68

join the exercise by a board of commissioners of its power to fix rates; it is only when rates have been fixed that the court has power to review them.66 But when rates, either tentative or final, have been put in force and are maintained in actual operation under penalty of fines, the carrier is entitled to an injunction against their continuance, if shown to be confiscatory; and it has been held that, where commissioners have advertised that a schedule prepared by them will be put in force on a day named, this will be sufficient to give a court of equity jurisdiction, on the application of a carrier before the expiration of the time to restrain the enforcement of the schedule. When asked to enjoin the enforcement of rates as being unreasonable and confiscatory, the court must ascertain the facts on which the reasonableness of the rates depends, it being of the utmost importance that the facts shall be clearly and accurately found. In proceedings of this nature, the court starts with the presumption that the act of the legislature, or of the commission acting under statutory authority, is valid, and the burden of proving the contrary rests on the carrier."1 To authorize the issuance of an injunction it is essential that it be clearly shown that the rates are unreasonable and in violation of the carrier's constitutional rights;72 and this is especially true in respect of injunctions before final hearing.73 The jurisdiction of the court should not be exercised except in a case reasonably free from doubt.74 If there is room for a difference of intelligent opinion as to whether rates complained of will be remuner

70

fixed decreased the profit arising from such transportation, there was still a profit, and that for four years preceding the railroad company had earned a fair net profit on the present value of its property, a finding that the rates were not unreasonably low was not erroneous. Matthews v. North Carolina Corp. Comrs., 106 Fed. 7.

66. Southern Pac. Co. v. Bartine, 170 Fed. 725.

[a] Thus, a resolution of such board as to the propriety and necessity of a certain reduction of rates, which has not been embodied in a schedule, and is not intended to be acted on without further investigation, does not afford a basis for the action of a court to restrain the enforcement of such resolution, on the ground that the proposed rates are unreasonable. Southern Pac. Co. v. California R. Comrs., 78 Fed. 236.

67. Love v. Atchison, etc., R. Co., 185 Fed. 321, 327, 107 CCA 403 [aff 177 Fed. 493, 174 Fed. 59] (where the court said: "It is as clear a violation of the Constitution, and one as promptly remediable in the national courts, to take the property of a railroad company without just compensation by the enforced operation of tentative rates during the process of their making as by the operation of final rates after that process is complete.

Railroad com

panies that have been, are, or will be deprived of parts of their property devoted to the public use of transportation without just compensation during the continuance of the ratemaking process by provisions of a state Constitution, or of a state law, or by orders of a state commission, prescribing tentative rates and putting them in effect during the ratemaking process under severe penalties, may maintain suits for and obtain relief by injunction during the continuance of the rate-making process to the same extent that they may after the process is completed"). 68. Chicago, etc., R. Co. v. Dey, 35 Fed. 866, 1 LRA 744.

69. Seaboard Air Line R. Co. v. Alabama R. Commn., 155 Fed. 792. 70. Chicago, etc., R. Co. v. Tomp

69

75

ative, the courts should not interfere, but the reasonableness of the rates should be left to the test of experiment." Where by statute the railroad commission is empowered to grant a rehearing in any case in which it has made a final order, or to modify any final order made by it, such statute must be construed as giving the commission unlimited power to effect or to modify any order, and to correct its own errors, and the court will not grant relief in the first instance where relief is within the power of the commission to give on proper application therefor.76

[ 680] (b) Preliminary Injunctions. As in other cases, the court exercises a sound discretion in granting or refusing a preliminary injunction. restraining the enforcement of rates alleged to be unreasonable or confiscatory." In accordance with the principle that courts of equity may by a preliminary injunction effect a change in the status quo, if it is necessary so to do to avoid an irreparable injury from a continuing wrong, a preliminary injunction may be granted to restrain the further enforcement of rates established by a commission, and may be continued in force for a sufficient length of time to show that they are unreasonable and confiscatory. And such an injunction may be granted 'in advance of an actual test of the rates to determine their reasonableness, where they are apparently so flagrantly unjust and so in conflict with experience and common knowledge as to what is right as to appear unfair and probably confiscatory on their face. But a preliminary injunction should

78

79

| Cyc 7461.

