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of an illegal rate is a tort and all participants in such illegal act are joint tort feasors, and as such each carrier is jointly and severally liable. Where, as was found to be a fact in the Tift case, supra, an illegal advance was made by a combination of carriers by concerted and concurrent action in violation of the Sherman Anti-Trust Law, it would seem that each and all carriers who participated in the action by which the advance was made would be joint tort feasors and liable to any one who suffered damages by such illegal advance. The Commission does not fully agree with this proposition, and in the Nicola, Stone and Meyers case, announced the rule as follows:

"The complainants contended that the defendant carriers who concurred in establishing the unlawful advance in the rates under consideration are jointly and severally liable for all the damages resulting therefrom, whether or not participating in the particular rate from which the individual overcharge resulted. We cannot concur in so broad a view of the liability of the defendants. We do not think those carriers who received no part of the charges and who did not participate in the movement of the commodity should be liable to refund the whole or any part of the rate for the movement of a shipment in which they did not participate. We think that the liability is restricted to those carriers who participated in the transportation of the lumber via their respective routes over which the several shipments moved, and who shared in the transportation charges therefor, and that such carriers are jointly and severally liable to the persons found to be entitled to the refund. ''146

The rule announced in concluding the foregoing quotation has been followed by the Commission whose orders are issued against the carriers jointly.1

147

146 Osborne v. Chicago & N. W. Ry. Co., 48 Fed. 49; Interstate Com. Com. v. Louisville & N. R. Co., 118 Fed. 613; Nicola, Stone & Meyers Co. v. Louisville & N. R. Co., 14 I. C. C. 199; Blackhorse Tobacco Co. v. Illinois Cent. R. Co., 17 I. C. C. 588. Nor is it necessary that all the parties

liable should be defendants, Independent Refiners Assn. v. Western N. Y. & P. R. Co., 6 I. C. C. 378; Webster Grocery Co. v. Chicago & N. W. Ry. Co., 21 I. C. C. 20.

147 Green & Son v. Sou. Ry. Co., 40 I. C. C. 157, 159; Riverside Mills v. A. & S. S. S. Co., 40 I. C. C. 501,

§ 263. Damage-Protest Unnecessary. It is not necessary that a rate be paid under protest in order to enable a shipper paying it to recover the excessive and unlawful portion thereof. This is true because the law requires no useless thing, and in no case where a rate is fixed in the schedules filed according to law, would protest avail anything. The carrier could not, if it wished, yield to the protest and charge less than the tariff rates. This question has been before the Commission and has been decided in harmony with the principles stated.148

The holding of the Commission is not in conflict with the decision of the courts. It may be admitted that ordinarily where a payment is voluntarily made it cannot be recovered, but where a payment must be made by force of law and where the law prescribes a particular method by which it may be determined whether or not the payment is legal, protest is neither necessary nor effective. The case of KnudsenFerguson Fruit Co. v. Chicago, St. P., M. & O. Ry. Co.149

502; Squire & Co. v. A. S. R. Co., 44 I. C. C. 509, 511. The Circuit Court of Appeals acted on a contrary principle, but probably without careful consideration as the amount was trifling and the question arose only incidentally, Mo. Pac. R. Co. v. Ferguson Saw Mill Co., 235 Fed. 474, 481, 149 C. C. A. 20.

148 Southern Pine Lumber Co. v. Southern Ry. Co., 14 I. C. C. 195; Baer Bros. v. Mo. Pac. Ry. Co., 13 I. C. C. 329; National Refining Co. v. Atchison, T. & S. F. Ry. Co., 18 I. C. C. 389; Pennsylvania R. Co. v. International Coal Co., 173 Fed. 1, 97 C. C. A. 383. While this case was reversed by the Supreme Court, samestyled case, 230 U. S. 184, 57 L. Ed. 1446, 33 Sup. Ct. 893, that court did not discuss this question and remanded the case, which would have been useless if protest had been necessary; Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 181 Fed. 403. The subsequent history of this case,

