(dissenting). The appeal is from an order overruling plaintiff’s demurrer to defendant’s answer. The allegations of the complaint are as follows: “(1) That it is, and at all times herein mentioned has been, a corporation organized and existing under the laws of Minnesota, and has complied with all laws of South Dakota relative to foreign corporations doing business in this state, and is entitled because of said compliance with the corporation laws of this state to bring and maintain this action; that the plaintiff is lawfully engaged in the business of common carrier of freight and passengers between Minnesota Transfer in the state of Minnesota and the village of Jasper, in Minnesota, and the city of Sioux Falls, South Dakota; that at said Minnesota Transfer it connects with the Wisconsin Central *172and other railway companies operating lines of railway between said Minnesota Transfer and the city of Chicago in the state of Illinois. (2) That the defendant is a corporation organized and existing under the laws of South Dakota and lawfully doing business in Minnesota and the character of its business is wholesaling and retailing building material and fuel at Sioux Falls and at other points in South Dakota and Minnesota. (3) That on or about -the 23d day of January, 1907, the defendant caused one car load of hard coal, to wit, 63,200 pounds, ho be delivered to the Wisconsin Central Railway Company at Chicago', Illinois, to be carried by said Wisconsin Central Railway Company to Minnesota Transfer, and there to be delivered to a connecting carrier and forwarded by said connecting carrier to Sioux Falls, South Dakota; that said car load of coal was so marked and billed at the time of its delivery at Chicago. (4) That said Wisconsin Central carried said coal over its said line of railroad to Minnesota Transfer in Minnesota, and there delivered it to this defendant to be carried by it to Sioux Falls, South Dakota; that said carriage by said Wisconsin Central and Great Northern Railway companies was to be for a consideration, to wit, the regular published tariff rates between, said points. (5) That said car load of coal was received by said Great Northern Railway Company to be carried over its lines of railway and lines of railway operated by it to Sioux Falls, South Dakota, for a consideration, to wit, its proportionate share of the regularly filed and published through tariff rate between Chicago, Illinois, and Sioux Falls by way of the Wisconsin Central and Great Northern and lines operated by it. (6) That when said coal arrived at Willmar, which is a division point on said Great Northern Railway line in Minnesota, the place of destination of said car load of coal was chang'ed, and said shipment diverted to Jasper, Minnesota, said Jasper being a point on said Great Northern line of railway between said Will-mar and Sioux Falls; that said diversion was wholly directed and ordered by the defendant. (7) That there is no through tariff rate filed and published between Chicago and said Jasper for freight originating on said Wisconsin Central company’s line of railway; that the regulaidy published tariff schedule for freight *173under the classification for coal between said points as filed with the Interstate Commerce Commission and posted in the depots oí said Wisconsin Central and Great Northern Railway companies for said class of freight between said points is the local rates on Minnesota Transfer and no other rate is so filed or ptiblis'hed— that is to say, the rate of $2 per ton from Chicago to Minnesota Transfer and the rate of $2.25 per ton from Minnesota Transfer to Jasper, making a total of $4.25 per ton between Chicago and Jasper, amounting on said tonnage in all to $134.30; that the said charges of the Wisconsin Central have been paid in full by the plaintiff, the Great Northern Railway Company; that defendant has paid no part of the said freight charges for said shipment, to wit, said $134.30, except the sum of $79, and that there is now due and owing this plaintiff from defendant the sum of $55-3° which amount defendant refused and still refuses to pay plaintiff."
The answer (omitting merely formal parts) is as follows: “The defendant admits all the allegations of the complaint, excepting that it denies that there is now due and owing the plaintiff from the defendant the sum of $55.30.- (2) Defendant, further answering, alleges that Jasper, in the state of Minnesota, is a railroad station upon the lines of the plaintiff between Minnesota Transfer in the state oí Minnesota and Sioux Falls in the state of South Dakota, and that all freight carried by the plaintiff from Minnesota Transfer to Sioux Falls is necessarily carried through Jasper; that Jasper is situated about 30 miles northeast of the city of Sioux Falls, and that distance nearer -to Minnesota Transfer than is the city of Sioux Falls. (3) Defendant, further answering, alleges that there exists no reason, by way of the peculiar geographical position, competition of other transportation facilities or trade or other peculiar conditions, why a greater charge should be made for transporting coal from Minnesota Transfer or from Chicago via Minnesota Transfer to Jasper than is made for the transportation of such coal from Minnesota Transfer or from Chicago via Minnesota Transfer to Sioux Falls, and alleges that the regular tariff rate on coal from Chicago to Sioux Falls via Minnesota Transfer was a just, reasonable, and sufficient tariff on coal from Chicago -to Jasper via Minnesota Transfer., (4) De*174fen dan t, further answering, alleges that upon the 1st clay of February, 1908, defendant paid to plaintiff the sum of $79 in full satisfaction of the charges of the plaintiff for the transportation of said car load of coal from Chicago via Minnesota Transfer to Jasper; that plaintiff received said sum of $79 in full satisfaction of 'said' freight charges, and duly executed and delivered to defendant a receipt for said freight charges; that said sum of $79 was the full tariff rate from Chicago to Sioux Falls via Minnesota Transfer and Jasper.”
