82 S.E. 1 | N.C. | 1914
This action was brought to recover the difference between the amount charged by defendant and that collected on shipments of peanuts during the period beginning with 1 January, 1908, and ending with 11 April, 1909, and heard on a case agreed. The shipments moved in interstate *77 commerce from Williamston, N.C. to Philadelphia, Pa., and New York City. Defendant's agent at Williamston, on 1 January, 1908, quoted a class rate of 26 cents per 100 pounds, and afterwards refused to deliver certain of the goods to the consignees unless a commodity rate of 36 cents per hundred was paid. This was done and the goods released. The amount of the difference, estimated upon the basis of the number of pounds shipped by plaintiff, is $925.74. The following provisions are made in the Interstate Commerce Act:
"SECTION 6. Every common carrier subject to the provisions of this act shall file with the commission created by this act and print and keep open to public inspection schedules showing all the rates, fares, and charges for transportation between different points on its own route and between points on its own route and points on the route of any other carrier by railroad, by pipe line, or by water, when a through route and joint rate have been established. . . . Such schedules shall be plainly printed in large type, and copies for the use of the public shall be kept 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. The provisions of this section shall apply to all traffic, transportation, and facilities defined in this act. . . . No change shall be made in the rates, fares, and charges or joint rates, fares, and charges which have been filed and published by any common carrier in compliance with the requirements (65) of this section, except after thirty days notice to the Commission and to the public, published as aforesaid, which shall plainly state the changes proposed to be made in the schedule then in force and the time when the changed rates, fares, and charges will go into effect; and the proposed changes shall be shown by printing new schedules, or shall be plainly indicated upon the schedules in force at the time and kept open to public inspection: Provided, that the Commission may, in its discretion and for good cause shown, allow changes upon less than the notice herein specified, or modify the requirement of this section in respect to publishing, posting, and filing of tariffs, either in particular instances or by a general order applicable to special or peculiar circumstances or conditions."
The Interstate Commerce Commission modified section 6 as to time of notice, publication, and posting of rates, as follows: "Every carrier subject to the provisions of the act to regulate commerce (excepting those to which special and specific modifications have heretofore been granted) shall place in the hands and custody of its agent or other representative at every station, warehouse, or office at which passengers *78 or freight are received for transportation, and at which a station agent or a freight agent or a ticket agent is employed, all of the rate and fare schedules which contain rates and fares applying from that station or terminal, or other charges applicable at that station, including the schedules issued by that carrier or by its authorized agent and those in which it has concurred. Such agent or representative shall also be provided with all changes in, cancellations of, additions to, and reissues of such publications in ample time to thus give to the public, in every case, the thirty days notice required by the act. . . . Each of such carriers shall also provide and cause to be posted and kept posted in two conspicuous places in every station waiting-room, warehouse, or office at which schedules are so placed in custody of agent or other representative, notices (of schedules or tariffs) printed in large type, according to form given in order."
(66) The defendant had established a class rate of 26 cents on peanuts prior to 1 February, 1908, and on the latter day it filed with the Interstate Commerce Commission a new tariff, changing the former class rate to commodity rates of 36 cents on peanuts; but it did not file these schedules with its agents or in its offices at the different stations on its line of railway for the purpose of being kept open for the inspection and information of the public, nor did it post the same at said stations, and the agent at Williamston had no such schedule, nor had he been notified of the same when the shipments were made.
The court gave judgment on the case agreed in favor of defendant, and plaintiff appealed. After stating the case: This case involves the construction of section 6 of the Interstate Commerce Act. We have set out in the above statement so much of this act as relates to the matters in controversy. It is admitted in the case agreed that the rate of 26 cents per hundred pounds to Philadelphia, Pa., which was known as a class rate, was the lawful rate at the time the first shipment was made in January, 1908, and, as we will show, the tariff from which this quotation of the rate was taken remained in force throughout the period of the entire shipment of peanuts by interstate traffic moving from Williamston, N.C. and was in no way affected or changed, nor was it suspended by the supposed tariff of 1 February, 1908, so as to authorize the defendant to charge a greater rate for the shipment of the peanuts than was allowable under the tariff or schedule of rates which had been filed and published *79 and was in force on and prior to 1 January, 1908, and this grows out of the fact that there is nothing in the case agreed to show that the tariff or schedule of "1 February, 1908, effective 2 March, 1908," was ever filed and published as required by the act. On the contrary, it is admitted "That said tariff was designated as No. 555, I. C. C. 6114, and that at no time prior to said date (25 March, 1909) had said tariff been filed with the agent of the Atlantic Coast Line Railroad Company (67) at Williamston, N.C. nor had he any notice thereof, nor had the Virginia-Carolina Peanut Company or its officers had any notice thereof until advised by the agent of the A. C. L. Railroad Company at Williamston, N.C. on 11 April, 1909."
