fendants as a result of the reparation award, but that question is not before us and I express no opinion in regard to it. Although I do not approve all that is said in the report of the majority, yet for the reasons stated I concur in the conclusions therein reached.

MAHAFFIE, Commissioner, concurring:

I concur in the conclusion here because of the desirability of consistency in our reports and because of the apparent conflict in the decisions of the district courts cited in the majority report.

LEWIS, Commissioner, dissenting:

Since the decision in Missouri Portland Cement Co. v. Director General, 88 I. C. C. 492, in which I dissented, I have in several cases, although with a mental reservation, voted for reports which followed the doctrine therein laid down as the conclusion of the majority of the commission and therefore the decision of the commission. Inasmuch, however, as the question is here raised anew, I again record my dissent.

Adams v. Mellon, 39 F. (2d) 80, was a recent action brought in the District Court of the United States for the Northern District of Illinois, Eastern Division, by certain commission men at Chicago to recover upon an award of reparation to them, by our formal order, as consignees who in the first instance had paid the freight charges in question, although not those who had ultimately borne them as such. Our order was consistent with the doctrine of the Missouri Portland Cement case. District Judge Woodward, presiding, succinctly and correctly pointed out that our decision in that case was based upon a misinterpretation of the opinion of the Supreme Court in Southern Pacific Co. v. Darnell-Taenzer Lumber Co., 245 U. S. 531, which he analyzed, and that it does not comport with the interstate commerce act, which provides for an award of reparation only to the party to whose injury the wrong of the carrier in exacting an unreasonable freight charge has in fact operated. A consignee, for example, who pays an unreasonable freight charge and then collects it, as a freight charge, from the consignor is not in fact and in truth injured. The consignor has suffered the only remediable injury contemplated by the act.

The opinion in Consolidated Cut Stone Co. v. Atchison, T. & S. F. Ry. Co., 39 F. (2d) 661, is not, as the brief review in the majority report seems to imply, contrary to the opinion in Adams v. Mellon. The two cases are unlike. In the second case, which arose in Oklahoma and was an action to recover upon a reparation order entered by us, the defendants contended that our finding that the consignee (complainant and plaintiff) "paid and bore the charges" assailed was contrary to the evidence. District Judge Kennamer, presiding,

disagreed with that contention in view of the uncontroverted facts in the case, pointing out that, as disclosed by the record, the sale of the stone, the commodity involved, was made at a price "f. o. b. cars at mills, with freight allowed to Tulsa, Oklahoma"; that the contract between the vendor and vendee provided that any increase or decrease in freight charges prior to completion of the contract should be added to or subtracted from the purchase price; and that when the complainant consignee (vendee), which had paid the freight charges upon delivery and had deducted the amounts in settlement with the vendor, presented its claim for reparation to us the consignor (vendor) returned to it the receipted freight bills, with a letter of transmittal in which the latter stated that under the contract of purchase the consignee (vendee) would be entitled to any refund of freight paid. Upon this state of facts the court concluded "that the plaintiff paid the freight rate, suffered approximate loss, and is entitled to the relief prayed for in its petition." The court cited and quoted from the opinion in the Darnell-Taenzer case, but to what effect in the light of the controlling facts found by the court does not appear; and the court also distinguished the case before it, in which title to the stone passed to the consignee when loaded on cars at the quarries, from L. & N. R. R. v. Sloss-Sheffield Co., 269 U. S. 217, relied upon by defendants and in which the commodities involved were sold f. o. b. destination.

I am aware that the decision of the district court in Adams v. Mellon is not binding upon us, as would be the case if it were a decision of the Supreme Court of the United States, but in my judgment it embodies so correct an exposition of the law upon the point in question that we should now adopt and follow it.

I also concur in COMMISSIONER LEE's dissenting expression.

PORTER, Commissioner, dissenting:

I concur generally in all that is said in the dissenting expression of COMMISSIONER LEE. When this case was before the division I felt constrained to follow the doctrine of the Missouri-Portland Cement case, as the accepted rule of this commission. In some cases I have heretofore voiced my disapproval of that doctrine.

