[225 N. Y.] Statement of case. [Feb., EDWARD D. MURPHY et al., Appellants, v. THE NEW YORK CENTRAL RAILROAD COMPANY, Respondent. Carriers – common-law rule that charges of carrier shall be reasonable effect of provisions of statute (Public Service Commissions Law, Cons. Laws, ch. 48) relating to charges of common carriers — effect of ruling of commission that charges were excessive and that shipper was entitled to recover them— such charges cannot be recovered in common-law action on ruling of commission if paid without objection or protest. 1. It is a rule of the common law that a common carrier should charge, in a particular case, a reasonable compensation for the carriage or service rendered. It also authorizes an action at law by the injured shipper or consignee to recover moneys paid, under protest or duress of goods, as exorbitant or unreasonable charges. The right to recover the moneys may, however, under the laws of this state be waived by a voluntary payment. 2. The requirements of the Public Service Commissions Law (Cons. Laws, ch. 48, §§ 26, 28, 29, 40, 48, 49 and 57) are merely declaratory of the common law and mandatory that a rate or charge fixed by law or by the commission shall not be exceeded, and authorize the commission, upon a complaint, to investigate any illegal act done or omitted to be done and require the carrier complained of to satisfy the cause of complaint in whole or to the extent which the commission may require, but the commission may not, as the result of an investigation, fix, by a finding, or a resolution or an order, to be proof in the courts of the ultimate fact to be determined, that a complainant is entitled to recover from the carrier a designated sum for and on account of exaction by the carrier of unjust and unreasonable charges. 3. A determination of the public service commission at a particular time that a rate is unreasonable and the fixing of a reasonable rate is not a determination that the destroyed rate has been unreasonable throughout its existence or for any certain part of its existence or that its excess above the reasonable rate can be measured for any certain time by the difference between the two rates or is it the true measure of the damages sustained by the exaction. 4. Where track storage charges for cars conveying intrastate shipments, delivered to plaintiffs made by defendant railroad company, pursuant to and in accordance with schedules filed by it with the public service commission, were paid by plaintiffs and thereafter 1919.] Points of counsel. [225 N. Y.] plaintiffs filed with the public service commission a complaint that the charges were unjust and unreasonable and the commission, after a hearing, adopted a resolution to the effect that the plaintiffs were entitled to recover from the defendant the charges upon the ground that they were unreasonable and unjust exactions, and the defendant refused to pay such charges, the plaintiffs cannot recover them in an action where neither any allegation nor finding discloses any objection or protest against the charges, other than the complaint filed with the public service commission. Murphy v. N. Y. C. R. R. Co., 170 App. Div. 788, affirmed. (Submitted December 10, 1918; decided February 25, 1919.) APPEAL from a judgment, entered January 15, 1916, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiffs entered upon a decision of the court at a Trial Term without a jury and directing a dismissal of the complaint. The nature of the action and the facts, so far as material, are stated in the opinion. Herman Hoffman and Wallace S. Fraser for appellants. While the Public Service Commissions Law does not expressly compel or authorize reparation by enforcement of its order by execution or other judicial process, the courts of the state, having jurisdiction of the amounts in controversy, will adopt the findings of the commission as prima facie evidence of the facts, and award reparation by judgment for damages, unless, of course, the commission has exceeded its powers in making its determination. (People ex rel. N. Y. & Q. Gas Co. v. McCall, 219 N. Y. 84; State v. Great Northern Railway, 153 N. W. Rep. 247; N. Y. Central & H. R. R. R. Co. v. Murphy, 225 Fed. Rep. 407; Wilson v. L. I. R. R. Co., N. Y. L. J. June 29, 1917.) The resolution of the public service commission is res adjudicata against the defendant. (People ex rel. McCabe v. Matthies, 179 N. Y. 250; People ex rel. Laughlin v. R. R. Comrs., 158 N. Y. 428; People v. [225 N. Y.] Opinion, per COLLIN, J. [Feb., N. Y., L. E. & W. R. R. Co., 104 N. Y. 58.) Where the commission awards reparation which the carrier refuses or neglects to pay, its findings may properly be enforced in the state courts in the same manner as the procedure of the Interstate Commerce Act in the Federal courts. (Fisher v. N. Y. C. & H. R. R. R. Co., 46 N. Y. 644; Root v. L. I. R. R. Co., 114 N. Y. 300; Lough v. Outerbridge, 143 N. Y. 271; Texas & P. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426; Baxendale v. Gt. Western Ry. Co., 16 C. B. N. S. 137; Gt. Western Ry. v. Sutton, L. R. 4 H. L. 226; People ex rel. Hatzel v. Hall, 8 N. Y. 127.) Alexander S. Lyman and William Mann for respondent. The Appellate Division correctly held that the public service commission has no power to make a binding adjudication directing the carrier to refund to the consignee of property all or any part of the charges collected by the carrier pursuant to the provisions of its filed tariffs. (Cons. Laws, ch. 48, § 28; Armour Packing Co. v. U. S., 209 U. S. 56; Texas & Pacific R. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426; Texas & Pacific R. R. Co. v. Mugg, 202 U. S. 242; B. & O. v. La Due, 128 App. Div. 594; N. Y. C. & H. R. R. R. Co. v. Smith, 62 Misc. Rep. 526; Lehigh Valley R. R. Co. v. Meeker, 236 U. S. 412; Lehigh Valley R. R. Co. v. American Hay Assn., 219 Fed. Rep. 539.) COLLIN, J. The plaintiffs seek to recover moneys charged by and paid the defendant for the use of track space occupied by freight cars, consigned to them, beyond a certain fixed or "free" time for unloading, known as "track storage" charges. The cars were all intrastate shipments, and were delivered to the plaintiffs between November first, 1907, and May twentieth, 1910. The charges were paid as follows: Twelve dollars on December seventeenth, 1907; twenty dollars on 1919.] Opinion, per COLLIN, J. [225 N. Y.] July twenty-seventh, 1908; fifty-eight dollars on December twenty-ninth, 1909; thirty-eight dollars on November eleventh, 1910, and fifty dollars on June fourteenth, 1911. They were made pursuant to and in accordance with the schedules of tariffs and rules filed with the public service commission of the state prior to November first, 1907, and existing at the time they were paid. In or about the month of May, 1911, the plaintiffs filed with the public service commission a complaint that the charges were unjust and unreasonable. The commission, after a hearing, adopted, December 5, 1912, a resolution of the effect that the plaintiffs were entitled to recover from the defendant the charges upon the ground that they were unjust and unreasonable exactions. Neither allegation nor finding discloses any objection or protest against the charges, other than the complaint filed with the public service commission. The defendant did not attempt to obtain a review of the resolution. It refused to repay the charges, and for their recovery this action is brought. Such are, in effect, the facts proved by the stipulation of the parties and found by the trial court. The Appellate Division rightly reversed the judgment of the trial court and dismissed the complaint. A rule of the common law is that a common carrier should charge, in each particular case, a reasonable compensation for the carriage or service rendered, and no more. It sprung from the fact that the property of the carrier has been devoted to a public use. The common law authorizes an action at law by the injured shipper or consignee to recover moneys paid, under protest or duress of goods, as exorbitant or unreasonable charges. The right to recover the moneys may, however, under the law of this state, differing in such respect from that of many other jurisdictions, be waived by the voluntary payment of them. (Killmer v. New York Central & H. R. R. R. Co., 100 N. Y. 395; Strough v. New York [225 N. Y.] Opinion, per COLLIN, J. [Feb., Central & H. R. R. R. Co., 92 App. Div. 584, affirmed, 181 N. Y. 533; Harmony v. Bingham, 12 N. Y. 99; Lough v. Outerbridge, 143 N. Y. 271.) Under the pleadings and proof the plaintiffs here are, manifestly, not entitled at common law to a recovery. Thus much is, in effect, conceded in the briefs of counsel. The action is grounded in, and is sought to be maintained in virtue of, provisions of the Public Service Commissions Law (Cons. Laws, chapter 48). It is of course true that the state has the right, through the public service commission lawfully vested by it with authority, to prescribe what shall be reasonable charges of common carriers for intrastate transportation and services throughout the territory, unless restricted by the constitutional power of Congress. The Federal Act to Regulate Commerce contemplated no interference therewith. (Minnesota Rate Cases, 230 U. S. 352.) The action at bar asserts the doctrine that the public service commission is empowered to determine that a rate or charge for intrastate transportation duly scheduled and filed with it has been, through a period of years during which it has been filed and paid, and is, unreasonable and unjust, that the payor is entitled to recover from the carrier the excess fixed by the commission beyond the reasonable charge, and that. the determination of the commission is prima facie proof in the courts of the state of the facts determined. We cannot discern in the statute such legislative intent. The Public Service Commissions Law directs that every common carrier shall file, print and keep open to public inspection schedules showing rates for transportation by it within the state and, separately, all terminal charges, storage charges, icing charges, and all other charges which the commission may require to be stated, which the commission may, in its discretion, and the carrier may, under certain conditions and requirements, |