Little Rock. The prayer of the complaint is that the rates formerly in effect be restored and reparation made for all sums unlawfully collected."

The Commission, of course, could only establish a new rate for the future, but the very meaning of reparation is compensation for what has occurred. The plaintiff could not be injured until it had paid an excessive rate.

[4] (c) It is next claimed that, as no specific statement of the shipments on which reparation was claimed was filed with the Commission until October 31, 1913, the Commission had no authority to award reparation thereon as the same were barred by the statute of limitation, found in section 16 of the act and which reads as follows:

"All complaints for the recovery of damages shall be filed with the Commission within two years from the time the cause of action accrues, and not after."

The original complaint, filed as above, contained the prayer that has been heretofore quoted. The Commission and every other person connected with the case understood it to be a complaint for reparation, as well as for the establishment of just and reasonable rates. A specific statement of the particular shipments on which reparation. was claimed is shown by the record to have been received by the Commission May 25, 1912. The defendants did not plead the statute of limitation before the Commission, but, on the contrary, received the specific statement of shipments, and held the same in their offices for about five months, finally returning the same to the Commission with the statement:

"Our claim department has checked this statement and finds same to be correct as to shipments moved and the charges collected, and basing same on the new rates ordered in by the Commission there would be an overcharge of $592.67; but this admission should not be construed that the complainant is entitled to reparation in this case."

This statement was signed by the general freight agent of the defendants. The defendants demanded no bill of particulars, or that the complaint be made more specific and certain, before the Commission. The statute provides that the filing of the complaint shall toll the statute. The record shows that 8 of the shipments moved in 1909, 15 moved in 1910, 5 in 1911, and 1 in 1912. We are of the opinion that under the facts shown in the record the claim for reparation was not barred.

(d) It is next claimed that, as the only evidence submitted before the Commission as to the payment of the freight charges were the expense bills given by the carriers to the consignees in whose name the bills ran, there was no evidence that plaintiff paid the freight. The case before the Commission was tried throughout by all parties on the theory that the plaintiff had paid the freight; but it becomes immaterial on a motion made in the present case that the plaintiff be nonsuited for the reason that the proof in the present action fully shows that the plaintiff paid the freight and suffered the damage.

[5] (e) Complaint is made that some of the shipments are shown. by the record to have moved over the lines of other carriers than those which were parties before the Commission, and the proposition

is urged that the Commission had no power to condemn what is called one leg of a through rate. So far as this objection is concerned, the record shows that all the carriers over whose lines the shipments moved were made parties defendant before the Commission, except the Atchison, Topeka & Santa Fé and the Omaha Bridge & Terminal Railway Company. These carriers are connected with the shipments in controversy in this way. There were 12 shipments of lumber made over the lines of defendants to Council Bluffs, Iowa, on a through rate. It is shown, however, in the record, that the lumber was hauled from Omaha, Neb., across the river to Council Bluffs, Iowa, by the Omaha Bridge & Terminal Railway Company, that an arbitrary of $5 per carload was charged by the Terminal Company for hauling the freight across the river, and it is also shown that the defendants paid this sum on the 12 cars, the same being absorbed in the through rate. The plaintiff, however, seeks to recover nothing from the Terminal Company, and we must presume that the Commission considered all the circumstances including the payment of the arbitrary in fixing a reasonable rate for the future, and the amount of reparation to be paid by the defendants. The Terminal Company does not own any cars, its business is that of hauling cars belonging to other railroad companies, to and from industries on its tracks, and transferring such cars between various railroad companies entering the cities of Omaha, South Omaha, and Council Bluffs. The reasonableness of the rates of which complaint was made by the plaintiff before the Commission were in issue, and the defendants were parties before the Commission. To now assume that they did not present to the Commission the fact that they paid an arbitrary of $5 per carload at Omaha is to convict them of a grave inattention to business.

