Doney v. Northern Pacific Ry. Co.

MR. JUSTICE GALEN

delivered the opinion of the court.

This action was brought by the plaintiff to recover damages for alleged discriminatory and unreasonable freight charges collected by the defendants on certain lumber shipments. Separate general demurrers were interposed by each of the defendants to the plaintiff’s second amended complaint, which were sustained by the lower court and judgment entered dismissing such complaint. The appeal is from the judgment.

Three specifications of error are assigned by the plaintiff, involving but one question, viz.: Does the complaint state facts sufficient to constitute a cause of action? The second amended complaint, after alleging the corporate character of the defendants and the ownership and operation by the Northern Pacific Railway Company as a common carrier of a railroad between the stations of Evaro and Schley, in Missoula county, of St. Regis, in Mineral county, of Hamilton, in Ravalli county, and of Rocker, Butte, and Butte Hill, in Silver Bow county, and the operation by the Butte, Anaconda & Pacific Railway Company of a railroad between Anaconda, Rocker, Butte and Butte Hill, alleges as follows:

“III. That the plaintiff, during the year 1914, was engaged in the business of shipping lumber and various articles of lumber from the said stations of Evaro and Schley to Butte and Butte Hill aforesaid.

“IV. That at all times in question herein, and particularly on and between the eighteenth day of April and the twenty-fourth day of November, in the year 1914, the said defendant Northern Pacific Railway Company received for transportation *220 and undertook to transport and deliver, or cause to be delivered, freight generally and particularly lumber and articles made of lumber, from all of the stations hereinafter mentioned on the line of the railroad of the Northern Pacific Bailway Company to points on Butte Hill aforesaid, by transporting the same over its own line to the said station of Boeker on the line of the Butte, Anaconda & Pacific Bailway Company, and there delivering the same to the Butte, Anaconda & Pacific Bailway Company for transportation from Boeker and delivery at points on Butte Hill aforesaid, and that there was a connection between the said lines at Boeker.

“V. That on the eighteenth day of April,. 1914, and the 'twenty-eighth day of November, 1914, and between the said dates, the said plaintiff delivered to the defendant Northern Pacific Bailway Company, at the said stations of Evaro and Schley, for shipment from the said stations to Butte Hill, sundry quantities of lumber, to-wit, of the kind of lumber used in and around mines and designated mining timbers and stulls, amounting in the aggregate to 163 carloads, and that the same were shipped and transported in carload lots from the said stations of Evaro and Schley.

“VI. That the said defendant, as common carrier, accepted and received the said lumber from said plaintiff at the times and places hereinbefore mentioned, and undertook to transport the said lumber and cause it to be delivered and did transport the said lumber, and cause it to be delivered to a corporation known as the Butte & Superior Copper Company, Limited, at a point on Butte Hill; that the said defendant Northern Pacific Bailway Company caused the said lumber to be delivered, as aforesaid, by transferring the same to the defendant Butte, Anaconda & Pacific Bailway Company at the said station of Boeker; and that from said point the cars on which said lumber was loaded were hauled by the said defendant Butte, Anaconda & Pacific Bailway Company and the lumber thereon delivered by it to the said consignee.

*221 “VII. That the freight on said lumber was payable by plaintiff, that is to say, that the said plaintiff had agreed with the said consignee to deliver the lumber to the latter on Butte H'ill at a price which included the freight, and that the said freight was payable at the point of delivery to the consignee.

“VIII. That the said defendants exacted from the said plaintiff, through the said consignee, and demanded and required payment of freight on said lumber as a condition of the delivery thereof, at the rate of eleven and one-half cents per 100 pounds, and the said plaintiff, through his said consignee, paid the freight therefor at said rate, and that the freight thus paid by the said plaintiff for the said lumber amounts in the aggregate to the sum of $11,157.01; that the said freight, to-wit, the moneys paid for the said freight charges, was paid to and collected by the defendant Butte, Anaconda & Pacific Railway Company.

“IX. That out of the said moneys so collected, the said Butte, Anaconda & Pacific Railway Company retained for its share the sum of one and one-half cents per 100 pounds; and that its charge for its services in the transportation and delivery of the said lumber was one and one-half cents per 100 pounds; and that the remainder of the moneys so collected for said freight, as aforesaid, was paid over by the Butte, Anaconda & Pacific Railway Company to the Northern Pacific Railway Company, and received and retained by it.