[a] Thus, where railroad companies whose rates were being inquired into by the commission were given a full hearing, but offered no testimony and did not appeal to the commission to change the rates, and in a suit in the circuit court to determine judicially the validity of rates fixed by the commission admitted that the rates fixed were not confiscatory but afforded some remuneration above expenses, the court acted within its discretion in denying a preliminary injunction restraining the commission from enforcing its order, pending the suit. Michigan Cent. R. Co. v. Wayne Cir. Judge, 156 Mich. 459, 120 NW 1073.

78. In re Arkansas R. Rates, 163 Fed. 141.

R.

[a] Continuance of preliminary injunction until final hearing.-(1) Where the evidence shows that the probable effect of enforcing the schedule prepared by the commissioners would be to destroy all dividends from the operation of the roads, and the law provides for treble damages to any shipper who may be injured by an overcharge, the preliminary injunction should be continued until final hearing. Chicago, etc., R. Co. v. Dey, 35 Fed. 866, 1 LRA 744. To same effect Southern Co. V. McNeill. 155 Fed. 756. (2) But rates established by the Arkansas railroad commission and the Two-Cent Passenger Law (Ark. Act Febr. 9, 1907 [Acts (1907) p 10]), having been enjoined pendente lite as confiscatory, the railroads returned to a three-cent passenger rate and raised freight rates within the state from fifty to two hundred per cent, the average raise on a revenue producing basis being seventy-seven per It was held that such raise was extortionate, and that the court, as a condition to retaining the injunction, would leave the passenger rate at three cents and require a freight tariff not exceeding thirtythree and one-third per cent higher than the rates enjoined. In re Arkansas R. Rates, 168 Fed. 720.

79. Alabama R. Commn. v. Cen

be denied where the alleged confiscatory rates have not gone into effect, and it is probable that a practical test will be required for the purpose of determining whether they are in fact confiscatory;80 and where this state of facts exists the fact that bonds have been given by complainants to protect the interests of shippers will constitute no ground for granting the injunction in case the bonds do not afford adequate protection.81 Where the railroad company will lose but little if the rates are enforced pending appeal, the trial court will not restrain the enforcement of the order fixing the rates, but will leave that matter to the supreme court.82

It is not a violation of a temporary injunction against putting in force a schedule of rates, on the ground that they were unreasonably low, for the commissioners to make another schedule after investigating a complaint filed against rates charged by a railroad company, although the purpose of those making the complaint was to evade the injunction, and their conduct in attempting to procure a favorable decision on the complaint was improper, as the duty of the commissioners under the statute was to hear the complaint and to establish proper rates.

83

[§ 681] (2) Jurisdiction. State courts in the exercise of their equity powers have jurisdiction to enjoin freight rates promulgated by boards of state railroad commissioners if found to be confiscatory;84 and the federal courts also have jurisdiction of a suit to enjoin the enforcement of a state statute or of an order by a state railroad commission regulating rates on the ground that the rates are confiscatory, notwithstanding an objection that a court of equity cannot enjoin criminal prosecutions.8

85

86

Injunction against arrests and in aid of jurisdic

tral of Georgia R. Co., 170 Fed. 225, 237, 95 CCA 117 (where it was said: "In such instances, it may be that the sworn bill, with proper averments, and with the affidavits of experts as to their opinions, would be sufficient to overcome the prima facie presumption that the rates established by legal authority are valid"); Perkins v. Northern Pac. R. Co., 155 Fed. 445.

80. Alabama R. Commn. v. Central of Georgia R. Co., 170 Fed. 225, 95 CCA 117 [rev 161 Fed. 925] (where it was said that a preliminary injunction is not a matter of strict right, and it is often the duty of a court to refuse such an injunction where it is doubtful what upon the final hearing may be ascertained to be the real facts in the case, and where the rights of the complainants are such that they will suffer no more injury if they finally succeed than would be inflicted upon the defendants if unjustly enjoined). See also Central of Georgia R. Co. v. McLendon, 157 Fed. 961 (holding that a preliminary injunction should not be granted where the showing is insufficient to enable the court to determine in advance of an actual trial that the effect of the enforcement of the order would be to lessen complainant's net earnings from that part of its business to which the rates applied).

81. Alabama R. Commn. v. Central of Georgia R. Co., 170 Fed. 225, 95 CCA 117 [rev 161 Fed. 925].

82. Louisville, etc., R. Co. v. Kentucky R. Commn., 214 Fed. 465 [aff 235 U. S. 601, 35 SCt 146, 59 L. ed. 3791.

83. Chicago, etc., R. Co. v. Dey, 38 Fed. 656.

84. Ex p. Young, 209 U. S. 123. 28 SCt 441, 52 L. ed. 714, 13 LRANS 932, 14 AnnCas 764 and note; Gulf, etc., R. Co. v. State R. Commn., 102 Tex. 338, 113 SW 741, 116 SW 795.

