(dissenting). I cannot concur in the majority opinion.
This is an action filed by Oklahoma Portland Cement Company against the two railway companies (now plaintiffs in error) for refund of alleged excessive freight charged and collected on carload shipments of cement from Ada to Marion, Oklahoma. Judgment for Portland, and railroads appeal.
The proceeding is brought and jurisdiction asserted under Tit. 17 O. S. 1941 §121. Construed in Atchison, T. & S. F. Ry. Co. v. State, 85 Okla. 223, 206 P. 236, holding commission to be vested with authority to compel a refund of excess charged above the lawful rate.
There are several important dates in the history of this case. February 23, 1924, Order 2361 was issued by the Corporation Commission prescribing a mileage scale of rates for cement moving in car lots. May 26, 1924, the rate was established at 12c per 100 pounds Ada to Marion. February 24, 1941, Oklahoma City-Ada-Atoka Railway Company submitted its letter to United States Air Corps. This proposal was accepted by the Government. April 28, 1941, Commission Authority B-001737-4 issued establishing the station of Marion on basis of Oklahoma City rates, with the exceptions noted therein; June 10, 1941, in compliance with the Commission’s order tariffs were published fixing the Oklahoma City rate of 13c for cement to Marion. February 7, 1942, Portland began shipping cement and paying freight at 13c. April 8, 1944, Portland’s last shipment. June 8, 1944, complaint filed by Portland claiming a refund of 1 cent per 100 pounds. October 6, 1944, Commission heard evidence and took the cause under advisement. Nothing further was done until the cause was set for oral argument on July 1, 1949. On January 19, 1950, the Commission amended the Authority by its order 23289 specifically including “cement”, in the specified commodities excepted in the Authority B-001737-4. On June 15, 1950, Commission entered judgment against Oklahoma City-Ada-Atoka Railway Company for $9398.47, and against Frisco for $570.23, with interest at 6% from April 10, 1944.
The letter agreement of February 24, 1941, states:
“Further agreed that rates and ratings applicable to this activity will not in any case exceed the net cash rates applicable to Oklahoma City, Oklahoma (where land grant deductions apply) except on low grade commodities such as sand and gravel, crushed stone, slag, or brick and title used for construction purposes moving on commercial or Government bills of lading which may be handled on distance or commodity tariff.”
On February 28, 1941, the Commission issued its Authority B-001737-4, which provides:
“Oklahoma railroads be and they are hereby authorized to issue, file, and make effective, on one day’s notice to the public and this Commission, necessary tariffs or supplements to tariffs which shall provide for the application at ‘Marion’, Oklahoma, a point on the Oklahoma City-Ada-Atoka railroad, of the rates and ratings, whether commodity or mileage, that apply to or from Oklahoma City, Oklahoma, except that such arrangements may be restricted as to shipments of low grade commodities such as sand, gravel, crushed stone, slag, brick and tile and on all shipments moving locally between ‘Marion’ and Oklahoma City.”
*56The tariffs were accordingly published and cement was not included in the low grade commodities excepted from the application of the Oklahoma City rate to Marion.
Defendant railroads invoke the rule of construction “ejusdem generis”, and cite Application of Central Airlines, Inc., 199 Okla. 300, 185 P. 2d 919. Therein we quoted from 59 C. J. §980:
“So words of general import in a statute are limited by words of restricted import immediately following and relating to the same subject.”
Numerous other cases are cited in contending that the meaning of “low grade commodities” in the Authority is limited to the things “sand, gravel, crushed stone, slag, brick and tile”, and that “cement” not being named is not included with the commodities which were excluded from the application of the Oklahoma City rates.
There is merit to this contention. Application of Central Airlines, Inc., supra; Ex parte Amos, 93 Fla. 5, 112 So. 289; City of Tulsa v. Southwestern Bell Telephone Co., 75 F. 2d 343; Ex parte Carson, 33 Okla. Cr. 198, 243 P. 260.
The commodities sand, gravel, crushed stone, slag, brick and tile named in the exception are largely competitive with each other. Their manner of shipping and the use of cars in their transportation are similar. Under the evidence they can be shipped in open cars and left exposed to weather conditions without damage. Not so with cement, which must be shipped in closed cars and protected from the weather. Surely, when considering shipping rates, and considering the extra care necessary to its transportation, cement should not be classified within the excepted commodities in the absence of a statute or order declaring such inclusion. Its inclusion should not be by implication. Therefore in my opinion, the rule of construction known as “ejusdem gen-eris” should be held to apply in this case.
