ity of Portland and Salem, Oreg., the factory value of its 1942 output was $451,161. Of this amount, approximately $225,000 represented sales in Washington and $25,000 represented sales in Idaho. The destinations in Washington include the principal cities throughout the State; those in Idaho include Jerome and points generally west and north thereof, such as Boise, Coeur d'Alene, Moscow, Lewiston, and Sun Valley. Except for occasional shipments by railway express, shipments to these points have been by motor common carriers.

The chips produced by Bell are of one grade. They are sold in either waxed paper bags or cardboard containers, which are packed for shipment in new or used fiberboard boxes measuring approximately 4.66 cubic feet. The gross weight of each box of chips ranges from 14 to 20.5 pounds. The shipping density thus ranges from 3 to 4.4 pounds a cubic foot. The factory price in 1942 of chips, in bulk, was 30 cents a pound to March, and 33 cents thereafter.

The complaint in the title proceeding was filed when demands were made by two of the defendants, Consolidated Freightways, Inc., and Gustave Robertson (the latter doing business as Robertson Truck Lines), for additional freight charges on 18 shipments of chips transported by them for Bell between July 25 and August 18, 1942, from Portland to certain destinations in Washington and Idaho. When the shipments moved, these defendants collected charges at the first-class rates, computed on the actual weight of the individual shipments. A less-than-truckload rating of first class then was, and still is, in effect on chips in the governing National Motor Freight Classification. Subsequently these defendants demanded additional charges based upon constructive weights determined under the provisions of the rule reproduced in appendix A, which was concurrently effective in the defendants' class-rate tariffs. There are minor differences between the rules in the different tariffs, which do not alter their effect. The charges demanded on each shipment are approximately 2.5 times those collected. For instance, for the transportation of 736 pounds of chips shipped by Bell July 27, 1942, from Portland to Everett, Wash., Consolidated Freightways, Inc., collected charges of $7.80 based on the first-class rate of $1.06. Charges of $19.50 on this shipment are demanded by this carrier on the basis of a constructive weight of 1,840 pounds at the first-class rate, under the provisions of the effective rule. Effective August 25, 1942, and later, the defendants made some changes in their light and bulky rule as set forth in appendix B, but the theory underlying the rule remained the same. It is to be observed from note 1 of the assailed rules that they do not apply in connection with exceptions ratings. Consequently, the suspended rating of one and one-half times first class would be applied to actual weight.

In I. and S. No. M-2119, as stated, the respondents proposed to establish a classification exceptions rating of one and one-half times first class on chips, which would result in varying reductions in charges on shipments measuring in excess of 50 cubic feet, and increases of 50 percent from the classification basis of first class on shipments of chips measuring 50 cubic feet or less. The only shipments of chips made by Bell on which the defendants are shown to have invoked the rules in appendices A and B are the 18 shipments mentioned in the complaint. Since that time, Bell has avoided the application of the rules by limiting the size of single shipments to 50 cubic feet or less.

Part II of the Interstate Commerce Act, unlike parts I and III, confers no authority upon us to award reparation in respect of unlawful rates charged on shipments in the past. Complainants herein do not ask that we make an award of reparation but do ask that we make an administrative determination of the lawfulness of rates charged on past shipments. Our authority to make such a determination has been considered several times in decisions by divisions of the Commission. The instant proceeding affords an appropriate medium for a thorough reexamination of the matter with a view to establishing a consistent precedent for future guidance. Prior decisions will first be briefly reviewed.

In W. A. Barrows Porcelain Enamel Co. v. Cushman M. Delivery, 11 M. C. C. 365, division 5 passed upon a complaint alleging that certain rates that had been assessed against designated shipments of frit (glazing compound) were inapplicable and were and would be for the future in violation of section 216 (d). The division held that a necessary part of the power to prescribe rates for the future was the power to examine the entire rate situation and to determine what rates were applicable and lawful on past shipments. The rates charged were found applicable and not otherwise unlawful. The complaint was dismissed. This decision was followed in Kingan & Co. v. Olson Transp. Co., 32 M. C. C. 10, wherein the same division, dealing solely with the lawfulness of past rates, found them unreasonable to the extent that they exceeded the aggregate of intermediate rates. Το the same effect was the decision in Hausman Steel Co. v. Seaboard Freight Lines, Inc., 32 M. C. C. 31.

