by the defendants and paid by the plaintiffs! were $2 a car in excess of the legal rates allowed by those statutes for such transportations, in that the same exceeded to that extent the rates in existence on August 1, 1883, and on July 24, 1889, for the like carriage. The defendants pleaded the general issue, with the following brief statement of defenses: (1) That the rates charged the plaintiffs by the defendants for the transportation of said 818 car loads of lumber were neither discriminatory nor unreasonable in fact. That, on the contrary, they were the rates fixed for such service by the defendants' regularly established tariffs, and charged by the defend-, ants to all shippers for like service, at the time said car loads were transported, and did not exceed a fair and reasonable return for the service rendered, and that said rates in no respect contravened any statute or other law or regulation applicable in the premises, unless the mere fact that in certain instances they may have exceeded the rates in force August 1, 1883, or July 24, 1889, for the carriage of lumber of the same class between the same points in car load lots, taken by itself, constituted a violation of section 17, c. 100, Laws of 1883, or of section 17, c. 5, Laws of 1889, or of section 42, c. 156, Public Statutes. (2) That the mere fact of such alleged excess, so far as it exists, did not constitute a violation of either of said statutes, because the rate limitations contained therein do not inhibit reasonable increases in rates on particular commodities when offset by decreases in rates on other commodities, provided that such increases and decreases in rates taken together do not result in collecting from the public a greater sum in the aggregate on the same volume and kind of traffic than would have been collected if the rates of 1883 and (3) That during each year covered by the plaintiffs' shipments the rates for passenger fares on all roads operated by the defendants, by virtue of leases and unions effected under chapter 100 of the Laws of 1883, or chapter 5 of the Laws of 1889, or chapter 156 of the Public Statutes, greatly decreased from the corresponding rates in force when said statutes were enacted, so that the cost of passenger traffic to the public over said roads has been much less, to wit, $500,000 annually, than the cost thereof had the rates of 1883 and 1889 not been adjusted by the defendants as set forth in paragraph 2 hereof. That said decrease in passenger rates and the net decrease in freight rates has resulted in a net decrease of more than $1,000,000 annually paid by the public below the amount that would have been so paid if the rates for fares and freights in 1883 and 1889 had not been decreased as aforesaid, and that the plaintiffs' claim of unlawful overcharge is accordingly unfounded. (4) That, even if the above-mentioned rate limitations in the statutes of 1883 and 1889 and chapter 156 of the Public Statutes can be deemed to inhibit the increasing of any particular rates, notwithstanding more than an equivalent decrease in other rates as herein set out, the plaintiffs cannot maintain this action because: (a) Said limitations were not designed to, and do not expressly or by implication, entitle a shipper to recover back freight charges paid by him in excess of the rates of 1883 and 1889, where the charges so paid are not discriminatory or unreasonable in fact; but said limitations can be invoked and enforced only by the state, in its sovereign capacity and in its sole discretion, by quo warranto, injunction, or other appropriate proceeding. cessive. (c) In the case of rates on interstate traffic, the repayment of such alleged excess rates would be a violation of the penal provisions of the Interstate Commerce Act and amendments thereto, inasmuch as the rates collected were lawfully filed and published according to the provisions of said act. (b) With respect to each and all of the 818 1889 had been in effect. That during each car loads of lumber mentioned in the plaintiffs' specification and accompanying schedyear covered by the plaintiffs' shipments, while some of the rates for the transporta- ule, the plaintiff's voluntarily, and without tion of lumber between certain points and on protest, paid to the defendants the freight other particular commodities in certain in-charges which they now complain of as exstances exceeded the corresponding rates of 1883 and 1889, such excess was much more than offset by decreased rates on lumber between other points and on other commodities, and that, on the whole, the rates were not increased, but much reduced as aforesaid, so that the cost to the public of the freight traffic over each of said roads did not exceed, but, on the contrary, was much less than, the cost thereof had the rates of 1883 and 1889 remained unchanged. That during each of said years the aggregate sum which the defendants collected from the public in freight rates upon all the roads leased or united under said statutes was less by the sum of $5,000,000 than the same would have been had the rates of 1883 and 1889 remained without readjustment, and that the plaintiffs' claim of unlawful overcharge is accord The plaintiffs thereupon moved to reject the brief statement, as follows: As to the first specification of defense, be cause the matters therein set forth are wholly immaterial, and also because the defendants are estopped, as matter of law, to claim that rates charged by them in violation of section 