I concur in the views expressed by WHITING, P. J.
SMITH, J.While my own conclusions in this case coincide with those of Judge WHITING, the reasoning is along *167slightly different lines, and I have presumed to concur specially. No attempt will be made to discuss questions collateral to the specific case before this court, the rulings of the Commission, or decisions of the federal courts, except to say that none have been found which pass directly upon the proposition before us at this time.
The question presented on this appeal is whether, upon the facts stated in the complaint and answer, which are admitted by the demurrer, the freight charge which plaintiff seeks to recover is illegal, because in violation of section 4 of the interstate commerce act. The trial court held the charge illegal as in violation of said act, and the plaintiff brings the action to this court for review, and assigns three grounds upon which it asks a reversal: “(i) The only lawful rate that can be received by the carrier and paid by the shipper is the” tariff rate filed, published and posted in accordance with the federal laws regulating interstate commerce. (2) The courts have no jurisdiction to grant relief to an individual shipper in advance of a change in the filed tariffs for an alleged unreasonableness in rates or violation of the long and short haul clause of the act. (3) An accord and satisfaction on the filed and published rate is unlawful, for it is prohibited and penalized by the act.” I shall consider only the matters presented in paragraphs 1 and 2 above.
The proposition that the reasonableness of a rate filed and published by a carrier must be inquired into and determined in a proper proceeding before the Commission in the first instance is so well settled that it need not be discussed here. The commerce act is based upon the broad proposition that all rates must be reasonable, and the underlying principle that the carrier shall not in any manner discriminate in favor of or against individual shippers, nor in favor of or against particular localities. The inhibition against discrimination in favor of or against individual shippers is found upon the proposition that a rate which is reasonable as to one shipper is likewise reasonable as to all others, under substantially similar conditions, and that all rates to every shipper shall be reasonable. A rate when filed and published applies to all shippers alike, and, to prevent discrimination in *168favor of or against individuals or localities, the statute provides that the filed rate and none other shall he charged and collected by the carrier. Under the provisions of the act any shipper at any time may object to any filed rate, and present the question of its reasonableness to the Commission for adjudication. As to the shipper, this remedy i>s exclusive, subject only to a review of the action of the Commission by the proper courts. The burden is thus placed upon the shipper to take the initiative upon the question of the reasonableness of the filed rate, and of presenting it to the Commission in every case, except those specified in section 4 of the act. In the first class of cases the specific question before the Commission is whether a certain filed and published rate between the points of shipment and destination, in the particular instance, is reasonable or unreasonable. The innumerable points of shipment and destination render any other method impossible, short of requiring the Commission to specifically fix every rate between points of shipment, in the first instance. In the broadest sense, it may perhaps be said -that a filed rate is deemed reasonable until attacked by the shipper, but upon a hearing before the Commission the statute raises no presumption that any. filed rate is either reasonable or unreasonable. But a somewhat different situation and procedure are presented when we come to consider the question of discrimination and reasonableness of rates as between localities. The fundamental idea of this provision of the act is that the carrier shall not be permitted to build up or favor .one shipping point at the expense and to the disadvantage of another similarly situated. The evil sought to- be remedied by the legislation seems to have' grown largely out of the practice of carriers to favor localities by giving them a longer haul at a rate lower than that granted to intervening points on the same line.
The act contemplates that under certain specified conditions such lower rates may be justified as reasonable. -But it does not permit the carrier to determine the “circumstances and conditions,” nor “the particular instances” in which such rates may be established, in advance of any action by the Commission. To make its purpose entirely clear, the act declares that a less charge for the longer haul is deemed unlawful unless expressly authorized by *169the Commission. And. the burden of taking the initiative is placed upon the carrier by the act, which says: “Upon application to the Commission * * such common carrier may, in special cases, after investigation by the .Commission, be authorized to charge less for longer 'than for shorter distances,* * * -and be relieved from the operation of this section of the act.” It "seems that the “special cases” referred to in this proviso, in which the Commission may authorize such rate, are only those cases in which “the circumstances and conditions are substantially similar,” and that the carrier in order to preclude the courts from taking jurisdiction of the question of the legality of rates which establish a lower charge for the longer haul, under substantially similar circumstances and conditions, must take the initiative by applying to the Commission for an order “relieving them from the operation of this section of the act.” What is the “operation of this act” from which the carrier may be relieved? And what is the situation of the carrier up to the time such relief is granted by the Commission?