If the later tariff was in force, the defendant had not only the right, but it was its duty, to charge according to its rates, and it would have been illegal to have charged less. It had this right, and this duty was imposed, notwithstanding it had quoted a different and lower rate to the plaintiff, and he had actually made all the shipments of his peanuts believing the lower rate to be the true and lawful rate. And this is so, because to charge a rate, even a lower rate, than the one fixed by its published schedule, would be in direct violation of the provision of section 6 of the act prohibiting a carrier "to charge, demand, or collect or receive a greater or less or different compensation for transportation of passengers or property, or for any service in connection therewith, between the points named in its tariffs, than the rates, fares, and charges which are specified in the tariff filed and in effect at the time; nor shall any carrier refund or remit in any manner or by any device any portion of the rates, fares, and charges so specified, nor extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tariffs"; and the carrier is forbidden to engage or participate in the transportation of passengers or property unless the rates, fares, and charges for the same have been filed and published in accordance with the provisions of the act. Hamlin on Interstate Commerce Acts, pages 11 and 12.
It has been held under this section that a carrier must require payment of the lawful or published rate, even though its agent had misrepresented the rate and it had agreed to take the goods for shipment at a lower rate, the published rate being the only lawful one. Railway Co. v. Hefley,
In the last case cited it was held that "the rate fixed in the (68) schedule filed pursuant to the act to regulate commerce is controlling, and it is beyond the power of the carrier to depart from such rates in *80 favor of any shipper, and that the erroneous quotation of rates made by the agent of the railroad did not justify recovery, since to do so would be in effect enabling the shipper, whose duty it was to ascertain the published rate, to secure a preference over other shippers contrary to the act to regulate commerce." And in Railway v. Mugg, supra, it was held that a common carrier may exact the regular rate for an interstate shipment, as shown by its printed and published schedules on file with the Interstate Commerce Commission, and posted in the stations of such carrier, as required by the Interstate Commerce Act, although a lower rate was quoted by the carrier to the shipper who shipped under the lower rate so quoted. There are other cases in that court and many decisions by the Interstate Commerce Commission to the same effect, the latter being collected in Lust and Merriam's Digest of Decisions under the Interstate Commerce Act, pages 802 to 813.
The right of the plaintiff to recover the difference between the amount he was charged and that which he afterwards was required to pay in order to get his goods will depend upon whether the last schedule of rates was lawfully filed and published, and had become effective.
Much of the argument was spent upon the question whether compliance with the requirement that copies of the schedule of rates shall be kept posted in two public and conspicuous places in every depot or station so that they shall be accessible to the public and can be conveniently inspected, was necessary to the operation and effectiveness of the schedule. But it has been held not to be so in several cases: Railway Co. v. Cisco Oil Mill,
But the serious question, and the pivotal one, still remains to be considered, and that is, Was the second of the schedules upon which defendant relies duly filed, published, and in force, so as to be applicable to the shipments? And upon this question we are with the plaintiff.
