
    The Baltimore and Ohio Railroad Company, Appellant, v. Charles La Due and James M. Carmer, Doing Business under the Firm Name and Style of La Due & Carmer, Respondents.
    First Department,
    November 13, 1908.
    Carrier — interstate commerce ;— unreasonable rates — jurisdiction — agreement to carry at less than schedule rates — stipulation precluding Counterclaim — burden of proof.
    Where' goods are the subject of interstate commerce, a shipper contending that freight charges are exorbitant and excessive must primarily seek redress through the Interstate Commerce' Commission, which body by virtue of the Federal statutes is alone vested with power originally to entertain proceedings
    
      for the alteration of established schedules on the ground that the rates fixed are unreasonable.
    Hence, where such shipper is sued for freight charges, the State courts have no jurisdiction of a defense founded upon the unreasonableness of the rate charged.
    Even if such action be defended upon the ground that the rates sought to be recovered by the railroad are in excess of rates previously agreed upon between the parties, so as to constitute a special agreement for carriage, the defense is unavailable if the agreed rate be less than that shown upon the schedules posted and published under the Interstate Commerce Act, for the agreement is illegal and not enforcible.
    Where the defendant in such action stipulates that the rates claimed to be unreasonable are those fixed in the schedule of rates published by the carrier under the Interstate Commerce Act, it is a complete answer to a counterclaim founded upon the unreasonableness of the rates.
    Even though such stipulation also states that the rates claimed to be unreason- ■ able were “ made up of a combination of local rates,” the burden is not upon the carrier to show that no through rate had been established or that if it had, that it corresponded with the rate made to the .shipper, for the latter, seeking an affirmative judgment by way of counterclaim, must prove that the agreed rate corresponded with the schedules published under the Interstate Commerce Act, and having neither alleged nor proved that fact, cannot recover on the counterclaim.
    Appeal by the plaintiff, The Baltimore and Ohio Railroad Company, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the Appellate Term on the 7th day of February, 1908, affirming a judgment of the Municipal Court of the city of New York in favor of the defendants, entered in the office of the clerk of said court on the 1st day of October, 1907, and an order of said Municipal Court, entered on the 24th day of October, 1907, denying the plaintiff’s motion for a new trial made upon the minutes, and also from the said judgment and order of the Municipal Court.
    
      Edward V. Conwell, for the appellant.
    
      Herbert Goldmark, for the respondents.
   Scott, J:

The plaintiff appeals from a determination of the Appellate Term of the Supreme Court, affirming a judgment of the Municipal Court. (See 57 Misc. Rep. 614.)

