(dissenting) : The petition alleged that the freight charges which should have been legally collected, based on a certain rate as shown by the published tariffs on file with the interstate commerce commission, “and in force and effect and controlling ás a legal rate,” were those sued for. If this be deemed equivalent to an allegation that the posting had been properly made because otherwise the tariff could not have been in effect as alleged, it was met, however, by the verified general denial of the defendant, and there was nothing in the agreed statement of facts amounting to an admission that the alleged rate was posted or in effect. In the Thisler case it was ex*822pressly denied that the rates had been filed as required by law, and also expressly denied that any of the railroads concerned “had caused any schedules to be printed and copies for the use of the public posted or kept accessible to the public as required by law.” This denial was ignored in the instructions, and the cause was remanded upon the sole question as to whether or not the rate sought to be recovered was legally in force.
There is nothing in the, cited Rankin case inconsistent with the Thisler decision. Rankin had signed a bill of lading which recited that lawful alternate rates based on specific values were offered, and the court said:
“And as no interstate rates are lawful unless duly filed with, the Commission, it may become necessary for the carrier to prove its schedules in order to make out the requisite choice. ' But where a bill of lading, signed by both parties, recites that lawful alternate rates based on specific values were offered, such recitals constitute admissions by the shipper and sufficient,prima, facie evidence of choice. If in such a case the' shipper wishes to contradict his own admissions, the burden of proof is upon him.” (Cincinnati & Tex. Pac. Ry. v. Rankin, 241 U. S. 319, 327.)
It was further observed that the bill of lading contained “the conspicuous provisions concerning published rates, tariff regulations. . . .” (p. 328.) The state courts had given no force to this bill of lading,, and hence the reversal.