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[47] Mandamus to compel issuance of ticket.

A person wrongfully refused a commutation ticket may compel its issuance by mandamus.- State ex rel. Atwater v. D. L. & W. R. Co., 48 N. J. L. 55, 2 Atl. 803.

[48] Restraining unlawful charge.

A federal court may properly enjoin carriers from establishing, or increasing to, an unreasonable rate, at the same time leaving the matter in such shape that the Interstate Commerce Commission may ultimately determine whether the contemplated increase is just and reasonable.Kiser Co. v. Central of Ga. R. Co., 158 Fed. 193.

Although an action at law for damages to recover unreasonable rates which have been enacted in accordance with a schedule of rates as filed is forbidden by the Interstate Commerce Act, an injunction may be had to restrain the filing and enforcement of a schedule of unreasonable rates or a change to unjust and unreasonable rates.- Kalispell L. Co. v. Gt. Northern R. Co., 157 Fed. 845.

A railroad duly filed and published a schedule of rates, which certain shippers alleged to be unlawful and unreasonable and a proceeding was being conducted by the Interstate Commerce Commission to determine as to the reasonableness of these rates.-Held, that a court could not grant an injunction to restrain the railroad from charging the schedule rates pending the decision of the Commission.- Potlatch L. Co. v. Spokane Falls & N. R. Co., 157 Fed. 588.

A shipper, when notice is given that a carrier intends to put a rate into effect, which will be unjust or discriminatory, need not wait until the rate has gone into effect and then complain to the Interstate Commerce Commission, but may bring suit to restrain the exaction of the proposed rate.-Jewett v. Ch. M. & St. P. R. Co., 156 Fed. 160.

A court, when it enjoins a proposed unlawful rate, does not make any rate but simply restrains the doing by the carrier of an unlawful act.-— Jewett v. Ch. M. & St. P. R. Co., 156 Fed. 160.

Where a controversy between parties relative to rates is pending before the Interstate Commerce Commission, and no irreparable injury seems threatened, a court of equity will not ordinarily, in advance of the action of the Commission, enjoin the charging of such rates.- Tift v. So. R. Co., 123 Fed. 789.

A bill seeking injunction against extortionate charges must allege that there are some parties who are charged less for the same service than complainant, and that he has no other means of carrying on his business than those whereon he is overcharged.- De Barry Baya Line v. Jacksonville R. Co., 40 Fed. 392.

An individual cannot sue to restrain a surface street railroad from charging a fare in excess of the rate permitted by law. The proper remedy is an action by the Attorney-General to annul the charter.McNulty v. Brooklyn Heights R. Co., 31 Misc. (N. Y.) 674, 66 N. Y. Supp. 57.

An injunction will not be granted to compel a carrier to transport goods at the rates fixed by law, but it will be granted to prevent a carrier from entering into an agreement not to transport goods at the rates fixed by law. Rogers L. & M. Works v. Erie R. Co., 20 N. J. Eq. 379.

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The right to fix rates is a legislative function which the courts cannot exercise, but it is competent for the courts, certainly in the absence of legislative regulations, to protect the public against the exaction of oppressive and unreasonable charges and discrimination.- Griffin v. Water Co., 122 N. C. 206, 30 S. E. 319, 41 L. R. A. 240.

[49] What sum may reasonably be tendered in payment of fare on street cars.

A passenger on a street railroad is not bound to tender the exact fare, but must tender a reasonable sum, and the carrier must accept such tender and furnish change to a reasonable amount. Tender of five dollars for a a five cent fare is not a reasonable sum.-- - Barker v. Central Park R. Co., 151 N. Y. 237, 45 N. E. 550, 35 L. R. A. 489n, affg. s. c. 3 Misc. (N. Y.) 635, 22 N. Y. Supp. 1132.

A tender of a five dollar gold piece for a five cent fare by a passenger who has no smaller change is a reasonable tender, obligating the street railway to furnish change and carry the passenger.- Barrett v. Market St. R. Co., 81 Cal. 296, 22 Pac. 859, 6 L. R. A. 336.

[50] Contracts between competing roads as to fares.

