No. 1343.

D. B. HUSSEY

v.

CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY.

Submitted February 25, 1908. Decided March 16, 1908.

Reparation asked on account of alleged unreasonable freight rates charged on shipments of cross-ties moving between April 25 and August 12, 1907, from Barnett to McAlester, Ind. T. Subsequent to the movement of these shipments and the filing of the petition herein this territory was admitted as a state into the Union and the points of origin and destination are now located in the state of Oklahoma. By the act of Congress admitting Oklahoma to statehood the intraterritorial jurisdiction of the Commission ceased to apply to territory now embraced in that state. The Commission can make no lawful order in any case of which it has no jurisdiction under the provisions of the act to regulate commerce. Complaint dismissed for want of jurisdiction.

L. W. Hagerman for complainant.

M. L. Bell for defendant.

REPORT OF THE COMMISSION.

CLEMENTS, Commissioner:

The provisions of the amended act to regulate commerce which became effective August 28, 1906, apply to common carriers, as defined in section 1, engaged in transportation "from one place in a territory to another place in the same territory."

The shipments of cross-ties, upon which unreasonable freight rates are alleged to have been exacted and for which reparation is asked in this petition, moved between April 25 and August 12, 1907, from Barnett to McAlester, both located in what was then known as Indian Territory.

The proclamation of the President formally announcing the admission of Oklahoma as a state into the Union was issued November 16, 1907. Therefore both Barnett and McAlester are now located in the state of Oklahoma.

While it is clear that this cause of action arose at a time when the Commission had jurisdiction in the premises, it is equally clear that it has no jurisdiction in respect to transportation wholly within a single state. We are therefore confronted with the necessity of determining the question as to whether or not the Commission has been ousted of jurisdiction by the change of status from territory to state. The fundamental question is whether or not the subject-matter of this controversy, within the jurisdiction of the Commission at the time the shipments moved, is still within its jurisdiction. And in determining this question the Commission is bound to accord proper consideration to the principles of law as enunciated by the courts.

Two separate but closely related questions were presented in this complaint, first, that of the reasonableness of the published rate applied to the shipments involved; second, that of reparation for the alleged damage resulting from the application of this rate, if found to have been unreasonable. Manifestly, neither the Commission nor the courts can award reparation on account of the exaction of duly established rates until they have been found to be unreasonable. Thus, the power to award reparation is necessarily dependent upon or coupled with the power to condemn the rate so charged. Beyond question, the Commission does not now have jurisdiction or authority to try the question of the reasonableness of the rate involved in this complaint with a view to fixing the just and reasonable rate between the points in question, because such rate applies to transportation wholly within the state of Oklahoma. We find no authority in the law for holding that the powers of the Commission with respect to questions arising in Oklahoma and Indian territories before their formation into the state of Oklahoma have, on account of that fact, been terminated as to one of the questions presented in this complaint and left in full vigor and force as to the other.

If the subject-matter itself is not still within our jurisdiction, the fact that the complaint was filed and served prior to the transformation from territory to state is wholly immaterial. The acquirement of jurisdiction of the parties by the filing and service of the complaint in no way helps us to retain the case if the law under which the jurisdiction over the subject-matter must be exercised has ceased to operate. If we have jurisdiction now to award reparation in this case, it would seem that we would also have jurisdiction in all similar cases now or hereafter brought upon causes of action which accrued in the territories from which the state was formed and which are not barred. Such a conclusion would create a situation in Oklahoma whereunder the Commission could be acting upon one standard of rates as a basis for reparation on past shipments without power to alter the rates, whereas the state authority, which alone

has power to alter such rates, might be acting upon an entirely different basis for that purpose-a condition incompatible with the principles and purposes of the Interstate Commerce Act which is intended to secure uniformity of rates and equality of treatment to all shippers. Upon this point the language of the Supreme Court in the case of Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S., 442, is pertinent:

When the Commission is called upon on the complaint of an individual to consider the reasonableness of an established rate, its power is invoked not merely to authorize a departure from such rate in favor of the complaint alone, but to exert the authority conferred upon it by the act, if the complaint is found to be just, to compel the establishment of a new schedule of rates applicable to all. And like reasoning would be applicable to the granting of reparation to an individual after the establishment of a new schedule because of a wrong endured during the period when the unreasonable schedule was enforced by the carrier and before its change and the establishment of a new one. In other words, the difference between the two is that which on the one hand would arise from destroying the uniformity of rates which it was the object of the statute to secure and on the other from enforcing that equality which the statute commands.

The Commission has no authority other than that derived from the act to regulate commerce, and when, pursuant to the enabling act, the proclamation was issued admitting Oklahoma as a state the intraterritorial provision of the act expired so far as it related to Oklahoma and left no power in the Commission to act under it. The Commission is therefore entirely without jurisdiction in the premises. We cite below some of the decisions which bear upon the question here involved:

McNulty v. Batty et al., 10 Howard, 72; Ex Parte McCardle, 7 Wall., 514; Norris v. Crocker, 13 How., 429; Koenigsberger v. Richmond Silver Mine Company, 158 U. S., 48; U. S. v. Boisdoré's Heirs, 8 How., 121; Yeaton v. U. S., 5 Cranch, 281; South Carolina v. Gillard, 101 U. S., 437; Railroad Company v. Grant, 98 U. S., 398; Freeborn v. Smith, 2 Wall., 173; Insurance Co. v. Ritchie, 5 Wall., 541; Moore v. U. S., 85 Fed. Rep., 465.

