Opinion of the Court.

247 U.S.

"Where a railroad company operates two lines of railroad between the same points, and the freight rate over one line is less than such rate over the other line, if other conditions are reasonably equal, it is the duty of the company to transport shipments between those points over the line which will give the shipper the benefit of the cheaper rate. To justify transporting such shipments over the other line and thereby compel the shipper to pay the higher rate, the company must show that such line was chosen by the shipper or that the circumstances or exigencies were such that a proper regard for the interests of the shipper precluded the use of the cheaper line."

In the absence of shipping instructions it is ordinarily the duty of the carrier to ship by the cheaper route. But the duty is not an absolute one. The obligation of the carrier is to deal justly with the shipper, not to consider only his interests and to disregard wholly its own and those of the general public. If, all things considered, it would be unreasonable to ship by the cheaper route, the carrier is not compelled to do so. The duty is upon the carrier to select the cheaper route only "if other conditions are reasonably equal." Resort to the more expensive route may be justified. And the justification may rest either upon the peculiar circumstances of a particular case or upon a general practice. In the cases before us the justification is rested upon a general practice. The answers allege that, because of the grades of the two lines, all outbound shipments were and are in general moved over the southerly route on account of the very great expense which another arrangement would entail. It may well be, under such circumstances, that carriage over the interstate route would be justified, even if it appeared that it was feasible to haul freight out of Duluth over the intrastate line. Whether the practice of the carrier of shipping over the interstate route was reasonable, when a lower

intrastate route was open to it, presents an adminstrative question, one of perhaps considerable complexity.

The Railway contends that, since the administrative question upon which its liability depends involves the reasonableness of a practice in interstate commerce and the traffic actually moved in interstate commerce, the court had no jurisdiction to adjudicate the controversy until that administrative question had been determined by the Interstate Commerce Commission. The shipper, on the other hand, urges that the rule which requires such preliminary determination of administrative questions by the Commission applies only to those cases where the question involved is whether a particular rate is unreasonable or whether a particular practice is discriminatory. But the rule is not so limited. It applies, likewise, to any practice of the carrier which gives rise to the application of a rate. Texas & Pacific Ry. Co. v. American Tie & Timber Co., 234 U. S. 138, 147; Pennsylvania R. R. Co. v. Puritan Coal Co., 237 U. S. 121, 131; Pennsylvania R. R. Co. v. Clark Brothers Coal Mining Co., 238 U. S. 456, 469. The Interstate Commerce Commission has frequently entertained proceedings for refunds for misrouting under such circumstances. Indeed, long before these suits were filed, proceedings had been begun before the Interstate Commerce Commission against this and other railroad companies to secure the refunds of amounts paid for shipment over the interstate routes between Minnesota points in excess of that which would have been payable, if shipment had been made over the intrastate routes. Holmes & Hallowell Co. v. Great Northern Ry. Co., 37 I. C. C. 627,

1

1 Willman & Co. v. St. Louis, Iron Mountain & Southern Ry. Co., 22 I. C. C. 405; Lathrop Lumber Co. v. Alabama Great Southern R. R. Co., 27 I. C. C. 250; Texarkana Pipe Works v. Beaumont, Sour Lake & Western Ry. Co., 38 I. C. C. 341; McCaull-Dinsmore Co. v. Great Northern Ry. Co., 41 I. C. C. 178; Cardwell v. Chicago, Rock Island & Pacific Ry. Co., 42 I. C. C. 730.

630, 645, 649. And before the judgments were entered by the Supreme Court of Minnesota in these cases, the Interstate Commerce Commission had determined that, under the circumstances, "the carrier was not required by law to change its methods of operation and abandon the use of its more favorable interstate line"; and had refused to grant refunds in respect to the shipment of other commodities, under circumstances precisely like those presented here.