though not affecting this question, is: Dismissed, same-styled case, 183 Fed. 908, appeal dismissed, same-styled case, 192 Fed. 475, 112 C. C. A. 637, Writ of certiorari denied 223 U. S. 733, 56 L. Ed. 635, 32 Sup. Ct. 528. On appeal affirmed in part and reversed in part, 230 U. S. 247, 57 L. Ed. 1472, 33 Sup. Ct. 916. The statement in Denver & R. G. R. Co. v. Baer Bros. Mercantile Co., 209 Fed. 577, 580, 126 C. C. A. 399, was directed to the subject of interest and cannot be claimed as a precedent against the principles stated in the text. See Baer Bros. Mercantile Co. v. D. & R. G. R. Co., 233 U. S. 479, 58 L. Ed. 1055, 34 Sup. Ct. 641. Sou. Pac. Co. California Adjustment Co., 237 Fed. 954, 955, 150 C. C. A. 604.

V.

149 Knudson-Ferguson Fruit Co. v. Chicago, St. P. M. & O. Ry. Co., 149 Fed. 973, 79 C. C. A. 483, 204 U. S. 670, 51 L. Ed. 672. Petition for writ of certiorari denied.

illustrates the distinction between charges collected under the force of a tariff and charges paid voluntarily. In that case, an icing charge of $45.00 was made under a tariff treating icing as a separate charge from transportation, the schedules stating "that the published charge for transportation did not include the cost of icing in transit, but that the carrier would impose an additional charge for such service." Such a tariff would not comply with the present law as to filing tariffs, but it is clear that no icing charges were specified in the tariff and a payment of such charges was not made under the force of law. Therefore, when ten days after having received his goods, the shipper voluntarily paid the icing charges the court correctly held in a suit brought a year thereafter, that he could not recover. While it is true that protest is not necessary, a shipper, when an illegal advance is made, should not continue paying it, without objection or protest until a large claim has accumulated against the carrier.

§ 264. Damages Interest and Attorneys Fees.—It is the practice of the Commission to allow interest at six per cent. on awards of damages. The statute makes no provision for interest, but the loss of money is an injury and to give "the full amount of damages" must include interest. That the Commission has this power, has been asserted when a protest was made,150 though it would seem from the authorities discussed in the next preceding section that a protest is immaterial.151

Attorneys fees are provided for by the statute and may be fixed by the court when the award of the Commission is sued on and recovery is had. The statute is a valid law.152

The Commission has no authority and does not assume to

150 Denver & R. G. R. Co. v. Baer Bros. Merc. Co., 209 Fed. 577, 580, 126 C. C. A. 399; Chicago M. & St. P. Ry. Co. v. Harmel, 240 Fed. 381, 153 C. C. A. 307.

151 Mo. Pac. Ry. Co. v. Ferguson Saw Mill Co., 235 Fed. 474, and cases cited 482, 149 C. C. A. 20.

152 Chicago, B. & Q. R. Co. v.

Feintuch, 191 Fed. 482, 488, 489, 112 C. C. A. 126; Denver & R. G. R. Co. v. Baer Bros. Merc. Co., 209 Fed. 577, 581 and cases there cited, 126 C. C. A. 399. No attorney's fees in suits in state court for excess rate, Kansas City Sou. Ry. Co. v. Tonn, 102 Ark. 20, 143 S. W. 577.

award attorney's fees,158 nor can attorney's fees be allowed by the courts for the services of an attorney before the Commission. The attorney's fees are allowed only for services in the courts.154

§ 265. Award of Damages an Inadequate Remedy.-Prior to the Amendment of 1910, when a carrier increased a rate the only remedy the Commission could enforce was to investigate upon complaint filed and, after hearing, award damages for the illegal exaction, if the rate increased was held unlawful. The Commission recognized this and stated the fact as follows:

"While it is certainly true that the remedy by way of damages is utterly inadequate and inconsistent, it is apparently the remedy prescribed by the act to regulate commerce and the only remedy which the shipper has against the exaction of an unreasonable interstate rate. "155

Some of the federal courts held that an injunction could issue preventing an advance or at least staying the advance until the Commission could determine whether or not the increased rate was illegal, but there was uncertainty about the remedy. To meet this evil, the Amendment of 1910 was enacted, giving the Commission power to suspend an advance. 156

