which had formerly existed be prevented; and in the enforcement of these provisions the Commission has no discretion.70 The intention of Congress is, in the absence of express exceptions, to prevent a departure from the published schedules in all manner of carriages, whether gratuitous or otherwise. A carrier cannot depart to any extent from its published schedules of rates for interstate transportation on file without incurring the penalties of the statutes.72 The law places the same obligation upon the shipper as upon the carrier to observe lawful tariff provisions; and so it would seem that a false representation of the contents of a package on the part of the shipper is prohibited by the law." Where a carrier willfully and knowingly demands and receives storage charges against a shipper for car detained at a point other than the customary and usual place of delivery or point of destination, it is criminally liable under the Act. In view of the express provision that no transportation shall be performed save in pursuance of schedules on file, the Commission will be vigilant to see that criminal prosecution is the result of any flagrant violation.75 73 § 827. Essentials of the crime. 74 Under the Elkins Act, the acceptance by a carrier of a less sum of money than that named in its tariff for the transportation of property is a departure from the legal rate; and it is no defense against a criminal prosecution that the carrier does so in compromise of claims for loss of property in transit.76 The language of the Act being no carrier shall charge, or demand or collect, or receive a 70 Ames Bros. Co. v. Rutland R. R., 16 I. C. C. 479. 71 American Express Co. v. U. S., 212 U. S. 522, 29 Sup. Ct. 315, 53 L. ed. 635. 72 L. & N. R. R. v. Mottley, 219 U. S. 467, 31 Sup. Ct. Rep. 265, 55 L. ed. 297. 73 Bannon v. Southern Express Co., 13 I. C. C. 516. 74 United States v. Texas & P. R. R., 185 Fed. 820. 75 I. C. C. Conference Ruling, No. 184. 76 United States v. Atchison, T. & S. F. Ry., 163 Fed. 111. greater or less or different compensation, it has been held that a railroad is criminally liable for merely demanding storage charges in excess of those lawfully applicable." Where in prosecution under the Elkins Act the indictment averred that the defendant carrier over whose line the shipment was made had established and published rate over its line of 1912 cents and the proof showed that the tariffs and schedules filed specify 18 cents over the defendant's route, it appearing that the 1912 cent rate was made up by adding to the 18 cent rate the 112 cent rate of another independent carrier, there was held to be a fatal variance between the allegations and the proof.78 And where an indictment alleged that the published rate on lime was $70 a carload, the allegation was held not to be sustained by a showing from the published tariff that the rate was $3.50 per ton in carloads of at least 40,000 lbs., the charges to be assessed at $3.50 per ton on actual weight on shipments exceeding 40,000 lbs., as these variant conditions might be material in determining whether or not there had been a violation of the Act.79 § 828. Requirements relating to filing. One of the chief purposes of the filing is to call the attention of the Commission to a proposed change in rates.80 As the Commission has pointed out, it is necessary that all rates should be on file with it for study and comparison, if its regulation is to be intelligent and comprehensive.81 It follows that rates provided in a tariff which is not on file with Commission are not legal rates.82 And, as the protection of the shipper is a matter which the Act has also in mind, damages will be awarded for loss sustained "United States v. Texas & P. R. R., 185 Fed. 820. 78 United States v. Standard Oil Co., 170 Fed. 977. 79 Atchison, T. & S. F. Ry. v. United States, 170 Fed. 250. 80 In the Matter of Proposed Ad vances in Freight Rates, 9 Int. Com. Rep. 382. 81 Re Atlanta & W. P. R. Co., 2 Int. Com. Rep. 480, 3 I. C. C. Rep. 75. 82 St. Louis Blast Furnace Co. v. V. Ry. Co., 24 I. C. C. 360. through failure to post a tariff changing rates.83 A tariff filed by the authorized agent of a carrier has the same legal status as though separately published and filed by the carrier.84 If a tariff making reductions is in due form and legally filed, whether it was filed without proper authority is immaterial,85 if the proof shows that it has been regularly used by the defendant carrier. The necessity of establishing and maintaining a steady, uniform, open tariff rate is of paramount importance, in view of the evils which the Act to Regulate Commerce attempts to correct, and obviously the most efficient method of regulation is the requirement of constant publicity. § 829. Conclusive presumption of legality. The filing of schedules of rates with the Commission, as required by the Act, raises no presumption as to the legality of such rates in any