dissenting.
A tariff of rates for intrastate carriage of logs, known as the “ Cummer Scale,” was in effect over lines of the Atlantic Coast Line Railroad in Florida. The Interstate Commerce Commission, upon complaint that these rates unduly discriminated against interstate commerce, held an investigation which eventuated in an order effective February 8,1929 increasing the rates for the future to a parity with interstate rates. A statutory district court in the Northern District of Georgia dismissed a bill praying that it enjoin and set aside the order. This court reversed the decree, holding the order void for want of supporting findings, and the district court then entered an injunction. As a consequence of the error of the court, the Coast Line collected the higher rates from February 8, 1929 to March 7,1931. The State on behalf of shippers and certain shippers in their own right prayed an award of restitution by the court whose error made possible the collection of the unauthorized charges. They were awarded sums representing the difference between what they paid and what the court found would have been a reasonable and non-confiscatory rate during the period. They were denied the full difference between the established State rate and *319the unlawful rate fixed by the Interstate Commerce Commission.
I concur in the view that the decision below cannot stand, but think the direction to the District Court should be to enter judgment in favor of the claimants and against the railroad for the difference between the rates, exacted between February 8,1929 and March 7,1931, and the lawful Florida rates. To award less will, in my judgment, sanction unconstitutional encroachment by the Federal Government upon the sovereign rights of the State of Florida.
First. The Cummer Scale was, prior to the Interstate Commerce Commission’s order, the lawful tariff for intrastate transportation in Florida. It had been in effect over portions of the lines of the Atlantic Coast Line in that State since 1903. It had been in force on all track-age of that railroad in Florida since 1914. Originally established by contract between the railroad and certain shippers, it was, in 1914, filed by the carrier as a rate schedule for trainload lots only. The Florida Railroad Commission disapproved the tariff as filed, and insisted that it apply also to carload lots. The Coast Line acquiesced and amended the tariff accordingly. In 1927 that commission, after notice and hearing, the Coast Line being represented, published a rule making all existing rates, whether voluntarily established or otherwise, commission rates, and prohibiting alteration or discontinuance of them save upon application to and approval by the commission. Compare Western & Atlantic Railroad v. Georgia Public Service Comm’n, 267 U. S. 493.
As the statutes of Florida stood prior to 1913, rate schedules promulgated by the commission were merely prima facie evidence of reasonableness. If the carrier exacted more than the scheduled rate and was sued for overcharge, it might overcome the prima facie case made by proof of the commission rate, by showing that the *320amount collected was in fact reasonable.1 By the act of June 7, 1913,2 the law was amended. The supreme court of Florida has construed the amendment to make a rate prescribed after investigation and hearing, the lawful rate,3 and the only rate the carrier may charge so long as the commission’s order remains in force. We are bound by this construction of the local law.
Second. Since the federal courts respect a state law which requires persons to exhaust administrative remedies before resorting to the courts, they cannot, any more than can the state courts, inquire into the reasonableness of a Florida commission-made rate in a litigation seeking the recovery of overcharges. This is not to say that after the *321exhaustion of the administrative remedy one aggrieved by a rate prescribed by state authority may not sue to set aside the rate as confiscatory. This he may do either in a state or a federal tribunal.4 But such a suit is to set aside and enjoin the enforcement of the rate, which has the force of a statute until so overthrown. The carrier cannot avoid the mandatory quality of the state’s regulation by pleading and proving in an action to recover overcharges that the rate in force at the time of the transaction was unreasonable, and that the higher charge exacted was in fact reasonable. A federal court is without power to fix reasonable rates; its jurisdiction ends with a decision that established rates are confiscatory and an injunction against their enforcement; it may not impose a different rate, since so to do would be to usurp the functions of the rate-making body established by state law.5 This the court below essayed by substituting what it found to be reasonable rates for the established state rates which it thought unreasonably low, and awarding the claimants the difference between the rates so fixed and those collected under color of the void order.
