[225 N. Y.] Opinion, per COLLIN, J. [Feb., 241; Atchison, T. & S. F. Ry. Co. v. Spiller, 246 Fed. Rep. 1.) The Federal law prohibits every unjust and unreasonable rate or charge. (Section 1.) It provides that a common carrier shall be liable to the person or persons injured for the full amount of damages sustained in consequence of its unlawful or forbidden act. It empowers the interstate commerce commission to determine that an existing rate or charge is unjust and to fix a just and reasonable charge. To empower it, however, to determine the sum of the damages resulting to a complainant from the unjust charge and constitute its findings and order of determination prima facie evidence of the facts at issue in the courts, express enactments to such effect, which are wholly lacking in the Public Service Commissions Law, were deemed and were essential. (Lehigh Valley R. Co. v. Clark, 207 Fed. Rep. 717; Lehigh Valley R. Co. v. Meeker, 211 Fed. Rep. 785.) The legislature of this state apparently placed in section 48 the provision: "If the person or corporation complained of shall make reparation for any injury alleged and shall ceas to commit, or to permit, the violation of law, franchise or order charged in the complaint, and shall notify the commission of that fact before the time allowed for answer, the commission need take no further action upon the charges," from the provision in section 13 of the Federal act: "If such common carrier, within the time specified, shall make reparation for the injury alleged to have been done, said carrier shall be relieved of liability to the complainant only for the particular violation of law thus complained of;" but did not carry into the statute the enactments of the Federal act, in virtue of which the created commission received and possessed the authority to determine through evidence and declare through findings the damages a complainant had sustained by reason of a rate or charge found to be unjust 1919.] Dissenting opinion, per CHASE, J. [225 N. Y.] or unreasonable, and in virtue of which those findings are in the courts prima facie evidence of the facts found. The question as to whether or not a party claiming to have been injured by a rate or charge declared unreasonable by the public service commission may, after such declaration, maintain an action at common law to recover his damages is not presented or argued to nor considered by us. It is of course true that scheduled and filed rates, existing at any time, cannot be attacked in a common-law action. This, obviously, is necessary in order to preserve equality and uniformity in rates and the carrying out of the system intended and established by the Public Service Commissions Law. (Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426; Robinson v. Baltimore & Ohio R. R. Co., 222 U. S. 506.) The judgment should be affirmed, with costs. CHASE, J. (dissenting). Between November 1, 1907, and May 20, 1910, the plaintiffs received from the defendant within the city of New York consignments of freight from points within this state. They paid "demurrage and "track storage" charges in connection therewith. The defendant had duly filed with the public service commission and published its schedules of rates, fares and charges as provided by the Public Service Commissions Law (Consolidated Laws, chapter 48). During the time mentioned the defendant's schedules so filed and published provided: "For the first 48 hours after car is placed on delivery track (time to be computed from first 7:00 A. M. after car is placed) no charge will be made. For the next succeeding two days the charge will be $1.00 per car per day or fraction thereof. For the next two days the charge will be $2.00 per car per day or fraction thereof. For the next two days the charge will be $3.00 per car per day or fraction thereof. For each succeeding day the charge will be $4.00 per [225 N. Y.] Dissenting opinion, per CHASE, J. [Feb., car per day or fraction thereof. Sundays and legal holidays are excepted." The charge therein provided is known as track storage" charge and was in force when the plaintiffs received their freight. Said schedules also provided: Sundays and legal holidays excepted for the first 48 hours after car is placed on team track for delivery (time to be computed from the first 7:00 A. M. after car is placed) no charge will be made. For the next succeeding two days the charge will be $1.00 per car per day or fraction thereof. For each succeeding day the charge will be $2.00 per car per day or fraction thereof." The charge therein provided is known as "demurrage." Said schedules also provided for a refund of demurrage "When the condition of the weather during the prescribed free time is such as to make it impossible to employ men or teams in unloading cars without serious injury to freight. When shipments are frozen so as to prevent unloading during the prescribed free time, or when because of high water or snow drifts it is impossible to get to cars for unloading during the prescribed free time." The schedules did not contain any similar provision for refunding track storage charges. During the time mentioned the plaintiffs paid demurrage and $187 for track storage when as claimed by them the weather conditions made it impossible to unload the cars so held within the prescribed free time. They made application to the defendant to refund both the demurrage and track storage charges so paid. The defendant refunded the demurrage but refused to refund the track storage charges. The plaintiffs then filed a complaint with the public service commission claiming unlawful exaction of track storage charges and asked that its claim be determined and that the defendant be directed to repay to them said charges. The defendant served an answer to the complaint and proceedings were had 1919.] Dissenting opinion, per CHASE, J. [225 N. Y.] before said commission which resulted in an order in substance that the plaintiffs are entitled to recover from the defendant the amount of track storage charges paid for the same time for which the plaintiffs have had returned to them by the defendant demurrage charges on account of weather conditions, as stated in the schedules. No appeal or proceeding to review the proceeding before the commission has ever been taken. The trial court found as a conclusion of law that the order of the commission" is in effect a finding of an unjust discrimination against the plaintiffs and until reversed or annulled it is binding upon the defendant in this action." On the complaint of the plaintiffs and others the public service commissions of this state and the interstate commerce commission directed that the defendant make the regulation about repaying demurrage at times of interference in unloading cars through weather conditions that we have quoted applicable to track storage charges. The schedules of the defendant were changed accordingly August 1, 1911. (N. Y. C. & H. R. R. R. Co. v. Murphy, 224 Fed. Rep. 407.) "All charges made or demanded by any such corporation, (one engaged in the transportation of passengers, or property from one point to another within the state of New York) for the transportation of passengers or property or for any service rendered or to be rendered in connection therewith, as defined in section two of this chapter, shall be just and reasonable and not more than allowed by law or by order of the commission having jurisdiction and made as authorized by this chapter. Every unjust or unreasonable charge made or demanded for any such service or transportation of passengers or property or in connection therewith or in excess of that allowed by law or by order of the commission is prohibited." (Public Service Commissions Law, § 26.) [225 N. Y.] Dissenting opinion, per CHASE, J. [Feb., * In case a common carrier shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done, either by any law of the state of New York, by this chapter or by an order of the commission, such common carrier shall be liable to the persons or corporations affected thereby for all loss, damage or injury caused thereby or resulting therefrom (Public Service Commissions Law, § 40.) If the charge for track storage was unjust and unreasonable it was prohibited and the defendant is liable to the plaintiffs therefor. If unjust and unreasonable, provision at least should have been made in the schedules for its repayment the same as for repayment of demurrage. The complaint in this action expressly alleges that the track storage charges of the defendant, when by reason of weather conditions the freight in the cars could not be removed, were "unjust, unreasonable, unlawful and arbitrary." This allegation of the complaint was denied by the answer. If the court had determined the is aes thus joined in favor of the plaintiffs without considering the allegations in the pleadings and in the stipulation relating to the proceeding before the public service commission, such determination and the order in connection therewith would be sustained by the acts of the defendant and its discrimination between demurrage and track storage charges under the same conditions. In view of all the findings of the court the judgment rendered herein may not be wholly dependent upon the jurisdiction of the public service commission to make the order that we have mentioned. The respondent, however, urges that the judgment is wholly dependent upon the jurisdiction of the public service commission to make the conclusion of law quoted. It urges that the public service commis |