85. Central of Georgia R. Co. v.

tion. A federal court of equity which has acquired jurisdiction of a suit to enjoin the enforcement of a state statute fixing railroad rates on domestic shipments, and has not only granted a preliminary injunction but has also, under authority given by the statute itself, suspended its operation pending a final hearing, has power, on the filing of an amended bill, also to enjoin the county solicitors and sheriffs from taking threatened action under such suspended statute either by civil or criminal proceedings against employees of a railroad company, the effect of which would be to interfere with the operation of its road and to obstruct both local and interstate commerce, and by which irreparable injury would be caused to complainant.87

88

[§ 682] (3) Defenses. It is not a defense to a proceeding to restrain the enforcement of an unreasonable rate that plaintiff is a foreign corporation doing business in the state only as a matter of grace, and may retire when the business ceases to be profitable, or that it operates through other states where no rates are fixed, which will enable it to make a profit.89 Nor is it any reason to deny relief by injunction against rates claimed to be unreasonable that the carrier put into effect for a time the rates complained of, to save itself the imposition of drastic penalties to which it would otherwise be liable.90 Compliance with an order establishing rates for a period as long as five years will not estop the carrier from thereafter bringing suit to enjoin the enforcement of such rates as noncompensatory, where it is clearly shown that conditions are so changed by the increase of operating expense or otherwise that the net earnings on their entire intra-state business has ceased to be compensatory.91

be

Every

joined for the further reason that, under the circumstances of these cases, the threatened arrests would be endeavors' to 'obstruct or impede' the due administration of justice in these very cases, in violation of a criminal statute of the United States").

88. Chicago, etc., R. Co. v. Dey, 35 Fed. 866, 880, 1 LRA 744 (where the court said: "Whatever of force there may be in such arguments, as applied to mere personal property, capable of removal and use elsewhere, or in other business, it is wholly without force as against railroad corporations, so large a proportion of whose investment is in the soil and fixtures appertaining thereFor a to, which cannot be removed. whether government, that government be a single sovereign or one of the majority, to say to an individual who has invested his means in so laudable an enterprise as the construction of a railroad, one which tends so much to the wealth and prosperity of the community, that, if he finds that the rates imposed will cause him to do business at a loss, he may quit business, and abandon that road, is the very irony of despotism. Apples of Sodom were fruit of joy in comparison").

89. Chicago, etc., R. Co. v. Dey, 35 Fed. 866, 1 LRA 744.

90. Love v. Atchison, etc., R. Co., 185 Fed. 321, 107 CCA 403 [certiorari den 220 U. S. 618, 31 SCt 721, 55 L. ed. 612] (where the court said: "The acquiescence of the victim of a continuing injury in its infliction in the past constitutes no defense against an estoppel of his right to an injunction against his future continuance"); Central of Georgia R. Co. v. McLendon, 157 Fed. 961.

91. Arkansas Rate Cases, 187 Fed. 290 [rev on other grounds but approved on this 230 U. S. 553, 33 Sct 1030, 57 L. ed. 1625].

Nor is it a defense that the reduced rates may increase the volume of business and make it more remunerative than at present, as the court must determine rates on existing facts.

92

[§ 683] (4) Parties. Shippers of articles affected by the rates, the enforcement of which the carrier seeks to enjoin, can properly be joined as defendants as representatives of their class, on an allegation that unless enjoined they will attempt to enforce such rates.93 Where, by the provisions of statutes fixing rates, the members of the railroad commission as well as the attorney-general are charged with the duty of securing the enforcement of the statutes, they are the proper parties to a proceeding to enjoin the enforcement of the rates so fixed. But where the relation of the attorneygeneral of a state to a state railroad commission and the enforcement of its orders is simply that of his general official relation as the principal law officer of the state, he is not a necessary or a proper party to a suit to enjoin the enforcement of an order made by the commission."

