Lead Opinion

*256 SOMERVILLE, J.

1. We are of the opinion that the instruction given the jury, to the effect that the understanding of the general public and of the lumber trade would properly determine the application of the terms “lumber” and “timber” to forest products when offered for shipment under a freight tariff which discriminates between them as to rates, was too narrow, in that it excluded from consideration the probative force of the practical construction of these terms as evidenced by the practice of the carrier and the assent of shippers for a period of 15 years. We think the jury should have been allowed to consider that practice, which was proven without objection, in determining the meaning of the words “timber” and “lumber” for the purpose of tariff classification.

2. On the other and more important branch of the case, the decisive question very clearly is whether or not defendant’s 6. P. O. No. 2229' was effective as a published and lawful tariff during the period of the shipments referred to.

Section 5525 of the Code provides that—

“No change shall be made by any common carrier in the rates, fares and charges * * * which have been filed,, and published by it, or which are in force at the time, until the proposed changes have been submitted to and approved by an order of the Railroad Commission.”

The evidence shows without dispute that the tariff in question was filed with the Railroad Commission and approved by that body, and that it was published by the carrier, and became effective in practical and exclusive operation for about a year. It is true that the evidence does not directly disclose the making of any precise and formal order of approval. But it must be presumed, in the absence of evidence to the contrary, that the Commission made such an order in the premises as the law and their own orderly practice required them to make.

We do not understand that appellant denies that this tariff was filed, approved, and published as the law requires. On the contrary, we infer from the record, as well as from the argument, that appellant’s real contention is that this tariff was not within the letter or spirit of the order of the Commission pursuant to which it was filed, and that, though originally approved by the Commission, their subsequent finding that it was “not in accordance with the letter or spirit of the order of the Commission,” coupled with the Commission’s order of June 7-9, 191.5, annulling defendant’s rule 1 to this tariff (which applied it to commodity rates), ■and directing the' substitution of a rule which excluded pre-existing commodity rates from its operation, and kept them in force thereafter, effected a complete nullification of the tariff in question, and rendered it unlawful and void ab initio.

A further contention of appellant is that-the commission’s approval of a tariff or of a particular rate being only prima facie evidence of its reasonableness, if the shipper can show that any rate that he has paid was in fact unreasonable, he can recover the excess in an action at law. And a corollary to that contention, also insisted upon, is that any rate thus shown to have been unreasonable is . also ab initio - unlawful within the- meaning and operation vof sections 5553 and 5554 of the Code, which penalize the carrier’s failure on demand to return to the shipper the excess charges collected from him, “in case of any overcharge on published or lawful rates.”

Section 5651 of the Code undertakes to define unlawful rates, viz.:

“All rates, charges, classifications, rules, and regulations adopted or acted upon by any transportation company inconsistent with those prescribed by the commission acting within the scope of its authority, or inconsistent with those prescribed by any statute, shall be unlawful and void.”

In pari passu, section 5527 declares that—

“No railroad or common carrier shall charge, demand, collect, or receive a greater or less compensation for the transportation of passengers or property, of for any service in connection therewith, than is specified in such printed schedules and schedules of joint rates, as may at the time be in force, except as provided by law, or the railroad commission, and the rates, fares, and charges named therein shall he the lawful rates when approved, hy the railroad commission.” ■ (Italics supplied.)

Manifestly there can be but one lawfnl rate in force at any. given time, and that rate by the very terms of the statutes quoted, is the rate which has been filed with and approved by the Commission, andvpublished by the carrier. Behind that rate, so long as it remains unchanged, and so far as its application to specific shipments is concerned, neither shipper nor carrier can go, and courts cannot inquire. Adams v. C. of G. Ry. Co., 198 Ala. 433, 73 South. 650. '

It seems to us that this proposition is self-evident and fundamental, and that it is the foundation of our regulatory system, without which it would fail in its primary purposes, which are to stabilize rates and charges, and to insure equality to shippers in their application. If the rule were otherwise—

“different persons would have different opinions as to what is a fair and reasonable rate; courts and juries, too, would differ, and at one time or place a defendant might be convicted and fined in a large amount for the same act, which, in another place,' or at another time, would be held to be no breach of the law. * * * There would be no certainty of being able U *257 comply with the law.” Chicago, etc., R. Co. v. People, 77 Ill. 443, 446.