The fact that the administrative question presented involves an intrastate as well as interstate route does not prevent the application of the rule, that the courts may not be resorted to until the administrative question has been determined by the Commission. It is sufficient that one of the routes is interstate. Compare Minnesota Rate Cases, 230 U. S. 352, 419-420; Houston, East & West Texas Ry. Co. v. United States, 234 U. S. 342.

In numbers 205 and 206 judgments reversed.
In number 526 writ of error dismissed.

AIKINS v. KINGSBURY, AS REGISTER OF THE STATE LAND OFFICE.

ERROR TO THE SUPREME COURT OF THE STATE OF

CALIFORNIA.

No. 265. Submitted April 25, 1918. Decided June 10, 1918.

By the law as it was when he bought, a purchaser of state lands in default as to interest on a deferred payment was liable to have his interest in the land and in the contract foreclosed by a court proceeding begun on summary notice, but subject to his right to redeem by paying interest and costs within 20 days from judgment.

An act was passed declaring forfeiture in such cases in which the default had continued for five years and in which the State prior to the passage of the act had issued another certificate for the same land to a subsequent purchaser, unless all arrears of interest were paid within 6 months of its passage. Held, a change of remedy, not impairing the obligation of the contract of purchase. One whose contract for the purchase of state lands had been for many years in default for nonpayment of interest both before and after the passage of a law forfeiting such contracts if the interest were not paid within a time stated, and who conceded the default and offered no excuse, held, not in a position to object that the law lacked due process in failing to allow time and opportunity for testing the liability to forfeiture in a court proceeding.

170 California, 674, affirmed.

THE case is stated in the opinion.

Mr. R. P. Henshall for plaintiff in error.

Mr. U. S. Webb, Attorney General of the State of California, and Mr. Robert W. Harrison, Deputy Attorney General of the State of California, for defendant in error.

Mr. Fred W. Lake, by leave of court, filed a brief as amicus curiæ.

MR. JUSTICE CLARKE delivered the opinion of the court.

On June 3, 1869, the State of California sold to Charles A. B. Brackett three hundred and twenty acres of school land, and delivered to him a "certificate of purchase" for it. Twenty per cent. of the purchase money was payable at the time of the purchase and the remainder "within one year after the passage of any act of the Legislature requiring such payment, or before, if desired by the purchaser."

The unpaid purchase money was to bear interest at the rate of ten per cent. per annum, payable in advance.

The purchaser paid interest to January 1, 1873, and nothing further for thirty-eight years, when, on October 26,

Opinion of the Court.

247 U. S.

1911, a state official, without authority to waive the default, accepted the amount of the unpaid purchase money and interest from the plaintiff in error, as transferee of the certificate, who thereupon demanded a patent for the land, which was refused for the reason that on December 29, 1886, a certificate of purchase for the same land had been issued by the State to Michael Phillips, on which the principal and interest was paid in full on August 28, 1911.

Upon this refusal by the State, the plaintiff in error filed the petition in this case "for a writ of mandate" to compel the defendant in error, as Register of the Land Office of the State, to prepare a patent for the land in controversy and to send the same to the Governor of the State, together with a certificate that the laws had been complied with, and that he as transferee of Charles A. B. Brackett was entitled thereto. Such a suit is said by the Supreme Court of California to be "in effect an action to require specific performance on the part of the State" of the contract evidenced by the certificate of purchase.

A judgment of the Superior Court granting the prayer of the petition was affirmed by the District Court of Appeals, and this in turn was reversed by the decision of the Supreme Court of the State which is now before us for review.

In 1889 the legislature of California passed an act providing that in all cases in which a certificate of purchase of public land had been issued prior to March 27, 1872, on which arrears of principal or interest had remained due and unpaid for five years, and in which, prior to the passage of the act, the State had issued to a subsequent purchaser another certificate for the same land, the owner of the first issued certificate should be deemed to have lost the right to the land or to complete the contract for the purchase of it, unless he should pay all unpaid interest within six months from the passage of the act.