17, c. 100, Laws of 1883, or of section 17, c. 5, Laws of 1889, or of section 42, c. 156, Public Statutes, are reasonable, and are legally binding on the plaintiffs. such excess payments when the same were voluntarily made by them without protest. defense, because the matters therein set forth | voked by shippers, they can recover back are immaterial, and because the claim therein made, that said statutes do not inhibit increases in particular rates on particular commodities, is erroneous as matter of law. Said statutes prohibit the increasing of any rates whatever upon any railroad leased or united under them, above the corresponding rates of 1883 or 1889, and it is accordingly immaterial whether the total transportation cost of their freight traffic to the public, or the freight traffic of such road, or of the freight and passenger traffic thereon taken together, were increased or lessened. As to the fourth specification of defense, because the averments thereof are immaterial and erroneous as matter of law. As to subdivisions (a) and (b) of said specification, it is the legal right of a shipper to recover back of the carrier, to the extent of the excess, any rate or fare paid by him on a railroad subject to said statutes, which exceeds the limit fixed by said statutes, no protest being required by him at the time of the payment of such rate or fare as a prerequisite to such recovery, as the plaintiffs were compelled to pay said excess in order to ship their lumber; and as to subdivision (c) of said specification of defense, it is erroneous as matter of law and immaterial. It appearing that the questions of law presented by the brief statement and motion to reject the same are likely to be decisive both of the present action and of the other pending actions of like character, and that, even if a decision of those questions does not finally dispose of said cases, their determination is necessary before the material issues of fact can be ascertained, and the cases intelligently and expeditiously tried, the presiding justice, by agreement of the parties, reserved questions so raised and particularly the following: (1) Whether the provision of section 17, c. 100, Laws of 1883, of section 17, c. 5, Laws of 1889, and of section 42, c. 156, Public Statutes, forbidding an increase of fares and freights on railroads leased or united under said statutes above the fares and freights in force on August 1, 1883, and on July 24, 1889, respectively, inhibit the increasing of any given rate on any given commodity, as claimed by the plaintiffs, or whether the same merely forbid increasing the total cost to the public of (a) the aggregate freight traffic over such a road, or of (b) the aggregate freight and passenger traffic over such road taken together, above what would have been the cost of the same character and volume of traffic under the rates of 1883 and 1889, as claimed by the defendants. (2) Whether the above rate limitations of those statutes entitle a shipper to recover back freight charges paid by him in excess of the limits thereby fixed, or whether said limitations are enforceable by the state alone. (3) Whether, if said limitations can be in (4) Whether, if a shipper is otherwise entitled to recover back such excess payments, the provisions of the Interstate Commerce Act and amendments, referred to in subdivision (c) of the defendants' fourth specification of defense, constitute a defense to the shipper's action for repayment of the excess in the case of interstate freight rates duly filed and published according to the provisions of said act. Martin & Howe, of Concord, for plaintiff. Streeter, Demond, Woodworth & Sulloway, of Concord, for defendant. James P. Tuttle, Atty. Gen., and Robert L. Manning, of Manchester, for the State. PEASLEE, J. [1] A portion of the charges here complained of were on interstate shipments. As to these the defendant alleges that they were collected according to rates lawfully filed and published according to the provisions of the Interstate Commerce Acts. This is a valid defense. It is settled by a line of uniform decisions of the Supreme Court of the United States that, once schedules are so filed and published, the sole remedy of the shipper is by a complaint to the Interstate Commerce Commission. This jurisdiction cannot be infringed upon by previous contract of the parties, nor by statutes enacted by the states. It cannot be defeated directly or indirectly. The subject has been so fully considered by the tribunal whose exclusive province it is to finally declare the law pertaining thereto that any discussion of it here is superfluous. Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; Chicago, etc., Ry. v. Company, 226 U. S. 426, 33 Sup. Ct. 174, 57 L. Ed. 284, 46 L. R. A. (N. S.) 203; Robinson v. Railroad, 222 U. S. 506, 32 Sup. Ct. 114, 56 L. Ed. 288; Southern Ry. v. Reid, 222 U. S. 424, 32 Sup. Ct. 140, 56 L. Ed. 257; Northern Pacific Ry. v. State, 222 U. S. 370, 32 Sup. Ct. 160, 56 L. Ed. 237; Louisville, etc., R. R. v. Mottley, 219 U. S. 467, 31 Sup. Ct. 265, 55 L. Ed. 297, 34 L. R. A. (N. S.) 671; Pullman Co. v. Kansas, 216 U. S. 56, 30 Sup. Ct. 232, 54 L. Ed. 378; Western Union Tel. Co. v. Kansas, 216 U. S. 1, 30 Sup. Ct. 190, 54 L. Ed. 355; Armour Packing Co. v. United States, 209 U. S. 56, 28 Sup. Ct. 428, 52 L. Ed. 681; Texas, etc., Ry. v. Company, 204 U. S. 426, 27 Sup. Ct. 350, 51 L. Ed. 553, 9 Ann. Cas. 1075. Substantially all the arguments now advanced to support the