was not founded upon any contractual relationship existing between carriers and those entitled to invoke the benefit of the statute; and therefore the Commission is without jurisdiction to compel defendant to specifically perform a contract in respect thereto or to award damages for the breach thereof. 40 The Commission's jurisdiction, in a general sense, extends only to the duties which the carrier owes to its patrons as a common carrier to the shipping public.41 It does not purport to have been given jurisdiction generally to adjudicate claims between carriers and shippers, even those arising out of matters happening in connection with the transportation itself. 42

§ 1047. Extent of its powers.

The Commission, therefore, is not made a court to settle differences to which carriers are parties; indeed under our constitutional system judicial power of this extensive character could not be intrusted to an administrative body. Thus the Commission does not undertake to determine questions of respective liability, such as whether the vendor or the vendee is liable for demurrage charges. 43 And the Commission is even without authority to enter an order requiring a shipper to make good to the carrier an undercharge, where less than the published rate has been collected by error." 44 And the Commission cannot allow set-off of unpaid freight bills against a reparation suit for improper exaction of unreasonable rates as that would involve jurisdiction over collecting bills. 45 It is equally clear, as has been seen, that the Commission has no power as between carrier and shipper to direct payment of damage claims, since a failure to answer for

40 Ralston Townsite Co. v. M. P. Ry. Co., 22 I. C. C. 354.

41 Southwestern Produce Distributers v. W. R. R. Co., 20 I. C. C. 458.

42 Lanning H. C. & G. Co. v. St. L. & S. F. R. R., 15 I. C. C. 37.

43 Crescent Coal & Mining Co. v. B. & O. R. R. Co., 23 I. C. C. 81.

44 Falls & Co. v. C., R. I. & P. Ry. Co., 15 I. C. C. 269.

45 Lanning Harris Coal & G. Co. v. St. Louis & St. F. R. R., 15 I. C. C. 37.

the Act does not cover suits for damages generally for injuries done to shippers by carriers. So the Commission will dismiss a suit which comes down upon analysis to an action of conversion for withholding delivery of goods. 32 And, generally speaking, there is no jurisdiction to award damages in tort for negligent injuries or consequential damages resulting therefrom.33 Where a complainant asked the establishment of routing for certain interstate electric passenger cars over a viaduct owned by a bridge company which is not subject to the Act, it was dismissed for want of jurisdiction, the relief sought being a plan of physical operation not within the Commission's power. 34 And on the same grounds a petition asking that carriers be required to transport goods without delay was dismissed.35 Likewise the Commission has no power to compel lake lines to run their boats to a given city, as it pointed out in a recent decision.36

§ 1046. Basis of Commission jurisdiction.

As has already been pointed out several times in the course of this discussion, the Commission has no jurisdiction to enforce contracts in any proceeding. And consequently it is not within the province of the Commission to determine the validity or legality of a contract.38 Thus it was said in one proceeding that if the complainants had a contract with defendant to locate and maintain its station, they may perhaps maintain a suit at law for breach of that contract; but the Commission has no power to award damages for failure to perform such a contract.39 And in another proceeding it was said later that the power of the Commission to require switch connection

32 MacBride C. & C. Co. v. St. P., M. & O. Ry., 13 I. C. C. 571.

33 Folmer & Co. v. Gt. No. Ry., 15 I. C. C. 33.

34 Kansas City v. K. C. V. & T. Ry., 24 I. C. C. 22.

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

V.

36 Escanaba Business Men's Ass'n

À. A. R. R., 24 I. C. C. 11.

37 L. & N. R. R. Co. v. M., St. P. & S. S. M. Ry., 24 I. C. C. 639.

38 Greenbaum Co. v. C. & O. Ry. Co., 25 I. C. C. 352.

39 Eddlemann v. Midland Valley R. Co., 11 I. C. C. 103.

was not founded upon any contractual relationship existing between carriers and those entitled to invoke the benefit of the statute; and therefore the Commission is without jurisdiction to compel defendant to specifically perform a contract in respect thereto or to award damages for the breach thereof. 40 The Commission's jurisdiction, in a general sense, extends only to the duties which the carrier owes to its patrons as a common carrier to the shipping public.41 It does not purport to have been given jurisdiction generally to adjudicate claims between carriers and shippers, even those arising out of matters happening in connection with the transportation itself.42

§ 1047. Extent of its powers.