The plaintiff sued for freight charges on certain hay shipped by-defendants from Indiana to Mew York. The latter counterclaimed for excess charges upon certain other shipments from Indiana and Ohio to Mew York, alleging that such charges, which they had been obliged to pay, “ were exorbitant and excessive, in that the fair and reasonable value and agreed price of the servicés rendered by plaintiff in the transportation of said car, * * * and the .advances made by plaintiff ” were much less than the amount actually collected and paid. The whole controversy turns Upon these counterclaims .which were allowed by the judgment appealed from. It is not contended that the payments were voluntary. If the defendants’ position rested alone upon the allegation that the rate of freight charged was unreasonable and, exorbitant, it would be clear that the Municipal Court was without jurisdiction to pass upon the, counterclaims. That question was decisively settled by the Supreme Court of the United States in Texas & Pacific Railway v. Abilene Cotton Oil Co. (204 U. S. 426,448), wherein it was held that “ a 'shipper seeking reparation predicated upon the unreasonableness of the established rate must, under the act to regulate commerce (the Interstate Commerce Act) primarily invoke redress through the Interstate Commerce Commission which body alone is vested with power originally to entertain proceedings for,the alteration of an established schedule, because the rates fixed therein aré unreasonable.” The defendants’ pleading, however, is open to the construction that a recovery is sought because the rate charged exceeded that which had been previously agreed upon, and there was evidence to sustain a finding that there had been a special contract to transport the hay at twenty-seven and twenty-seven and one-half cents per hundred weight, while the defendants were obliged to pay forty cents per hundred weight. It is conceded, as indeed it must be, that if the agreed rate was less than the rate shown upon the schedule posted and published as required by the Interstate Commerce Act the agreement for the reduced rate was illegal and could not be enforced. (Texas & Pacific Railway v. Mugg, 202 U. S. 242.) The parties to the action entered upon, a stipulation, which is a part of the record, and which, so far. as concerns the counterclaims, reads as follows: “ The rates at which certain claimed unreasonable and exorbitant charges on the shipments' described and set out in the answer and counterclaim of the defendants herein were computed are those fixed in certain schedules of rates, fares and charges for the transportation of passengers and property established, filed, published and posted by each, of the companies handling such shipments as required by an act of Congress entitled An Act to Begulate Commerce, approved February 4, 1887, and the various acts amendatory thereof, which said rates had been continuously in force upon the route of each [of] said companies over which said shipments passed from the respective points of origin to the respective points of destination set out in said answer and counterclaim for a period of six months before such shipments were made, said rates being made up of a combination of locad rates” This stipulation, as we consider, constitutes a complete answer to the defendants’ counterclaim as it establishes the fact that the charges made by plaintiff were those established as required by the Interstate Commerce Act, and in the absence of any statement to the contrary it is to be presumed were the rates and charges applicable to the shipments in question. The defendants lay great stress, however, upon the concluding words of the quotation given from the stipulation, said rates being made up of a combination of local rates,” and insist that there may have been, notwithstanding, a through rate established according to law, and that that through rate may have been the same rate which had been agreed upon between the parties. It is urged- with great insistence, and seems to have been thought below, that, a special agreement for a twenty-seven-cent rate having been proven, it was incumbent upon the plaintiff to show that no through rate had been established, or, if it had, that it corresponded with the rate which the defendants were obliged to pay. With this contention we are unable to agree. Section 6 of the Interstate Commerce Act, so far as necessary to be considered with reference to the present case, and as it stood when the shipments referred to in the counterclaims were made, reads as follows: “ That every common carrier subject to the provisions of this act shall print and keep open to public inspection schedules showing the rates and fares and charges for the transportation of passengers and property which any such common carrier has established and which are in force at the time upon its route. * * * And when any such common carrier shall have established and published its rates, fares and charges in compliance with the provisions of this section, it shall be unlawful for such common carrier to charge, demand, collect or receive from any person or persons a greater or less compensation for the transportation of passengers or property, or for any services in connection therewith, than is specified in such published schedule of rates, fares and' charges as may at the time be in force. * * * It shall be unlawful for any common carrier, party to any joint tariff, to charge, demand, collect or receive from any person or persons a greater or less compensation for the transportation of person's or property, or for any services in connection therewith, between any points as to which a joint rate, fare' or charge is named thereon than is specified in the schedule filed with the commission in force ■ at the time.” (24 U. S. Stat. at Large,.. 380) § 6, as amd. by 25 id. 855, § 1.)' Section 1 of the so-called Elkins Act (32 U. S. Stat. at Large, 847), approved February 19,1903, provided as follows: “ And it-shall be unlawful for any person, persons or corporation to offer, grant, or give, or to solicit, accept or receive any rebate, concession') or discrimination, in respect of the transportation of any property in interstate or foreign commerce by any common carrier subject to said act to regulate commerce, and the acts amendatory thereto, whereby any such property shall by any device whatever be transported at a less rate than that named in the tariffs published and filed by such carrier, as is required by said act to regulate commerce, and the acts amendatory thereto, or whereby any other advantage is given or discrimination is practiced.” The resulting effect- of the Federal legislation regulating interstate commerce is to remove the question of rate from the realm of private agreement. Every contract of carriage by a common carrier engaged in interstate commerce must, as. a matter of law, be at the rate fixed and established as provided by statute, and ho agreement as to the rate to be charged is valid or enforcible if it varies in any degree from the rate thus fixed and established. (Texas c& Pacific Railway v. Abilene Cotton Oil Co., supra; Gulf, Colorado, etc., Railway v. Hefley, 158 U. S. 98; Texas & Pacific Railway v. Mugg, supra; Armour Packing Co. v; United States, 209. U. S. 56.) The carrier is entitled to receive, and the shipper is required to pay, the rates fixed. No more can lawfully be demanded. No less can lawfully be accepted. In an action, therefore, to recover excess charges, it is wholly immaterial whether or not any special agreement was .made as to rates. If the rate charged corresponded with the established schedule, it was lawfully charged. If it did not so correspond, it was unlawfully charged, and the excess may be recovered, The question in each case is whether or not more was charged than the amount specified in the established schedule. A defendant seeking an affirmative judgment by way of counterclaim must allege and prove all the essential facts to sustain his claim, precisely as if he were plaintiff. Applying these rules to the present case, it will be seen that the defendants neither alleged nor proved the necessary facts to entitle them to recover. They alleged a special contract as to the rate to be charged, but that was immaterial. In order to recover, they should have alleged and proved that the rate charged was in excess, not of the special rate agreed to, but of the appropriate rate established as required by law. This burden rested upon the defendants, but was not. assumed by them. It follows that the determination of the Appellate Term and the judgment of the Municipal Court must be reversed, and a new trial granted, with costs to the appellant in this court and the courts below to abide the event.

Patterson, P. J., Ingraham, Laughlin and Clarke, JJ., concurred.

Determination, judgment and order reversed, and new trial ordered, with costs in this court and in the courts below to the appellant to abide event. 
      
      The foregoing provisions have been since respectively amended by" 34 Ü. S. Stat. at large,-. 586, 587, chap. 3591.-- [Rep. . -
     