plaintiffs' claim were presented in the cases above cited. It is useless to attempt to consider them here. The law upon a federal question has been fully elucidated by the federal court of last resort, and it only remains for the state courts to apply it to the cases in hand. If the rates here filed contravened the terms of a contract made with the state by question is: Had the plaintiffs a legal right the defendant, or were contrary to the provi- to have their lumber transported for less sions of a state statute theretofore existing, than others paid, or for less than a reasonathe contract or the local law must yield to ble rate? They do not claim a special perthe power of Congress to act upon the sub-sonal privilege for a lower rate than others, ject. The question what effect this may or but contend that railroads leased or united may not have upon the leases and contracts under certain statutes are forbidden to of union made under the state statute is one charge for the transportation of lumber a which the present controversy does not pre-higher rate than was charged upon certain sent. As the validity of the defense is so dates named in those statutes. clearly settled by federal authority, it is not necessary to now determine whether the statutes here under consideration were or were not intended to apply to any part of inter state carriage. . No conclusion has been reached as to the other questions involved in the case. The decision of this point is announced at this time, as it is understood that the state and the defendant desire to take action upon the subject under the statute passed by the last Legislature. All concurred. Dewitt C. Howe, of Concord, for plaintiff. Frank S. Streeter, of Concord, for defendant. James P. Tuttle, Atty. Gen., and Robert L. Manning, of Manchester, for the State. On Rehearing. PARSONS, C. J. "The proprietors of every railroad shall furnish to all persons reasonable and equal terms, facilities, and accommodations for the transportation of persons and property over their railroad. "If the proprietors of any railroad shall not comply with the provisions of the preceding section, they * shall be liable to the party injured for his damages in an action on the case. "The proprietors of every railroad shall cause to be posted in their depots a table of prices for the conveyance of persons and property. *** The rates shall be the same for all persons and for like descriptions of freight between the same points." P. S. c. 160, §§ 1, 2, 3. Section 17, c. 100, Laws of 1883, authorized the lease or union of certain railroads: "Provided, that the rates for fares and freights existing August 1, 1883, shall not be increased on any part of the roads so leased or united, and the decrease in the operating expenses consequent upon the leasing or uniting of any roads shall be met from time to time by a reasonable and just reduction of fares and freights." Chapter 100, Laws of 1883, appears to have been expressly repealed in 1891. State v. Railroad, 76 N. H. 146, 148, 80 Atl. 858; P. S. c. 288, § 15, p. 776. Whether section 17 was then repealed, and whether the plaintiffs can recover by force of statutory provisions repealed 20 years before, are questions not argued. This provision, with a change of date, was re-enacted in 1889 (chapter 5, § 17) and in the Public Statutes (chapter 156, § 42). State v. Railroad, 75 N. H. 327, 330, 74 Atl. 542. The later enactments are not conditional in form and in the Public Statutes the nonapplicability of the restriction to lessee roads is made clear. State v. Railroad, 76 N. H. 146, 158, 80 Atl. 858. But there is no evidence of a purpose as to the question in controversy to do anything except to adopt the meaning of the clause when enacted in 1883, so that the question is: What was meant in 1883 by the condition then imposed, "the rates for fares and freights existing August 1, 1883, shall not be increased," without reference to the possible effect of a repeal of that section? The plaintiffs claim "that the restriction is specific and particular, and that it forbids the increase of the charge for the transportation of any particular article of freight above what was charged for the transporta [2] In answer to the plaintiffs' claim to re-tion of the same article" (State v. Railroad, cover certain sums alleged to have been illegally collected of them for the transportation of lumber the defendants offer to show that the sums collected were neither discriminatory nor unreasonable in fact, but were the prices fixed for such service by the defendants' regularly established tariff, and which were charged by them to all persons for like service, and that the amounts charged did not exceed a fair and reasonable return for the service rendered. The plaintiffs' motion to reject the brief statement setting forth these facts is an admission for the pur- | poses of the case in this court of the truth of the facts stated therein. Hence the discussion must proceed upon the ground that the sums paid were fair and reasonable and the 76 N. H. 146, 158, 80 Atl. 858); or, expressing their contention in another way, that the clause should be understood as if it read: No rate for fares or freights existing August 1, 1883, shall be increased. The defendants say the restriction is general and applies to rates as a whole, and that, if they have not collected of the public generally more than was formerly charged for the same transportation, there has been no violation of the statute. If