The act to regulate commerce creates a special administrative tribunal clothed with power to hear and determine causes of action involving a right which has long existed at common law, viz, the right to recover for an unreasonable transportation charge. The act did not abrogate this common-law right, and by the express language of section 22 the remedies already existing for its enforcement are saved. Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., supra, and Interstate Commerce Commission v. Railway Company, 167 U. S., 501.

Where a special remedy is lost by a subsequent act ousting the jurisdiction of the tribunal charged with the administration of that remedy, this does not affect the right, the claimant being left to

pursue his common-law remedy. The specific remedy given by the act to regulate commerce was cumulative. The Commission has no authority to prescribe rates between points in the state of Oklahoma, and since the shipper can not now "primarily invoke redress through the Interstate Commerce Commission" in order to try the reasonableness of the rate on account of the exaction of which his claim for reparation is predicated, it can not be said that the assertion of his right of recovery in the state courts would be inconsistent with or repugnant to the provisions of the act to regulate commerce. Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., supra.

The enabling act under which Oklahoma was admitted did not undertake to save causes pending before the Commission, if, indeed, Congress had power to do so. Authority to administer remedies incidental to the enforcement of common-law rights arising within the limits of a state at a time when the territorial status obtained must therefore devolve upon the state courts.

It is incumbent upon the Commission to satisfy itself upon the question as to its jurisdiction before undertaking to pass upon the merits of this case. Even were it not bound to do so under the technical rules of law, we would feel loath to make an order which, though not enforceable in the courts, might lull the claimant into fancied security, so that he would not avail himself of some other remedy now open to him, and thus stay the operation of the statute of limitations against his claim.

Whatever may be the merits of this claim, the Commission can not with propriety express any opinion in respect thereof, since it is without authority to make an order in the premises.

Upon full consideration we are constrained to dismiss this complaint for want of jurisdiction in the Commission to make a lawful order herein.

HARLAN, Commissioner, dissenting:

Without enumerating in detail the various powers vested in the Commission under the act to regulate commerce as amended, it will suffice for present purposes to say that it confers upon it authority (1) to reduce a rate that is excessive by requiring a carrier to fix a lower rate, and (2) to award damages or reparation on account of an excessive rate collected on particular shipments. These remedies among others the act makes available for the relief of shippers upon complaint filed and after full hearing. But they are essentially separate remedies for the redress of separate wrongs. Orders entered by the Commission in such complaints are judicially enforceable by different procedures, the latter in an action at law and only by the complainant in whose favor an award has been made by the

Commission, and the former in a suit in equity either by the Commission itself or by any shipper who desires on his future shipments to use the reduced rate so ordered by the Commission. The two remedies were established under different acts of Congress, the right of the Commission to order a carrier to put in a lower rate in place of a rate found by it to be excessive having been conferred for the first time in the amendatory act of June 29, 1906. It is not uncommon for the Commission to enforce one remedy without enforcing the other. It has had occasion not infrequently to reduce a rate that has been challenged by a shipper as excessive without awarding reparation on shipments previously made by him under that rate. On the other hand, while it would be unusual to award reparation on past shipments without reducing the rate so attacked as to future shipments, the power of the Commission to do so, under circumstances that require such action, is not to be doubted. Between the date when particular shipments were made and the date of the hearing of a complaint demanding reparation on those shipments many conditions might intervene to add to the carrier's expense of conducting the traffic, and thus justify on future shipments the application of the rate complained of, although the conditions existing when the previous shipments were made might require the Commission to hold that the rate at that time was unreasonable and therefore unlawful, and on that ground to award damages. In other words the power of the Commission to disturb an existing rate by requiring a lower rate to be established is a remedy against excessive charges for the future, while its power to award damages involves the reimbursement of a shipper for excessive charges actually collected from him on shipments in the past.

In this proceeding both remedies are invoked by the complainant. He complains of the existing published rate as excessive and prays that it be reduced with respect to his future shipments; and he asks for damages on account of the application of that excessive rate on his past shipments. Under the opinion of the majority the Commission declines to retain jurisdiction of the complaint or to enforce either remedy. And the ground assigned for this course is that since the shipments in question moved, and since the complaint was filed with the Commission, the territory of Oklahoma, under the authority of an enabling act passed by the Congress, has become the state of Oklahoma. The theory of the majority is that upon the happening of that event the territorial jurisdiction of the Commission ceased so far as it related to Oklahoma, and left no power in the Commission either to reduce the rate complained of as to future shipments or to award reparation on account of the application of the alleged excessive rate to shipments made by the complainant while Oklahoma was still a territory.