“X. That the Butte, Anaconda & Pacific Railway Company, in collecting the said freight, as aforesaid, from the plaintiff, through the said consignee, was acting as the agent of the Northern Pacific Railway Company, as well as for itself.

“XI. And the plaintiff further alleges that the said rate of freight charged and collected from the plaintiff, as aforesaid, was excessive and unreasonable, and that it was excessive and unreasonable to the extent of one and one-half cents per 100 pounds in the case of any and every carload exceeding 60,000 pounds in weight and in the case of every carload of less than 60,000 pounds in weight, said rate was excessive and unreason *222 able to tbe extent that tbe charge made for such carload exceeded $60, and that on every carload of the freight hereinbefore referred to, more than $60 was collected.

“XII. That said rate was also discriminatory as against the plaintiff, and as between the plaintiff and other persons engaged in the same kind of business, and shipping similar articles over defendants’ roads to the said point in similar circumstances, and even from greater distances, to-wit, from Hamilton and St. Regis aforesaid, and that, thereby, such other persons were given a preference over the plaintiff to the extent of said excessive rates; that the said rate was also discriminatory to said extent as against the said stations of Evaro and Schley, and as between the said stations and the said stations of Hamilton and St. Regis, and that it was necessary for the plaintiff to ship the said lumber from the said stations of Evaro and Schley.

“XIII. That the rate charged by and collected for and received by the Northern Pacific Railway Company for the transportation of the said lumber to Rocker and its delivery there to the Butte, Anaconda & Pacific Railway Company was also excessive, unreasonable and discriminatory as aforesaid.

“XIV. That the charge made and collected, as aforesaid, by the Butte, Anaconda & Pacific Railway Company for the transportation of lumber shipped by plaintiff, as aforesaid, was the regular rate charged by said defendant on similar articles of lumber delivered to it in carload lots at Rocker by the Northern Pacific Railway Company for delivery at Butte Hill, and that the said charge was made without any reference to the point of origin on the Northern Pacific Railway of the freight so transported; that the excessive charge over and above a reasonable rate or charge and the discrimination in charges hereinbefore set forth were in the charge made by the Northern Pacific Railway Company and the amount received by it for transportation of the said lumber to Rocker and the transfer there to the Butte, Anaconda & Pacific Railway Company.

*223 “XV. That a rate or charge on said lumber, for handling and transporting the same from either Evaro or Schley aforesaid to Rocker and delivering the same at Rocker to the Butte, Anaconda & Pacific Railway Company, of eight and one-half cents per 100 pounds, in case of carloads in excess of 60,000 pounds and in case of carloads of 60,000 pounds or of a lesser weight, a total charge of $51 per car, would have been, respectively, a reasonable and sufficient rate to have charged therefor, and that such rates or charges were the highest reasonable rates to charge therefor, and that everything above them, or either of them, charged during said period to the plaintiff, was unjust, excessive, unreasonable and discriminatory, as hereinbefore more fully alleged.

“XVI. And plaintiff avers, on his information and belief, that during the whole of the said period, to-wit, on and between the aforesaid dates, the defendant Northern Pacific Railway Company was transporting and causing to be delivered by the Butte, Anaconda & Pacific Railway Company similar articles in similar circumstances and to all points on Butte Hill from Hamilton aforesaid, and for shippers shipping from Hamilton, for ten cents per 100 pounds, and from St. Regis aforesaid, and for shippers shipping from St. Regis, for eleven cents per 100 pounds; that the said rates were for carloads and were accompanied with a minimum requirement of 60,000 pounds; that is to say, that if the load actually shipped was less than 60,000 pounds, the defendants would collect as for 60,000 pounds; that the rate of ten cents per 100 pounds with a minimum requirement weight of 60,000 pounds per ear would have been a sufficient rate to have charged from said stations of Evaro and Schley to Butte Hill and to said point of delivery to said consignee, and from each of them, and was the highest rate that could reasonably have been charged therefrom, and that everything above that charged during the said period to the plaintiff was unjust, excessive, unreasonable, and discriminatory.