95

[684] (5) Pleading and Evidence. A complaint which seeks to enjoin rates as being unreasonable and confiscatory should state facts which show that the rates do not afford a fair return on the value of complainant's property.96 For this purpose every fact which would have a tendency to enable the court to arrive at the fair value of

complainant's property devoted to the service to which the rates are applicable," 97 and the cost of such service, should be alleged, as, in the absence of such data, it is impossible for the court to say whether the rates fixed are unreasonably low or not.98 Where several orders are made reducing rates a bill alleging that the effect of such orders is to take complainant's property without just compensation is not demurrable because it does not allege that each order taken by itself is confiscatory.99

Demurrer. A suit to enjoin the enforcement of railroad rates established by a state commission is of such general importance and so far independent of the particular facts which may be developed by the proofs that it will not be disposed of on demurrer, unless the bill is clearly insufficient.1 And allegations in a bill that the rate fixed by the commission is unreasonable, and that, if enforced, it will result in a large loss of revenue to complainant, are not in general to be considered as admitted by demurrer.2 But where defendant first filed answers tendering issue on the matters of fact, and testimony was taken, after which the answers were withdrawn and demurrers filed, it must be assumed that, on the taking of testimony, defendants became satisfied that the particular facts were as stated in the bill, and that the conclusions to be drawn from such facts could not be overthrown by any other matters.3

94. Southern R. Co. v. McNeil, 155 Fed. 756.

95. Central of Georgia R. Co. v. McLendon, 157 Fed. 961.

96. Southern Pac. Co. v. Campbell, 230 U. S. 537, 33 SCt 1027, 57 L. ed. 1610 [aff 189 Fed. 182]; Southern Pac. Co. v. California R. Commn., 193 Fed. 699; Oregon R., etc.. Co. v. Campbell, 173 Fed. 957 [aff 230 U. S. 525, 33 SCt 1026, 57 L. ed. 1604]; Storrs v. Pensacola, etc., R. Co., 29 Fla. 617, 11 S 226; Burlington, etc., R. Co. v. Dey, 89 Iowa 13, 56 NW 267. [a] Rule applied.-(1) Allegations of a bill seeking to restrain state regulation of local rates of an interstate carrier are insufficient to show that they will deprive the carrier of just compensation in its intra-state transportation, where receipts and disbursements for the previous year are not given, and there are no averments as to the expenses incurred in the intra-state business, as distinguished from the interstate business, or as to the share of the value of the carrier's property assignable to the former.

Southern Pac. Co. v. Campbell, 230 U. S. 537, 33 SCt 1027, 57 L. ed. 1610. (2) Confiscation entitling a carrier to injunction against an order fixing maximum intra-state rates is not made by a bill alleging that certain specified losses in revenue will result, without showing the return permitted under the rates prescribed. Louisville, etc., R. Co. v. Garrett, 231 U. S. 298, 34 SCt 48, 58 L. ed. 229 [aff 186 Fed. 176]. (3) It is not sufficient for the bill to allege that, under the order, complainant cannot

earn

com

of

terstate and local, or intra-state, business, and in the carriage of both passengers and freight, it is essential, to enable the court to say that those rates are, as alleged, confiscatory, that the bill discloses facts showing with reasonable definiteness, not only the present total value of the road affected, with the gross revenue derived therefrom from all sources, but it should show as well the gross revenue from each class of business, interstate and local, freight, passenger, or other, and the proportionate property values devoted thereto, respectively; and not only should the gross operating expenses of the road appear, but also the proportionate application of such expenses to the different classes of traffic, freight and passenger, carried over the road, so that the net revenue derived from each source may be thereby ascertained and the ultimate question determined as to the effect of the rates complained of upon the particular traffic affected thereby." Southern Pac Co. v. California R. Commn., 193 Fed. 699, 704.

98. Oregon, R., etc., Co. v. Campbell, 173 Fed. 957 [aff 230 U. S. 525, 33 SCt 1026, 57 L. ed. 1604].

99. Love v. Atchison, etc., R. Co., 185 Fed. 321, 107 CCA 403 [certiorari den 220 U. S. 618, 31 SCt 721, 55 L. ed. 612] (where it was said that a body of rates prescribed by a series of orders effective at different dates within a few months has the same effect as that of a single order prescribing all the rates at the same time, and may be so pleaded).

1. Houston, etc., R. Co. v. Storey, 149 Fed. 499.

2. Central of Georgia R. Co. v. McLendon, 157 Fed. 961. See Reagan v. Farmers' L. & T. Co., 154 U. S. 362, 14 SCt 1047, 38 L. ed. 1014 (where the court said: "It would not, of course, be tolerable for a court administering equity to seize upon a technicality for the purpose or with the result of entrapping either of the parties before it. Hence we should hesitate to take the filing of the demurrers to these bills as a direct and explicit admission on the part of the defendants that the rates established by the commission are unjust and unreasonable").

