post a tariff which contains no change in rates, and a misleading quotation by the agent of the carrier, afford no basis for reparation.89 It should be noted, however, that the Act provides a penalty against a railroad which deliberately misquotes a rate which the shipper formally asks in writing. 90

§ 1054. Liability for negligence in quoting rates.

Although in general the application of these principles is well settled, there are still some difficult situations to deal with. In one recent case a carrier quoted a rate to a shipper which by error was less than that published; and the shipper in reliance thereon later made a contract for sales on that basis. Later the carrier notified the shipper that a mistake had been made and quoted a new rate, which by a second mistake was higher than the published rate. The shipper called off his negotiations and refused to ship, although as he testified he would have shipped at the correct rate; and in his suit subsequently for lost profits it was held by the State court recently that he might recover.91 It is, as has been seen, clear that if negligence results in the quotation of a rate lower than that published, it is impossible to save to the shipper his usual remedy, since it would enable him to get service at a discriminatory rate, thus militating against the integrity of the Act.92 But in a case like this if no liability was incurred a higher rate might be continually quoted to shippers in disfavor, thereby putting them at a disadvantage. A question might arise as to the jurisdiction of the State court, particularly if it be held that the remedy of a prospective shipper did not exist at common law, but arises by virtue of the Act.93 And it has been

89 Faribault Furniture Co. v. C. G. W. R. R., 25 I. C. C. 40.

90 O'Brien & Co. v. N. P., Unrep. No. 227.

91 Aldrich v. So. Ry. (So. Car.), 79 S. E. 316.

92 Poor Grain & P. Co. v. C., B. & Q. Ry., 12 I. C. C. 418.

93 Galveston H. & T. C. Ry. v. Wallace, 223 U. S. 481, 32 Sup. Ct. 205.

held recently 94 that a shipper may sue for the carrier's failure to post and keep open for inspection its established rates, whereby the shipper is compelled to pay a higher rate than that in effect over a competing line, and in such a suit recover the difference between the rate paid and competitive rate. But this is in the face of the fact that the shipper would thereby be charged less than the charge published for all, which it is the policy of the ruling cases to make impossible in general at whatever cost to individuals. It is submitted, therefore, that it will be the safe course to make no such concessions as these two cases discussed in this paragraph were tempted to permit but to hold to the doctrine of the inevitable incidence of the scheduled rate, subject to the special penalty of the statute for failing to quote correctly a rate formally asked in writing. § 1055. Limitations of this policy.

The principal line of distinction is, therefore, clear enough. If the basis of the suit is in any way an attack upon the propriety of anything in the schedule the jurisdiction of the Commission is exclusive. Thus, as has been seen, that such rates so scheduled are reasonable cannot be questioned in any proceeding before the courts, as jurisdiction to reduce or realign them for the future, and to give damages and reparation for past exactions, has been exclusively vested in the Commission. But the courts are not otherwise ousted from the jurisdiction they formerly possessed for overcharge and undercharge as to suits between shippers and carriers. Thus if a shipper has been compelled to pay more than the scheduled rate he may sue in the courts for recovery of the overcharge.95 And likewise the carrier, if by mistake the shipper has paid less than the schedule calls for, not only may but should resort to the courts to recover the balance.96 It is, there

94 St. Louis S. W. Ry. v. Lewallan Bros., 192 Fed. 540.

95 Hardaway v. Southern Ry., (S. C.), 73 S. E. 1020.

96 Oregon Ry. & N. Co. v. Coolridge, 58 Oreg. 95, 116 Pac. 93; but see Baldwin Land Co. v. Columbia R. Ry., 58 Oreg. 285, 114 Pac. 469.

fore, well established that, while in transportation under the Act the reasonableness of rates is to be determined only by the Commission, one who has been made to pay more than the published rates may bring suit in State courts for its recovery, on the basis of the immemorial action at common law against a carrier for the recovery of the excess when more than a proper charge has been exacted.97 Whatever courts would as between shipper and carrier normally entertain such suits may proceed to the extent indicated in this paragraph; and it should be noted that apparently the two-year limitation in the Act for reparation suits would not apply in the forum of the courts of the State,98

Topic D. Finding of the Commission

$1056. Power to grant reparation.

The Act now confers authority upon the Commission to award damages in cases brought before it.99 Under this provision, reparation will be ordered equal to the amount of any overcharge which the Commission finds to have been made.1 Under the Act as first passed the Commission had held that it had no power to consider a claim for damages. While the Commission found as a fact that the charges of defendant were in some instances unreasonable, it at first made no attempt to formulate

7 Brantly Co. v. Ocean S. S. Co., 5 Ga. App. 844, 63 S. E. 1129.

98 Chicago, R. I. & P. Ry. v. Lena Lumber Co., 99 Ark. 105, 137 S. W. 562; see also Kansas City So. Ry. v. Tonn, 102 Ark. 20, 143 S. W. 577.