None of its material allegations having- been denied the facts stated in the complaint are to be taken as true. Rev. Code Civ. Proc. § 145. All material allegations of fact in the answer are admitted by the demurrer. Hence, the question arises whether, upon the facts thus established for the purpose of this appeal, plaintiff would be entitled to any relief in this action.
These are, in effect, the pertinent facts stated in the complaint : A car load of coal was transported on two lines of railroad from Chicago, in Illinois, to Jasper in Minnesota, via Minnesota Transfer, for which service defendant agreed to pay regular published tariff rates which are, in the absence of a joint rate, the rates 'separately established and filed with the Interstate Commerce Commission. According to' -the rates so established the tariff on the car of coal was $134.30, of which defendant has paid $79, leaving a balance of $55.30, and which plaintiff is entitled to recover unless precluded by facts alleged in the answer. It rightly is conceded by the foregoing opinions that the facts so alleged regarding an accord and satisfaction and the reasonableness of the rate constitute no defense. What allegations remain ?. Only these: Jasper is 30 miles nearer Minnesota Transfer than is Sioux Falls, on the plaintiff’s line between that point and Sioux Falls, and no reason exists “by way of the peculiar geographical position, competition of other transportation facilities or trade or other peculiar conditions” why a greater charge should be made for transporting coal from Chicago via Minnesota Transfer to Jasper than is made for transporting- coal from Chicago to Sioux Falls via the same route, “the full tariff rate from Chicago to Sioux Falls via Minnesota Transfer and Jasper” on the car of coal *175in question being $79. In brief, the contention that the filed rate on coal shipments from Chicago to Jasper via Minnesota Transfer, from which rate the' plaintiff cannot deviate without committing a crime, cannot be collected rests alone .on the allegation that the filed rate on a car of coal from Chicago to Sioux Falls via the same route is less, no statutory reason existing for any discrimination in favor of Sioux Falls. And, as I understand it, the contention can be sustained only on the assumption that the plaintiff established a greater rate on coal shipments from Chicago to Jasper than from the same place to Sioux Falls, without application to, or authority from, the Interstate Commerce Commission. It does not seem to me that such assumption is warranted by the record. Clearly, the Jasper rate as well as the S.ioux Falls rate must be deemed to be the one on file with the Commission, and until changed the only one that may be lawfully charged. It must be taken as true that the Jasper rate is composed of two separately established rates applied to through transportation. All we know of the Sioux Falls rate is that it is “the full tariff rate from Chicago to Sioux Falls via Minnesota Transfer and Jasper.” In view of the other admitted facts it necessarily is a joint rate, as the route embraces more than one line. The record is silent as to how or when either rate was established. As section 4 of the act to regulate interstate commerce provides that upon application to the Commission the carrier may, in special cases, be authorized to charge less for longer than for shorter distances, should it not be assumed that the discrimination in favor of Sioux Falls, disclosed by this controversy, resulted from the establishment of the Sioux Falls rate after the Jasper rate was established, and that such special rate was authorized by the Commission? As such special rate might have been established by authority of the Commission, it seems to me this court, upon this record, should presume it was so established. Is it not a case in which to regard as done that which ought to have been done? If the reasonableness of the Jasper rate may not be disputed in this action, I am unable to see how its lawfulness can be affected by the fact that there is a presumptively lawful special joint rate to Sioux Falls over the same route. The lawful establishment of a less rate for a *176longer haul necessarily involves the establishment or retention of greater rates for shorter hauls on the same route. Certainly no one will claim that the establishment of the special rate to Sioux Falls, agreeably to the provisions of section 4, would operate to render an existing Jasper rate unlawful under the provisions of the same section. So, it seems to me it should be assumed that both rates were lawfully established, more especially the Jasper rate, and that the answer should be deemed insufficient.
In other word's, if the joint rate to Sioux Falls in fact was established by authority of the Commission after the Jasper rate was filed, the latter would be lawful and collectible in this action. If this be so, the unlawfulness of the rate charged, under the circumstances disclosed by the record, results from the fact that a certain special rate was not established when it was filed, or the fact that the special rate, though subsequently established, was not established by authority of the commission. The complaint states a cause of action. Plaintiff seeks to recover the filed rate which defendant agreed to pay — a 'reasonable, collectible rate, unless rendered unlawful by reason of the special rate to Sioux Falls. . No rule of pleading with which I am familiar required the plaintiff to mention the Sioux Falls rate in its complaint. It was enough for it to disclose a presumptively lawful rate for the service rendered, and on the facts stated in its complaint it clearly would be entitled to a judgment for the amount claimed. Now comes the defendant denying its liability solely on the ground that the filed rate which it agreed to pay is unlawful under the provisions of section 4 of the act regulating- interstate commerce, and it seems to me its answer is insufficient because it is not therein alleged either that the Sioux Falls rate was established before the filing of the rate charged, or that it was established without authority of the Commission. So, without expressing any opinion as to the extent to which the lawfulness of a filed rate may be attacked in a state court, in advance of action by the Interstate Commerce Commission, I think the order appealed from should be reversed.