3. Reagan v. Farmers' L. & T. Co., 154 U. S. 362, 14 SCt 1047, 38 L. ed. 1014.

Evidence. A preponderance of the evidence, as in other civil cases, is sufficient to make out the carrier's case against the enforcement of rates.* Evidence of the rates in force in other cities is admissible."

[§ 685] (6) Decree. A decree which enjoins the enforcement of a rate statute as confiscatory should contain a clause saving to defendant the right to proceed in the future to obtain a vacation thereof, if under altered circumstances it is no longer confiscatory.

6

[§ 686] c. Appeal from Order of Commission Fixing Rates. Statutes in a number of states provide for an appeal by a railroad company to designated courts from orders of railroad commissions fixing rates. The time for taking the appeal is determined by the provisions of the statute authorizing it, and the steps required to perfect the appeal must be complied with. Courts so designated have jurisdiction to determine such constitutional questions as concern their power to determine the appeal.10 They may determine whether the rates have been established in due form of law under a valid law and under a valid commission,11 and may afford relief against rates established by the commission which are unreasonable and unjust to the railroad company by setting aside the order fixing

4. Western R. Co. v. Alabama R. Commn., 197 Fed. 954 (holding that, in a suit by railroad companies to enjoin the enforcement of a state statute fixing rates on the ground, among others, that it made arbitrary classification of roads and was unconstitutional as depriving complainants of the equal protection of the laws, they are required to prove such allegation only by a preponderance of the evidence, as in other civil rases).

[a] Evidence held insufficient to show confiscation.-Darnell v. Edwards, 209 Fed. 99; Southern Pac. Co. v. Bartine. 170 Fed. 725.

5. State Public Service Commn. v. Baltimore, etc., R. Co., 122 Md. 393, 90 A 119; State Public Service Commn. v. Northern Cent. R. Co., 122 Md. 355, 90 A 105 (holding that in an action by a railroad to vacate an order of the public service commission fixing rates for moving loaded cars within the vicinity of the city of Baltimore, the court improperly excluded evidence that in other cities similar, and in some lower, rates were in force, the fact that the conditions were not in all respects similar going to its weight and not to its admissibility).

6. See Smith v. Ames, 169 U. S. 466, 18 SCt 418, 42 L. ed. 819 (where the action of the circuit court in providing in its final decree that defendant might, when the circumstances have changed so that the rates fixed in the said act of 1893 shall yield to the said companies reasonable compensation for the services aforesaid, apply to the court by bill or otherwise, as they might be advised, for a further order in that behalf, was approved by the supreme court); Higginson v. Chicago, etc.. R. Co., 100 Fed. 235, 238 [aff 102 Fed. 197, 42 CCA 2541 (where the decree provided that "the defendants, members of the board of transportation of said state, may hereafter, when the circumstances have changed so that the rates fixed in the said act shall yield to the said companies reasonable compensation for the services rendered, apply to this court, by supplemental bill or otherwise"); Coal, etc., R. Co. v. Conley, 67 W. Va. 129, 67 SE 613.

7. See statutory provisions; and Southern R. Co. v. State R. Commn.. 42 Ind. A. 90, 83 NE 721; Steenerson v. Great Northern R. Co., 69 Minn.

the rates and enjoining its enforcement,12 although they have no power to fix the rates themselves." It has been said that the power of the court is analogous to that of an appellate court to determine whether or not the verdict of a jury is excessive and to what extent.1 On an appeal from an order of the railroad commission fixing rates, the rates are to be regarded as prima facie just and reasonable, and the burden is on the carrier to show that the rates so fixed are unreasonable," ,15 and unless it does so the order of the commission will be affirmed.16 An appeal by a carrier from a general order of the commission not directed against any specific company or companies by name will be dismissed when it does not appear from the record that the rates, schedule, facilities, or conveniences of such appellant company are affected by the order appealed from.17 It is not necessary that a motion for a new trial be filed and presented to the commission, in order to have the court on appeal determine the reasonableness and justness of the order of the commission from which the appeal is prosecuted.18

[§ 687] d. Action to Set Aside Order of Railroad Commission Fixing Rates or Ordering Refund. By the statutes of some states, carriers are empowered to maintain an action to set aside the orders of railroad commissions fixing rates,19 or

Washington Southern R. Co. v. Com., 112 Va. 515, 71 SE 539.

