swift & Co. v. Philadelphia & R. R. Co. 5 Inters. Com. Rep. 116, 64 Fed. 59, it was held that, in an action at law to recover damages for the exaction of an alleged unreasonable freight charge, the rate established in conformity with the act to regulate commerce must be treated by the courts as binding upon the shipper until regularly corrected in the mode provided by the statute. And in Kinnavey v. Terminal R. Asso. 81 Fed. 802, in an able opinion, the question was carefully considered and the same doctrine was announced and applied. When it is considered that the act to regulate commerce was enacted in 1887, and that neither the diligence of counsel nor our own researches have brought into view any case except the one now under consideration holding that a court could, compatibly with the terms of that act, grant relief upon the basis that the established rate could be disregarded as unreasonable, it would seem to follow that the terms of the act had generally been treated in practical execution as incompatible with the existence of such power or right.

Nor is there merit in the contention that this court, which, whilst not dealing direct89 of the act compels to the conclusion ly 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 from the duty of enforcing the established rate by finding that the same as to a particular person or corporation was so unreasonable as to justify an award of damages. True it is that the general terms of the section, when taken alone, might sanction such a conclusion, but, when the provision of that section is read in connection with the context of the act, and in the light of the considerations which we have enumerated, we think the broad construction contended for is not admissible. And this becomes particularly cogent when it is observed that the power of the courts to award damages to those claiming to have been injured, as provided in the section, contemplates only a decree in favor of the individual complainant, redressing the particular wrong asserted to have been done, and does not embrace the power to direct the carrier to abstain in the future from similar violations of the act; in other words, to command a correction of the established schedules, which power, as we have shown, is conferred by the act upon the Commission in express terms. In other words, we think that it inevitably follows from the context of the act that the independent right of an individual originally to maintain actions in courts to obtain pecuniary redress for violations of the act, conferred by the 9th section, must be confined to redress of such wrongs as can, consistently with the context of the act, be redressed by courts without previous action by the Commission, and, therefore, does not imply the power in a court to primarily hear complaints conconcerning wrongs of the character of the 2. The cases of Cincinnati, N. O. & 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 per se of the rates as an original question; in other words, the correction of the established schedule without previous consideration of the subject by the Commission. It was pointed out that by the effect of the act to regulate commerce it was peculiarly within the province of the Commission to primarily consider and pass upon a contro

And the conclusion to which we are thus constrained by an original consideration of the text of the statute finds direct support, first, in adjudged cases in lower Federal courts, and in the construction which the act has apparently received from the beginning in practical execution; and, second, is persuasively supported by decisions of

And this is greatly fortified when it is borne in mind that the reports of the decisions of the Interstate Commerce Commission show that many cases have been passed upon by that body concerning the unreasonableness of a rate fixed in an established schedule, which have resulted in awarding reparation to shippers and to the making of orders directing carriers to desist from future violation of the act; that is to say, in necessary legal effect, correcting established schedules.

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." This clause, however, cannot in reason be construed as continuing in shippers a common-law right, the continued existence of which would be absolutely inconsistent with the provisions of the act. In other words, the act cannot be held to destroy itself. The clause is concerned alone with rights recognized in or duties imposed by the act, and the manifest purpose of the provision in question was to make plain the intention that any specific remedy given by the act should be regarded as cumulative, when other appropriate common-law or statutory remedies existed for the redress of the particular grievance or wrong dealt with in the act.

and the acts amendatory thereof, "or strictly to observe such tariffs until changed according to law," was made a misdemeanor, and it was also made a misdemeanor to offer, grant, give, solicit, accept, or receive any rebate from published rates or other concession or discrimination. And in the closing sentence of § 1 it was provided as follows:

"Whenever any carrier files with the Interstate Commerce Commission or publishes a particular rate under the provisions of the act to regulate commerce or acts amendatory thereof, or participates in any rates so filed or published, that rate, as against such carrier, its officers, or agents, in any prosecution begun under this act, shall be conclusively deemed to be the legal rate, and any departure from such rate or any offer to depart therefrom shall be deemed to be an offense under this section of this act."

And, by 3, power was conferred upon the Interstate Commerce Commission to invoke the equitable powers of a circuit court of the United States to enforce an observance of the published tariffs.

Concluding, as we do, that a shipper seeking reparation predicated upon the unreasonableness of the established rate must under the act to regulate commerce, primarily invoke redress through the Interstate Commerce Commission, which body alone is vested with power originally to entertain proceedings for the alteration of an established schedule, because the the rates fixed therein are unreasonable, it is unnecessary for us to consider whether the court below would have had jurisdiction to afford relief if the right asserted had not been repugnant to the provisions of the act to regulate commerce. It follows, from what we have said, that the court below erred in the construction which it gave to the act to regulate commerce.