the plaintiffs correctly construe the statute, the admitted excess collection of $2 per car on lumber makes out their case; while on the defendants' contention, if they prove what they say they can, there has been no violation of the statute. The question is whether a strict and narrow application of pose. will more probably effect the legislative pur- | petition. State v. Railroad, 76 N. H. 146, 149, 80 Atl. 858. The movement for a change was inaugurated in 1881 by parties who sought a general railroad law, with the purpose, it was charged, of paralleling the Concord Railroad. The changes of policy in these respects made at the next session in 1883 were accurately defined. Acting upon the suggestion of the Governor, a railroad commission with greatly increased powers was created. If legislation in detail as to rates was also intended as a change of legislative policy, it is reasonable to assume that been used, and that language which is at least equally as susceptible of a general as of a particular application would not have been adopted. In 1850 the Legislature provided: "Every railroad corporation in this state shall, in the month of August in each year, agree upon and fix their rates or tariffs of toll for the transportation of freight and passengers over their road. Such corpora The facts before the court are that the particular charge is a reasonable one, and that the total charge for freight transportation collected and received by the defendants was $500,000 less in each year than the rates of 1883 would have yielded, and the collections for freights and fares $1,000,000 less. In the aggregate, the rates have not been increased, but have been decreased to the extent stated. Upon these facts, in a proceeding by the state to enforce the state's contract in behalf of all the people of the state, it would be diffi-language of equal definiteness would have cult to find a violation of the statute which would authorize equitable interference to secure to the plaintiffs an unreasonably low rate at the probable expense of the rest of the public. State v. Railroad, 75 N. H. 327, 74 Atl. 542. The result of the plaintiffs' contention as to the meaning of the statute is that the purpose of the Legislature, if they understood the effect of what they were doing, was not to benefit the public generally, not to prevent taxation of the public as a whole more for railroad transportation than it was then paying, not to equalize transportation charges throughout the state, but that they did intend to benefit favored individuals or localities, to enable those who were procuring transportation at less than actual cost to continue to do so to the end of time at the public expense, and to perpetuate the inconsistent and discriminatory rates then in force. The plaintiffs do not present these considerations as the probable legislative purpose, but they say the Legislature adopted the schedules of rates in existence as the maximum schedules beyond which no rate should be raised, as a convenient boundary, and as a definite limitation; in short, that the Legislature attempted legislation in de tail as to rates. [3] The method of statutory interpretation here followed has been so fully explained in recent times that it would be idle to repeat at length the authorities, many of which are set forth in the defendants' brief. The question is what the words used meant to those using them. To ascertain that, the circumstances under which the language was used, the probable purpose, the general policy on the subject, prior legislation upon the subject, the entire legislation at the time, and the reasonableness or otherwise of one construction or the other are matters competent for consideration. Glover v. Baker, 76 N. H. 393, 403, 83 Atl. 916; State v. Railroad, 76 N. H. 146, 80 Atl. 858; Opinion of the Justices, 73 N. H. 625, 626, 63 Atl. 505, 6 Ann. Cas. 689; Opinion of the Justices, 72 N. H. 605, 607, 55 Atl. 943; State v. Railroad, 70 N. H. 421, 423, 48 Atl. 1103; Opinion of the Justices, 66 N. H. 629, 658, 659, 661, 663, 33 Atl. 1076. iff of tolls. * tion shall, on the first day of September in * * * In 1852 it was enacted: * "Any railroad corporation in this state shall establish from time to time * the rates or tariffs of tolls and the rates thus shall be the same for all established persons, and for the like descriptions of freight and no rates of fare or freight shall be at any time advanced except on thirty days notice established and posted as aforesaid." Laws 1852, c. 1277, § 1. The language of either of these sections would have expressed what the plaintiffs claim was meant. These provisions are to be found in the General Laws, where, after requiring the posting of a table of prices for the conveyance of persons and property, the statute enacts that "such prices shall not be raised." G. L. c. 163, §§ 1, 2. But the clause in question contains no reference to an existing table of prices or schedule of rates. Prior to 1883 the Legislature had in no instance, it is believed, attempted to regulate rates in detail. If advanced knowledge on the scientific construction of rates renders such a policy wise, there is no evidence such policy was then known to the legislators. The details of rate-making were by the several railroad charters placed in the hands of the directors, with certain provisions by which "the authorized net profits were made the standard of reasonable tolls." State v. Railroad, 69 N. H. 35, 47, 38 Atl. 736. Sections 11 