offered for transportation and suitable to be carried, though it was not uniformly held that the carrier was bound to carry for all at the same rate. In the Maximum Rate case, 167 U. S. 501, 42 L. Ed. 251, the Supreme Court said that this section. was a simple enactment of the common law requirement, and that for more than a hundred years it had been the affirmative duty of the courts to exact and enforce the common law requirement that all charges should be reasonable and just. This requirement of reasonableness grew out of the relation of the carriers' occupation to the public as was declared in the Granger cases, 94 U. S. 113, 24 L. Ed. 77, where the court said that the carrier must carry when called upon to do so, and that he could charge only a reasonable sum for the carriage, and in the absence of any legislative regulation upon the subject, the courts must decide, as they did for private persons when controversies arose, what is reasonable.

$120. Practical difficulties in the enforcement of reasonableness in rates. There are few if any cases wherein recovery has been had at law upon the common law liability of the carrier for charging excess over a reasonable rate. As said by the Supreme Court, in the Trans-Missouri case last cited, any individual shipper would in most cases be apt to abandon the effort to show the unreasonable character of the charge, by the necessary expense of time and money to prove the fact and at the same time to incur the ill-will of the road itself in all its future dealings with him.

Furthermore, the question of what is reasonable is one of fact, dependent upon the special circumstances of each case, and as these circumstances are changing from time to time, a rate which is unreasonable when paid, may become reasonable, through changed conditions, before the case is determined in the court of last resort, or even in the trial court. See conclusion of opinion in Smyth v. Ames, 169 U. S. 1. c. 549, 42 L. Ed. 819.

Another reason for the practical difficulty in the way of enforcement by shippers of this common law obligation of the carriers to charge only a "reasonable rate," lies not only in the delay and expense of litigation, and in the small amount. involved in the payment of the charge for any one shipment, but in the fact that a party paying the unreasonable charge

without protest, in the absence of any mistake or fraud, was denied any right of action. But see Cook v. C. R. I. & P. R. Co., 81 Iowa, 551, and 9 L. R. A. 764, where held that payments made by shippers in ignorance of discrimination and after the assertion of the carrier that no lower rates were given, are not voluntary payments within the rule that they could not be recovered back.

Even assuming that recovery was had, the enforcement by different juries of their own standards of reasonableness, for it must be in each case a question of fact at last, would be neces sarily destructive of the uniformity which is essential in any permanent regulation of transportation for both shippers and carrier. See remarks of Phillips, J., in Windsor Coal Co. v. C. & A. R. Co., 52 Fed. Rep. 716. It was suggested, however, by the United States court of appeals in Southern Pacific R. Co. v. Colorado Fuel & Iron Co., 42 C. C. A. 12, 101 Fed. Rep. 799, that it was possible that a jury verdict would lead to a withdrawal of the rate adjudged unreasonable.

$121. Standard of reasonableness under state statutes.Under state statutes re-asserting this common law requirment of reasonableness and providing for the publication of tariffs and charges and their submission to and approval by state commissions, it has been held that the common law right is superseded by the statute and that there can be no recovery for alleged unreasonableness in the charges thus published and approved, as the published rates will be conclusively presumed to be reasonable. Young v. Kansas City, St. J. & C. B. R. Co., 33 Mo. App. 509; Windsor Coal Co. v. C. & A. R. Co., 52 Fed. Rep. 716; McGrew v. Missouri Pacific R. Co., 114 Mo. 210; Railroad Co. v. People, 77 Ill. 443; Sorrell v. Railroad Co., 75 Ga. 509; Burlington, C. R. & N. R. Co. v. Dey, 82 Iowa 312. In the latter case, in answer to the claim that the Commissioners' rate would not secure the accused from conviction, if it was excessive, the court said that the state would be precluded from denying that the rate was reasonable.

$122. Standard of reasonableness under the act. The principle on which these cases concerning state statutes were decided was applied to the Act to Regulate Commerce in the case of Van Patten v. C., M. & St. P. R. Co., 81 Fed. Rep. 545, decided in the Circuit Court for the northern district of Iowa

in 1897. This was a suit to recover damages on the ground that the plaintiff was charged an unreasonable rate. The court ruled that the plaintiff in order to recover must show that the rate was unreasonable according to the provisions of the act, and that courts and juries could not resort to any other standard of reasonableness than that fixed by the standard rates published by the carrier, and that it was a good defense to an action for damages that the carrier had adopted, printed and posted a properly proportioned schedule of rates under section 6, the only other standard in the act being that as to the long and short haui provided in section 4, and as the charges complained of were in accordance with the published schedule and there was no violation of section 4, there could be no recovery.

