(dissenting). Between November 1, 1907, and May 20, 1910, the plaintiffs received from the defendant within the city of New York consignments of freight from points within this state. They paid “ demurrage ” and “ track storage ” charges in connection therewith. The defendant had duly filed with the public service commission and published its schedules of rates, fares and charges as provided by the Public Service Commissions Law (Consolidated Laws, chapter 48). During the time mentioned the defendant’s schedules so filed and published provided: “ For the first 48 hours after car is placed on delivery track (time to be computed from first 7:00 a. m. after car is placed) nb charge will be made. For the next succeeding two days the charge will be $1.00 per car per day or fraction thereof. For the next two days the charge will be $2.00 per car per day or fraction thereof. For the next two days the charge will be $3.00 per car per day or fraction thereof. For each succeeding day the charge will be $4.00 per *560car per day or fraction thereof. Sundays and legal holidays are excepted.” The charge therein provided is known as “ track storage ” charge and was in force when the plaintiffs received their freight.
Said schedules also provided: “ Sundays and legal holidays excepted for the first 48 hours after car is placed on team track for delivery (time to be computed from the first 7:00 a. m. after car is placed) no charge will be made. For the next succeeding two days the charge will be $1.00 per car per day or fraction thereof. For each succeeding day the charge will be $2.00 per car per day or fraction thereof.” The charge therein provided is known as “ demurrage.” Said schedules also provided for a refund of demurrage “ When the condition of the weather during the prescribed free time" is such as to make it impossible to employ men or teams in unloading cars without serious injury to freight. Wheri shipments .are frozen so as to prevent unloading during the prescribed free time, or when because of high water or snow drifts it is impossible to get to cars for unloading during the prescribed free tune.” The schedules did not contain any similar provision for refunding track storage charges.
During the time mentioned the plaintiffs paid demur-rage and $187 for track storage when as claimed by them the weather conditions made it impossible to unload the cars so held within the prescribed free time. They made application to the defendant to refund both the demurrage and track storage charges so paid. The defendant refunded thé demurrage but refused to refund the track storage charges. The plaintiffs then filed a complaint with the public service commission claiming unlawful exaction of track storage charges and asked that its claim be determined and that the defendant be directed to renay to them said charges-. The defendant served an answer to the complaint and proceedings were had *561before said commission which resulted in an order in substance that the plaintiffs are entitled to recover from the defendant the amount of track storage charges paid for the same time for which the plaintiffs have had returned to them by the defendant demurrage charges on account of weather conditions, as stated in the schedules.
No appeal or proceeding to review the proceeding before the commission has ever been taken. The trial court found as a conclusion of law that the order of the commission “ is in effect a finding of an unjust discrimination against the plaintiffs and until reversed or annulled it is binding upon the defendant in this action.” On the complaint of the plaintiffs and others the public service commissions of this state and the interstate commerce commission directed that the defendant make the regulation about repaying demurrage at times of interference in unloading cars through weather conditions that we have quoted applicable to track storage charges. The schedules of the defendant were changed accordingly August 1, 1911. (N. Y. C. & H. R. R. R. Co. v. Murphy, 224 Fed. Rep. 407.)
“ All charges made or demanded by any such corporation, (one engaged in the transportation of passengers, or property from one point to another within the state of New York) * * * for the transportation of passengers or property or for any service rendered or to be rendered in connection therewith, as defined in section two of this chapter, shall be just and reasonable and not more than allowed by law or by order of the commission having jurisdiction and made as authorized by this chapter. Every unjust or unreasonable charge made or demanded for any such service or transportation of passengers or property or in connection therewith or in excess of that allowed by law or by order of the commission is prohibited.” (Public Service Commissions Law, § 26.)
*562“ In case a common carrier shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done, either by any law of the state of New York, by this chapter or by an order of the commission, such common carrier shall be hable to the persons or corporations affected thereby for all loss, damage or injury caused thereby or resulting therefrom * * (Public Service Commissions Law, § 40.) If the charge for track storage was unjust and unreasonable it was prohibited and the defendant is hable to the plaintiffs therefor. If unjust and unreasonable, provision at least should have been made in the schedules for its repayment the same as for repayment of demurrage. The complaint in this action expressly alleges'that the track storage charges of the defendant, when by reason of weather conditions the freight in the cars could not be removed, were “ unjust, unreasonable, unlawful and arbitrary.” This allegation of the complaint was denied by the answer.
If the court had determined the is..ues thus joined in favor of the plaintiffs without , considering the allegations in the pleadings and in the stipulation relating to the proceeding before the public service commission, such determination and the order in connection therewith would be sustained by the acts of the defendant and its discrimination between demurrage and track storage charges under the same conditions. In view of all the findings of the court the judgment rendered herein may not be wholly dependent upon the jurisdiction of the public service commission to make the order that we have mentioned. The respondent, however, urges that the judgment is wholly dependent upon the jurisdiction of the public service commission to make the conclusion of law quoted. It urges that the public service commis*563sion has no power to determine as between the parties hereto the question whether charges theretofore made for track storage, when weather conditions prevented unloading the freight from the cars, are unjust and unreasonable.