We now come to a carrier, however, who was not before the Commission, and who is not a defendant in this case. The connection of this carrier with the shipments in question arises in this way. There was one shipment of lumber from Woodson, Ark., to Girard, Kan. The shipment moved over the St. Louis, Iron Mountain & Southern Railway to Coffeyville, Kan., thence over the Missouri, Kansas & Texas to Chanute, thence over the Atchison, Topeka & Santa Fé to Girard. The total amount of the expense bill, roughly figured, was $103.80. Of this amount the Atchison received $17.30, the M., K. & T. $21.51, and the Iron Mountain $64.53. Each carrier received of the overcharge of 6 cents per 100 pounds, the same proportion which the total amount received by it bears to the total expense charged. This would result in the Atchison receiving about $3.50 of the overcharge and the M., K. & T., about $4.50. It goes without saying that, as the Atchison, Topeka & Santa Fé and the Missouri, Kansas & Texas were not parties to this action, no judgment can be rendered against them, and this little amount cannot be lawfully charged against the defendants.

We now come to the defendants in this case. ing the reparation reads thus:

The order grant

"It is therefore ordered that the above-named defendants, in so far as they participated in this traffic, be and they are hereby notified and required

to pay unto complainant the sum of $583.27, with interest thereon at the rate of 6 per cent. per annum from September 1, 1911."

So that it appears the defendants are liable for such part of the overcharge as each received, and technically the judgment ought to have gone that way. But as no point is made about this we assume that, as the defendants are under the same management, it makes no difference to them that the amount of liability was not found separately.

It is claimed further that the judgment ought to have been for the defendants, for the reason that the Commission has overruled the principle of rate making upon which the order of reparation was based, and the cases of North-Bound Rates on Hardwood, 32 Interst. Com. R. 528, Southern Lumber Rates, 34 Interst. Com. R. 652, and North-Bound Rates on Hardwood, 34 Interst. Com. R. 708, are cited; but an examination of those cases convince that they did not have the effect of setting aside or overruling the order made in the present case. The complaint of the plaintiff referred to rates charged. it as a lumber producer at Woodson, Ark., compared with shippers in its immediate neighborhood, and the Commission held that a blanket. adjustment of rates which ignores so fundamental a principle as the geographical location of production can, with difficulty, be maintained in the face, of a result which compels a producer, with a 24-cent rate, to compete with a large number of neighboring producers enjoying an 18-cent rate. The cases referred to consider general ratemaking schemes covering large sections of country involving several

states.

[6] Complaint is made that the Commission had no authority to allow interest on the amount of the award. We decided in the case of D. & R. G. R. Co. v. Baer Bros., 209 Fed. 577, 126 C C. A. 399, that interest was allowable on excessive freight rates paiu under protest, and interest has been allowed in similar cases. Meeker v. Lehigh Valley Ry. Co., 236 U. S. 412, 433, 35 Sup. Ct. 328, 59 L. Ed. 644; Meeker v. Lehigh Valley R. R. Co., 236 U. S. 434, 439, 35 Sup. Ct. 337, 59 L. Ed. 659; Baer Bros. Mer. Co. v. D. & R. G. Ry. Co., 233 U. S. 479, 491, 34 Sup. Ct. 641, 58 L. Ed. 1055; So. Ry. Co. v. St. Louis Hay & Grain Co., 153 Fed. 729, 82 C. C. A. 614.

[7] It is also objected that the court erred in allowing an exorbitant and excessive attorney's fee. Section 16 of the act provides:

"If the petitioner shall finally prevail he shall be allowed a reasonable attorney's fee to be taxed and collected as a part of the costs of the suit."

It appears, therefore, as matter of law, that the attorney fee was prematurely taxed, as it was not known when it was taxed whether the plaintiff would finally prevail or not.

As a result of a careful examination of the whole record, we are of the opinion that the judgment below must be affirmed as to the amount of reparation and interest; that as to the attorney fee it should be reversed. The amount of the award was about $9 less than the amount admitted to be due by the defendants, if they were liable at all, and they would hardly ask us to reverse a case for the small amounts of overcharge received by the Atchison and M., K. & T.

Let the judgment be affirmed, and the case remanded, with instructions to the trial court to tax a reasonable attorney's fee upon notice to the counsel of defendants.

SANBORN, Circuit Judge (dissenting). With regret I find myself unable to concur in the opinion and conclusion of the majority in this case.