Third. The constitutional power of Congress to regu-. late interstate commerce, and the incidental power to prevent unjust discrimination against that commerce by intrastate rates, is not self-executing, but must be exercised by appropriate legislation. Until Congress acts the States are free to regulate intrastate commerce as they see fit, subject only to the limitations set by the Four*322teenth Amendment. By the Interstate Commerce Act the regulation of interstate rates was vested exclusively in the Interstate Commerce Commission.6 This court held the legislation enabled the Commission to remove injurious discriminations against interstate traffic arising from the relation of intrastate to interstate rates, and in so doing the Commission might require interstate carriers not to charge higher rates for transportation between specified interstate points than between specified intrastate points.7 In further exercise of the power to regulate interstate commerce, Congress, by § 416 of the Transportation Act of February 28, 1920, which added paragraph (4) to § 13 of the Interstate Commerce Act, has declared that whenever the Commission finds that any intrastate rate causes an undue or unreasonable advantage, preference, or prejudice as between persons or localities in intrastate commerce on the one hand and interstate or foreign commerce on the other hand, or any undue, unreasonable, or unjust discrimination against interstate or foreign commerce, it shall prescribe the rate or charge, or the maximum or minimum, or maximum and minimum, thereafter to be charged, in order to remove the preference, prejudice or discrimination, and that its orders in that behalf shall be obeyed by the carriers, the law of any state, or the order or decision of any state authority, to the contrary notwithstanding. The section authorizes not only the removal of discrimination as between persons and places, but also such as imposes an undue revenue burden upon interstate commerce.8
Congress has provided for the setting aside of unlawful orders of the Commission by suits in equity in district *323courts of the United States;9 but it has never conferred upon any federal court jurisdiction to deal in the first instance with the matter of discrimination.10 The federal courts lack power even to maintain by injunction a status or to enjoin a rate pending proceedings before the Commission looking to the entry of an order affecting intrastate rates.11
Fourth. The order of the Interstate Commerce Commission of August 2, 1928, being null and void, could not justify the carrier in thereafter collecting the increased rates therein named. When in May, 1926, the Georgia Railroad Commission complained to the Commission that certain of the Coast Line’s rates on logs between points in Florida were unduly low as compared with interstate rates, the Commission was without power to enter an interlocutory order raising the intrastate rates. It was bound by the provisions of the Act to institute an inquiry and could enter an order only upon adequate evidence and findings which should be prospective in operation. August 2,1928, it made such an order, which it declared effective February 8,1929. The State of Florida, by its Railroad Commission, recognized that until that order was set aside, it must be obeyed, and consequently made its own orders No. 979 and No. 990, suspending the Cummer Scale so long as federal Commission’s order should remain in force. Notwithstanding that order and an amendatory order were unsupported by appropriate findings, the district court which was .asked to enjoin and set them aside held them valid.12 *324We reversed the decree and condemned the final order as void.13 If the district court had acted in accordance with ■law it would have set aside the order. Had it done so the Coast Line, in the absence of any action by the Florida Commission fixing other rates, would have been bound to collect only those specified in the Cummer Scale. In reliance upon the erroneous decision of the district court, however, the railroad exacted the increased rates approved by the Interstate Commerce Commission. The state of Florida and shippers protested that these were not lawful and pressed with vigor to have them set aside. Our decision reversing the district court’s decree was rendered January 5,1931. The Coast Line, taking the position that further action by the Interstate Commerce. Commission might in some way cure the defect in its order, moved us to stay our mandate of reversal to the district court, or in the alternative, that we include in the mandate a direction to that court to maintain.the status quo until the Commission should have .opportunity to reopen its proceedings and properly determine the matter. We denied the motion for the obvious reason that neither we nor the court below could authorize the railroad to persist in charging rates which had been fixed by a void order. Upon the going down of our mandate the district court entered it as its decree in the cause; and the Coast Line, as it was bound to do, immediately reduced its rates to the level of the Cummer Scale. On April 6, 1931 the Commission reopened the proceedings, heard much new evidence in respect of the then existing situation (not that theretofore existing in May, 1926, the date of the original complaint), and upon adequate evidence and adequate findings ruled that the rates of the Cummer Scale then were and for the future would be unjustly discriminatory against interstate com*325merce. It entered an order July 5, 1932, raising the intrastate rates.14 Thereupon the Coast Line put into force the higher rates prescribed. A statutory district court refused to enjoin and set aside the order,15 and we affirmed its judgment.16
Fifth. Upon the entry of the decree in obedience to our mandate, the statutory district court had jurisdiction to entertain a prayer for restitution of the excess charges paid by shippers, parties to or represented in the cause, solely by force of its original erroneous judgment.17 If the Coast Line, due to that court’s error, had collected more than the legal rate, it owed an obligation to restore the excess to each of the complaining shippers. To refuse to consider their prayer would be to remit each of them to his separate action against the carrier for an overcharge; and to insist upon such a multiplicity of actions in the circumstances would be tantamount to a denial of justice.18 But the fact that the court had jurisdiction to entertain the omnibus claim for restitution in no wise alters the legal nature of the claim of each plaintiff or the measure of the respondent’s obligation. If each of the shippers instead of asking restitution of the district court had instituted his separate action either in a Florida state court or, because of diversity of citizenship and the amount in controversy, in a federal district court, he need only have offered the Cummer Scale and the order of the Railroad Commission of Florida making it the lawful established tariff. This would have made a prima facie case for the recovery of all excess charged over the *326rates fixed by that scale. The defendant railroad company could not have offered the void decree of the Interstate Commerce Commission as an excuse for the overcharge. Neither a state court nor a federal court in such an action could have entertained a plea that some two years after the entry of the void order, the Interstate Commerce Commission had made another based on new evidence, and prospective only in operation. These facts would not tend to prove that the lawfully established Florida intrastate rates unduly discriminated against interstate commerce at the time of the collection of the challenged charge, or were then confiscatory.