*224 “XVII. That the said station of Hamilton is situated on a branch road operated by the said Northern Pacific Railway Company and leaving the main line of the said Northern Pacific Railway Company’s road at Missoula, Mont., and said station of St. Regis is on another branch road operated by said Northern Pacific Railway Company and departing from its main line west of Missoula; that the said stations of Evaro and Schley are situated on the main line of the Northern Pacific Railway Company and west of Missoula; that the distance from either of said last-named stations to Missoula is less than the distance from Hamilton to Missoula and less than the distance from St. Regis to Missoula, to-wit, that Hamilton is distant by said railroad forty-eight miles from Missoula; that St. Regis is distant from Missoula by said railroad seventy-eight miles; that Evaro and Schley are distant respectively from Missoula seventeen and twenty-two miles; that all freight going from Hamilton and St. Regis, as well as from Evaro and Schley and other points on the main line and branches of the road of the Northern Pacific Railway Company, and destined for Butte Hill, had to pass, and did pass, during the period in question, through the same yard of said defendant at Missoula, and that Rocker and Butte Hill are situated east of Missoula.

“XVIII. That no conditions or circumstances existed in favor of St. Regis or Hamilton as against either Evaro or Schley as a shipping point, and that no conditions or circumstances existed at Evaro or Schley or between either of said points and Missoula that would make it more expensive to handle or transport freight from these points, or that would, in any manner, require or justify a higher rate of freight, and that no greater service or different service was rendered to the plaintiff in connection with the transportation of said lumber by the defendants, or either of them, than was rendered by them, and each of them, to shippers of similar articles of lumber from Hamilton or St. Regis, and the said discrimination in rates between the said points and the plaintiff and shippers shipping *225 from Hamilton or St. Begis was unjust and not based upon any fact or condition justifying any difference in rates.

“XIX. Plaintiff further alleges that on or about the fifteenth day of January, 1915, the said defendants reduced the rate on lumber from said stations of Schley and Evaro, to-wit, on such lumber as had been shipped by plaintiff as aforesaid, to ten cents per 100 pounds, the other conditions remaining the same, and put into effect a schedule at the rate of ten cents per 100 pounds, as aforesaid; that thereby the rates from the said stations were put on an equality with the rates from Hamilton aforesaid, and reduced one cent helow the St. Begis rate then in force, and that these reduced rates so established on January 15, 1915, have ever since, up to and including the time of the commencement of this action, remained in force.

‘ ‘ XX. That neither of said defendants was ever authorized by the Board of Bailroad Commissioners of the state of Montana to make, charge, or receive any higher rate, either jointly or severally, from Evaro or Schley aforesaid to Bocker or Butte Hill than from Hamilton or St. Begis to Bocker or Butte Hill, or to make any discrimination in rates between Evaro or Schley and either Hamilton or St. Begis, to any point east of Missoula, by making lesser rates from Hamilton or St. Begis or otherwise.

“XXI. That the said defendants have collected and received, as aforesaid, excessive charges amounting in the aggregate to more than $1,070.21, and that the charges over and above ten cents per 100 pounds where the weight of the load exceeded 60,000 pounds, and in excess of $60 per ear where the weight of the load was 60,000 pounds or less, amount to $1,070.21; that the amount collected, as aforesaid, from the plaintiff for each of said ears and loads, together with the numbers of the cars used in transporting the said lumber and the weight of each ear, as well as the amount of the whole charge, are shown in a statement thereof annexed to this complaint marked ‘Exhibit A5 and made a part hereof, the same as if fully set forth herein.

*226 “XXII. Plaintiff avers, on his information and belief, that payment of said sum to the plaintiff has been demanded on behalf of the plaintiff, but that the defendants have refused, and still refuse, to pay the same, or any part thereof.”

The prayer is for judgment in the sum of $1,070.21, together with interest from the twenty-eighth day of November, 1914, and costs of suit.

[1] We must confess our inability to clearly follow the argument advanced by plaintiff’s learned counsel. After a careful review of the record and of the briefs, and examination of the authorities cited, it is clear to us that the lower court was correct in sustaining the demurrer to the complaint, as it is attempted to plead a cause of action in utter disregard of the Bailroad Commission Law. (Chap. 37, Laws 1907.) In defining their theory of the action, counsel for the plaintiff assert that it “is not based on the Bailroad Commission Law. Therefore the Bailroad Commission Law is in no manner a standard by which the sufficiency of the complaint is to be determined. * * * The complaint does not allege that the commission had fixed a rate and that defendants charged more than that rate.” They contend that the action is based “on the common law, the Constitution, and the written law,” rather than the Bailroad Commission Law. Section 7 of Article XV of the Constitution, relied upon by the plaintiff, reads in part as follows:

“All individuals, associations, and corporations shall have equal rights to have persons or property transported on and over any railroad, transportation or express route in this state. No discrimination in charges or facilities for transportation of freight or passengers of the same class shall be made by any railroad, or transportation, or express company, between persons or places within this state; but excursion or commutation tickets may be issued and sold at special rates, provided such rates are the same to all persons. No railroad or transportation, or express company shall be allowed to charge, collect, or receive, under penalties which the legislative assembly shall pre< *227 scribe, any greater charge or toll for the transportation of freight or passengers to any place or station upon its route or line, than it charges for the transportation of the same class of freight or passengers to any more distant place or station upon its route or line within this state.”

Under this provision, it is contended by the plaintiff: “A shipper from Evaro and Schley could not be subjected to any discrimination in charges or facilities, and as between Hamilton or St. Regis and Evaro and Schley, no discrimination is allowable.” Granting plaintiff’s contention, the language employed in the Constitution clearly indicates that there shall be legislation on the subject, and the legislature in 1907 having provided for a Board of Railroad Commissioners ('Chap. 37, Laws 1907), and prescribed its powers, duties and functions, in the fixing of reasonable freight rates and the prevention of discrimination by independent carriers as well as joint carriers, its provisions are, in our opinion, exclusive in so far as plaintiff’s alleged rights involved are legislated upon, and the remedies thereby prescribed must be followed. "Were there no statute covering the subject, the plaintiff’s contention for the existence of a common-law remedy would be deserving of serious consideration; but since whatever common-law remedies may have been available prior to the enactment of the statute have been superseded thereby, we must now look alone to existing legislation covering the subject. The “written law” relied upon by the plaintiff is the statutory law, and upon reference thereto it appears that plaintiff’s exclusive remedy is by compliance with the provisions of section 4377 or 4389 of the Revised Codes, and he does not allege to have done or pretended to have done either, so that in our opinion the complaint does not state a cause of action upon any theory. It is our view that the statute creating the Board of Railroad Commissioners, enacted in 1907, and now embraced in sections 4363 to 4399, inclusive, of the Revised Codes, is prima facie within the constitutional limitations above quoted respecting the fixing of tariffs on freight shipments over various lines within the state *228 of Montana, and joint tariffs as regards connecting lines, and the prevention of discrimination in the rates charged and collected. If the contention of plaintiff be correct, then the Railroad Commission Law is a nullity, but question concerning its constitutionality is not raised on this appeal, and in the absence thereof, it will be conclusively presumed to be constitutional.

[2] In paragraph XX of the complaint, it is alleged that the defendants were never authorized by the Board of Railroad Commissioners to make, charge or receive, either jointly or severally, a higher rate' from Evaro or Schley to Rocker or Butte Hill than from Hamilton or St. Regis to Rocker or Butte Hill, or to make discrimination in rates between Evaro or Schley and from Hamilton or St. Regis to any point east of Missoula, by making lesser rates from Hamilton to St. Regis; but it is apparent that this allegation is not predicated on section 4389, Revised Codes, as it is not alleged that the amount paid to and collected by the defendants was in excess of the rates fixed and established by the Railroad Commission, and if it be plaintiff’s claim 'that the rate from Evaro and Schley was fixed by the Railroad Commission at ten cents per hundred pounds, and that the defendants collected in excess of such rate, then his action would be under the above section and the complaint fails to allege that the payment was made in Lewis and Clark county, and also fails to allege that the action was brought within twelve months from the date of such payment. Payment in Lewis and Clark county was necessary to give the court of that county jurisdiction in the first instance. (Hewitt Logging Co. v. Northern Pacific Ry. Co., 97 Wash. 597 ; 3 A. L. R. 198, 166 Pac. 1153 ; Atlantic Coast Line R. Co. v. Burnette, 239 U. S. 199 , 60 L. Ed. 226 , 36 Sup. Ct. Rep. 75; American Ry. Co. v. Coronas, 230 Fed. 545 , L. R. A. 1916E, 1095, 144 C. C. A. 599 ;.Corico v. Smith, 97 Misc. Rep. 447 , 161 N. Y. Supp. 293 ; Bemett v. Grand Rapids & I. R. Co., 194 Mich. 64 , L. R. A. 1917E, 322, 160 N. W. 424 ; A. J. Phillips Co. v. Grand Western Trunk Ry. *229 Co., 236 U. S. 663 , 59 L. Ed. 774 , 35 Sup. Ct. Rep. 444.) Clearly this allegation does not predicate plaintiff’s right of recovery of the amount paid the defendants in excess of the rate established by the Board of Railroad Commissioners for such service upon the provisions of this section. However, further consideration of the effect of this allegation becomes unnecessary in view of the express waiver on the part of counsel of any reliance whatsoever upon the Railroad Commission Law.