In the Circuit Court for the eastern district of Missouri, Judge Adams, in Kinavey v. Terminal Railroad Association, 81 Fed. Rep. S02, about the same time, in a similar action, said that the rates so published and filed were a prima facie criterion, and that to constitute a cause of action there must be an aver

ment either that the carrier failed to publish a schedule of rates, or that it charged in excess of the rates as published and then in force, and in either case that the charge in fact was unreasonable, or an averment of other facts sufficient to do away with the prima facie effect of the schedule rates.

In the cases above cited plaintiff's had elected to proceed in the courts under sections 8 and 9, infra, without appealing to the Commission to adjudge the rate unreasonable and for reparation. As to the power of the Commission to allow reparation in damages for unreasonable rates, see infra, sections 14

and 16.

$123. The Commission has no power to fix rates. During the first ten years of its existence, the Commission claimed and exercised the power of fixing rates in futoro, that is, when a rate was adjudged unreasonable, to determine what rate was reasonable and to direct the carrier by a given date to reduce the rate to the designated maximum. Illustrations of these decisions by the Commission will be found in their reports from 1887 to 1897 The Commission states in its annual report for 1887, page 16, that out of the one hundred and thirty five formal orders made in suits actually heard from its institution

down to that time, sixty eight had prescribed a change in the rate for the future.

This question of the power of the Commission did not come before the Supreme Court until 1896, when it was decided in what is known as the Social Circle case, 162 U. S. 184, 40 L. Ed. 935, and the following year, in the Cincinnati Freight Bureau case, 167 U. S. 479, 42 L. Ed. 243, that Congress had not conferred upon the Commission the power to prescribe rates, whether maximum, minimum, or absolute. The reasonableness of a rate in a given case, the court said, depended upon the facts, and the function of the Commission was to consider those facts and give them their proper weight, saying in the case first cited, p. 196: "If the Commission instead of withholding judgment in such a matter until an issue has been made and the facts found, itself fixes a rate, that rate is prejudged by the Commission to be reasonable.”

The court says in the Freight Bureau case, that Congress might have fixed the rate itself or committed to some subordinate tribunal the duty, but that it had not done so.

In 7 I. C. C. R. 286, the Commission says that the effect of these decisions was to give the carriers the power to exact charges and establish rates independent of the judgment of the Commission. See also Report of Commission of 1898, pp.

23 to 27.

$124. No power in the courts to fix rates.-As the power of the Commission is thus limited to determine that an existing rate is unreasonable, the power of the courts is also so limited. The fixing of rates for the future is a legislative and not a judicial duty. This was directly determined by the United States Court of Appeals for the eighth circuit in an opinion by Thayer, J., in Southern Pacific Ry. Co. v. Colo. Fuel & Iron Co., 42 C. C. A. 12, and 101 Fed. Rep. 779, in 1900. In this case the Circuit Court had made an order directing that the rates from Pueblo to Pacific coast points should not exceed 75 per cent. of the rates contemporaneously in force from Chicago to the same points, the rates on steel rails and fastenings not to exceed 45 per cent., and on other iron products should not exceed 37 per cent. The court said that as the Supreme Court had decided that the Commission could not fix rates, because no such power was given by the Commerce

Act, for much stronger reasons the power to fix a schedule. of rates did not belong to the federal courts, because Congress had not attempted to delegate that power to the courts, even if it could divest itself of such a legislative function and impose it upon the judicial branch of the government.

A restraining order upon a carrier which neither forbids nor commands the doing of any specific act, but simply repeats the general admonition of the Interstate Commerce Act, cannot be granted, since such an injunction does not give any sanction to the statute, but leaves all vital questions concerning violations of the law to be tried by proceedings for contempt, instead of in the usual manner before a court and jury. See Southern Pacific Railroad Co. v. Colorado Fuel & Iron Co. supra.

Thus, an order that commodity rates must not be lower than necessary to meet competition, nor to be applied to articles not subject thereto, is a mere statement of what the law authorizes and prescribes, too indefinite to be the basis of a decree. Farmers Loan & Trust Co. v. Northern Pacific R. Co., 83 Fed. Rep. 249.

125. The federal courts on reasonableness in railroad rates. The question of reasonableness in railroad rates has been construed by the Federal Courts in two distinct classes of cases. Thus in the judicial review of the state-imposed rates upon intrastate business, supra, $$ 95-97, the courts have been compelled to determine whether carriers have been deprived of the right to make reasonable charges; while in questions arising under the Act to Regulate Commerce the question is raised whether the rates charged by the carrier exceed what is reasonable. In the first class of cases the burden of proof is upon the carrier to show that the state has fixed unreasonable limitation upon his rates; while in the other class of cases the burden is upon the party complaining to show that the carrier has exceeded a reasonable standard. The Supreme Court said in the Maximum Rate case, 167 U. S. 1. c. 511, 42 L. Ed. 251, that a rate may be unreasonable because it is too low as well as because it is too high. In the former case it is unreasonable and unjust to the stockholder, and in the latter to the shipper.

In Covington & Lexington Turnpike Road v. Sanford, 164