In Dixie Mercerizing Co. v. ET & WNC Motor Transp. Co., 21 M. C. C. 491, division 5 dealt with a complaint that rates on shipments of cotton yarn were unreasonable and would be unreasonable for the future. It reaffirmed our jurisdiction to pass upon the question of past unlawfulness, found the rates not to have been unreasonable or otherwise unlawful, and dismissed the complaint. This case was reopened and reheard, and after oral argument on the question of

jurisdiction, division 3 thoroughly considered this issue and affirmed the prior findings. 41 M. C. C. 355 2

We are in accord with the view expressed in the cited cases that we have authority to pass upon the lawfulness of rates on past shipments under part II of the act. This conclusion is based upon consideration not only of the general powers expressly conferred in section 216 (b), (d), and (e) and section 204 (a) (6), (c), and (d), and others enumerated below, but also those powers which, upon consideration of the act as a whole, may reasonably be deemed to be implicit in the statute. In prior decisions, reliance has been placed particularly upon section 216 (e) relating to the filing of complaints and the determination and prescription of lawful charges. Attention should be directed to section 204 (c) which has no precise counterpart in part I and which, as to the lawfulness of charges on past shipments, is perhaps even more pertinent. This provision is as follows:

Upon complaint in writing to the Commission by any person, State Board, organization, or body politic, or upon its own initiative without complaint, the Commission may investigate whether any motor carrier or broker has failed to comply with any provision of this part, or with any requirement established pursuant thereto. If the Commission, after notice and hearing, finds upon any such investigation that the motor carrier or broker has failed to comply with any such provision or requirement, the Commission shall issue an appropriate order to compel the carrier or broker to comply therewith. Whenever the Commission is of opinion that any complaint does not state reasonable grounds for investigation and action on its part, it may dismiss such complaint.

The duties and obligations of common carriers by railroad and by motor vehicle with respect to rates and charges have been placed by Congress upon the same footing. As with railroads, motor carriers have the right initially to establish rates, and carriers and shippers are bound to treat such rates as lawful until they have been declared unlawful by the Commission. Charges for transportation by both classes of carriers "shall be just and reasonable, and every unjust and unreasonable charge * is prohibited and declared to be unlawful." Section 1 (5) (a) and section 216 (d). The charges of both must not be unjustly discriminatory or unduly prejudicial or preferential. Section 2, section 3 (1), and section 216 (d). Each class of carrier must adhere strictly to its filed tariffs, and departures and variations therefrom are forbidden. Section 6 (7) and section 217 (b). Pennsylvania R. Co. v. International Coal Mining Co., 230 U. S. 184, 196.

To hold that a motor carrier which has violated any of these prescribed duties is immune to civil liability to one injured thereby while rail and water carriers similary offending must respond in damages

See also certain cases cited in footnote 3, page 358, which are not discussed above.

would be not only at variance with the fundamental rule of ubi jus ibi remedium but would also disregard the provisions of sections 216 (j), 217 (b), and 22, which preserve all common-law and statutory remedies. The statute, by declaring unlawful and prohibiting unreasonable and discriminatory rates, has superseded the common-law right but has not abrogated remedies heretofore recognized. See Texas & P. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426; Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U. S. 247, 258. Attention should also be directed to the decision of the Supreme Court, dated January 3, 1944, in Federal Power Commission v. Hope Natural Gas Co., 320 U. S. 591. It is there shown that in aid of State regulation, the Federal Power Commission made certain findings with respect to reasonableness in the past of rates for gas under provisions of law similar to those here considered. The Court did not undertake to pass upon the validity of this action but merely held that it was not reviewable in advance of proceedings to make the findings effective.