The principle and policy of rate regulation, and tlie binding force of the rates which have been filed with and approved by the Commission, are well stated and discussed in Adams v. C. of G. Ry. Co., supra, and in the case of In re Independent Sewer Pipe Co. (D. C.) 248 Fed. 550. See, also, L. & N. R. R. Co. v. McMullen, 5 Ala. App. 667, 59 South. 683, quoting from the opinion in Poor v. C., B. & Q. R. Co, 12, Interst. Com. Com’n R. 418.

In Emerson v. Central of Ga. Ry. Co., 196 Ala. 280, 72 South. 120, L. R. A. 1916F, 120, this court held:

That “it is the duty of the common carrier to inform the consignee of the correct amount due according to the classification and rates on file * * * with * * * the Railroad Commission of the state”; and that “the published classification and rates on file with the Railroad Commission were properly introduced in evidence as showing the classification and rate for the shipment in question.” (Italics supplied.)

See, also, Adams v. C. of G. Ry. Co., 198 Ala. 433, 437, 73 South. 650.

What we have already said is necessarily a denial of appellant’s claim for the penalties provided for by sections 5553, 5554, of the Code, “in case of any overcharge on published or lawful rates.” It is entirely clear that “published rates” in that statute means rates which have been filed, approved, and published as provided by law, and’ that “lawful rates” means all other rates which have been specifically established by legislative enactment, and which therefore could not be established by filing, approval, and publication. The two phrases refer to different classes of rates — different as to the mode of their establishment — and do not connote all rates under a double alternative.

On the evidence in the record our conclusions are: (1) That the rate of 31 cents charged and collected by defendant on plaintiff’s shipments of doors, sashes, and blinds was the rate which had been filed, approved, and published; (2) that it was the lawful rate, whether reasonable or not, and was the only rate which defendant could charge without violating the statutes and penal laws of the state; and (3) that plaintiff is not entitled to recover as for any "excess charges on such shipments, nor as for any penalties accruing under sections 5553 and 5554 of the Code.

It results that the trial court properly granted defendant’s motion for a new trial, and the judgment so ordering must be affirmed.

Affirmed.

ANDERSON, C. X, and McCLELLAN and THOMAS, JJ., concur.

Addendum

On Rehearing.

SOMERVILLE, J.

An examination of the argument of counsel for appellee on the application for rehearing discloses two misconceptions of fact, which permeate and invalidate his conclusions.

1. Tlie record does not show that “on or about the I3th day of August, 1914, the Louisville & Nashville Railroad Company submitted to the Railroad Commission a proposed new schedule of tariffs,” as asserted in brief. On the contrary, it shows a citation to tlie carrier to show cause why the Commission should not establish a, just and equitable scale of freight rates on its line, upon the hearing of which, on the date named, the Commission made an order that the carrier put into effect a schedule of rates thereto attached, with instructions as to their application. To confuse that initial order, which merely propounded a new tariff to the carrier, with the order of approval contemplated by section 5525 of the Code, after the carrier has filed its tariff, is to utterly misconceive the purpose and effect of our system of regulatory laws. Obviously it can make no difference what rates or rules the Commission may have initially proposed to the carrier, or ordered into operation. If thereafter the carrier, whether intending to conform to that order, or otherwise, filed with the Commission a tariff covering the designated field, but not in harmony with the original requirements of the Commission, and the Commission chose to approve that tariff as filed, its order of approval was ipso facto a cancellation of its previous order in so far as it was inconsistent with the approved tariff; and, by force of the statute (Code, § 5525), the rates thus approved, including every rate designated therein, and not excepted from the order of approval, became the lawful rate, binding upon carrier and shipper alike until discontinued and superseded by a valid order of the Commission made under its statutory powers.

We of course understand. that a tariff is a schedule of itemized rates, and that the Commission might have approved some of the rates included in G. P. O. No. 2229, and disapproved others. But the record shows no such discrimination. The order of approval is of the tariff as a whole; and that order, to which we have been constrained to give decisive effect, has been entirely ignored throughout the argument of counsel for ap-pellee.

2. Counsel’s alternative theory of the case is that, even though the rate here in question was published and went into operation with the approval of the Commission, nevertheless the Commission afterwards found (June 7-9, 1915) that said rate was unreasonable and unlawful, and that the previous rate of 18 cents was reasonable, and remained the only lawful rate.

*258 With all due deference to the claims of counsel, no such findings appear. What the Commission did find, as shown on page 34 of the record, was “that the tariff of the [carrier] in effect on its intrastate business at the time of said citation [viz. August 13, 1914] was not just and reasonable,” and “that the rates put into effect by the defendant company by its tariffs G. P. O. 2229 and 2230, under the influence of rule 1 as therein embodied, were not in accord with the letter or spirit of the order of the commission that established those rates.” The order thereupon made was:

That “said rule 1 be annulled and disallowed, and that in lieu thereof the following rules are prescribed as being in compliance with the said order of August 13, 1914, viz.”