The proposition that, if the statute be construed as depriving courts generally, at the instance of shippers, of the power to grant redress upon the basis that an established rate was unreasonable without previous action by the Commission great harm will result, is only an argument of inconvenience which assails the wisdom of the legislation or its efficiency, and affords no justification for so interpreting the statute as to destroy it. Even, however, if, in any case, we were at liberty to depart from the obvious and necessary intent of a statute upon considerations of expediency, we are admonished that the suggestions of expediency here advanced are not shown on this record to be justified. As we have seen, although the act to regulate commerce has been in force for many years, it appears that, by judicial exposition and in practical execution, it has been interpreted and applied in accordance with the construction which we give it. That the result of such long-continued, uniform construction has not been considered as harmful to the public interests is persuasively demonstrated by the fact that the amendments which have been made to the act have not only 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 judgment below is, therefore, reversed, and the case remanded for further proceedings not inconsistent with this opinion.

Plff. in Err.,

V.

CISCO OIL MILL.

Interstate freight rates are estab

the act requiring the establishment of rates and the adhesion by both carriers and shippers 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 February 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. S. Comp. Stat. Supp. 1905, p. 599], which, although enacted since the shipments in question, is yet illustrative, the wilful fail. ure upon the part of any carrier to file and ure upon the part of any carrier to file and publish "the tariffs or rates and charges," as required by the act to regulate commerce

carrier with the Interstate Commerce Commission and copies are furnished by the railway company to its freight offices, although such rates may not be "posted" as required by 86 of the act to regulate commerce, as amended March 2, 1889 (25 Stat. at L. 855, chap. 382, U. S. Comp. Stat. 1901, p. 3158), which is not made a condition precedent to

the establishment and putting in force of the tariff of rates, but is a provision based upon the existence of an established rate, which has for its object the affording of special facilities to the public for ascertaining the rates actually in force.*

[No. 79.]

with appellee's rate sheets and freight schedule which had been filed with the Interstate Commerce Commission and promulgated as provided by the act of Congress." Deciding, however, that the case before it presented "substantially the same questions, upon substantially 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.

I

.ruary 25, 1907.

N ERROR to the Court of Civil Appeals for the Second Supreme Judicial District of the State of Texas to review a judgment which reversed a judgment of the District Court for Eastland 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 reReversed and remanded for further proceedings.

The facts are stated in the opinion. Messrs. John F. Dillon, Winslow S. Pierce, David D. Duncan, and Thomas J. Freeman for plaintiff in error.

Mr. J. J. Butts for defendant in error.

Mr. Justice White delivered the opinion of the court:

This writ of error is prosecuted to obtain the reversal of a judgment for $641.69, with interest, entered in favor of the Cisco Oil Mill by the court of civil appeals of Texas upon the reversal of a judgment of a

district state court in favor of the Texas & Pacific Railway Company. The action was brought by the oil company to recover of the railway company the principal sum just stated, because of alleged overcharges by the railway company, paid by the oil company under protest at the time of the delivery of four cars of cotton seed, shipped in the month of September, 1901, from towns in Louisiana east of Alexandria, in that state, to Cisco, Texas. The appellate court, after excluding as surplusage averments in the petition "evidently designed to bring the case within the provisions of the Interstate Commerce Act," was of opinion and decided the case upon the hypothesis that the petition stated a valid cause of action at common law for the recovery of the sums coercively collected upon the delivery of the merchandise, in excess of a reasonable rate, and adopted the finding of the trial court as to the amount of the unreasonable

Civ. App.) 85 S. W. 1052], the court, for the reason given by it in that case, reversed the trial court and rendered judgment in favor of the Cisco Oil Mill.

The considerations which made necessary our decision, just announced, reversing the judgment of the court of civil appeals in the Abilene Case, equally apply in the instant case and compel like action. And this result follows despite the contention that a right of action existed because it is assumed no schedule rate was in existence when the shipments were made. This was based on the claim that it was not affirmatively found below that the schedule of rates applicable to the shipments in question had been posted as required by § 6 of the act to regulate commerce, noted in margin.†

The assumption, it is insisted, is authorized because, it is asserted, the conclusion that the schedule of rates became legally operative was not justified by the finding that such schedule had been filed with the Interstate Commerce Commission and copies thereof furnished to the freight officers of the railroad company at Cisco and other points. The contention is without merit.

First paragraph of § 6 of the act to regulate commerce, as amended March 2, 1889 (25 Stat. at L. 855, chap. 382, U. S. Comp. Stat. 1901, p. 3158):

the provisions of this act shall print and "That every common carrier subject to keep open to public inspection schedules showing the rates and fares and charges for the transportation of passengers and property which any such common carrier has established and which are in force at the time upon its route. The schedules printed as aforesaid by any such common carrier shall plainly state the places upon its railroad between which property and passengers will be carried, and shall contain the classification of freight in force, and shall also state separately the terminal charges and any rules or regulations which in anywise change, affect, or determine any part or the aggregate of such aforesaid rates and fares and charges. Such schedules shall be plainly printed in large type, and copies for the use of the public shall be posted in two public and conspicuous places in every depot, station, or office of such carrier where passengers or freight, respectively, are received for transportation, in such form that they shall be accessible to the public and can be conveniently inspected."

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