The statute provides: “ Each commission shall have the general supervision of all common carriers, railroads, street railroads, railroad corporations and street railroad corporations within its jurisdiction as hereinbefore defined, and shall have power to and shall examine the same and keep informed as to their general condition * * *; also with respect to their compliance with all provisions of law, orders of the commission and charter requirements.” (Public Service Commissions Law, sec. 45, subd. 2.)
It is also provided in the statute that “ Each commission shall possess the powers and duties hereinafter specified, and also all powers necessary or proper to enable it to carry out the purposes of this chapter.” (Public Service Commissions Law, § 4.)
“ Whenever either commission shall be of opinion, after a hearing had upon its own motion or upon a complaint, that the,rates, fares or charges demanded, exacted, charged or collected by any common carrier, railroad corporation * * * affecting such rates are unjust, unreasonable, unjustly discriminatory or unduly preferential, or in any wise in violation of any provision of law, * * * the commission * * * shall determine the just and reasonable rates, fares, and charges to be thereafter observed and enforced as the maximum to be charged for „ the service to be performed * * * and shall fix the same by order to be served upon all common carriers * * * by whom such rates, fares and charges are thereafter to be observed.” (Public Service Commissions Law, § 49.)
“ Complaints may be made to the proper commission *564by any person or corporation aggrieved, by petition or complaint in writing setting forth any thing or act done or omitted to be done by any common carrier * * * in violation, or claimed to be in violation, of any provision of law or of the terms and conditions of its franchise or charter or of any order of the commission. Upon the presentation of such a complaint the commission shall cause a copy thereof to be forwarded to the person or Corporation complained of, which may be accompanied by an order, directed to such person or corporation, requiring that the matters complained of be satisfied, or that the charges be answered in writing within a time to be specified by the commission. If the person or corporation complained of shall make reparation for any injury alleged and shall cease to commit, or to permit, the violation of law, franchise or order charged in the complaint, and shall notify the commission of that fact before the time allowed for answer, the commission need take no further action upon the charges. If, however, the charges contained in such petition be not thus satisfied, and it shall appear to the commission that there are reasonable grounds therefor, it shall investigate such charges in such manner and by such means as it shall deem proper, and take such action within its powers as the facts justify.” (§ 48, subd. 2.)
“ Whenever either commission shall investigate any matter complained of by any person or corporation aggrieved by any act or omission of a common carrier, * * * under this section it shall be its duty to make and file an order either dismissing the petition or complaint or directing the common carrier . * * * complained of to satisfy the cause of complaint in whole or to the extent which the commission may specify and require.” (§ 48, subd. 3.)
It is apparent from the general character of the provisions of the Public Service Commissions Law that it *565was the purpose and intent of the legislature to give to the public service commissions full and complete authority to determine as between common carriers and shippers whether the freight rates and charges as stated in the schedules are just and reasonable. While the commissions are not given power to enforce reparation for an injury, they are given power to receive complaints for an “ act done ” by a common carrier in violation of the provision of the statute requiring in substance that its freight rates and charges shall be reasonable, and in case on notice reparation for injury is not made and such common carrier does not cease to violate the law then to investigate the charges and take such action within its power as the facts justify. The action within its power in this case was to determine whether the charges exacted were just and reasonable. It is left to the courts to enforce a liability on the part of common carriers to shippers through .the collection of unreasonable freight rates and charges. So far as appears the schedules filed by the defendant were never formally adopted and approved by the public service commissions. They included charges for demurrage and track storage as we have hereinbefore stated.
When the matter was brought to the attention of the commission and after a hearing as provided by statute, the order was made which was in effect a finding that such charges so far as they are for days when the weather conditions made it impossible or impractical to unload the cars were unjust and unreasonable. The statute contemplates past as well as future charges, otherwise it would not have made the discontinuance of a proceeding before it dependent in any .respect upon the reparation of an injury caused by exacting unjust and unreasonable charges. The admitted facts in this case tend to establish that the charges for track storage were unjust and unreasonable and it was admitted that the *566public service commissions on hearing duly had, determined not only that the charges were unjust and unreason-, able but that the defendant should repay such unjust and unreasonable charges to the plaintiffs.
The judgment of the Trial Term is supported by the findings on which it is based. The judgment of the Appellate Division should be reversed, with costs in the Appellate Division and in this court, and the judgment of the Trial Term affirmed.
His cock, Ch. J., Cardozo and Andrews, JJ., concur with Collin, J.; Cuddeback and Pound, JJ., concui with Chase, J.
Judgment affirmed.