This order does not show upon its face any intention that it should be retroactive in its operation. Its only proper and legitimate effect is to thenceforth apply the tariff in question exclusively to mileage rates, and to exclude its application to other commodity rates in force prior to August 13, 1914.

But, even if it were conceded that the Commission intended its order to be retroactive, it is clear that our statutes give the Commission no such power. .Section 5678 provides that; whenever, upon an investigation made under the provisions of chapter 130 of the Code, the Commission shall find any existing rate or rates unreasonable or unjustly discriminatory—

“it shall so determine, and by order fix a reasonable rate, * * * to be imposed, observed, and followed in the future in lieu of that found to be unreasonable, or unjustly discriminatory. * * * (Italics supplied.)

That section seems to relate to proceedings by the Commission ex mero mota, but section 5669, which relates to proceedings on the complaint of a shipper or other individual, also provides for a like order establishing a reasonable rate or rates “which shall be charged, imposed, and followed m the future. * * * ” (Italics supplied.)

Section 5527 provides, as already noted, that the printed and published schedules “shall be the lawful rates when approved by the Bailroad Commission.” Such schedules cannot be made unlawful for and during the period of their approved operation by any subsequent retroactive finding and order of the Commission. Such a practice would be odious to the generally established notions of justice, and would, moreover, be utterly subversive of the policy and utility of any system of rate regulation; for no rate could be relied upon as stable, and neither carrier nor shipper could ever be certain of the basis upon which business was being conducted. For it must be observed that, under such a practice, the Commission would just as well find that a rate approved and imposed by it years before was in fact unreasonably low, and give retroactive operation to the higher rate later found to have been reasonable. Of course no such practice was contemplated, and no such power was vested in the Commission.

Manifestly, whether we consider the reason and policy of the statutes, or their express language, the Commission may not nullify the operation and validity of any tariff or rate which it has previously approved by a statutory order, made under the provisions of sections 5525-5527 of the Code, except as to its future operation.

• Counsel draws analogies from the federal system of rate regulation and procedure, and pungently criticizes the original opinion, supra, because it ignores the principles declared in such cases as T. & P. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. 350, 51 L. Ed. 553, 9 Ann. Cas. 1075, Nat. Pole Co. v. C. & N. W. Ry. Co., 211 Fed. 65, 127 C. C. A. 561, and others, cited by counsel in brief.

In reply we wish merely to call the learned counsel’s attention to the fact that the federal cases have been decided under a regulatory system quite different from our own, and are therefore wholly inapt. Indeed, it should be unnecessary for us to point out that, under the federal system, the carrier files and publishes its tariffs sua sponte, and they go into operation without any judgment or order of approval by the Interstate Commerce Commission, and are subject to review and' condemnation as unreasonable, in which event the law itself provides for restitution to complaining shippers of all charges collected in excess of the rate thereafter found by the Commission to be the reasonable rate, and established by it as such. When the carrier files its rates it is fully understood that they are provisional only, and subject to disallowance, with retroactive effect. In this respect, as will be seen from our previous discussion, the Alabama system is radically different; and counsel’s failure to perceive the difference seems to be the source of all of the fallaciousi reasoning upon which the criticism of our opinion has been grounded.

Counsel likens the initial order of the Commission, dated August 13, 1914, to a corporate charter, under the limitations of which the inconsistent provisions, if any, found in G. F. O. 2229, are null and void. But that analogy is worthless here, for the simple reason that the chartering power — the Commission — is authorized by law to approve such tariff as tire carrier may file, not-standing any previous order inconsistent therewith; and, when it enters its order of approval, as it did in this case, it thereby gives legal sanction to every rate named in the tariff in question, and renders it conclusively the lawful rate until it is duly set *259 aside and superseded in some proceeding prescribed by the statute. In the recent case of E. L. Young Heading Co. v. Payne (Miss.) 89 South. 782, the Supreme Court of Mississippi has reached the same conclusion, under a regulatory system substantially like our own, and the opinion contains an interesting and convincing exposition of the subject.

We have given very thorough consideration to this case, and we think that we fully understand the record, the theories of counsel, and the principles of law that are applicable, and, with that understanding, we unhesitatingly reaffirm the correctness of our original conclusions.

Rehearing denied.

ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.