Defendant railroads further say that the action of the Commission in attempting to amend its order establish-' ing rates in 1941 by the order complained of entered in 1950 is in effect retroactive legislation, violating the carrier’s constitutional rights which had long since become vested. I agree with this argument.
In Authority B-001737-4, April 28, 1941, the Commission authorized Oklahoma railroads to issue, file and make effective on one day’s notice to the public and to the Commission necessary tariffs or supplements to tariffs, which shall provide for the application at Marion, Oklahoma, of the rates and ratings, whether commodity or mileage that apply to or from Oklahoma City with the exception above noted. This was done, and the tariffs published provided a rate of 13c to and from Oklahoma City. The United States Government, the Commission, the railroad carriers, the shippers, and all who dealt in shipments to Marion on this' project, accepted and recognized that rate as the legal rate. It was the legal rate because it was the only rate that the carriers could charge. It is not contended that they charged more. During the construction of the Tinker Field project, and between February, 1942 and April, 1944, Portland shipped more than 1,000 cars of cement and paid the freight at the 13c rate. No complaint was made by Portland until the filing of the complaint herein on June 8, 1944.
In Community Natural Gas Co. v. Corporation Commission, 182 Okla. 137, 76 P. 2d 393, this court, quoting from Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 53 L. Ed. 150, said:
“ ‘But we think it equally plain that the proceedings drawn in question here are legislative in their nature, and none the less so that they have taken place with a body which, at another moment, or in its principal or dominant aspect, is a court such as is meant by sec. 720. A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and *57under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power. The establishment of a rate is the making of a rule for the future, and therefore is an act legislative, not judicial, in kind, as seems to be fully recognized by the Supreme Court of Appeals.’ ”
Plaintiff in error says:
“The theory for this inhibition is stated in Michigan Bell Telephone Co. v. Michigan Public Service Commission, 315 Mich. 533, 24 N. W. 2d 200, at 206, 209, where it is said:
“ ‘The impropriety and invalidity of the order of December 28, 1944, on this ground (i.e., that it is in effect retroactive) should be clear. For the State to prescribe utility rates, forbid the utility to charge any other rates, and then say that those rates may be declared unjust and unreasonable as applied to executed transactions shocks the conscience. Under such a rule how could the utility order its affairs? If an order may be made retroactive for one year, why not for any period (in the absence of a statute of limitations) and what then becomes of the commitments the utility may have made in the belief that the sums it has earned and collected belong to it? Reason, common fairness and precedent combine to establish the rule that the charter of the commission’s powers should not be construed to permit it to impugn its own legislative acts with retroactive effect unless the statutes affirmatively require such a construction.’ ”
The Michigan court further said:
“The principal matter to be determined in this appeal is the earliest date from which reparations may be allowed on account of any claims made in this proceeding. ... A commission-made rate furnishes the applicable law for the utility and its customers until a change is made by the commission. The utility was entitled to rely on the order of 1931 (which originally fixed the rate) until August 30, 1935 (the date of the commission’s order fixing lower rates), but thereafter might be liable for reparations.”
Up to the time of the decision in this case in May, 1950, there had been no reduction in the rate, which was filed and published under the Authority of April 28, 1941. The effect or net result of reducing the rate on cement (without an application or hearing on reduction) was accomplished, however, by Commission Order No. 23289, which declared “cement” to be included in the commodities excepted in the Authority. This order was not entered until January 19, 1950. Order 23289 is an amendment to Authority B-001737-4. If by any reasoning it can be said that Order 23289 operated to reduce the rate established under the Authority from 13c to 12c, then certainly the judgment rendered could be a refund only of the excessive charges made from and after January 19, 1950, the effective date of the Order making the reduction.
Art. IX, § 18, of the Oklahoma Constitution, specifically granted to the Commission the power to amend its rates, charges, classifications, rules, etc. In its final order the Commission held that it had authority to amend Order No. 2361.
The carriers asked the Commission to amend its tariffs so that the rates applicable at Marion would not exceed the rates applicable to Oklahoma City. Authority B-001737-4 was intended as an amendment to the former rates established. The new rate on cement was published. “The parties could not by contract or otherwise vary this rate.” Missouri, etc., R. Co. v. Harriman, 227 U. S. 657, 57 L. Ed. 690.
“As the carrier, shipper and consignee are bound by the published schedules of rates, the court is likewise bound thereby in determining the rights and liabilities of the parties.” Woodrich v. Northern Pac. Ry. Co., 71 Fed. 2d 732.
The rate collected here was the rate published under the Authority of the Commission by virtue of its power to *58amend existing rates. It was the authorized rate and the only one in the tariffs. It was the only rate on cement which could be collected. The charge made was not a rate “in excess of the lawful rate in force at the time such charge was made”, as provided in Tit. 17 O. S. 1941 §121, under which Portland’s claim is asserted.