proceedings before the Commission.86 But, as has been seen, the result of the provi sions of this section is that in all dealings between shipper and carrier, whether out of court or in court, except in a proceeding before the Commission to have the rates altered, the rate so filed with the Commission must be taken as the reasonable rate.87 Whether or not the shipper knows or does not know what the rates in force are, he is bound thereby and answerable therefor; and as will be seen later the doctrine that the scheduled rate is the only legal rate is pressed to the extent of holding that the shipper must pay that rate, even if he was given to understand that the rate was lower.88 Thus the fact that a shipper is 83 Canadian Valley Grain Co. v. C., R. I. & P. Ry., 19 I. C. C. 108. 84 Johnson & Co. v. A., T. & S. F. Ry., 21 I. C. C. 637. 85 Bd. of Tr. of Chicago v. I. C. R. R., 26 I. C. C. 545. 86 San Bernardino Bd. of Trade v. Atchison, T. & S. F. R. R., 3 Int. Com. Rep. 138. 87 One of the first cases to appre ciate this was Van Patten v. Chicago, M. & S. P. Ry., 81 Fed. 545. See Texas & P. Ry. v. Mugg, 202 U. S. 242, 50 L. ed. 1101, 26 Sup. Ct. 268, for this doctrine in its latest develop ment. 88 The first intimation of this was in Kinnavey v. Terminal R. R., 81 Fed. 802. See Texas & P. Ry. v. Abilene Cotton Oil Co., 204 U. S not given personal notice of the promulgation of a carrier's regulations neither vitiates the latter's right nor lessens its duty to impose charge incurred under the rules contained in its lawful tariff.89 The full scope of this doctrine of the finality of the scheduled rate until it is altered by the Commission is fully discussed in a later chapter dealing with its quasi-judicial powers. § 830. Of whom filing required. The law lays upon carriers the duty to publish and file rates applicable to the interstate traffic in which they participate. But special rates or fares for property or troops for the federal government need not be filed, as such transportation is expressly excepted from the provisions of the Act.91 Where a terminal railroad lying wholly within a State, but engaged in the transportation of property moving wholly by railroad from one State to another, joined in the transportation of an interstate shipment without first filing a schedule of rates applicable to the shipment with the Commission, it was held that under the Act as amended it was criminally liable.92 But a railroad doing only local businesses and entering into no through arrangements, either by billing through or dividing rates, need not file its schedules.93 The Commission will not recognize as common carriers lines that do not publish tariffs in lawful form or concur properly in lawful tariffs of other lines or that do not in all other respects comply with the law.94 Such carriers cannot demand the establishment of through rates unless they are ready to submit themselves to the jurisdiction of the Commission in this respect. A railroad lying wholly within a State which stands off from its connections at its terminals and deals with them as it would with consignors or consignees is not obliged to report to the Commission.96 But a junction railway which is by intercorporate relationships involved with the terminal movement of interstate commerce must conform to the requirements of the Act as to fidelity to tariffs.97 § 831. Provisions cannot have retroactive effect. It has been sometimes attempted, but always in vain to give a retroactive application to tariff provisions, for some reason or other, good or bad.98 The Commission is positive in holding that no such retroactive application can be sanctioned.99 Tariffs cannot be made to apply to conditions, other than those existing upon the date when such tariffs became effective. It follows that a tariff canceling a privilege does not affect shipments that began to move prior to such cancellation. For the rate in effect at the time a shipment begins to move is the rate lawfully applicable. If subsequent to the shipments in question a tariff is filed making such allowance, and if the carrier admits the unreasonableness of the rates charged to the extent of such allowance, it may be held that reparation should be awarded on the basis of the allowance made in the subsequently published tariff. In other words, although any change must be prospective, and cannot be retroactive, still what is being done in the future may have its bearing upon what ought to have been done in the past. But the Commission will scrutinize any 3 95 Enterprise Transp. Co. v. Penna. Ry., 12 I. C. C. 326. 96 United States v. Chicago, K. & S. Ry., 81 Fed. 783. 97 United States v. Union S. Y. Co., 226 U. S. 286, 33 Sup. Ct. 83. 98 Victor Fuel Co. v. A., T. & S. F. Ry., 14 I. C. C. 119. 99 Rosenbaum Bros. v. B. & O. R. R., 24 I. C. C. 287. 1 Cady Lumber Co. v. M. P. Ry, 19 I. C. C. 12. 2 In the Matter of Through Routes, 3 Transit Case, 25 I. C. C. 130. |