How, then, is a shipper who has been injured by the exaction of an unlawful motor-carrier rate to obtain redress against an unwilling carrier? The answer is, in the courts. But such actions, being transitory, will be justiciable in many different jurisdictions. In this situation, the reasoning of the Abilene case becomes equally cogent here. If uniformity and equality of motor-carrier rates are to be maintained, whether there be involved the lawfulness of past or of present rates, the same necessity exists for having the matter settled by a single tribunal. It was pointed out in Baltimore & Ohio R. Co., v. Pitcairn Coal Co., 215 U. S. 481, that the fundamental principle upon which the Abilene case was decided was the "inextricable confusion" that would arise if separate courts and juries passed upon the reasonableness of past rates without prior administrative determination. In the omission in part II of reparation provisions comparable to those in part I, we find no warrant for holding that past unlawfulness of motor-carrier rates is a matter to be left exclusively to the particular court in which an aggrieved shipper may seek relief.

The basic authority to make findings of past unlawfulness is in those provisions of part I which impose the duty upon the carrier of maintaining reasonable and nondiscriminatory rates. A like administrative jurisdiction is to be found in part II even though the procedural authority has been withheld.

We are satisfied that the rationale of the Abilene case has been translated into legislative grant under part II and that damages for the exaction of an unreasonable rate, specifically forbidden, are not recoverable without a determination by us of what was the reasonable rate whereby they may be measured.

It is also to be noted that in proceedings presenting the issue of applicability of rates, it is a well-established doctrine that consideration by us prior to court action is essential where it is necessary to inquire into questions of fact or to construe terms in a tariff used in a special or technical sense. Great Northern Ry. Co. v. Merchants Elevator Co., 259 U. S. 285, and cases therein cited.

Granted this jurisdiction, the question remains when and in what circumstances it is to be exercised. The usual purpose of invoking our jurisdiction in adversary proceedings to find past unreasonableness, unjust discrimination, or undue prejudice in motor-carrier rates is to lay the groundwork for a money judgment in a court action. Our determination of such issues in circumstances of this kind is not selfexecuting. Unless the carriers concerned are willing to be governed by our conclusions, our action becomes merely a step preliminary to a suit in court. Part II does not provide any limitation period for such a suit, and therefore resort would be necessary to the statute of limitations of the jurisdiction in which the suit is brought. Doubtless the period would be found to vary among the several States.

In circumstances such as described, it is apparent that precautions should be taken to prevent the filing of frivolous or moot complaints. Without attempting at this time to devise a precise rule, we think it pertinent to point out that, generally speaking, adversary proceedings involving past unreasonableness, unjust discrimination, or undue prejudice under part II should not be brought before us prior to the institution of a suit in court in which damages are sought predicated upon the unlawfulness alleged in the complaint. The complaint should show that such suit has been brought within the period allowed by the applicable statute of limitations. There may be other situations in which we should exercise this jurisdiction. In this connection, it may be noted that it is a recognized practice to hold in abeyance court proceedings pending the determination by the Commission of administrative questions. Eastern-Central Motor Carriers Assn. v. United States, 321 U. S. 194; General American Tank Car Corp. v. El Dorado Term. Co., 308 U. S. 422; Mitchell Coal & Coke Co. v. Pennsylvania R. Co., supra; Morrisdale Coal Co. v. Pennsylvania R. Co., 230 U. S. 304, 314; Southern Ry. Co. v. Tift, 206 U. S. 428, 434.

The same reasoning does not apply where the issue is applicability. When we find that rates charged by a carrier are inapplicable, it at once becomes the duty of the carrier to refund any overcharges and of the shipper to pay any undercharges, without an order or other action on our part and without resort to a court. It is to be noted that section 222 provides penalties for failure to observe the provisions of tariffs on file with us. Both carriers and shippers might be willing to abide by our finding, in which event the controversy would be ended. Fur