Section 13 of the Interstate Commerce Act (4 U. S. Comp. Stat. 1913, § 8581), requires a complaint to state briefly the facts on which the plaintiff relies for the relief it asks of the Commission, and directs the Commission to send to the defendant carrier a statement of the complaint and to call upon it to answer the complaint within a reasonable time. It also provides that if the carrier, within the time specified by the Commission for the answer, makes reparation for the injury alleged in the complaint, it shall be relieved from liability for the violation complained of. The Commission summoned the carrier to satisfy the complaint or to answer it within 20 days. The carrier could not make reparation and satisfy the complaint in that way, because the complaint contained no statement whatever, either generally or specifically, of the amount of reparation sought. The carrier could not satisfy the complaint within the 20 days by lowering the rate, of which complaint was made, because by section 6 of the act it was prohibited from making any change without 30 days' notice thereof, and the defendant was in this way deprived of its statutory right to satisfy the complaint and avoid an answer, and was compelled to answer without an opportunity to exercise that right. To my mind it is not a persuasive answer to this fact that the grace of the Commission might have shortened the time for changing the rate, or that the grace of the complainant or that of the Commission permitted the defendant to answer after its right to answer was lost. The opportunity to satisfy the complaint is a right independent of the will or grace of complainant or Commission. It is no answer to the charge that one who has taken another's property without due process of law has deprived his victim of his right to that property to say that the taker has the power to return it to him, and may of his grace and good will do so. An opportunity to satisfy the complaint, dependent on the will or discretion of the Commission, or of the complainant, lacks every element of the right secured to it by the statute, and the action of the Commission fixing 20 days as the time for answer, and summoning the defendant to satisfy the complaint or answer it within that time, seems to me absolutely to have deprived the carrier, under the circumstances of this case, of his statutory right to satisfy the complaint and thereby avoid answering it.

The act of Congress provides that:

“All complaints for the recovery of damages shall be filed with the Commission within two years from the time the cause of action accrues, and not after." 4 U. S. Comp. Stat. 1913, § 8584, subd. 2.

One of the rules of the Commission requires that:

"If reparation is sought, the petition or an exhibit thereto should set out in detail the shipments involved showing origin, destination, date, number and initials of cars, weight, rate paid, rate claimed and reparation claimed.”

And the record discloses the fact that on October 29, 1909, one of the examiners of the Commission gave notice to the complainant of this rule, that no damages in reparation could be recovered under this complaint "which alleged no amounts of damages, or times or places when such damages were incurred whatever," and that if it desired to recover such damages it must file a supplemental complaint therefor and set them forth. Neither in the original complaint nor in the supplemental complaint making new parties did the complainant allege any amount or amounts that it had paid or lost, or any amount or amounts that it claimed; nor did it ever allege or claim any such amount or amounts in any complaint or pleading until it filed with the Commission a statement of its claims for reparation for the first time on October 31, 1913, although, as stated in the opinion of the majority, the Commission on May 25, 1912, received and sent to the defendants a statement of claims which the defendants returned with the admission that the shipments there mentioned moved and that the charges there made were collected. But it will be noticed that this admission contained these words:

"But this admission should not be construed that the complainant is entitled to reparation in this case."

It is true that the complaints made prior to October 31, 1913, contained prayers for a change of the rate for which a cause of action was stated and for reparation. But none of these complaints stated any facts whatever constituting any cause of action for any reparation, none of them stated any facts which would have entitled the plaintiff to introduce any evidence whatever of any damages, nor did the plaintiff ever state in any manner any such facts or cause of action until October 31, 1913. Because no such cause of action and no such facts were ever pleaded or alleged prior to October 31, 1913, I am unable to resist the conclusion that then for the first time was any complaint for the recovery of any damages claimed in this case filed with the Commission within the fair and just meaning of the statute, and as the causes of action for all the damages recovered in this action, except $20.72, accrued more than two years prior to that date, the recovery of those damages seems to me to be barred by the act of Congress. Even if the time when the statement of May 25, 1912, was received by the Commission could be deemed the time of the filing of a complaint for these damages, yet all damages accruing prior to May 25, 1910, would be barred, and $324.89 of the amount recovered is for such damages.

Nor does it seem to me that where, as in this case, no cause of action for any damages whatever was alleged in the earlier complaint, the failure of the defendants prior to the filing of a complaint for the damages to demand a bill of particulars can deprive them of any right or privilege. As no cause of action for damages was stated in those earlier complaints, there was no claim for damages to particularize, and as the Supreme Court of Missouri said in Mallinckrodt Chemical Co. v. Nemnich, 169 Mo. 388, 397, 69 S. W. 355:

"Nor will it do to say that defendant should have moved to have made the pleading more definite and certain. He might indeed have done this, but was