16. Chicago, etc., R. Co. v. State, 35 Okl. 233, 128 P 908; Washington Southern R. Co. v. Com., 112 Va. 515, 71 SE 539. See also Chicago, etc., R. Co. v. State, 35 Okl. 214, 220, 224, 229, 128 P 900, 903, 904, 907 (holding that, where after an appeal from freight rates promulgated by the corporation commission the commission recommended a modification of its order, and appellants submitted the appeal on the record and recommendation without briefs and without pointing out wherein the order as modified was unreasonable, it will be affirmed as modified).

[a] Thus, where it appears that a freight rate on commercial fertilizers fixed by the railroad commission was about the same as that fixed by the carrier for acid phosphate shipped in bulk, and that the only difference between the bulk fertilizer and the finished product shipped in bags for which a higher rate was charged by the carrier was the addition of cinders to the raw material to reduce its strength, and that the rate charged prior to the last eight years was about the same as that fixed by the commission, and there was no general advance in freight rates at the time of the prior change and no reason was offered for that advance, the ruling of the commission will not be disturbed. Southern R. Co. V. State R. Commn., 42 Ind. A. 90, 83 NE 727.

17. Gulf, etc., R. Co. v. State, 26 Okl. 761, 110 P 651.

18.

19.

See statutory provisions; and Chicago, etc.. R. Co. V. State R. Commn., 173 Ind. 469, 87 NE 1030, 90 NE 1011; Gulf. etc., R. Co. v. Railroad Commn., 102 Tex. 338, 113 SW 741, 116 SW 795; Railroad Commn. v. Houston, etc.. R. Co., 90 Tex. 340, 38 SW 750; Chicago, etc.. R. Co. v. State R. Commn., 156 Wis. 47, 145 NW 216, 974; Minneapolis, etc., R. Co. v. State R. Commn., 136 Wis. 146, 116 NW 905. 17 LRANS 821.

[a] The terms "unreasonable” and "unjust" as used in such a statute are not to be restricted to mean that the regulation complained of is a taking of property without proper compensation or without due process of law. Railroad Commn. v. Hous

20

ordering a refund of excessive charges." And it has been held that an order for refund of charges is subject to review on appeal from the judgment of the court.21 Where the statute provides that the petition may set forth a particular cause of objection to the rates, or to either or all of them, the carrier is not required to attack all the rates but may attack one only.22 The burden of proof is on the carrier to show that the rates are unreasonable by clear and satisfactory proof,23 and the petition should allege facts and circumstances which, if true, would authorize the court to adjudge the rates unjust and unreasonable as a matter of law.24 It has been held, however, that the commission because of its administrative nature and expert knowledge may apply that knowledge in determining the reasonableness of rates, without having any basis therefor in evidence.25

[688] 2. Interstate Rates. Where the interstate commerce commission fixes a rate for a commodity and the validity of such rate is subject to grave and serious doubt, an interlocutory injunction may be granted pending a judicial determination of the reasonableness of the rate.2 26

[689] P. Proceedings Maintainable by Shipper or Consignee for Relief against Unreasonable Rates2-1. Interstate Rates. An action lies at common law to recover an amount charged for transportation in excess of that fixed by law.28 28 This rule applies to charges in excess of the schedule of rates filed with the interstate commerce commission,29 and no prior application to the commission is necessary before bringing an action to recover the excess over the rate filed.30 But a shipper who has not been charged rates in excess of those filed with the commission may complain that the rates are never

ton, etc., R. Co., 90 Tex. 340, 38 SW 750.

[b] Exclusiveness of statutory remedy. A statute permitting the aggrieved party to bring his action in the circuit court after a decision of the commission is for the purpose of having the decision judicially determined before its enforcement, and if the person aggrieved fails to avail himself of the statutory remedy of questioning the decision, it will be held conclusive except for the cause that renders the decision void as to the unconstitutionality of the order. Nothing is better settled than that, when the legislature specifically prescribes an adequate and legal remedy, that alone is open to the litigant. Southern Indiana R. Co. v. State R. Commn.. 172 Ind. 113, 87 NE 966.

20. Chicago, etc., R. Co. v. State R. Commn., 156 Wis. 47, 145 NW 216, 974.

21. Minneapolis, etc., R. Co. V. State R. Commn., 158 Wis. 102, 147 NW 366; Chicago, etc., R. Co. V. State R. Commn., 156 Wis. 47, 145 NW 216, 974.

