(concurring). — I desire to say that I fully concur with Farrington, J., in all he says in reference to the binding effect of the tariff rate filed by carriers with the Interstate Commerce Commission and that this effect is not dependent on the posting of *133the copies by the local agents. As said by Commissioner Harlan in Poor Grain Co. v. Railroad, 12 Int. Com. Rep. 418, this published rate “is as fixed and unalterable either by the shipper or by the carrier as if that particular rate had been established by a special act of the Congress.” The published rate is in itself a contract with all the world at the specified rate and cannot be changed or modified by the carrier or shipper or both combined. The Interstate Commerce Act deprives carriers and shippers of the power to make individual contracts by substituting one uniform contract filed with the commission. All that any agent of a carrier can do is to give information as to what that contract is and the posting of copies of the tariff rates in railroad offices is for no other purpose, and is not a condition precedent to putting the rates in effect.
The act of Congress in question provides . that, ‘ ‘ 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 connectin therewith, than is specified in such published schedule of rates, fares, and charges as may at the time be in force.” The act further provides that 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 to the transportation of any property in interstate or foreign commerce by any common carrier subject to said act.” This means that common carriers shall not give or grant to any shipper any rate other than the established published rate. They shall not do so for any purpose or in any manner. They shall not do so directly or indirectly. They shall not do so by contract, compromise or settlement. They shall *134not do so by payment under a mistake of law or fact. They shall not do so by means of any “rebate, concession or discrimination.” [C. & A. Railroad v. Kirby (1912), 32 Sup. Ct. Rep. 648.]
I concur also with Farrington, J., in holding that, as the last and all the decisions of our Supreme Court, on the question of the binding and overruling effect of the decisions of the United States Supreme Court on the decisions of all State courts in matters pertaining to interstate commerce and the like, is to the effect that the federal Supreme Court is the final arbiter to which all State courts must yield, then we are not to follow the decision of the Supreme Court of this State when overruled or plainly in conflict with the decisions of the United States Supreme Court. We have a right to presume, and our Supreme Court has in effect told this court to presume, that it will, at the first opportunity, make its decisions conform to the decision of the federal courts in such matters.
I am convinced however that the plaintiff railroad did in the first instance exact and collect more than the established rate fixed by the tariff schedule filed with the Interstate Commerce Commission, a thing it had no right to do under the law as we all agree; and, therefore, it would have been compelled to pay back such excess charges in an action at law.
It is. conceded that under the facts as proven the defendant has paid, after deducting this refund, the full rate of “27% cts. per hundred pounds” fixed and designated in “Texas Tariff No. 42-B,” which was the tariff on file with the1 Commerce Commission and in force covering the shipment of this stone from Carthage, Mo. to Ft. Worth, Texas. The only claim is that the cars in which the stone was actually shipped were not loaded to their minimum capacity and under item 81 of said Texas Tariff No. 42-B the railroad must charge and collect for the minimum capacity o.f *135the car used, whether loaded to such capacity or not; and so plaintiff is now seeking to recover from defendant an amount in excess of the regular rate of 27% cents ■ per hundred pounds on the freight actually shipped. It will be noted that this item 81 provides that cars of a larger minimum capacity may be furnished to and used by the shipper without subjecting him to payment for excess weight up to the minimum capacity, provided such shipper has ordered a car of less minimum capacity and the carrier for its own convenience furnished a car of larger minimum capacity than is ordered. In the instant case the jury found, and that is binding on this court, that the shipper did order a car of less minimum capacity and brought himself within the rule; and that it is solely the fault of the carrier that the smaller minimum capacity car was not furnished and used.
But plaintiff further claims that, notwithstanding it was its fault in not furnishing the smaller car ordered, yet the shipper cannot rely on this fact as constituting an exception to the rule exempting him from payment of freight based on the minimum capacity of the car used,-unless the capacity of the car ordered is noted on the bill of lading and carrier’s waybill.
The very nature and definition of a bill of lading requires that it be issued by the carrier and it is not necessarily or generally signed by the consignor, and may or may not contain contractual provisions. [6 Cye. 416 & 417.] Section 20 of the Interstate Commerce Act expressly requires common carriers receiving property for transportation to “issue a receipt or bill of lading therefor; ’ ’ and penalties are provided for issuing false bills of lading. Under the power given it the Interstate Commerce Commission has provided for the use of uniform bills of lading by all railroads doing an interstate business. Of course it makes no difference whether the carrier or shipper *136performs the clerical work of filling out the blank .forms. It is the carrier’s bill of lading.
With reference to the “Carrier’s Waybill,” on which the notation is also required to be made, the shipper does not so much as even see that. And it may be here remarked that the plaintiff did not even attempt to prove that the waybill here used did not contain the proper notation. *
The writer fully agrees with Farrington, J., that equality and uniformity of freight rates is the polar star of construction of the Interstate Commerce Act and all rules and regulations thereunder. But to hold that a shipper, who had ordered a car of a certain minimum capacity and loads the car furnished him on that order and pays the full established tariff rate on the commodity loaded and shipped by him in such car, must pay a higher rate because the carrier fails to ■furnish the size car ordered and then further fails to note on the bill of lading or waybill it’s reason for furnishing a larger car, does not tend to promote uniformity and equality of freight rates. A more just and effectual remedy will be found in the penalty provisions for issuing false bills of lading; not meaning, however, to imply by this that this is a proper case for invoking such remedy.
The provision of the tariff schedule in question, permitting plaintiff to substitute larger cars than those ordered, is plainly for its benefit and so this item No. 81 says. Seeing that the shipper must under all circumstances pay freight on every pound that he puts in the car, it is not apparent how he would ever profit by having a larger ear than he orders or in having the bill of lading and waybill, even if he could control these instruments, omit the notation claimed to be necessary to entitle him to a charge based on less than the minimum capacity of the car used. It is in this particular instance, and would be generally, to the advantage of the carrier, if it is allowed to recover.
*137This line of reasoning finds support in the ruling of the Interstate Commerce Commission in So. Cotton Oil Co. v. L. & N. R. R. Co., 18 Interstate Com. Rep. 180; So. Cotton Oil Co. v. So. Ry. Co., 19 Interstate Com. Rep. 79; Miller & Lux v. So. Pac. Co., 20 Interstate Com. Rep. 129.
To allow plaintiff to prevail in its contention here is to allow it to take advantage of and reap a benefit from its own wrong; and this is never allowed where there is no overshadowing reason for doing so.
It would seem that the provision for requiring the notation to he made by the carrier on the bill of lading and waybill is like the provision for posting the tariff schedules in the carrier ’s local .offices in that it is directory rather than a condition precedent, and is to be done to afford a ready means of checking up the transactions of such carriers.
Should the Interstate Commerce Commission find it necessary or desirable to require all orders for cars to be in writing so as to avoid misunderstanding as to the kind of cars ordered it has power to do so but has not done so in the tariff schedule herein mentioned. .
The writer therefore dissents from that portion of the opinion of Farrington, J., dealing with this question and thinks the judgment should be affirmed.