TJiis is a rehearing of the case reported ante, p. 132. A statement of the facts will be found in the former opinion. The rehearing was sought and granted upon the propositions laid down in the second paragraph of the syllabus to that opinion. It was there held that section 10009, Ann. St., did not render void a contract between a railroad company and a shipper to transport merchandise for less than the usual and regular freight rate, where such rate has been agreed to by mistake of the company without intending any discrimination against other shippers. It was also held that, where such contract was made and freight transported pursuant thereto, if the railroad company compelled payment of freight charges in excess of the contract rate, such excess could be recovered by the shipper in an action for breach of the contract. Section 10009, Ann. St., so far as the same is material to a consideration of this case, is as follows: “No railroad company within this state shall * * * directly or indirectly charge to or receive from any person or persons, or association or corporation any greater or less sum, compensation, or reward than is charged to or received from any other person or persons, association or corporation for like and contemporaneous service in the receiving, transporting, storing, delivering or handling of freights.” Section 10010, Ann. St., provides severe penalties for any railroad that shall violate any of the provisions of the act, and makes it liable to the party injured for all damages sustained. In the present case the rate was fixed by inadvertence and mistake at a less rate than the regular charges made to other persons and to the public for like and contemporaneous services. But the mistake was discovered by the railroad company before the charges were collected, and it then exacted the full regular rate before it would deliver the freight to the consignee. The action was to recover for a breach of the contract. In the former opinion it was held that, because *141the contract was entered into hy mistake, and because there was no intent or purpose to discriminate, the contract was .not void as being in conflict with the provisions of the statute above quoted, and that the shipper in such an action could recover any excess of the contract rate which was collected by the railroad company. '
It is a familiar rule of statutory construction that the court should consider the evil sought to be prevented, and ascertain and give effect to the legislative intent. There can be no doubt that the evil aimed at by this legislation was the ■ unfair and unjust preference and advantage which accrued to favored shippers by rebates and freight rates loAver than those given to other shippers. The purpose of this legislation was to put a stop to and make unlawful any discrimination in freight rates. The legislature evidently deemed it wise to prohibit any discrimination, and to say that all shippers shall be placed upon an absolute equality so far as freight rates are concerned. The statute provides that the railroad company shall not be permitted to receive from any person or persons a greater or less sum than is received from other persons. If the railroad company, after discovering the mistake, had received only the contract rate, which Avas less than the usual and regular rate charged to the public generally and to other persons for like and contemporaneous service, it would have done so knowingly and wilfully, and it would thereby have rendered itself liable to the penalties provided by section 10010, supra. This provision and the effect thereof were overlooked in the former opinion. The result of that holding would be to require the railroad company to wilfully violate the statute and render itself liable to the penalties therein provided.
The provisions of section 10009, above quoted, are Arery similar to the provisions of the second section of the interstate commerce act as it originally existed, and as amended by the Hepburn act of June, 1906. That section has frequently been before the federal and state courts. *142for interpretation. Construing that act, the supreme court of Kansas, in the case of Chicago, R. I. & P. R. Co. v. Hubbell, 54 Kan. 232, said: “The sole question to be considered in this case is whether the plaintiff, having obtained, through a mistake of a clerk of the St. Joseph, St. Louis & Santa Fe Company, a rate on shipments of coal $1 a ton below the customary rate, can enforce a contract giving him such special rate against the plaintiff in error, which received and transported the coal, and paid to the connecting company its charges without notice of any special agreement. * * *. The claim of the plaintiff below rested solely on his special contract, and he now urges that he will be subjected to a financial loss by this operation if his special contract is not enforced. He also urges that, having been induced to make the shipment by the agent of the railroad company, if the rate quoted him was a mistake, the company rather than he should suffer for it. * * * We think the question as to whether or not the plaintiff knew of the existence of the joint tariff at the time he shipped the coal is wholly unimportant. There was an established rate governing all shipments. * * * Under the act of congress, all contracts discriminating either against or in favor of any shipper are unlawful, and the persons making such contracts on behalf of the