the printing of the schedule in two public and conspicuous places, prohibited reduction of rates without three days notice, and made a more specific provision as to the power of the Commission in prescribing forms of schedules, rates, fares and charges.

This section was also amended by the so-called Elkins law of February 19, 1903, infra, § 310, in the requirement of the publication and the invariable application of the tariff rates, and the wilful failure of the carrier to file and publish the rates or to strictly observe them until changed according to law was made a misdemeanor punishable by heavy fine. The rates filed or participated in by the carrier are also declared, as against the carrier, to be the legal rate, and any departure or offer to depart from the same is made an offense. The Commission in its report for 1904, page 10, recommends that these provisions as to application and observance should be made somewhat more definite and extended to apply to other agencies connected with transportation, such as the use of private cars, which may now be used as a means of making concessions to shippers.

§ 234. Effect of publication.-In Gulf, Colorado & Santa Fe Railroad Co. v. Hefley, 158 U. S. 98, 39 L. Ed. 910, the Supreme Court decided that all railroads carrying interstate freight were subject to the provisions of the act to regulate commerce, and that the only rule of compensation which can be followed in regard to interstate shipments is the rate expressed 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 devitating 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. 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 held 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 Helfley case, supra. See amendatory act of February 19, 1903, infra, § 48, 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. De Coursey, 82 Fed. Rep. 302, 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.

§ 235. Enforcibility of unpublished rate against the carrier.— This section provides that it shall be unlawful for the carrier to deviate from the published rates, and the recent amendment of 1903 declared that the published rate should be conclusively deemed to be the legal rate. It was held by the Circuit Court of Appeals for the fifth circuit in Pondecker

Lumber Co. v. Spencer, 30 C. C. A. 430, 86 Fed. Rep. 846 (decided in 1898), reversing 81 Fed. Rep. 277, that where the agent of a connecting carrier by mistake has given a shipper an unusually low rate on a shipment of a special and unusual character, and the initial carrier without knowledge of such rate breaks its contract of carriage by sending the goods over a different road from that prescribed in the bill of lading, so that the shipper is compelled to pay a much higher rate of freight, the initial carrier cannot escape liability for the damages on the ground that the rate given was in violation of the Interstate Commerce Act. The court said in its opinion that the Interstate Commerce Act nowhere intimates by any express language that contracts made by carriers within the scope of their general powers are to be declared null and void in any collateral proceeding which may arise, by reason of some alleged or supposed departure from the requirements of that Act with reference to fares and charges. It was not expected that each shipper should be an expert rate sheet reader, or that he should have to visit the local offices of each of the connecting lines to inspect the rate sheets that were to be posted at certain points according to the requirements of the Interstate Commerce Act, in order to advise himself as to what are the local rates on the connecting carriers between the points at which the connecting carriers connected, nor was it required of him before making a contract that he should make inquiry at the offices of the Commission in Washington city to learn if a through joint rate over the route his goods were to be carried were on file there and if so, its terms. The Court said that any such rule would put on shippers a burden too grievous to be borne and opened the doors for the practice of fraud and oppression by the agents of corporation carriers. See also opinion of Commission in 6 I. C. C. R. 685, and as to the general rule, see Mobile & Ohio R. Co. v. Dismukes, 94 Ala. 131, 17 L. R. A. 113; Tracy v. Talmadge, 14 N. Y. 162. But see contra, Gerber v. Wabash Ry. Co., 63 Mo. App. 145. In Laurel Cotton Mills v. Gulf & S. I. R. Co., 37 So. Rep. 134, the Supreme Court of Mississippi held that it was not necessary in a suit to recover a rebate under a contract of carriage, to show that the rates had been filed with a National or State Commission, and that the law would not presume illegal

conduct, and although the contract might be unreasonable because of an unauthorized deviation from established rates, yet this was a question of fact, and the petition was therefore held good on demurrer.

§ 236. What is included in schedules.-The section provides for the publication not only of the charges for carriage, but for a separate statement of terminal charges, and it is made. unlawful for the carrier to charge a greater or less compensation for the transportation of passengers or property, or for any services in connection therewith. In the Grand Haven Cartage case, supra, the Supreme Court said, quoting the opinion of the Commission, that cartage was not in general a terminal expense and was not in general assumed by the carrier. It said further that as it was informed from an extract from the report of the Commission for 1889 that there were many railroad companies throughout the country which furnished cartage at their stations, but that in no instance had the rate sheets or schedules contained anything to that effect. The court suggested in a matter of that kind, that much should be left to the judgment of the Commission, and intimated that it would be proper for the Commission to include cartage when furnished as one of the terminal charges, and include it as such in their published schedules. The Commission acted upon this suggestion, see 7 I. C. C. R. 592, 8 I. C. C. R. 560, and made a general order February 8, 1898, directing that all carriers subject to the Act should plainly indicate upon the schedules published and filed with the Commission under the provisions of the sixth section . . . what storage room in stations, warehouses or cars will be permitted, stating the length of time and character of the storage, the service rendered in connection therewith, and all the terms and conditions upon which the same will be granted. As to the forms and contents of rate schedules and the authority for making joint tariffs and the published rules of the Commission, see 6 I. C. C. R. 267, 4 Int. Com. Rep. 698. Storage rates and regulations must therefore be published at the stations, and filed with the Commission. 10 I. C. C. R. 352.

In 7 I. C. C. R. 559, the Commission said the object of the sixth section is to secure to the public an opportunity of knowing the rates charged by the carriers for the service rendered;

but it is of no possible avail to state the amount of the rate, unless the thing or things covered by that rate is also known. Whenever any service is rendered or any privilege allowed beyond the ordinary receiving, transporting and delivering the thing, any service often performed, as in the moving of private cars, should be open to the public and made known by the proper announcement. 9 I. C. C. R. 1. In this case the commission said that the carrier should exclude from its road all private cars, or else prescribe in its tariffs the rules and rates under which they would be transported.

Any rules or regulations which in any wise change, effect or determine any part of the aggregate of the carrier's rates, fares or charges must be shown separately upon the carrier's posted schedules or charges, and any such rule promulgated by the carrier in circulars independent of its published rates or schedules is unlawful. 7 I. C. C. R. 255. This principle was applied in the case of circulars issued by railroad company prescribing maximum and minimum carload rates for grain. The Commission said that the shipper had only to consult the schedule showing defendant's rates and charges, and that he was entitled to recover charges collected on a shipment in excess of those set forth in the schedule.

a

It was held by United States Circuit Court of Appeals for the seventh circuit, in Walker v. Keenan, 19 C. C. A. 668, 73 Fed. Rep. 755, reversing 64 Fed. Rep. 992, that a railroad company could by posting schedules make a charge for freight over its own line, and a separate terminal charge of a fixed sum per car for delivery at the stockyards, which were located off its own lines, and to cover the cost of transportation to such stockyards over the line belonging to the stockyards company.

§ 237. What is sufficient publication and filing.— Schedules of joint tariffs required to be filed with the Commission need not be duplicated by each company which unite in making them. 1 I. C. C. R. 225, 1 Int. Com. Rep. 598. The receipt of a written statement from each company acknowledging the authority for filing the tariff on its behalf is sufficient. The posting of notices in a railroad station, that all rates are on file in the office of the station agent and may be examined on application to the agent, is not sufficient. 7 I. C. C. R. 43. 9 I. C. C. R. 221.