pressed in tariffs published at stations and filed with the commission in accordance with the requirements of the act. In this case there was conflict between the Texas law containing a provision for recovery of a penalty in the case of a violation, while the federal statute prohibits carriers from deviating from tariff rates published and on file, and providing penalties for any departure therefrom. The court held that these two statutes prescribing a different rule on the subject-matter, exposed a party to a conflict of duties, and that in the case of an interstate shipment, the state law must yield.

As to the effect of the published rates upon the standard of reasonableness in an action at law for alleged unreasonable charges, see supra, section 1.

Contracts and tariffs filed with the commission under this section may be considered in any proceeding before the commission, although not specifically introduced in evidence on the hearing. 4 I. C. C. R. 664, 3 Int. Com. Rep. 493. The reduction of passenger rates without consent of connecting lines, over which tickets are sold, and without filing schedules with the commission was ruled in violation of this section. 2 I. C. C. R. 513, 2 Int. Com. Rep. 340.

The filing of schedules of rates with the commission as required by statute raises no presumption as to the legality of such rates, and no omission or failure to challenge or disapprove the schedules of rates so filed can have the effect of making rates lawful which are unreasonable. 4 I. C. C. R. 104, 3 Int. Com. Rep. 138.

When a schedule is filed announcing an advance of general application, for which no apparent reason exists, such action is a proper subject of investigation, and if it thereupon appears that the advance is unwarranted, the commission will proceed to correct the injustice. 9 I. C. C. R. 382. It is the duty of the carrier to apply the rate as published, and where it appears in the complaint before the commission that a contract was made for a lower charge than published, the contract is not binding and its violation furnishes no ground for redress under the act. See 9 I. C. C. R. 216. The commission said that that question had been decided by the supreme court in the Hefley Case, supra. See amendatory act of February 19, 1903, infra, § 422, making the failure to publish the tariff, or to strictly

observe the tariff, until changed, a misdemeanor, and also declaring the published rate conclusively deemed to be the legal rate.

It was held in United States v. DeCoursey 82 Fed. 302 (1897), that a receiver is not criminally liable under this section for violation of a joint tariff previously established by a railroad company of which he is receiver and another company which he has not ratified, adopted or recognized in any way.

§ 307. The published rate conclusive.-Under this section before its amendment in 1906, it was held by the supreme court in Texas Pacific R. Co. v. Mugg, 202 U. S. 24, and 50 L. Ed. 620, May 24, 1906, reversing the Texas civil court of appeals, 98 Tex. 352, that a carrier could exact the regular rate for an interstate shipment as shown by its published and printed schedule on file with the Interstate Commerce Commission and posted in the station of the carrier, although a lower rate had been quoted by the carrier to the shipper and shipped under such lower rate so quoted. The court said that this was within the principle of the decision of the Hefley Case, supra. It was said by the commission in 17 I. C. C. R. 418, that the published rate governing transportation between two given points, so long as it remains uncanceled, is as fixed and unalterable either by the commission or by the carrier, as if that particular rate had been established by a special act of congress. When regularly published it is no longer the rate imposed upon the carrier, but the rate imposed by law.

The commission in its annual report, 1908, p. 16, in commenting upon this decision of the supreme court in the Mugg Case, said that the theory of the act was that the shipper could at all times by reference to the schedules ascertain for himself the rate, but that in practice it was quite different, as the tariffs were very voluminous; and that it had been found practically impossible to comply with the literal requirement of the statute as to the posting; that in a great majority of cases the ordinary shipper could not without special experience ascertain for himself from an inspection of the tariffs what the rates are, and he must rely on the statement of the railroad agent, and added:

"The commission feels that to require the shipper to ascertain for himself at his peril the rate imposed upon him an undue

burden. The railway should know what its established charges are, and may fairly be required to state in writing, when a written request is made by the shipper, the rate which it has published and maintains in force. We call special attention to this matter as one of immediate and general concern, which discloses the need of an appropriate remedy, and urgently request that a suitable measure be promptly enacted."

The amendment of 1910 provides for a penalty of $250 to accrue to the United States to be recovered by civil action against the carrier brought by the United States, for any misstatement by the carrier as to the rates whereby the shipper suffers damage. Whether any remedy is available to the shipper for such damage has not been judicially determined. See § 308, infra. The commission has ruled (18 I. C. C. R. 299) that it has no power under the Act to award such damages to the shipper.

Any unpublished rate made by the agent of a carrier, whether through mistake or otherwise, is, therefore, unenforcible by the carrier or shipper; and decisions, such as the Pondecker Lumber Co. v. Spencer, 86 Fed. 846 (1898), and certain state decisions sustaining recovery by the shipper in such cases, would seem to be inapplicable under the construction of this section as amended. See Armour Packing Co. v. U. S., C. C. A. eighth circuit, 153 Fed. 18 (1907).