99 Cattle Raisers' Ass'n v. Chicago, B. & Q. R. R., 10 I. C. C. Rep. 83.

Macloon v. Chicago & N. W. Ry., 3 Int. Com. Rep. 711, 5 I. C. C. 4; Rea v. Mobile & O. Ry., 7 I. C. C. Rep. 55; Grain Shippers' Ass'n v. Illinois C. R. R., 8 I. C. C. Rep. 158; Chicago F. P. C. Co. v. Chicago & N. W. Ry., 8 I. C. C. Rep. 316;

Roth v. Texas & P. Ry., 9 I. C. C. Rep. 602; Gardner v. Southern R. R., 10 I. C. C. Rep. 342; Pitts v. Atchison, T. & S. F. R. R., 10 I. C. C. Rep. 691; Pitts v. St. Louis & S. F. R. R., 10 I. C. C. Rep. 684; Hope Cotton Oil Co. v. Texas & P. Ry., 10 I. C. C. Rep. 696.

2 Heck v. East Tennessee, V. & G. R. R., 1 Int. Com. Rep. 775, 1 I. C. C. 495; Council v. Western & A. R. R., 1 Int. Com. Rep. 638, 1 I. C. C. 339; Riddle v. New York, L. E. & W. R. R., 1 Int. Com. Rep. 787, 1 I. C. C. 594.

orders. Reparation will now also be awarded for damages caused by other violations of the Act besides overcharge: for instance, for failure to furnish cars. The effect of an advance in through rates cannot be determined in a proceeding in the same suit for reparation, as regards territory to which the reduction in the through rate did not apply, but is a matter for independent inquiry in a new proceeding.5

§ 1057. Bases of award by reparation.

The Commission has jurisdiction without regard to the amount in controversy, to award damages whenever they arise under the Act, excepting in those cases where the Act itself names another forum. Overcharge beyond the scheduled rate may be refunded by the carrier without going to Commission; but reparation for scheduling too high a rate can only be worked out by going to the Commission. And it is to be noted that reparation is awarded only on the basis of finding that the rate is excessive.s The Commission cannot award reparation merely on the admission of defendant that complainant is party entitled to it; it must be affirmatively shown that complainant is proper party to obtain reparation." The Commission it seems is not authorized by the law to deny reparation in a case where it has found that the rates charged complainant were unreasonable or unjustly discriminatory." Because a rate is found unreasonable it cannot be assumed the Commission will, as a matter of course, award reparation upon the basis of the rate found to be reason

3 Barrow v. Yazoo & M. V. R. R., 10 I. C. C. Rep. 333.

4 Glade Coal Co. v. Baltimore & O. R. R., 10 I. C. C. Rep. 226; Paxton Tie Co. v. Detroit S. R. R., 10 I. C. C. Rep. 422.

5 Cattle Raisers' Ass'n v. Chicago, B. & Q. R. R., 10 I. C. C. Rep. 83. 6 Washer Grain Co. v. M. P. Ry., 15 I. C. C. 147.

7 Tyson & I. Buggy Co. v. A. & A. Ry., 17 I. C. C. 330.

8 Pabst Brewing Co. v. Chicago, M. & St. P. Ry., 17 I. C. C. 359.

Baker Mfg. Co. v. C. & N. W. Ry., 21 I. C. C. R. 605.

10 Mfrs. & Merchants' Ass'n v. A. & A. R. R. Co., 28 I. C. C. 116.

able. However this may be, at all events no order will be entered for reparation because a refund erroneously made was in excess of amount of reparation upon basis of a rate found to be reasonable. 12 As against the carriers found in fault, reparation is divided in proportion of the divisions of the rate. 13

§ 1058. Extent of the jurisdiction.

The Commission is authorized to award damages only when there has been a violation of the Act.14 The Commission has no power to direct the payment of a damage claim, since a failure to pay is not a violation of the Act.15 Still less has the Commission power to order prompt payment. 16 The Commission has no authority to assess costs or to allow attorney's fees." And the Commission has no jurisdiction to award damages for icing charges resulting from carrier's delay.18 The Commission has no authority to award damages for negligence not constituting a breach of the Act. 19 And, as has been seen, loss sustained through misquotation of rate is no proper ground for damages. 20 A change in rates on short notice, under authority of Commission, affords no basis for reparation.21 A failure of defendants to provide in their tariffs for the payment of redemption money on account of lost commutation tickets was held not unreasonable or otherwise in violation of the Act.22 That a shipper in some instances in the

11 National Wool Grower's Ass'n v. O. S. L. R. R., 25 I. C. C. 675. 12 W. E. Caldwell Co. v. C. I. &

L. Ry., 20 I. C. C. R. 412.

13 National Mfg. Co. v. Chicago G. W. Ry., 18 I. C. C. 370.

14 Wisconsin Lime & Cement Co. v. C., C., C. & St. L. Ry., 25 I. C. C. 366.

15 Larkin Co. v. E. & W. T. Co., 24 I. C. C. 645.

16 Ponchatoula Farmers' Ass'n v. I. C. R. R., 19 I. C. C. 513.

17 Washer Grain Co. v. M. P. Ry., 15 I. C. C. 147.

18 Platten Produce Co. v. K. L. S. & C. Ry., 20 I. C. C. 543.

19 Buffalo Hardwood Lumber Co. v. B. & O. S. W. R. R. Co., 21 I. C. C. 536.

20 Alabama Lumber & Export Co. v. P. B. & W. R. R., 19 I. C. C. 295.

21 Wisconsin Lime & Cement Co. v. C., C., C. & St. L. Ry., 25 I. C. C. 366.

22 Hill v. P. R. R., 25 I. C. C. 650.