[3] Section 4375, Revised Codes, provides: “The power and authority is hereby vested in the [State] Board and it is made its duty to adopt as soon as practicable after the organization of the board, all necessary rates, charges and regulations to govern and regulate freight and passenger tariffs. * * * Said board shall also have the power and it shall be its duty, to fix and establish for all or any connecting lines of railroad in this state reasonable joint rates of freight charges,” etc. The presumption is “that official duty has been regularly performed.’] (Sec. 7962, subd. 15, Rev. Codes; Beck v. Holland, 29 Mont. 234 , 74 Pac. 410 ; Burton v. Kipp, 30 Mont. 275 , 76 Pac. 563 ; Grant v. Williams, 54 Mont. 246 , 169 Pac. 286 ; Stephens v. Conley, 48 Mont. 352 , Ann. Cas. 1915D, 958, 138 Pac. 189 ; State v. Groom, 49 Mont. 354 , 141 Pac. 858 ; Grant v. Williams, 54 Mont. 426 , 171 Pac. 276 .)

It ,is also to be presumed that the law has been obeyed. (Sec. 7962, subd. 33, Rev. Codes; Kerr v. Blaine, 49 Mont. 602 , 144 Pac. 566 ; State v. Hopkins, 54 Mont. 52 , Ann. Cas. 1918D, 956, 166 Pac. 304 .)

Sections 4385, 4386 and 4392, Revised Codes, impose heavy penalties on railroads for charging greater or less rates than those fixed by the Railroad Commission, and the presumption is that a railroad in charging a rate has complied with the law, and that the rate is in accordance with the published and approved tariff established by the Railroad Commission. (Cincinnati etc. R. Co. v. Rankin, 241 U. S. 319 , L. R. A. *230 1917A, 265, 60 L. Ed. 1022 36 Sup. Ct. Rep. 555; New York Cent. & Hudson River R. Co. v. Beaham, 242 U. S. 149 , 61 L. Ed. 210 , 37 Sup. Ct. Rep. 43.)

In Charles H. Lilly Co. v. Northern Pacific Ry. Co., 64 Wash. 589 . 117 Pac. 401 , the plaintiff alleged unjust and illegal discrimination in rates and sought recovery of the excess paid by him. The court sustained the demurrer to the complaint because it failed to allege that the carrier had not complied with the provisions of the. Act to regulate commerce. The court said: “It will be observed that the appellant does not allege that the carrier had not complied with the provision of the Act to regulate commerce with reference to filing a schedule of rates, nor does it allege that by the rate charged it exceeded the rate shown on the schedule. Since there is no allegation of a violation of the law in these respects it will be presumed there was no such violation.”

[4] The allegations of the second amended complaint are wholly insufficient to show that the freight charges paid by plaintiff upon shipments made by him were not in accordance with tariffs adopted and in force between such points at the time the shipments were made. A tariff duly filed and published has the force and effect of a statute, binding alike upon the shipper and carrier until modified by the tribunal authorized to change it. (Atchison, Topeka & S. F. Ry. Co. v. Young, 102 Kan. 875 , 171 Pac. 1156 ; Pennsylvania Ry. Co. v. International Coal Co., 230 U. S. 184 , Ann. Cas. 1915A, 315, 57 L. Ed. 1446 , 33 Sup. Ct. Rep. 893.) The allegations of the complaint being insufficient to show that the lumber was not shipped under a duly adopted tariff then in force and effect, does the complaint state facts sufficient to constitute a cause of action, on the theory that the rates charged were in excess of the tariff in force? Section 4389 of the Eevised Codes provides for action by any person or shipper against the railroad to recover amounts paid to any railroad “in excess of the rates, tolls or charges fixed and established by said board for *231 such, services.” This section further provides that such action shall be brought in the district court of the county in which the payment was made and “shall be brought within twelve months from the date of such payment.”