As has been shown the Cummer Scale embodied the lawful rates for intrastate carriage. Until the federal Commission had raised those rates for the future by an order made in accordance with law, the scale remained in force, and the carrier was bound to observe it. The order of the Commission effective February 8, 1929 did not supersede it. The district court has no power to disregard it or to fix rates other than those contained in it. The rights of intrastate shippers are fixed by that scale, have never been abrogated, and must be recognized in every court, state or federal. For the district court or this court to refuse the complainants the full measure of those rights would be to set at naught the laws of Florida in violation of the Federal Constitution.
Sixth. Moreover this is not a case in which equitable considerations have any place. It is said that the Coast Line was compelled to exact the increased rates named in the Interstate Commerce Commission’s order so long as that order stood unreversed, under pain of criminal prosecution, and that it would therefore be inequitable to compel it to restore what it thus unlawfully took. This argument overlooks the countervailing rights of the shippers and the state of Florida. The shippers, despite their efforts to set the order aside, were bound under similar pains *327and penalties to pay the increased rates. Had it not been for the unlawful order they would have continued to pay rates named in the Cummer Scale until the Florida commission had itself altered them, or a court of competent jurisdiction, upon a finding that they were confiscatory, had set them aside. No such procedure was initiated by the carrier. What of the rights of the state of Florida? Its duly constituted authorities had prescribed rates which had the force of a statute until repealed or set aside. These rates had been fixed, we must presume, with no thought of' discrimination against interstate commerce. The federal court for northern Georgia had erroneously approved the unlawful suspension of the state schedule. Has the State no equity to insist on behalf of its citizens that its rates shall be observed until they have been lawfully superseded?
It is urged that it now appears the Interstate Commerce Commission was right in holding the Florida rates unjustly discriminated against interstate commerce, and the order consequent upon this right conclusion was voided merely because of a procedural error. The answer is that the evidence in the two Commission hearings was different, and we may not assume that if the Commission had observed its duty to make adequate findings, it could have drawn support for such findings from the record on which the first order was based; and the second and valid order made in 1932 cannot apply retroactively to affect lawful state rates in force prior to its issuance. Nor is the contention sound that this court has now held the Commission’s findings were supported by evidence. This is true with respect to the second order, but this court has never so held as to the first. In fact we refused to analyse the evidence, because that was the duty of the Commission, not of this court.19 Of course that body properly may rely on the prior experience of carriers in making its orders for *328their future conduct; but this does not justify a court in relying on the evidence taken by the Commission in an independent trial of a wholly different issue.
We are told that restitution is an equitable doctrine and that as the court, upon consideration of all the facts, should hold there was no inequity in the carrier’s retaining what it had collected, refusal of a decree is merely to withhold action, as a court of equity is always free to do in such circumstances. But the weakness of this argument is, that by refusing relief the court in effect denies legal rights. It is not suggested that a dismissal of the motion will not be res judicata in any action hereafter brought to recover for overcharges; and if so, the decision in this case is an adjudication by a federal court that the collection of the increased rate was lawful, the invalidity of the Commission’s order and the law of Florida to the contrary notwithstanding.
The burden is said to rest upon the claimants of restitution to show that the Interstate Commerce Commission’s schedule was unreasonable. This is but to confuse the two orders. The first order was as matter of law unreasonable because without proper support. The second order was reasonable because it had such support in the record and findings. It confuses the issue to relate the propriety of the second order to the Commission’s earlier void action. The same confusion persists in the carrier’s assertion that § 13 (4) denounces unjust discrimination and the injustice exists whether the Commission has so found or not. The answer is that Congress has not vested courts with jurisdiction to determine whether state rates discriminate against interstate commerce, and the statutory district court had no more authority to investigate that question at the behest of any party before it than would any other state or federal court in an action for an overcharge. Congress has directed that the fact of *329discrimination shall be ascertained solely by the Commission.