An agreement between a railroad and its competitor that it will not reduce its fares within a specified time, unless required by law, is valid. -Raritan R. Co. v. Middlesex & S. T. Co., 70 N. J. L. 732, 58 Atl. 332.

[51] Right of carrier to prepayment of charges.

Discrimination between connecting carriers in compelling prepayment of charges, see post, § 35, note [6].

By accepting goods for carriage without requiring prepayment a carrier waives its right to payment of its charges in advance.- Grand Rapids & I. R. Co. v. Diether, 10 Ind. App. 206.

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Charges imposed pursuant to rules not published may be recovered,-see post, § 33, note [8].

Actions to recover for violations of long and short haul rule,- see

post, § 36, notes [37]-[41].

Whether statutory remedies supplant existing remedies,- see post, § 40, note [2].

Where on the receipt of goods by a carrier, an exorbitant charge was stated, and the same was coercively exacted either in advance or at the completion of the service, an action could be maintained, at common law, to recover the overcharge.- Texas & P. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. R. (U. S.) 350, revg. s. c. 12 Tex. Ct. R. 498, 85 S. W. 1052.

Consistently with the provisions of the Interstate Commerce Act, a shipper cannot maintain a common law action in a state court for excessive and unreasonable charges on interstate shipments where the rates charged were those duly fixed by the carrier according to the Interstate Commerce Act and not found unreasonable by the Interstate Commerce Commission.- Texas & P. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. R. (U. S.) 350, revg. s. c. 12 Tex. Ct. R. 498, 85 S. W. 1052; Texas & P. R. Co. v. Cisco Oil Mill Co., 204 U. S. 449. 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, at common law, to recover the excess over a reasonable charge.- Texas & P. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. R. (U. S.) 350, revg. s. c. 12 Tex. Ct. R. 498, 85 S. W. 1052.

Liability of a carrier to the shipper for excessive charges does not arise where the carrier has not charged more than the rate fixed by the commission or by statute.- Winsor Coal Co. v. Ch. & A. R. Co., 52 Fed. 716.

A contract for shipment at less than the published rate is void, and no action lies under the Interstate Commerce Act for excessive charges by reason of the violation of such contract.- Red Cloud M. Co. v. So. Pac. R. Co., 9 Inters. Com. R. 216.

Any charges imposed on the shipper in excess of those set forth in the rate schedules may be recovered by the shipper.- Suffern, H. & Co. v. Ind. D. & W. R. Co., 7 Inters. Com. R. 255.

A common carrier is, at common law, subject to an action at law for damages in case of refusal to perform its duties to the public for a reasonable sum, or to recover back the money paid where the charge is excessive. Lough v. Outerbridge, 143 N. Y. 271, 38 N. E. 292, 25 L. R. A. 674, affg. s. c. 68 Hun (N. Y.), 486, 22 N. Y. Supp. 976.

If a carrier makes a reasonable advance in rates while a shipper is unsuccessfully trying to get cars, and the latter pays the increased rate,

he cannot recover the excess charge.- Strough v. N. Y. C. & H. R. R. Co., 92 App. Div. (N. Y.) 584, 87 N. Y. Supp. 30; affd. 181 N. Y. 533, 73 N. E. 1133.

If a shipper voluntarily and without objection pays an increased freight rate, knowing that the railroad had not given ten days' notice of the change as required by the Interstate Commerce Act, he cannot recover the excess charge.- Strough v. N. Y. C. & H. R. R. Co., 92 App. Div. (N. Y.) 584, 87 N. Y. Supp. 30; affd. 181 N. Y. 533, 73 N. E. 1133.

An action will lie against a carrier at common law by the shipper, for the recovery of excess charges-Langdon v. N. Y., L. E. & W. R. R. Co., 58 Hun (N. Y.), 122, 11 N. Y. Supp. 514.

When a carrier refuses to transport property at a fair compensation, the shipper may have redress in an action for damages.- People ex rel. Ohlen v. N. Y. L. E. & W. R. Co., 22 Hun (N. Y.), 533.