[5] Plaintiff cites and further relies upon section 4398, Revised Codes, which reads as follows: “This Act shall not have the effect to release or waive any right of action by the state or any person for any right, penalty or forfeiture which may have arisen, or may hereafter arise, under any l’aw of this state, and all penalties accruing under this Act shall be cumulative to each other, and a suit for or recovery of one, shall not be a bar to the recovery of any other penalty.” While this section provides that “the fight of action by the state or any person for any right, penalty or forfeiture which may have arisen, or may hereafter arise, under any law of this state,” etc., it does not declare that the remedies for enforcing such rights are not to be governed by the Railroad Commission Law.

Section 4398, Revised Codes, differs in this respect from the provisions in the Interstate Commerce Act (sec. 8595, U. S. Comp. Stats. 1916; 24 Stat. 387 ), which provides: “ * * # Nothing in this Act contained 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.”

The state of Washington in its Public Service Commission Law has a section the same as section 4398 of our statute. In the ease of Hewitt Logging Co. v. Northern Pacific. Ry. Co., supra, the court in an instructive opinion construed this provision, and among other things said: “We may grant that the Constitution declares the common law, but it does not follow that the legislature may not occupy its acknowledged field and define procedures and fix limitations upon the assertion of the right preserved. The ‘Public Service Commission Law’ does not assume to take away the common-law right of action. The legislature has accepted the declaration of the Constitu *232 tion at its full worth, and has by a complete statute endeavored to avoid all of the annoyances and collateral questions attending the assertion of the common-law remedy, such as the reasonableness of the rate in and of itself, and its reasonableness when compared to another rate, the character and extent of service, the attending circumstances, and the measure of recovery which it is said was never defined at common law [citing cases], and which it is said with equal gravity was as certain as a recovery can be upon an implied contract to pay money [citing cases],

“To define procedure, to make a condition precedent, and to fix a limitation does not destroy the force of the Constitution. On the contrary, a law so providing makes it efficient, certain, and uniform in its operation. The substantive right remains; that is, all the citizen can insist upon, for it is held, under authority without limit, that no litigant has a vested right in procedure so long as his right of action is not abolished. * * *

“To say that it is beyond the power of the legislature to provide for an inquiry by a board skilled in the technical science of freight and passenger rates as a prerequisite to the institution óf a suit, and within a definite time, would be to assert the indefensible principle that the legislature could not pass any law of procedure where a right of action existed at, common law. That the legislature intended to save all substantive rights is made plain by the Act itself. Section 104 provides: ‘This Act shall not have the effect to release or waive any right of action by the state or any person for any right, penalty or forfeiture which may have arisen or may hereafter arise under any law of this state.' * * * ’

“And section 111 evidences the legislative intent that all actions brought after the passage of the Act should be governed by the terms of the Act in so far as it defined procedure. Section 111 saves only pending actions, while section 104 saves all substantive rights then accrued or thereafter to accrue. The object of the law was to fix a certain procedure, *233 applicable to all cases, and to avoid the confusion that would follow a holding for appellant. * * *

“The Act to regulate commerce preserves existing rights and remedies; the Public Service Commission Law preserves rights but not remedies except as to cases then pending.”

See, also, Graham Ice Co. v. Chicago, M. & St. P. Ry. Co., 153 Wis. 145 , 140 N. W. 1097 , construing the Bail-road Commission Law of Wisconsin, section 34 of which is the same as section 4398 of our law; in which decision the court said: “It is insisted that section 34, Chapter 362, Laws of 1905, hereinbefore set out, was intended by the legislature to preserve the common-law remedy. It is true that this provision is quite broad, but in view of other parts of the Railroad Commission Law heretofore referred to we are convinced that it was not intended by the legislature to save the common law remedy to the extent of allowing the schedule rate to be attacked in a common-law action. This, we think, appears clearly from the legislation on the subject heretofore referred to. * * *

“In the case at bar there was no application by appellant ¡to the Bailroad Commission to change the schedule rates which rates are claimed to be excessive. The schedule rates must, therefore, in the present action be regarded as the lawful rates. * * * Moreover, as before observed, the legislature has the right within constitutional bounds to fix rates and a remedy by action against the Bailroad Commission is preserved in favor of any aggrieved party, so the rights of all parties are well guarded under the law.”

Our Bailroad Commission Law covers the questions of rates, rebates, discriminations, unjust and unreasonable rates, and other matters relating to intrastate shipments, and makes the Bailroad Commission the rate-fixing body and the tribunal to first determine the questions of discrimination or unreasonableness of rates instead of the railroad companies or the courts.