Finally, it is said that the Coast Line’s equity is the greater because the state rates have been found to be confiscatory. No Florida court has so found. Confiscation was not and could not be the issue before the Interstate Commerce Commission in either the original or the reopened proceeding. Two scales of rates, both in themselves within the zone of reasonableness, may upon examination disclose undue discrimination. The confiscatory character of the intrastate rate may be and often is an-element to be considered upon the issue of discrimination, but obviously the order of the Commission could not be based upon that alone. If the statement means that in the restitution proceeding the statutory district court found the state rates were so low as to be confiscatory, the answer is that in a suit to recover overcharges the court had no jurisdiction to investigate a claim of confiscation under the Fourteenth Amendment.
The case is not to be decided according to the character ascribed to the first order of the Commission. Whether called void or voidable, the order gave the railroad no right to collect the sums exacted. If, as must be conceded, the carrier took, under and by force of that order, money to which it was not in law entitled, the conclusion necessarily follows that it must restore what was so taken.
To hold that the claimants may not have restitution is to say that invalid, void or voidable orders of the Commission have precisely the same force and effect as orders lawfully made, if from extrinsic facts and matters not cognizable by the court the conclusion may be drawn that the Commission might have made a valid order in the circumstances. So to hold is to recognize in a restitution proceeding, a jurisdiction which in no other circumstances and in no other case could a federal court exercise; *330and to permit that court to ignore and nullify action in a field within the State's sovereign power.
The Chief Justice, Mr. Justice Brandéis, and Mr. Justice Stone, concur in this opinion.Pensacola & Atlantic R. Co. v. State, 25 Fla. 310; 5 So. 833; Cullen v. Seaboard Air Line Ry. Co., 63 Fla. 122; 58 So. 182; La Floridienne v. Atlantic Coast Line R. Co., 63 Fla. 208; 58 So. 185.
Ch. 6527, Laws of Florida, 1913, p. 403.
Louisville & N. R. Co. v. S'peed-Parker, Inc., 103 Fla. 439, 448, 452, 453; 137 So. 724. Reinschmidt v. Louisville & N. R. Co., 118 Fla. 237; 160 So. 69. In the latter case the court said [p. 240]:
“ Where on the trial of a controversy over freight charges the nature and character of a particular shipment by rail is established by the evidence or has been admitted, and it appears that the Florida Railroad Commission has, after due notice and lawful hearing, prescribed and put into force a particular freight tariff and classification governing the freight charges to be imposed by the carrier for the haulage of a freight shipment of the particular nature and character shown or admitted by the evidence in the case, the Railroad Commission tariff is, as a matter of law, the only applicable and controlling tariff, and the court is without the right to enter upon any inquiry whether or not the prescribed Railroad Commission rate is just or reasonable or is otherwise proper as a proposition of administrative scientific rate making. Under the present law of Florida a rate cannot be collaterally attacked for unreasonableness after it is prescribed in due form of procedure by the Railroad Commission, nor attacked as a matter of law on grounds not going to the legality of the procedure by which the prescribed rate or classification was arrived at by the Railroad Commission in promulgating it,”
Relief is granted in case of confiscatory rates not under the commerce clause but under the Fourteenth Amendment. See, for example, Minnesota Rate Cases, 230 U. S. 352, 433 ff; Northern Pacific v. North Dakota, 236 U. S. 585; Brooks-Scanlon Co. v. Railroad Commission, 251 U. S. 396; Chicago, M. & St. P. Ry. Co. v. Public Utilities Commission, 274 U. S. 344.
Central Kentucky Natural Gas Co. v. Railroad Commission, 290 U. S. 264, 271, and cases cited.
Minnesota Rate Cases, supra, 396, 399, 402-415.
Houston, E. & W. Texas Ry. Co. v. United States, 234 U. S. 342.
Florida v. United States, 282 U. S. 194, 211; Florida v. United States, 292 U. S. 1, 4, 5.
Act of October 22, 1913, c. 32, 38 Stat. 219; U. S. C, Tit. 28, §§ 41 (27) (28), 43-48. Supp. V, Tit. 28, §§ 41 (27), 44, 45, 45a, 46, 47a, 48.
Minnesota Rate Cases, supra, 419; Atlantic Coast Line R. Co. v. Trammell, 287 Fed. 741, 743.
Board of Railroad Commissioners v. Great Northern Ry. Co., 281 U. S. 412.
30 F. (2d) 116; 31 F. (2d) 580.
282 U. S. 194.
186 I. C. C. 157. After a further hearing the order was confirmed on January 8, 1933; 190 I. C. C. 588.
4 F. Supp. 477.
292 U. S. 1.
Baltimore & Ohio R. Co. v. United States, 279 U. S. 781.
Ibid., 786.
282 U. S. 215.