It is not sufficient, for the purpose of changing a schedule of rates or superseding an existing one, merely to file the new or changed schedule with the Interstate Commerce Commission. This, by itself, does not make it effective, but is only the initial step in that direction. The act provides that, in order to establish a lawful schedule of rates, it must not only be thus "filed with the Commission," but also "printed and kept open to public inspection"; and the provision, further on, in regard to changes in the schedule of rates, is that they "shall not be made except after thirty days notice to the public, published as aforesaid." (Italics ours.) What, then, is meant by the expression, "published as aforesaid"? It is apparent that these words imply that in making an original schedule, (70) "publication" of some kind was essential to its validity and effectiveness. If we refer again to the first clause of section 6, we find that the schedule must first be filed with the Commission, and then it must be "printed and kept open to public inspection." This requires distribution to and among the different stations or depots at which the schedule of rates must have effect, and this is the construction the highest court has placed upon it. The act, in this respect, is obscurely worded, as no precise definition is given of the words "published as aforesaid," or of the word "published," so that we can know with perfect certainty what kind of publication was intended; and therefore we must resort to interpretation. It evidently meant something more than mere "filing" with the Commission, and the only other thing to which it can fairly and reasonably be referred is the additional requirement that the schedules shall be "printed and kept open for public inspection," and this is "promulgation and publication," as authoritatively declared in UnitedStates v. Miller,
The words "kept open to public inspection," it has been held, do not refer to the "posting of the schedules," and this is clear upon (72) the face of the act, as separate provision is made for posting them, so that they will be accessible to the public. They can only refer, therefore, to publication. But the amendment of the Interstate Commerce Commission, authorized by the act, makes perfectly clear what is meant. It provides that the carrier shall place in the hands and custody of its agent at every station, warehouse, or office at which passengers or freight are received for transportation the schedules of all rates and fares "applying from the station or terminal, or other charges applicable at that station, and the same provision is made in regard to any and all changes in the schedules, and this is required to be done thirty days before the schedule or any change therein can become effective. Provision is then made for posting the schedules. Careful and minute provision is then made by the Commission to secure the polite and courteous attention of agents to the requests of shippers for an inspection of schedules filed in their offices. The publication intended by the act, therefore, is filing with the agents at the several stations the schedules, for public inspection, and this is what has been defined by the Court in Miller's case as "promulgation and distribution." Compliance with this requirement is made a condition precedent to the effectiveness of the schedules and the lawfulness of the rate charged thereunder. But the construction of the Court in U.S. v.Miller is unmistakable, and as defendant could not change the existing schedule, in which the rate was 26 cents, without a filing and publication of the change, and as this means "promulgation and distribution" among the several offices and stations of the carrier, where they are to be kept open for public inspection, and also posted, it has not complied with the law so as to make the later schedule effective, and therefore the charge should have been made according to the first schedule, that is, 26 cents per hundred pounds, car-load lots.
We entertain no doubt upon the other question in the case. Plaintiff has shown that the first tariff has continued in force because there has been no valid change made in it. The Commission itself has held that the lawfully established rate remains in force until (73) specifically and legally altered or rescinded. Ohio FoundryCo. v. Railway Co., 19 I. C. C. Rep., 65, 67. This being so, plaintiff has paid to the defendant $925.74 more than it was entitled to receive at 26 cents per one hundred pounds, and this amount is recoverable in this action, as money received to plaintiff's use, it being an illegal overcharge.
Defendant's counsel argued that plaintiff had alleged and shown no damage sustained by him under section 8 of the act, providing that any common carrier violating the provisions of the act shall be liable to the *84
person injured thereby in the full amount of damages sustained in consequence of any such violation. But this is an overcharge and not an unreasonable rate, which has been legally established, and for which another remedy is provided. It was said in Railway Co. v. Abilene CottonOil Co., 204 U.S. at p. 436: "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 the 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, 8 Ed., Hare Wallace notes, p. 547." And in R. R. v. Int. Coal Mining Co.,
The Commission has held that "one of the leading prohibitions of the act is that against the exaction of an `unreasonable' rate, and it is well settled that the Commission has authority to award reparation in case of the exaction of an `unreasonable' rate. As against the carrier, its published tariff rate is conclusive of the fact that any higher rate is unreasonable. It seems fairly certain that in cases of the exaction of a rate higher than the published tariff, the shipper may bring his suit in court in the first instance; but the act also appears to give the Commission and the courts concurrent jurisdiction in this respect. An order will therefore be entered requiring defendant to pay to complainant the amount of the admitted overcharge."
We therefore conclude that the judgment against the plaintiff upon the case agreed was erroneous, and it is reversed, because it should have been for the plaintiff.
Reversed.
Cited: Hardware Co. v. R. R.,