The person paying an excessive charge, at the demand of the carrier, has a common law right, independent of statute, to recover back the excess so paid, regardless whether it was paid under protest.- Heiserman v. Burl. C. R. & N. R. Co., 63 Iowa, 732, 18 N. W. 903.

Where the schedules have not been posted as required by the Interstate Commerce Act, and the overcharge is consequently merely one in excess of the rate agreed on between the carrier and shipper, an action to recover the excess may be maintained in the state courts.Wabash R. Co. v. Sloop, 200 Mo. 198, 98 S. W. 607.

A carrier may be compelled, in an action for money had and received, to repay an excess over the freight which may lawfully be charged.Paine & Co. v. Pa. R. Co., 7 Kulp (Pa.), 187.

If, after a state commission has fixed a through rate, a carrier still refuses to accept goods under it, whereby a shipper has to ship his goods at local rates to the connecting point, and then reship them, again at local rates, the carrier is liable for the excess cost of the shipment, and the statutory penalties.-Inman v. St. L. & S. R. Co., 14 Tex. Civ. App. 39, 37 S. W. 37.

Excess charges paid may be recovered back in an action for money had and received.- Great Western R. Co. v. Sutton, L. R., 4 H. L. (Eng.) 226.

[53]

Reparation through Interstate Commerce Commission. A shipper seeking reparation predicated upon the unreasonableness of the rates established pursuant to the Interstate Commerce Act must primarily invoke redress through the Interstate Commerce Commission, which body alone is vested with power originally to entertain proceedings for the alteration of the schedule so established, because the rates fixed therein are unreasonable.- Texas & P. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. R. (U. S.) 350, revg. s. c. 12 Tex.

Ct. R. 498, 85 S. W. 1052; Texas & P. R. Co. v. Cisco Oil M. Co., 204 U. S. 449, 27 Sup. Ct. R. (U. S.) 358.

There is no right of action either under the Federal Anti-trust Act or the Interstate Commerce Act for a readjustment of tariff rates filed and posted, other than through the Interstate Commerce Commission. A shipper cannot maintain an action at law for excessive and ureasonable freight rates exacted on interstate shipments when the rates charged were those which had been duly fixed by the carrier according to the Interstate Commerce Act and had not been found to be unreasonable by the Commission.- American U. Coal Co. v. Pa. R. Co., 159 Fed. 278. Reparation will not be allowed a shipper for a breach of a contract by the carrier to accord a privilege not offered to the general public in the published tariffs.— Shiel v. Ill. Cent. R. Co., 12 Inters. Com. R. 242. Where a shipper seeks to recover under Interst. Com. Act, § 8, damages sustained through enforced payment of excessive transportation charges, it is not necessary to have all the carriers, over whose route the goods were shipped, before the Interstate Commerce Commission to enable it to direct reparation, any carrier concerned being made by that section liable for the full amount of loss.- Independent Ref. Assn. v. W. N. Y. & P. R. Co., 6 Inters. Com. R. 378.

In a proceeding under Interst. Com. Act, § 8, providing that any carrier subject to the provisions of the Act should be liable for the full amount of damages sustained in consequence of any violation of a provision of that Act, where damages resulting from an exaction of excessive charges are sought to be recovered, it is not material whether the claimants, who are the shippers, or the consignees paid the charges. -Independent Ref. Assn. v. W. N. Y. & P. R. Co., 6 Inters. Com. R. 378.

In a proceeding under Interst. Com. Act, § 8, to recover the damages occasioned by the exaction of excessive charges, each carrier over whose route the goods were transported being severally liable for the entire amount, it is immaterial by which line the excessive charge was made, or how it was divided between the lines constituting the route.Independent Ref. Assn. v. W. N. Y. & P. R. Co., 6 Inters. Com. R. 378.

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Where a shipper sues the initial carrier for excessive charges by the connecting carrier, the burden of proof is on the plaintiff to establish the authority of the local station agent of the defendant to bind his company.- McLagan v. Ch. & N. W. R. Co., 116 Iowa, 183, 89 N. W. 233.

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A finding that carriers should discontinue charging a certain rate does not necessarily justify a money recovery by the shipper. Such

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