The defendant contends that this is an action to recover under the provisions of the interstate commerce act, and that the state courts have no jurisdiction of the subject-matter. The shipment itself was undoubtedly an interstate transaction, and if this suit were brought to recover for a violation of the commerce act the appellant’s position would be correct. Act Feb. 4, 1887, 24 Stat. 382 [U. S. Comp. St. 1901, 3159]; Swift v. Railway (C. C.) 58 Fed. 858; Copp v. L & N. Ry. Co. 43 La. Ann. 511, (9 South. 441, 12 L. R. A. 725, 26 Am. St. Rep. 198); Gulf, C. & S. F. Ry. Co. v. Hefley & Lewis, 158 U. S. 98, (15 Sup. Ct. 802, 39 L. Ed. 910); Gatton v. C., R. I. & P. Ry. Co., 95 Iowa, 112.
The primary question is whether the defendant demanded and collected a greater sum than was authorized to charge by its schedules of rates and fares printed, posted and filed with the interstate commerce commission;.if it did, the plaintiff is entitled to recover and the court had jurisdiction because the suit is not to recover an overcharge under the commerce act, but to recover back a wholly unjust and unauthorized exaction, one demanded and collected, not only in violation of the act itself, but in violation of the contract made with the plaintiff. The additional charge was exacted because of the six calves which were carried in the car in addition to the ten head of cattle provided for by rules of the defendant. The weights fixed by defendant to justify the charge were purely arbitrary, and so far as the schedules or classifications produced in evidence are understood by us, there is nothing therein authorizing a charge for such arbitrary weight. The car was in. fact overloaded to the extent of 1,400 pounds. This was in excess of the weight allowed for the rate fixed, and when the plaintiff paid the freight in *407the first instance he paid for such excess weight the highest schedule charge for merchandise, such charge being higher than for stock by car load lots, as we understand the record. The plaintiff having paid the exact amount demanded for the actual weight of the car under the provision of the schedule as construed by the defendant itself, it should not now be permitted to place another construction on such schedule for the purpose of collecting the price of another car. If the facts are as we understand them the situation may be stated thus: The defendant collected in the first instance all that it had the right to demand under its schedule as it had classified the load, and which classification seems to be somewhat elastic. A failure to collect more would not have been violation of the interstate commerce act, and the payment of the additional sum exacted and its recovery back have nothing to do with such act.
The judgment is affirmed.