(dissenting): In my view the questions in this case are simply whether or not Trans No. 2 was properly filed and publicized as a tariff schedule and if so could it be challenged by way of defense in an action to collect charges pursuant to tire rates scheduled therein. Undoubtedly the trial court would not have entered a summary judgment if a question of fact, so .fundamental as whether or not Trans No. 2 had been approved, was still unresolved. The attitude of the trial court is apparent from the extended colloquy between court and counsel on this point. The colloquy culminated in the following:
“The Court: That isn’t the question. I’m asking if it is true, let’s admit *563it, if it isn’t let’s get over that hump first, now. Do you concede that all of the legal requirements were complied with and that the State Corporation Commission, acting as a commission, approved the tariff Trans No. 2, accepted it, approved it, and ordered that it be filed?
Mr. Jones: I think we would have to accept Mr. — of course, my coleagues and I have some question as to whether it was really taken to a conference. So far as their mechanics are concerned I would say, yes, it was filed, accepted and approved.”
Once Trans No. 2 became the filed and published schedule of rates, the appellee as a matter of law was required to charge those rates under the mandatory provisions of K. S. A. 66-109.
I think the trial court defined the issue and then correctly resolved it in the following succinct statement quoted from its memorandum opinion:
“. . . If the defendants deemed themselves entitled to relief from this rate they were obligated to complain by invoking the relief provided by the public utilities act before the State Corporation Commission before resorting to this court. This court is bound by the schedule of rates filed in accordance with the statute until changed by act and order of the Corporation Commission.”
In my judgment this case does not involve the abrogation of contract rates. Unlike the contract in Central Kansas Power Co. v. State Corporation Commission, 181 Kan. 817, 316 P. 2d 277, no agreement was made between the parties here as to the charges for transportation. Here, by the terms of the agreement, the commission was to make the rates. Therefore, in my opinion, the rule, correctly stated in Central Kansas Power Co., that contract rates cannot be abrogated by the commission absent an express finding of unreasonableness does not apply.
In my view the position taken by the appellants in their defense amounts to an attempt to secure a collateral review of rates filed and published by the State Corporation Commission pursuant to K. S. A. 66-108. It is a well-established principle in this jurisdiction that parties who complain that a public utility has failed to furnish adequate service or has charged excessive rates should invoke the relief provided by the public utilities act. (See Denison Mutual Telephone Co. v. Kendall, 195 Kan. 227, 403 P. 1011, and cases cited therein.) In my judgment the defense in this lawsuit is an attempt to circumvent the statutory, original jurisdiction of the State Corporation Commission under the act. I would affirm the judgment, therefore I respectfully dissent.
Price, C. J., joins in the foregoing dissenting opinion.