*234 Section 4390, Revised Codes, provides that any railroad may bring an action against the Board of Railroad Commissioners in the district court to determine whether or not any rate, classification, etc., fixed or established by the board, is just and reasonable.

Section 4391 gives the same remedy to any shipper and provides that he may bring an action in the district court of the county where the principal office or place of business of such railroad is situated or in any county where any classification, rate, toll, charge, regulation or order of the board is applicable, against the Board of Railroad Commissioners as defendants, to determine whether or not any such classification, rate, etc., is just and reasonable. This section further provides: “That until the final decision in any such action, the classification, rate, toll, charge, regulation or order of the board affecting rates or charges shall be deemed to be final and conclusive; except as herein otherwise provided.” And this section further provides: “That in any action, hearing or proceeding in any court, the classifications, rates, tolls, charges, regulations and orders made, fixed and established by said board shall prima facie be deemed to be just, reasonable and proper.”

The board’s orders affecting rates or charges are to be deemed prima facie just and reasonable and the court in modifying or setting them aside should exercise its discretion with reserve and caution. (State ex rel. Board of Railroad Commrs. v. District Court, 53 Mont. 229 , 163 Pac. 115 .) No provision is found in said Act giving the board power to make rates retroactive, nor is there any express provision in the Act authorizing the board, in the event that it determines under section 4377, or the court determines under section 4384 or 4391, that any rate fixed by the board is unjust or unreasonable, to allow reparation to the shipper for the amount paid during the time such rate as fixed by the board was in force. The rate established by the board being prima facie a valid and reasonable rate, presumption as to its validity and reasonableness will be indulged, until its unreasonable or dis *235 criminatory character is found by the board itself. Upon change made in the rate by action of the board, this presumption ceases. No cause of action can arise in favor of the shipper until the rate complained of has been modified, by the Railroad Commission upon proper application to it, or by it after judgment of a court of competent jurisdiction in a direct proceeding within the provisions of the statute, determining the rates as fixed by the board to be excessive or unreasonable. The shipper’s remedy is to promptly have the rate modified, if unreasonable, by the commission, or to have the reasonableness thereof determined by a court in an action to review the reasonableness of the rates as fixed and established. (Graham Ice Co. v. Chicago, M. & St. P. Ry. Co., supra; Northern Pacific Ry. Co. v. Solum, 247 U. S. 477 , 62 L. Ed. 1221 , 38 Sup. Ct. Rep. 550.) Plaintiff’s remedy was to apply to the Railroad Commission for a modification of the rate estáblished or for the fixing of a rate in the event no rate had been established, and upon its refusal to grant relief as against an alleged excessive or discriminatory rate, he is entitled to have the matter determined by a court of competent jurisdiction.

The statute differs from the federal Act in that under the latter Act the Interstate Commerce Commission is expressly authorized to order the railroad to pay to the complainant the sum it may find he has been damaged by reason of an unjust rate or discrimination in violation of the Act (36 Stats. 554; U. S. Comp. Stats., sec. 8584), while under the state Act reparation may only be had in a court proceeding-based upon the findings and records of the Board of Railroad Commissioners (sec. 4389, Revised Codes).

Under the Interstate Commerce Act, when a person seeks to recover back money which it is claimed he was required to pay in excess of some established interstate rate, or where he seeks to recover damages for discrimination practiced against him, or whenever he attacks the reasonableness of a rate, he is required to .present his claim to the Interstate Com *236 meree Commission for examination and adjustment before he can bring an action in the courts, notwithstanding the provisions of section 22 of the Act (U. S. Comp. Stats., sec. 8595) that nothing herein “contained 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.” (Robinson v. Baltimore-Ohio R. Co., 222 U. S. 506 , 56 L. Ed. 288 , 32 Sup. Ct. Rep. 114; Mitchell Coal & Coke Co. v. Pennsylvania Ry. Co., 230 U. S. 247 , 57 L. Ed. 1472 , 33 Sup. Ct. Rep. 916; Howard Supply Co. v. Chesapeake & Ohio Ry. Co. (C. C.), 162 Fed. 188 ; Franklin v. Philadelphia etc. Ry. Co. (D. C.), 203 Fed. 134 ;. United States v. Merchants’ & M. Traffic Assn., 242 U. S. 178 , 61 L. Ed. 233 , 37 Sup. Ct. Rep. 24.)