§ 266. Damages, Limitation on Complaint for.-Section 16 of the Interstate Commerce Act, as amended by the Hepburn law, fixed a limitation on the right of action for damages in the following language: "All complaints for the recovery of damages shall be filed with the Commission within two years from the time the cause of action accrues, and not after, and a petition for the enforcement of an order for the payment of money shall be filed in the circuit court within one year

153 Council v. Western & A. R. Co., 1 I. C. C. 399, 1 I. C. R. 638; Washer Grain Co. v. Missouri Pac. Ry. Co., 15 I. C. C. 147, 152, 154, 155; Peller v. P. R. Co., 40 I. C. C. 84, 86; Minn. & Ontario P. Co. v. B. F. & I. F. Ry. Co., 47 I. C. C. 208.

154 Meeker v. Lehigh Valley R.

Co., 236 U. S. 412, 59 L. Ed. 644, 35
Sup. Ct. 328; Mills v. Lehigh V. R.
Co., 238 U. S. 473, 59 L. Ed. 1414, 35
Sup. Ct. 888.

155 McGrew v. Mo. Pac. Ry. Co., 8 I. C. C. 630.

156 Sec. 494, post.

from the date of the order, and not after."157 Prior to this Amendment, there was no limitation in the statute and the limitation laws of the state in which a suit was filed controlled.158 No limitation ran prior to the effective date of the Hepburn Amendment which date was held to be August 28, 1906, although the Act was approved June 29, 1906.159

A complaint filed by an association demanding reparation under general averments, which does not name the members on whose behalf it is filed and which does not, with reasonable particularity, specify and describe the shipments as to which the complaint is made, will not operate to stop the running of the period of limitation fixed by law."

160

When, however, an individual files a complaint for reparation in his own behalf, an informal complaint will stop the running of the statute.161

The cause of action accrues when the shipment terminates and the complainant becomes liable for the freight and not when the money is actually paid.162

157 Sec. 522, post.

158 Ratican v. Terminal R. Asso., 114 Fed. 666. Contra, holding R. S. U. S. 1047 applied. Carter v. New Orleans & N. E. R. Co., 143 Fed. 99, 74 C. C. A. 293; Cattle Raisers' Asso. v. Chicago, B. & Q. R. Co., 10 I. C. C. 83.

159 Nicola, Stone & Myers Co. v. Louisville & N. R. Co., 14 I. C. C. 199, 206. See also Kile, Morgan & Co. v. Deepwater Ry. Co., 15 I. C. C. 235; Nollenberger v. Mo. Pac. Ry. Co., 15 I. C. C. 595; Re When a Cause of Action Accrues, 15 I. C. C. 201, 204.

160 Missouri & Kan. Shippers Asso. v. Atchison, T. & S. F. Ry. Co., 13 I. C. C. 411.

161 Venus v. St. Louis, I. M. & S. Ry. Co., 15 I. C. C. 136, 137, Woodward & D. v. Louisville & N. R. Co., 15 I. C. C. 170; Beekman Lumber Co. v. St. Louis, I. M. & S. Ry. Co., 15 I.

C. C. 274, 276; Hartman Furn. & Carpet Co. v. Wisconsin Cent. Ry. Co., 15 I. C. C. 530, 531; Duluth Log Co. v. Minnesota & Int. Ry. Co., 15 I. C. C. 627; Nicola, Stone & Myers Co. v. Louisville & N. R. Co., 14 I. C. C. 199, 206; Louisville & N. R. Co. v. Dickerson, 191 Fed. 705, 112 C. C. A. 295; but the informal complaint must refer to the particular rate involved, Acme Cement Plaster Co. v. St. Louis & S. F. R. Co., 18 I. C. C. 376.

162 Arkansas Fertilizer Co. V. United States, 193 Fed. 667, Com. Court Opinion No. 43, p. 283; Blinn Lumber Co. v. Southern Pac. Co., 18 I. C. C. 430. The text is true only because the Transportation Act 1920 so provides; Sec. 522, post; Louisville Cement Co. v. L. & N. R. Co., 50 I. C. C. 538, and case cited; Lamb-Fish Lumber Co. V. Transcontinental Freight Bureau, 53 I. C. C. 221, 222 and cases cited.

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