corporation are liable to punishment. It was the plaintiff who was seeking to enforce the unlawful contract. * i:' * The contract, being in violation of the express provisions of the law, Avas utterly void between the immediate parties to it.” In St. Louis & S. F. R. Co. v. Ostrander, 66 Ark. 567, 52 S. W. 435, it Avas held that, where a loAver rate than the published rate was quoted by a railway company, the contract Avas illegal and could not bind the company Avhose agent made the rate, and that it is immaterial whether the rate was made knowingly or not. It was there intimated that, if any action at all existed, it Avas against the company for wrongfully misrepresenting the rate. In the case of Savannah, F. & W. R. Co. v. Bundick, 21 S. E. 995 *143(94 Ga. 775), it is said: “Inasmuch as the interstate commerce act prohibits not only contracting for, but also collecting, a less rate of freight on interstate shipments, * * * a common carrier * * * is not precluded from collecting from a shipper the full schedule rate because, by mistake, a less rate was named to him by the carrier at the point of shipment, and also inserted in a bill of lading signed both by the carrier and the shipper, no fraud or wilful deception having been practiced or attempted. On discovery of the mistake, after the shipment, but in time to correct it at the point of destination, it may there be corrected by the exaction of the full schedule rate.” In this case the court further said: “It makes no difference whether Bundick was or was not ignorant that the rate named to him was an unlawful one. Under no circumstances would he be entitled to the benefit of a rate which was denied to other, customers. To so hold would be in the very teeth of the statute, and would utterly defeat its purpose to prevent just such discrimination.” ' Other cases announcing practically the same doctrine are the following: Missouri, K. & T. R. Co. v. Bowles, 1 Ind. Ter. 250, 40 S. W. 899; Southern R. Co. v. Harrison, 119 Ala. 539, 24 So. 552; Houston & T. C. R. Co. v. Dumas, 43 S. W. (Tex. Civ. App.) 609; Bullard v. Northern P. R. Co., 10 Mont. 168; Kizer v. Texarkana & Ft. S. R. Co., 66 Ark. 348, 50 S. W. 871; Myar v. St. Louis S. W. R. Co., 71 Ark. 552, 76 S. W. 557; Southern R. Co. v. Wilcox & De Jarnette, 99 Va. 394, 39 S. E. 144; Ward v. Missouri P. R. Co., 158 Mo. 226, 58 S. W. 28. The United States supreme court has also taken a similar view of the interstate commerce act, in the case of Texas & P. R. Co. v. Mugg, 202 U. S. 242. It was there held that a common carrier may exact the regular rate for an interstate shipment, although a lower rate was quoted by the carrier to the shipper, who shipped under the lower rate so quoted. This doctrine was reaffirmed in Texas & P. R. Co. v. Abilene Gotten Oil Co., 204 U. S. 426, and Texas & P. R. Co. v. Cisco Oil Mill, 204 U. S. 449.
*144A contrary construction was placed upon tbe second section of the interstate commerce act by this court in the case of Missouri P. R. Co. v. Crowell Lumber & Grain Co., 51 Neb. 293. The former holding in the instant case was largely induced by the construction placed upon the interstate commerce act in the case last mentioned, together with the fact that it seems abhorrent to one’s sense of fairness and justice that a carrier should escape liability where it either negligently or wilfully quotes to a shipper, who is ignorant of the regular rate, a less rate1, and thereby induces him to make a shipment that he would not otherwise make, and then exacts of the shipper the regular rate to his financial loss and possible ruin. The contract seems to be clearly one for a less rate than that usually and regularly charged to other persons for similar and contemporaneous service, and would be in direct violation of the statute. To hold otherwise would be to defeat the very object of the statute, which was to prevent the discriminations and preferences among shippers'. After a careful consideration of the subject, we think the better view is that the contract, in so far as it sought to fix .a rate less than the regular rate, was void. If the action in Missouri P. R. Co. v. Crowell Lumber & Grain Co., supra, was based upon a breach of a contract, as it appears to have been, it ought no longer to be followed as a precedent, and the second paragraph of the syllabus in this case, ante, p. 132, should be disapproved and overruled.
The recovery in this case included other items than the difference between the contract rate and the regular rate. This difference in rates, in this instance, amounted to $32.50, and that item is included in the judgment rendered for the plaintiff. To this extent the judgment is erroneous.
We therefore recommend that the judgment of the district court be reversed and the cause remanded for a new trial, unless the appellee enters a remittitur of $32.50 within 30 days of the date hereof, and, if such remittitur *145is entered within that time, the judgment of the district court should he affirmed.
Duffie and Eppiseson, OC., concur.By the Court: For the reasons given in the foregoing opinion, it is ordered that, if the plaintiff shall enter a remittitur of $82.50 in this court within 30 days, the judgment of the district court shall he affirmed, and that, if the plaintiff shall fail to enter such remittitur within 30 days, said judgment shall be reversed and the cause remanded for further proceedings.
Judgment accordingly.