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.90 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or dividing rates, need not file its schedules.93 The Commission will not recognize as common carriers lines that do not publish tariffs in lawful form or concur properly in lawful tariffs of other lines or that do not in all other respects comply with the law.94 Such carriers cannot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

426, 51 L. ed. 553, 27 Sup. Ct. 709, for this doctrine in its latest development.

89 Peale, P. & K. v. Central R. R. Co. of N. J., 18 I. C. C. 25.

90 Aransas Pass Channel & Dock Co. v. G. H. & S. A. Ry., 27 I. C. C. 403.

91 United States v. So. Pac. Ry., 25 I. C. C. 255.

92 United States v. Illinois Terminal R. R., 168 Fed. 546.

93 Interstate Commerce Commission v. Bellaire Z. & C. Ry., 77 Fed. 942.

94 Star Grain & Lumber Co. v. A., T. & S. F. Ry., 17 I. C. C. 338.

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." 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.4 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

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, 12 I. C. C. 163.

3 Transit Case, 25 I. C. C. 130. Kaye & Carter Lumber Co. v. C., M. & St. P. Ry., 14 I. C. C. 604.

matter of this sort to see whether, perhaps, what is being worked out is some understanding with some shippers it is desired to favor.

§ 832. Schedules working changes in rates.

Shippers are charged with knowledge of the law as to the manner in which transportation rates may be changed; and a change in rates on short notice, under authority of Commission affords no basis for reparation for damage to the complainant in a business way. The lawfully established rate remains in force until specifically canceled according to an obvious rule in dealing with this matter. Where the initial carrier's advanced rate tariff did not cancel lower rate named in tariff of another carrier to which initial carrier was a party, the lower rate was held to be the legal rate. Canceling a rate whereby a previously scheduled higher rate is left in effect is an advance in rates, and will be treated as such under the Amendment of 1910.7 If a rate is advanced while oil is at refining-intransit point the legal rate is the rate in effect at the time of the original movement. And it has been held that a failure to post a supplement to a tariff which contained no change as to rates affords no basis for an award of reparation. As for the occasion for the exercise of the power of the Commission to shorten the normal period of notice of change of rates, it may be noted that permission may be granted to correct an error in tariff on less than statutory notice. 10 In one case the circumstances were so unusual that the Commission granted permission to change the tariffs, which may be made effective upon one day's notice.11

8

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

Stilwell v. L. & H. R. Ry., 19 I. C. C. 404.

7 Re Advances on Cotton Seed Products, 25 I. C. C. 237.

8 Southern Cotton Oil Co. v. A. C. L. R. R., 19 I. C. C. R. 434.

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

10 Buren v. So. Pac. Co., 26 I. C. C.

332.

11 Transcontinental

Rates, 26 I. C. C. 456.

Commodity

§ 833. Invalidity of varied rate.

A shipper who is compelled to pay charges in excess of those set forth on the published rate schedules, because of rules prescribed by the railroad company in circulars as to maximum and minimum carload weights, is entitled to recover the same back from the company.12 Recently the Commission has been very clear that the published rate must be paid and collected regardless of rate quoted.13 On the other hand, if collected by the carrier, unpublished charges, and those in excess of published charges, must be refunded.14 An unpublished agreement between shipper and carrier cannot be basis of award of damages by Commission; the Commission can award damages only where there has been a violation of the Act.15 The fact that there may have been contractual obligations resting upon the vendor and vendee cannot excuse the defendants from the collection and retention of the lawful tariff charges. 16 And the fact that there have been past violations of tariffs constitutes no right to demand anything else in the future than the schedule itself. 17 The effect of a violation of the Act is to make the contract of carriage, including the rate named therein, invalid. The carrier therefore cannot be sued for breach of an executory term of the contract. 18 This principle, however, applies only to a claim which must be based on the illegal contract. The granting of a rebate contrary to the provision of the interstate commerce law does not render the bill of lading void, so that no action can be maintained against the carrier for loss of the goods by negligence.19

12 Suffern v. Indiana, D. & W. Ry., 7 Int. Com. Rep. 255.

13 Scott v. T. & N. O. R. R., 20 I. C. C. 167.

14 Northern Lumber M'fg Co. v. T. & P. Ry., 19 I. C. C. R. 54.

15 Wood-Mosaic Flooring & Lumber Co. v. L. & N. R. R., 22 I. C. C. 458.

16 America Brake Shoe & Foundry

Co. v. A. G. S. R. R., 26 I. C. C. 446.

17 Indianapolis Freight Bureau v. C., C., C. & St. L. Ry., 15 I. C. C. 370.

18 Interstate Commerce Commission v. Chesapeake & O. Ry., 128 Fed. 59; Red Cloud Mining Co. v. Southern Pac. Co., 9 I. C. C. Rep. 216.

19 Merchants' C. P. & S. Co. v.

§ 834. Stipulations in bills of lading.

It should be noted that as the section reads the carrier receiving property for interstate transportation shall issue a bill therefor, and be liable to the lawful holder thereof for any loss, damage, or injury to such property.20 Rates are governed by published tariffs and not by notations made on bills of lading.21 Carriers cannot deliver, until bills of lading are properly surrendered.22 The provision in a bill of lading limiting the responsibility of the carrier to the "shipper's load and count" involved too wide a question of law for the Commission to assume authority to pass upon it.23 A carrier may insist upon issuing a separate bill of lading for each car; but if it issues one bill of lading for a shipment consisting of several cars it cannot collect demurrage until the whole shipment is tendered for delivery.24 The actual point of origin, and not point from which shipment is billed, determines the rate.25 The binding effect upon carriers of instructions contained in bills of lading has recently been a matter of discussion before the Commission. 26

§ 835. Limitations of legal obligations.

It may be premised that a carrier cannot by tariff provision exempt itself altogether from all liability whatsoever to shippers for loss of property in transit. 26 If a rate is conditioned upon a shipper's agreeing that the carrier shall be under no liability to answer for losses, formerly the stipulation was valid when the loss occurred through

Insurance Co. of North America,

151 U. S. 368, 38 L. ed. 195, 14 Sup. Ct. 367.

20 Coal Rates on the Stony Fork Branch, 26 I. C. C. 168.

21 Pole Stock Lumber Co. v. G. & S. I. R. R., 26 I. C. C. 451.

22 Leo P. Harlow, Trustee, v. W. S. Ry., 26 I. C. C. 511.

23 Western Classification Case, 25 I. C. C. 442.

24 Scudder v. T. & P. Ry., 22 I. C. C. 60.

25 Preston v. C. & O. Ry., 19 I. C. C. 406.

26 Jackson & Perkins v. S. P. Co., 24 I. C. C. 323.

264 In re Express Rates, 28 I. C. C. 132.