The Commission, therefore, is not made a court to settle differences to which carriers are parties; indeed under our constitutional system judicial power of this extensive character could not be intrusted to an administrative body. Thus the Commission does not undertake to determine questions of respective liability, such as whether the vendor or the vendee is liable for demurrage charges. And the Commission is even without authority to enter an order requiring a shipper to make good to the carrier an undercharge, where less than the published rate has been collected by error.44 And the Commission cannot allow set-off of unpaid freight bills against a reparation suit for improper exaction of unreasonable rates as that would involve jurisdiction over collecting bills. 45 It is equally clear, as has been seen, that the Commission has no power as between carrier and shipper to direct payment of damage claims, since a failure to answer for

40 Ralston Townsite Co. v. M. P. Ry. Co., 22 I. C. C. 354.

41 Southwestern Produce Distributers v. W. R. R. Co., 20 I. C. C. 458.

42 Lanning H. C. & G. Co. v. St. L. & S. F. R. R., 15 I. C. C. 37.

43 Crescent Coal & Mining Co. v. B. & O. R. R. Co., 23 I. C. C. 81.

44 Falls & Co. v. C., R. I. & P. Ry. Co., 15 I. C. C. 269.

45 Lanning Harris Coal & G. Co. v. St. Louis & St. F. R. R., 15 I. C. C. 37.

torts is not a violation of the Act.46 Nor has the Commission jurisdiction over prompt settlement of damage claims, since this would involve the judicial power of delivering private rights.47 Injuries caused by negligence are not a ground for granting reparation by the Commission as this would involve the redress for private wrongs. 48 And it is not the tribunal to resort to for an award of damages for shrinking of cattle in transit. 49 Likewise, the Commission has no jurisdiction over suits to recover damages to shippers caused by delays in handling shipments.50 It is equally true that the Commission has no jurisdiction over contracts between carriers and shippers so long as these do not affect rates for service subject to the Act.51 Certainly there has been no attempt to make it a court of equity to enforce performance of contracts. 52 Nor can it assume jurisdiction to determine liabilities for breach of contract.53 Generally speaking, only those matters which affect rating in transportation are within its jurisdiction. 54

Topic C. Jurisdiction of the Commission

§ 1048. Recovery based upon published rate.

A carrier is prohibited from accepting either more or less or different compensation than that stated in tariff.55 The Act charges every shipper with knowledge of the lawful rate, or rather makes it immaterial whether or not he knows it.56 Shippers, being charged by law with knowl

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

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

48 Folmer Co. v. Gt. No. R. R., 15 I. C. C. 33.

49 Carstein's Packing Co. v. Oregon R. R. & N. Co., 17 I. C. C. 125.

50 Pittsburgh, C., C. & St. L. Ry. v. Knox, 177 Ind. 344, 98 N. E. 295.

51 Consolidated Pump Co. v. L. S. & M. S. Ry., 27 I. C. C. 519. 52 Ralston Townsite Co. v. Ry., 22 I. C. C. 354.

M. P.

53 General Electric Co. v. N. Y. C. & H. R. R. R., 14 I. C. C. 237. 54 In re Weighing of Freight by Carriers, 28 I. C. C. 7.

55 Ford Co. v. M. C. R. R. Co., 19 I. C. C. 507.

56 Franke Grain Co. v. I. C. R. R., 27 I. C. C. 625.

edge of the lawful rates, cannot claim the benefit of a lower than the lawful rate, on the ground that some railroad clerk has made a mistake in quoting a lower rate for a particular shipment.57 Rates are governed by published tariffs and not by notations made on bills of lading, or other extrinsic representations. 58 The terms of the tariffs filed and published are the sole guide in assessing transportation charges for better or worse.59 The general principle underlying these rules is that a carrier is bound to charge neither more nor less nor different compensation to any shipper than the scheduled rate.60 The lawfully published rate is, therefore, the only rate that can be applied, regardless of rate quoted. And mistake of a shipper as to what rate is applicable to his shipment is no basis for reparation. In cases of the exaction of a rate higher than that in the published tariff, the shipper may go into court in the first instance; but the Act also appears to give the Commission and courts concurrent jurisdiction in this respect.63 Indeed, if higher rates than schedule have been collected, it is a case where the carrier should voluntarily make a refund to the shipper, subject to the scrutiny of the transaction by the Commission."" It is to be noted, however, that straight overcharges can and should be refunded without going to the Commission.65 And generally speaking unpublished charges and those in excess of published charges should be so refunded.66. If there is no scheme to cover a rebate on foot, it will be safe for the carrier to refund such overcharge on own ac

62

57 Poor Grain Co. v. Chicago, B. & Q. R., 12 I. C. C. 418.

58 Pole Stock Lumber Co. v. G. &

S. I. R. R., 26 I. C. C. 451.

59 Johnson v. A., T. & S. F. Ry., 25 I. C. C. 207.

60 Humbolt S. S. Co. v. W. P. &

Y. Route, 25 I. C. C. 136.

61 Oster Bros. v. M. L. & T. R. R.

& S. S. Co., 21 I. C. C. 511.

62 Running v. St. P., M. & O. Ry., 19 I. C. C. 565.

63 Laning-Harris Coal & Grain Co. v. St. L., & S. S. F. R. R., 15 I. C. C. 37.

64 Forster Bros. Co. v. D. S. S. & A. Ry., 14 I. C. C. 232.

65 Isabell Brown Co. v. M. C. R. R., 15 I. C. C. 616.

66 Northern Lumber Mfg. Co. v. T. & P. Ry., 19 I. C. C. 54.