Argument for Plaintiff in Error. 223 U.S. even if moving on through bills of lading, must take the local rates unless displaced by a lawful.special agreement. A special rate agreement which departs from the established local rate for the benefit of a single shipper, no schedule of which is filed with the Interstate Commerce Commission, violates § 6 of the Interstate Commerce Act. A carrier is not liable to action to refund the excess over an illegal special rate if the rate actually collected is the applicable legal published rate. 79 Kansas, 59, reversed. THE facts, which involve the right of recovery from an interstate carrier of difference between contract rates and rates actually charged, and the validity, under the Interstate Commerce Laws, of the rates contracted for and collected, are stated in the opinion. Mr. Cyrus Crane, with whom Mr. Samuel W. Moore was on the brief, for plaintiff in error: The right claimed by the plaintiff in error under the Federal statute is dependent upon the existence and the application of the tariffs filed pursuant to law. This right cannot be defeated by a finding of fact by the state court, either against the existence of the tariff or that it did not apply to the shipments in question. This court has the right to exercise its own judgment, as to whether a tariff was lawfully filed fixing rates controlling all shipments, and whether such rates applied to and controlled the charges upon the particular shipments. Nor. Pac. Ry. Co. v. Minnesota, 208 U. S. 583; Chic., B. & Q. Ry. Co. v. Nebraska, 170 U. S. 57; Stearn v. Minnesota, 179 U. S. 223; Mobile & Ohio Ry. Co. v. Tennessee, 153 U. S. 486; Huntington v. Attrill, 146 U. S. 657. Neither the findings nor the rulings of the state court in such matters as these can prevent the determination of the right asserted under the constitution and laws of the United States. St. Louis Ry. Co. v. Arkansas, 217 U.S. 136. The state court was without jurisdiction of this cause. 223 U.S. Argument for Plaintiff in Error. The lawfully established tariff rates applying on the shipments in question over the line of the garnishee were charged and collected in all cases. Plaintiff's claim depends upon a departure from the published rates. The inflexibility of published rates must be maintained in every court until the Commission shall, by its order, level the rate for the benefit of every one. Texas Ry. Co. v. Abilene, 204 U. S. 426; Mo. Ry. Co. v. Milling Co., 80 Kansas, 141; Coal Co. v. Lumber Co., 159 Fed. Rep. 278; Van Patten v. Railroad, 81 Fed. Rep. 545; State v. Railway Co., 176 Missouri, 687; Carlisle v. Railway Company, 168 Missouri, 652; Morrisdale Coal Co. v. Pennsylvania R. Co., 183 Fed. Rep. 929. The plaintiff's entire claim is illegal and non-enforceable for the reason that it is based upon an arrangement whereby the carrier was to serve Forrester Brothers for less than the established rate. As to the meaning of the proportional rate and how the same is applied, see Bascom Co. v. Railway Co., 17 I. C. C. Rep. 356. A clear explanation of proportional rates is given by "The Matter of Form and Contents of Rate Schedules," 4 I. C. C. Rep. 701; Moore on Interstate Commerce, § 48; Barnes on Interstate Transportation, § 80 D. Proportional rates are recognized as proper. Serry v. Southern Pacific Ry. Co., 18 I. C. C. 556; North Brothers v. Railway Company, 13 I. C. C. 153; Kansas City Transportation Bureau v. Railway Company, 16 I. C. C. 195; Lindsay Brothers v. R. R. Co., 16 I. C. C. 6, and In re Through Routes and Through Rates, 12 I. C. C. 164, 172; and see Armour Packing Company Case, 153 Fed. Rep. 1; S. C., 209 U. S. 56; Chicago, B. & Q. Ry. Co. v. United States, 157 Fed. Rep. 830. The presumption, in the absence of proof, is that rates between these points had been duly and legally established. Mecker v. R. R., 162 Fed. Rep. 354; Texas & Argument for Plaintiff in Error. 223 U.S. Pacific v. Abilene Co., 204 U. S. 426; Int. Com. Comm. v. Railway Co., 209 U. S. 108, 121; Clement v. Railway Co., 153 Fed. Rep. 979; American Union Coal Co. v. Railway Co., 159 Fed. Rep. 278. This proportional rate is fixed and inflexible, by reason of its being established in accordance with law, as though it had been fixed by an act of Congress. No contract or other device could vary or depart from it. Any contract undertaking to vary from the published rate would be void. This is conclusively established by the following decisions of this court. Gulf, Colorado & S. F. Ry. Co. v. Hefley, 158 U. S. 98; Texas & Pac. R. R. Co. v. Mugg, 202 U. S. 242; Armour Packing Co. v. United States, 209 U. S. 256. Other decisions are to the same effect: Hawley v. Coal Company, 48 Kansas, 593; Railroad Co. v. Hubbell, 54 Kansas, 232; Kizer