ON MOTION FOR REHEARING. (Filed February 5, 1932.) The supreme court of the United States, in a decision rendered on January 4, 1932 (the very day the opinion herein was announced), in the case of Arizona Grocery Co. v. Atchison,Topeka Santa Fe Railway Co., (U.S.), 52 Sup. Ct. Rep. 183,185, on writ of certiorari to the circuit court of appeals for the ninth circuit [49 F.2d 563], agrees with our views expressed in this case, that commission-made rates do not warrant reparation on shipments made during their existence upon a subsequent determination of excessiveness.
In the majority decision in that case Mr. Justice Roberts, speaking for the court, said: "When under this mandate [of the Interstate Commerce Commission Act] the Commission declares a specific rate to be the reasonable and lawful rate for the future, it speaks as the Legislature, and its pronouncement has the force of a statute. This Court has repeatedly so held with respect to the fixing of specific rates by state commissions, and in this respect there is no difference between *Page 214 authority delegated by state legislation and that conferred by congressional action. * * * As respects its future conduct, the carrier is entitled to rely upon the declarations as to what will be a lawful, that is, a reasonable, rate; and, if the order merely sets limits, it is entitled to protection if it fixes a rate which falls within them. Where, as in this case, the Commission has made an order having a dual aspect, it may not in a subsequent proceeding, acting in its quasi-judicial capacity, ignore its own pronouncement promulgated in its quasi-legislative capacity and retroactively repeal its own enactment as to the reasonableness of the rate it has prescribed."
Mr. Justice Holmes and Mr. Justice Brandeis dissented from an affirmance of the judgment, stating that it "should be reversed for the reasons stated by Judge Hutcheson in the concurring opinion in Eagle Cotton Oil Co. v. Southern Ry. Co., (C.C.A.)51 F.2d 443, 445." Upon reference to Judge Hutcheson's opinion it will be found that his views expressed are not at variance with those expressed by the majority decision in theArizona Grocery Company Case on the points under consideration in the instant case, nor with our views herein expressed. In distinguishing the rate-making system under some state statutes from the federal Act, Judge Hutcheson said: Under such state systems "their commissions make their rates, and until set aside by the courts they are final and conclusive on carrier and shipper alike."
But, it is most vigorously urged, on petition for a rehearing in this case by the defendant's able counsel, that the plaintiff had no vested rights by reason of the law as heretofore declared by this court in the case of Doney v. Northern Pacific Ry.Co., 60 Mont. 209, 199 P. 432. It is argued that the doctrine of stare decisis has no application since there was but the one case decided by this court rather than a series of decisions; and that since the question as to the right of reparation was not necessary to a decision in that case, there is no good reason to accord the plaintiff a right to recover reparations in the case before us. As noted on reference to our decision herein, we simply hold that the shippers and carriers *Page 215 were controlled by the law as declared in the Doney Case until reversed or modified by this court. To this doctrine we adhere, as it appears to be reasonable, logical, and in accordance with the authorities. The construction given to a statute, although[11] erroneous, before its reversal or modification, becomes a part of it as much as though written into it; and the change made in construction will affect only contracts made thereafter. (Gelpcke v. Dubuque, 1 Wall. 175, 17 L. Ed. 520; Shelby v.Guy, 11 Wheat. (24 U.S.) 361, 6 L. Ed. 495; Green v. Neal, 6 Pet. (31 U.S.) 291, 8 L. Ed. 404; Olcott v. Fond du LacCounty, 16 Wall. (83 U.S.) 678, 21 L. Ed. 382; Carroll County v. United States, 18 Wall. 71, 21 L. Ed. 771; Fairfield v.Gallatin County, 100 U.S. 52, 25 L. Ed. 546; Douglass v.County of Pike, 101 U.S. 677, 25 L. Ed. 968; Louisiana ex rel.Southern Bank v. Pilsbury, 105 U.S. 278, 26 L. Ed. 1090;Hoven v. McCarthy Bros. Co., 163 Minn. 339, 204 N.W. 29;Mason v. Nelson, 148 N.C. 492, 128 Am. St. Rep. 635, 18 L.R.A. (n.s.) 1221, 62 S.E. 625; Hill v. Atlantic N.C.R.Co., 143 N.C. 539, 9 L.R.A. (n.s.) 606, 55 S.E. 854; City ofSedalia v. Gold, 91 Mo. App. 32; Falconer v. Simmons,51 W. Va. 172, 41 S.E. 193; Haskett v. Maxey, 134 Ind. 182, 19 L.R.A. 379, 33 N.E. 358; United States Savings Fund Inv. Co. v. Harris, 142 Ind. 226, 40 N.E. 1072, 41 N.E. 451; Farrior v. New England Mortg. Co., 92 Ala. 176, 12 L.R.A. 856, 9 So. 532. ) And the rule has been applied in criminal cases. (State v. Bell, 136 N.C. 674, 49 S.E. 163; People v. Ryan,152 Cal. 364, 92 P. 853; State v. O'Neil, 147 Iowa, 513, Ann. Cas. 1912B, 691, 33 L.R.A. (n.s.) 788, 126 N.W. 454.)
In Lewis' Sutherland on Statutory Construction, the rule is thus stated: "A judicial construction of a statute becomes a part of it, and as to rights which accrue afterwards it should be adhered to for the protection of these rights. To divest them by a change of construction is to legislate retroactively. The constitutional barrier to legislation impairing the obligation of contracts applies also to decisions altering the law as previously expounded, so as to affect the obligations of existing *Page 216 contracts made on the faith of the earlier adjudications." (Sec. 485.)
"Where vital and important public or private rights are concerned, and the decisions regarding them are to have a direct and permanent influence on all future time, it becomes the duty, as well as the right of the court to consider them carefully and to allow no previous error to continue if it can be corrected. The foundation of the rule of stare decisis was promulgated on the ground of public policy, and it would be an egregious mistake to allow more harm than good from it." (26 Am. Eng. Ency. Law, 2d ed., p. 184; Mason v. Nelson, supra.)
The petition for a rehearing is denied.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES ANGSTMAN and MATTHEWS concur.