22. Gulf, etc., R. Co. v. Railroad Commn., 102 Tex. 338, 113 SW 741, 116 SW 795.

23. Gulf, etc., R. Co. v. Railroad Commn., 102 Tex. 338, 113 SW 741, 116 SW 795; Chicago, etc., R. Co. v. Railroad Commn., 156 Wis. 47, 145 NW 216, 974.

"The courts must regard its actions, when within the limits of its delegated powers, as being the result of a purpose to do justice between all parties, and as having resulted in just and correct action until it be shown by clear and satisfactory evidence to be otherwise. Railroad Commn. v. Weld, 96 Tex. 394, 73 SW 529. The language, 'clear and satisfactory evidence' limits the power of courts in setting aside rates, etc., to cases in which it may be established by evidence which leaves no reasonble doubt in the judicial mind that

As elsewhere

33

theless excessive and unreasonable. shown, where common carriers have adopted, filed, and published schedules of rates for interstate shipments, carriers, shippers, and consignees alike are bound thereby,31 and the courts must enforce the schedule rates in fixing the rights and liabilities of the parties.32 Individual shippers are not entitled to raise the question of the reasonableness of such rates in an action brought by them against the carrier, as that would result in discrimination.3 It is well settled that the Interstate Commerce Act abrogates the common-law remedy for recovery of alleged unreasonable freight charges on interstate shipments where the rates charged are those duly fixed by the carrier according to the act and have not been found unreasonable by the interstate commerce commission.34 But a shipper has the right by appropriate proceedings before the commission to attack the rate or the classification, and if either or both are held to be unreasonable, he may secure appropriate relief by a reparation order from the commission, or by suit in court after a finding by the commission that the rates are unreasonable, and the making of a reparation order which the carrier fails to comply with.35 But primarily redress must be sought through the interstate commerce commission which alone has power to alter an established schedule on the ground that the rates fixed therein are unreasonable.3 And this is so, even when the exaction of such excessive rates was the result of a combination and conspiracy made unlawful by the Sherman Anti-Trust Law.37 37 Neither proceedings begun by other shippers nor findings of unreasonableness and orders issued thereon by the commission will save the rights of those who disregard the provisions of the statute that all complaints for the

27.

31.

R. Co.

V.

See supra § 670. 32. Great Northern O'Connor, 232 U. S. 508, 34 SCt 380, 58 L. ed. 703.

33. Rather v. Nashville, etc., R. Co., 131 Tenn. 289, 174 SW 1113. And see infra § 710..

34. See infra § 710.

35. Great Northern R. Co. V. O'Connor, 232 U. S. 508, 34 SCt 380, 58 L. ed. 703; Geraty v. Atlantic Coast Line R. Co., 211 Fed. 227; Howard Supply Co. v. Chesapeake, etc., R. Co., 162 Fed. 188, 191. And see cases infra note 36.

36. U. S.-A. J. Phillips Co. v. Grand Trunk Western R. Co., 236 U. S. 662, 35 SCt 444, 59 L. ed. 774 [aff 195 Fed. 12, 115 CCA 94]; Texas, etc., R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 SCt 350, 51 L. ed. 553, 9 AnnCas 1075 and note [rev (Tex.) 85 SW 1052] (leading case); Meeker Lehigh Valley R. Co., 162 Fed. 354; Howard Supply Co. v. Chesapeake, etc., R. Co., 162 Fed. 188.

V.

Kan. Atchison, etc., R. Co. v. Superior Refining Co., 83 Kan. 732, 112 P 604.

Mich.-L. Starks Co. V. Grand Rapids, etc., R. Co., 165 Mich. 642, 131 NW 143.

N. Y.-Baltimore, etc., R. Co. v. La Due, 128 App. Div. 594, 112 NYS 964 [rev 57 Misc. 614, 108 NYS 658].

W. Va.-Robinson V. Baltimore, etc., R. Co., 64 W. Va. 406, 63 SE 323.

37. Meeker v. Lehigh Valley R. Co., 162 Fed. 354 (where it was said that the Sherman Anti-Trust Law [Act July 2, 1890, 26 U. S. St. at L. 210 c 647 § 7], does not give any right of action for damages sustained by the payment of excessive, unjust, or unreasonable rates to interstate carriers, such relief being provided for by the Interstate Commerce Act).