v. Railway Co., 66 Arkansas, 348; Armour Packing Co. v. United States, 153 Fed. Rep. 1; Railway Co. v. Standard Lumber Co., 174 Fed. Rep. 107; Railroad Co. v. Harrison, 119 Alabama, 539; Railroad Co. v. Ostrander, 66 Arkansas, 567; Bullard v. Railroad Co., 10 Montana, 168; Railroad Co. v. Swanson, 102 Georgia, 754; Southern Wire Co. v. Railway Co., 38 Mo. App. 191; Messenger v. Railway Co., 36 N. J. Law, 407; Scofield v. Railway Co., 43 Oh. St. 571; Fitzgerald v. Railway Co., 63 Vermont, 169; Railway Co. v. Burdick, 94 Georgia, 775; Railroad Co. v. Erwin, 118 Illinois, 250; Railway Co. v. Bowles, 1 Ind. Terr. 250; Gerber v. Railway Co., 63 Mo. App. 145; Railway Co. v. Holmes, 18 Oklahoma, 92; Railway Co. v. Stoner, 5 Tex. Civ. App. 50; Railway Co. v. Clements (Tex. Civ. App.), 49 S. W. Rep. 913; Railway Co. v. Wilcox, 99 Virginia, 394; Railway Co. v. Creety, 5 Ga. App. 424; Chicago, B. & Q. Ry. Co. v. United States, 157 Fed. Rep. 830. There is no pretense that this joint rate was ever published as required by law. 223 U.S. Argument for Defendant in Error. A shipper is not entitled to avail himself of a division of a through rate. As to a shipper a joint rate is an indivisible unit. The law does not require divisions of joint rates to be published. They are purely a matter of private contract between the carriers. Such private contracts are not for the benefit of shippers and cannot be availed of by them. Second Natl. Bank v. Grand Lodge, 98 U. S. 123; Keller v. Ashford, 136 U. S. 610; Sayward v. Dexter, 72 Fed. Rep. 758; American Bank v. Railway Co., 76 Fed. Rep. 130; Metropolitan Trust Co. v. Topeka Water Co., 132 Fed. Rep. 702; German Insurance Co. v. Water Co., 174 Fed. Rep. 768. Mr. John M. Wayde and Mr. Philip Pitt Campbell for defendant in error: State courts have jurisdiction at common law. This is not an action to in any way regulate commerce among the States, but simply an action to recover on a contract. The common-law right of a state court to hear and determine actions of this kind has never been questioned. Texas & P. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426; West Virginia Transportation Co. v. Sweetzer, 25 W. Va. 434; Peters v. Railroad Co., 42 Oh. St. 275; 51 Am. Rep. 814; Railroad Co. v. Lockwood, 17 Wall. 379; McGregor v. Erie Railway Co., 35 N. J. Law, 89, 113. This jurisdiction of state courts has not been abrogated by Interstate Commerce Act. In fact that act says that its provisions are in addition to the remedies at common law. This action is independent of the Interstate Commerce Act, and is not an action to recover damages by reason of the violation of any of the provisions of that act. Ratican v. Terminal R. R. Assn., 114 Fed. Rep. 671. That statute is a highly penal one, conferring certain rights upon the party aggrieved, recoverable by him in a civil action, and also subjecting the party offending to its VOL. CCXXIII-37 Argument for Defendant in Error. 223 U.S. pains and penalties. Parsons v. Railroad Co., 167 U. S. 447. The statute does not say that the Federal courts shall be the forum when the liability arises independent of the Interstate Commerce Act. Under substantially similar circumstances as the case at bar, the state courts have retained jurisdiction. Mo. Pac. Ry. Co. v. Relf, 78 Kansas, 463; Wabash R. R. Co. v. Sloop, 98 S. W. Rep. 607; Southern Kansas R. Co. v. Burgess, 90 S. W. Rep. 189; Gulf R. R. Co. v. Leatherwood, 69 S. W. Rep. 119; Ry. Co. v. Horne, 59 S. W. Rep. 134. On the facts found by the state court the judgment rendered was not inconsistent with the Interstate Commerce Law. All that can possibly be claimed on the part of plaintiff in error is that it had a different proportional rate between certain other railroad companies at the time that this grain was shipped to what it had under its joint traffic arrangement with the northern connecting lines, and to its rate specified in its contract with Forrester Brothers. A railway company can accept a certain rate per hundred pounds as its proportion of a through haul from one railway company and a different rate per hundred pounds as its proportion of a through haul from another railway company. A railway company cannot relieve itself from the obligations of its contract by failing to comply with the Interstate Commerce Law with reference to filing and publishing its rates, and a contract is not illegal when made with the shipper when it is not shown that the contract rate is in violation of any through rate established by the railroads or is not in conflict with any published rate of the railroads over which the grain is shipped and which is applicable to the shipment. Little Rock & Memphis Ry. Co. v. St. Louis & Southwestern Ry. Co., 63 Fed. Rep. 775; S. C. 26 L. R. A. 195. |