The word "different," included by the amendment of 1906 in the prohibition against the carrier charging any other than the schedule rate, extends this prohibition to any evasion by indirection of the fundamental requirement of publicity of rates, conformity thereto and equality in such rates to all similarly conditioned. The practice of using transportation in payment of advertising services and claims was condemned by the supreme court as violative of this section. See supra, § 156. The section does not repeal section 22, nor impair the power of the carrier as thus recognized to adjust its rates to different classes and conditions.

It was said in the report of the house committee on interstate and foreign commerce, in reporting the amended bill of 1910, that the "bill does not provide for any redress to the shipper who may have suffered loss on account of misquotation of the tariff rate, for the reason that it has so far seemed impracticable to find any method of so doing without opening a loophole for the allowance of secret rebates in such manner as would be practically unprovable in criminal proceedings.

§ 308. Failure to post rates in stations.-In Texas Pacific R. Co. v. Cisco Oil Mill, 204 U. S. 449, 52 L. Ed. 562 (1907), it was claimed that a rate schedule not having been lawfull▾ posted in public and conspicuous depots, waiting rooms, offices etc., was itself unlawful and therefore not binding upon the carrier. The court said that the contention was without merit and that the requirement of posting was not a condition precedent to the establishment and putting in force the tariff of rates, but it was a provision based upon the existence of an established rate, and had for its definite object the affording of special facilities to the public for ascertaining the rates actually in force.

The court added: "Whether by the failure to post an established schedule, a carrier became subject to penalties provided in the act to regulate commerce, or whether, if damage had been occasioned to a shipper by such omission, a right to recover on that ground alone would have obtained, we are not called upon in this case to decide."

This decision was prior to the amendment of 1910 which expressly penalizes any failure by the carrier to perform its duty or any misstatement whereby a shipper suffers damage.

This decision was construed and applied by the commission in 14. C. C. R. 82; and it declined to allow a refund to the shipper, where the delay in posting the tariff was due to unforeseen causes, though the carrier was willing to pay the amount claimed, saying that it was an unpleasant duty to deny such request, and thus prevent shippers from receiving refunds which the carrier was willing to pay, but that the issuance of such authority would be in contravention of the terms or purposes of the law and would establish a wrongful precedent.*

§ 309. Claims for Misrouting.-It follows therefore that the published rates are conclusive upon both the carrier and the shipper, that the misrepresentation by the agent of a carrier as to the rates is not binding on the carrier although he is thereby misled to his own injury, 18 I. C. C. R. 299, that is, a shipper is bound by the published rate whatever other remedy he may have for the misrepresentation.

In case of through routing, as the shipper is entitled to the lowest published rate between the points of shipment, the initial

But for cases where reparation was allowed on showing of special damages by reason of failure to post tariffs, see 18 I. C. C. R. p. 242 and 19 I. C. C. R. p. 108.

carrier is bound to ship via the road having the lowest rate and is liable on claim of reparation to the shipper for failure to do so. 17 I. C. C. R. 443, 18 I. C. C. R. 190. In case the shipper gives instructions as to the route of shipment the initial carrier is justified in following instructions, even though a higher rate applies on such route than was available upon another road between the same points. 12 I. C. C. R. 469, 18 I. C. C. 299. If the shipper is in doubt as to what route provides the lowest rate to the terminal point, he should tender the traffic to the initial carrier without instructions as to the specific route and he is then entitled to the lowest rate. 18 I. C. C. R. 190.

In 17 I. C. C. R. 588, the commission ruled that if an initial carrier files and posts a rate making joint rates from stations upon its lines to destination upon a connecting line in which tariff a connecting line does not occur, the initial line thereby becomes responsible to the shipper under its tariff. If the shipper is compelled to pay under rates legally in effect a greater transportation charge than that named in the tariff, he may recover from the initial carrier the difference, certainly if the rate posted by it is found to be reasonable.

Every carrier party to a joint rate is jointly and severally responsible for that rate, and those carriers who actually participate in the transportation under a joint rate, are jointly and severally liable for damages for unreasonableness of that rate; and a complainant is not deprived of his right to a reasonable rate by the fact that the defendants, through neglect of the rules of the commission as to the publication of their tariffs, had failed to establish that rate in legal form. See also 17 I. C. C. R. 379.

A carrier voluntarily establishing a through rate less than the sum of the locals after a shipment has moved, does not ipso facto become liable for the difference between the amount charged and the amount which would have been collected, if the through rate had been in effect at the time of the removal. 17 I. C. C. R. 295.

The same principle applies whether the claim for reparation is made by a shipper or an offer to refund is made by a carrier. Thus, in 17 I. C. C. R. 461, the commission refused to grant leave to a carrier to refund to a shipper the difference between the class rate paid and a reduced commodity rate, though the shipper had been informed by the carrier that the reduced rate