Το my mind, however, there has been no other case where a following of that pronouncement presented a more striking example of injustice than in the instant one. Here the alleged "person injured * for the full amount of damages sustained," to quote the words of the act, is permitted a recovery in his own right where he is the mere advancer of money for another who, in the actual substance of things, sustains the damage. The effect of such a rule is that the successful complainant receives the benefit of the trans

portation free of any charge and in addition a sum of 3 cents for each 100 pounds shipped. The language of the Darnell-Taenzer case, when considered in the light of all the facts there present, does not support such a conclusion.

LEE, Commissioner, dissenting:

Section 8 of the interstate commerce act provides in substance that, for any violation of the provisions of the act by a common carrier subject thereto, such carrier "shall be liable to the person or persons injured thereby for the full amount of the damages sustained." Section 16 (1) provides in part that, if the commission shall determine that "any party complainant is entitled to an award of damages" for a violation of the provisions of the act, "the commission shall make an order directing the carrier to pay to the complainant the sum to which he is entitled." Complainant's right to reparation for the collection of an unreasonable rate, therefore, hinges on whether it has been "damaged" within the meaning of the act.

The shipments were made under an arrangement between complainant and the shipper whereby the latter agreed to bear that portion of the freight charges in excess of a competitor's rate of 32 cents from Buffalo to Philadelphia. The charges were paid by complainant at destination and, in remitting to the shipper the invoice price of the shipments, complainant deducted therefrom that portion of the charges in excess of the 32-cent rate. The rate charged by the carriers was 99 cents. The rate found reasonable for the movement is 64 cents. Despite the fact that complainant bore only 32 cents of the rate charged, exactly one-half the rate found to be reasonable, the majority finds that complainant has been "damaged" in the sum of 35 cents per hundred pounds, "the difference between the charges paid and those which would have accrued at the rate herein found reasonable; and that it is entitled to reparation with interest." The Supreme Court has declared that the liability of a carrier in charging an unreasonable rate "arises out of the wrongful exaction from the shipper, not out of the unlawful receipt or unjust enrichment by the carrier." Louisville & Nashville R. R. Co. v. Sloss-Sheffield Co., 269 U. S. 217, 232. In view of the arrangement under which the charges were paid by complainant, it can not be seriously contended that there was any unlawful exaction" from complainant with respect to the portion of the charges it bore. The practical effect of the majority's finding is that the transportation costs complainant nothing and in addition the carriers are required to pay it 3 cents per 100 pounds. If the order had been placed with the competitor at Buffalo, complainant

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would have had to bear the rate of 32 cents. As illustrative of the faulty reasoning of the majority, by ordering from the consignor at Anniston, the shipments are, in effect, transported without cost to complainant and it receives an additional 3 cents per 100 pounds for placing the orders with that shipper.

The majority relies on Missouri Portland Cement Co. v. Director General, 88 I. C. C. 492, referred to as the Missouri Portland Cement case, as determinative of complainant's right to be awarded reparation and, in referring to that decision, states:

We there found that in determining who is entitled to reparation it is not necessary to go beyond the first step; that the first step is taken when the freight charges are paid; and that the fact that whoever paid in the first instance suffered no ultimate damage is not of controlling importance.

Our decision in the Missouri Portland Cement case was based wholly on the then recent decision of the Supreme Court in Southern Pacific Co. v. Darnell-Taenzer Co., 245 U. S. 531, and, in reaching the conclusions above set forth, we reversed a long line of decisions wherein we had required proof of the bearing of the freight charges by a complainant as an essential prerequisite to the recovery of an award of reparation.1

In the Darnell-Taenzer case, the consignee paid the freight charges in the first instance and, in making remittance to the complainants-consignors, deducted them from the purchase price of the goods. The carriers resisted payment of our award of reparation on the ground that the purchasers of the goods, and not complainants, sustained the damage. In rejecting this contention, the Supreme Court held that, in determining the person "damaged " by the exaction of an unreasonable rate, it is not necessary to follow every transaction to its ultimate result, and that we should not look beyond the "first step "; that complainants, by bearing the charges, sustained the loss and were the persons damaged; and that reparation was properly awarded in their favor. The Darnell-Taenzer case announced no new reparation principle. On the contrary, it is simply an affirmance of the findings previously made by us on identical issues. Commercial Club v. A. & S. R. Ry. Co., 27 I. C. C. 302, and cases there cited.