The clear and unequivocal language of the section itself answers both questions: “That it shall be unlawful for any comr mon carrier * * * to charge or receive any greater compensation in the aggregate for the transportation of passengers or of like kind of property, under substantially similar circumstances and conditions, for a shorter than for a longer distance over the same line, in the same direction, the shorter being included within the longer distance. * * *” The “operation of this section” is to render a rate illegal when it violates the statute. The carrier-cannot collect an illegal charge. The question of the legality of the rate might have been placed beyond the jurisdiction of the court in an action against the shipper, had the carrier chosen to present his application and obtain an order from the Commission authorizing the charge, and relieving him from the operation of section 4. Until such order is obtained such rate is illegal. If this conclusion be correct, it becomes the duty of appellant to point out some provision of the act or some decision of the courts permitting a carrier to collect a conceded illegal rate by an action in the courts. I have found none. It is conceded in this case that the *170carrier has filed with the Commission and published its rates, and is demanding a recovery upon its filed rate. It is conceded that the rates under which plaintiff seeks a recovery make a greater* charge for the shorter haul in the same direction to Jasper than to Sioux Falls on the same line. It is conceded that such haul is made to Sioux Falls and Jasper under substantially similar, circumstances and conditions, and that circumstances and conditions are substantially similar at Sioux Falls and Jasper.
In the case of Interstate Com. Com. v. Atchison, T. & S. F. R. Co. (C. C.) 50 Fed. 300, that court holds that a rate made in violation of the express terms of section 4 can be held to be a legal rate, only when expressly authorized by order of the Commission. The court says: “And the power thus conferred is exclusive, and its exercise conclusive, in all cases that fall within the prohibition of the enacting clause of the section to which the proviso is appended; that is to say, to every case where the carrier charges or receives greater compensation in the aggregate for the transportation of passengers, or of like kind of property, under substantially similar circumstances and conditions, for a shorter than for a longer distance, over the same line, in the same direction, the shorter being included within the longer distance. In all cases, a greater charge for the shorter than for the longer haul is absolutely prohibited unless the Commission, for good cause, sees proper to relieve' a particular carrier from its operation.”
Upon the specific facts conceded in the record before us, it seems perfectly clear to my mind that the rate which appellant seeks to enforce is illegal and in violation of section 4, the record not disclosing- .that such rate has been authorized by the Commission. The establishment of a rate such as is admitted in this case is prohibited by the statute except upon order of the Commission, without regard to the question of its resonableness or unreasonableness, subject of course to the right and power of the Commission to make investigation as to its reasonableness at any time upon the question being presented to it in some proper manner, and subject to the power conferred upon the federal courts to review the action of the Commission. The federal *171courts have held that a carrier who files and publishes such a rate without authority from the Commission does so at his own peril; subject to the future action of the Commission and the federal courts. But these decisions are not pertinent to the question before us. Nor do any decisions which we have found hold that the section of the act which requires the carrier to charge and collect the filed and published rates and none other under penalties there prescribed, should be so interpreted as to give it the effect of rendering a filed and published rate legal and collectible in the courts, when such rate is in violation of the provisions of section 4. *
The carrier must be held to have filed and published such rate at his peril, since it was within his power to make application to the Commission for an order permitting it in the first instance. The question before us is not whether the court has jurisdiction to pass upon the reasonableness of a rate, at either competitive or noncompetitive points, but simply whether the carrier can collect a rate which is illegal upon the undisputed facts.
In my judgment, the ruling of the trial court is correct, and should be affirmed.