The reasoning in the above cases applies with equal force to our statute and to the lack of jurisdiction of the courts to pass upon the reasonableness of the rates and discriminations before the commission has taken action thereon. In other words, before any shipper can recover in the courts damages for excess rates or discriminations, the discrimination or unreasonableness of the rate must first be passed upon by the special tribunal expressly created and authorized by law to handle such matters — the Bailroad Commission.

The fact that the Bailroad Commission is not authorized, upon determining that a rate is unreasonable or discriminatory, to order reparation, does not prevent a shipper, after the rate has been so determined by the special tribunal created for that express purpose, from maintaining an action in court to recover damages sustained by him as a result of such unreasonable or discriminatory rate. His action is based upon the fact that such rate has been so declared by the proper tribunal, and the court merely determines the amount of damages, if any, sustained.

*237

[6]

*236 The cases of Santa Fe etc. Co. v. Atchison etc. Ry. Co., 21 N. M. 496, 155 Pac. 1093 , and Murphy v. New York Cent Ry., 170 App. Div. 788 , 156 N. Y. Supp. 49 , cited by plaintiff, *237 are not in conflict with this theory. A voluntary reduction of a rate by a carrier would not make the prior rate unlawful, unreasonable or discriminatory and the basis for an action for damages.

The supreme court of "Wisconsin in an exhaustive opinion has held that a shipper must first present his claim to the Railway Commission for determination of the reasonableness of the rate by that board before he can maintain an action in court. (Graham Ice Co. v. Chicago, M. & St. Ry. Co., supra; see, also, Hewitt Logging Co. v. Northern Pacific Ry. Co., supra; Manufacturers’ Ry. Co. v. Untited States, 246 U. S. 457 , 62 L. Ed. 831 , 38 Sup. Ct. Rep. 383; State ex rel. City of Billings v. Billings Gas Co., 55 Mont. 102 , 173 Pac. 799 ; Beadle v. Kansas City etc. R. Co., 51 Kan. 248 , 32 Pac. 910 ; Winsor Coal Co. v. Chicago & A. R. Co. (C. C.), 52 Fed. 716 ; Chicago, R. I. & P. Ry. Co. v. Gist, 79 Okl. 8 , 190 Pac. 878 .) Were this not the correct procedure under the statute, great and inevitable confusion and uncertainty would result, as there might arise a multiplicity of suits with varied determinations in the several jurisdictions in the state. In the case of State ex rel. City of Billings v. Billings Gas Co., supra, this court, speaking through Mr. Justice Holloway, said: “A consideration of the statute [Chap. 52, Laws 1913] leads to the conclusion that in its enactment the legislature intended to provide a comprehensive and uniform system of regulation and control of public utilities, by a specially created tribunal, through which the state .itself exercises its sovereign power. Our conclusion is that since 1913 the Public Service Commission has had exclusive jurisdiction over the subject of rate regulation of this company [speaking of the tariffs established by the Board of Railroad Commissioners, ex-officio Public Service Commission], that the provisions of the [city] franchise contract fixing rates were superseded by the rates approved by the commission, and that the remedy of the city is by complaint to the commission if the rates now in effect are excessive.” This language is applicable to the parent *238 statute, which establishes a comprehensive system, for the government of common carriers within the state.

[7] Therefore: (1) If the rate charged from Evaro and Schley was the rate fixed and established by the Railroad Commission, and if the plaintiff seeks to have the rate so established declared unjust and unreasonable or discriminatory, he should have proceeded under the provisions of section 4391; or (2) if no rate whatever had been established by the board, or the rate fixed was considered excessive then he should have made application to the board, under section 4377, for investigation and determination as to its justness and reasonableness, before he would be in a position to maintain action in the courts; or (3) if the plaintiff’s case is predicated upon freight charges made in excess of those fixed and established by the Board of Railroad Commissioners, then the complaint should make such allegation and the action must be shown to have been brought within twelve months from the date of payment, under section 4389. In our opinion, the Railroad Commission Law is controlling, and its provisions cannot be disregarded.

The complaint does not state a cause of action, and the judgment.is affirmed.

'Affirmed.

Mr. Chief Justice Brantly and Associate Justices Reynolds, Cooper and Holloway concur.

Rehearing denied June 20, 1921.