It was conceded in the Missouri Portland Cement case that the Darnell-Taenzer case was not on all fours with the one before us." The issue for determination in the Missouri Portland Cement case,

1 Mountain Ice Co. v. D. L. & W. R. R. Co., 21 I. C. C. 45, 51; Lamb McGregor & Co. v. C. & N. W. Ry. Co., 22 I. C. C. 346; Michigan Hardwood Mfrs. Assn. v. Freight Bureau, 27 I. C. C. 32, 38-40; Commercial Club of Omaha v. A. & S. R. Co., 27 I. C. C. 302-323; Bascom-French Co. v. A. T. & S. F. R. R. Co., 34 I. C. C. 388, 389; Traffic Bureau v. A. T. & 8. F. R. R. Co., 37 I. C. C. 353; Advance Bedding Co. v. A. T. & S. F. Ry. Co., 38 I. C. C. 31, 32.

whether a complainant who paid, but did not bear, the freight charges is a person injured, within the meaning of section 8 of the act, was not before the court, and its opinion is entirely free from any inference that the question received consideration. Notwithstanding the dissimilarity in the issues, and, although the "first step" principle referred to by the Supreme Court recognized the person who bore the charges as the one to whom reparation was due, we held in the Missouri Portland Cement case that the "first step obviated the necessity of our going beyond the determination of who paid the charges; and that we should award reparation to such a complainant, regardless of whether he bore the charges. That this was error is apparent. The opinion of the court in Louisville & Nashville R. Co. v. Sloss-Sheffield Co., supra, rendered subsequent to our decision in the Missouri Portland Cement case, only serves to emphasize our misconception of the "reasoning employed by the court" in the Darnell-Taenzer case. In the Sloss-Sheffield case, the court said:

It was likewise settled by Southern Pacific v. Darnell-Taenzer Lumber Co. that where goods are sold f. o. b. destination, it is ordinarily the seller who bears the freight, who suffers from the excessive charge, and who consequently is entitled to sue. * * The purchaser who paid the freight did so merely as agent.

Compare also Spiller v. A., T. & S. F. Ry. Co., 253 U. S. 117, 132-133, and Adams v. Mellon, 39 F. (2d) 80. It is difficult to imagine a more pointed declaration by the court that our conclusions in the Missouri Portland Cement case were wrong and that we should follow our previous decisions. No better evidence of the court's meaning could be desired than that it cited in support of the above-quoted statement numerous decisions of ours made prior to the Missouri Portland Cement case, wherein we denied reparation to the complainants because they failed to prove they bore the charges.2

Independent of the "reasoning employed by the court" in the Darnell-Taenzer case, however, we found in the Missouri Portland Cement case, that the person paying the charges, but not bearing them, was entitled to reparation as the agent of the person bearing them, although the person bearing the charges might also maintain the action or recover the amount of the award in a proper action against the agent. In the exercise of our function of requiring a

Mountain Ice Co. v. Delaware, Lackawanna & Western R. R. Co., 21 I. C. C. 45, 51; Lamb, McGregor & Co. v. Chicago & Northwestern R. R. Co., 22 I. C. C. 346; Michigan Hardwood Mfrs. Assn. v. Freight Bureau, 27 I. C. C. 32, 38-40; Bascom-French Co. v. Atchison, Topeka & Santa Fe Ry. Co., 34 I. C. C. 388, 389; Traffic Bureau Sioux City Commercial Club v. A. & S. R. R. Co., 37 I. C. C. 353; Advance Bedding Co. v. Atchison, Topeka & Santa Fe Ry. Co., 38 I. C. C. 31, 32.