“A commission made rate furnishes the applicable law for a utility and its customers until a change is made by the public utility commission.” Cheltenham & Abington Sewerage Co. v. Pennsylvania Public Utility Commission, 344 Pa. 366, 25 Atl. 2d 334.
“A freight rate which has been filed, approved, and published by the Railroad Commission is the lawful rate, even though unreasonable, and is the only rate which the carrier can charge without violating the statutes and penal laws; and, where a carrier has charged such rates, the shipper is not entitled to recover as for any excess charges, nor for penalties accruing under code 1907, secs. 5553, 5554.” T. R. Miller Mill Co. v. Louisville & N. R. Co., 207 Ala. 253, 92 So. 797.
“Where carrier merely collected intrastate rate authorized by State Corporation Commission, Commission held without authority to order reparation, though rate prescribed and charged was found excessive.
“Provision authorizing Corporation Commission to require reparation for excessive charges applies only where carrier has enforced rates in excess of those prescribed by Commission.” El Paso & S. W. R. Co. v. Arizona Corporation Commission, 51 Fed. 2d 573.
“ . . . The carrier’s right to the published rate at the time it was collected was its property. Can the carrier now be compelled to refund any part of it in view of the constitutional inhibition that no person shall be deprived of his property without due process of law?” State ex rel. v. Public Service Commission of Kansas, 135 Kan. 491, 11 P. 2d 999.
In the last-mentioned case the question was answered in the negative, as to transactions had prior to the passage of the Act but was upheld as to transactions had after its effective date.
The majority opinion is predicated on the theory that rates on cement were fixed pursuant to Order 2361, made February 3, 1924, and have stood without change. Authority of April 28, 1941, is not recognized as an amendment to any former rate-fixing order although it was adopted by the Commission and new tariffs were drawn pursuant to the order of the Commission and such new tariff fixed certain rates and applied the Oklahoma City rates to Marion. It was intended as an amendment to former rates. It was acted upon by carriers and shippers under the published rates. It is said that the Authority contains no findings, as required, and was not based on required notice, and was therefore not an order fixing rates within the contemplation of art. IX, §18 of the Oklahoma Constitution.
But this same section defines the powers and duties of the Commission, authorizes the Commission to establish rates and grants power to amend or alter such rates, from time to time.
The Commission is presumed to have acted lawfully and to have performed such duties as necessary under law for it to promulgate the order and its rate, when fixed, is deemed as prima facie just, reasonable and correct. Atchison, T. & S. F. R. Co. v. State, 82 Okla. 288, 200 P. 232. Therefore, the rate established pursuant to the Authority was the authorized rate until amended or altered, and the charges made by the carriers were lawful charges so long as they did not exceed the newly authorized rate.
The foregoing authorities concern the remedy sought, and these interpretations of the law with reference to the remedy are not in conflict with the constitutional provision.
I am of the opinion that the Commission had no jurisdiction to enter its judgment for refund on any ship*59ments made prior to January 19, 1950, when by its order No. 23289 it included “cement” as one of the common commodities excepted under the Authority.
I am of the further opinion that the relief sought is based on a claim for damages by reason of a tort allegedly committed by the carriers. Portland contends that it has been damaged to the extent of the difference between the published and collected rate and the rate which it says was the legal rate. It seeks recovery of an illegal and excessive charge made by the carriers. Defendants in error in their brief so state.
“The recovery of an illegal charge made by a carrier under statute is on tort committed by carrier in making such charge.” Central of Georgia Ry. Co. v. West Virginia Pulp & Paper Co., 92 F. 2d 892; Lewis-Simas-Jones Co. v. Southern Pacific Co., 283 U. S. 654, 75 L. Ed. 1333.
Since the action was grounded on tort and not on contract, the claim was unliquidated until reduced to judgment. The order allowed 6% interest for nearly six years prior to the date of its entry. Such judgments bear interest from the date on which they are rendered. Tit. 15 O. S. 1941, § 274.
While there is no separate assignment of error involving the question of interest allowed on the judgment, plaintiffs in error attack the whole judgment, as hereinbefore shown, and of course it is contended that the whole judgment, and each and every part thereof, including interest, is erroneous.
I can see no legal reasons for sustaining the Commission’s judgment. Certainly good morals do not require it. Portland, in pricing its products to the consumer, did so upon the assumption that 13c per 100 pounds of cement was the correct rate. It has lost nothing. To sustain the judgment is merely to increase Portland’s profits from the transaction.
I respectfully dissent.
O’NEAL, J., concurs in these views.