and 13 of chapter 128 of the Laws of 1844, which has been called a general railroad law, govern the same subject. Section The legislation of 1883 was a change of 11 provided that, in any and every year when policy, authorizing railroad incorporation by the net receipts exceeded the average of 10 general law, substituting consolidation with per cent. of the expenditures from the com "The rates of toll for freight of passengers and merchandise, when the net income of the stock shall exceed ten per cent., shall be subject to alteration and revision by the Legislature, according as they shall deem just and expedient." "The general statute was not a change of policy, but of method. Its purpose was not to obtain revenue, but to enforce the established policy of the state. The profits of the proprietors of railroads were limited to 10 per cent. for the sole purpose of securing to the public * Ten per cent. annual profits remained, as before. the standard of reasonable tolls.' State v. Railroad. 69 N. H. 35, 48, 38 Atl. 736, 738. reasonable rates of toll. ** "The object to be attained is the same under either section-the limitation of tolls to reasonable rates." State v. Railroad, 70 N. II. 421, 430, 48 Atl. 1103, 1104. be paid into the state treasury, and section | sistent, discriminatory, and unscientific," as 13 provided that: "antiquated classifications and haphazard tariffs." Pub. Serv. Com. Rep. Nov. 30, 1912, pp. 357, 366. If it could be said that the legislation was enacted with the light of this information, it would not require argumen or consideration to conclude that, if another meaning could be extracted from the language, the Legislature did not intend one which would impose such a condition upon the state. But, though such information was not at hand in 1883, it was known that at that time there were a large number of independent railroads in the state. A few of them were operated under joint traffic agreements; but most of them were operated as independent roads, each competing with others for business, and making rates at competitive points calculated to get business that naturally belonged to their competitors, making up what they lost on such business by charging those living at noncompetitive points enough more than a fair price to make up for their loss on competitive business, Each road was a law unto itself as far as its charges for fares and freights was concerned. It could not have been understood that a uniform system of rates existed over all the roads of the state, or over any one road. The increase in the penalty for inequality of treatment and the re-enactment with increased application of the long and short haul statute indicate conclusively that there was dissatisfaction with the existing arrangement of rates. There was more than a suspicion of discriminations for the benefit of favored shippers. The Journal of the House (1883, p. 568) shows the introduction of a resolution for an investigation as to any unjust discrimination in fares and freights upon the Boston, Concord & Montreal and Northern Railroads. These sections were not repealed in 1867, but were then re-enacted, were in force in 1883, and are upon the statute book to-day. P. S. c. 157, §§ 19, 20; G. L. c. 158, § 5; Id. c. 159, § 9; G. S. c. 144, § 5; Id. c. 145, § 9. They disclose a settled legislative policy for the regulation of railroad tolls in gross, and not by specific enactments as to particular rates. The statute requiring the sale of mileage books to two cents per mile is the only instance of a specific rate declared by legislative act that is recalled. Laws 1909, c. 107. In 1883 the act before referred to, requiring uniformity of rates and equal facilities to all persons, was in force. G. L. c. 163, § 2. It was not repealed in 1883; but the penalty of $500 for its violation was that year increased to $1,000 by an act approved the same day as the consolidation statute. Laws 1883, c. 105. In 1879 the Legislature prohibited railroads from making a higher charge for transportation by the car load to a station than was charged for like transportation for a greater distance. Laws 1879, c. 55. This provision, omitting the limitation to Upon all this evidence, the conclusion car load lots, was re-enacted in 1883. Laws seems irresistible that in 1883, it was not in1883, c. 100, § 27. By section 26 of the same tended to establish the existing rates as a chapter, the directors of railroad corpora- | maximum schedule of prices in detail. tions were required from time to time to “establish reasonable rates for the transportation of passengers and freight over their railroads." By section 4, c. 101, of the same session (the companion act creating the board of railroad commissioners), it was made the duty of the board "to fix tables of maximum charges for the transportation of passengers and freights upon the several railroads operating within this state, and shall change the same from time to time as in the judgment of said board the public good may require." If such was the intention, there is no reason why some such term, or the expression "table of prices" found in the statute which was then under amendment, was not used, or why the particular language of the statutes of 1850 or 1852 before referred to was not employed. It is not without significance that when, by the same Legislature, and as a part of the same legislation, the duty of establishing maximum rates was imposed upon the railroad commissioners, the duty was defined to be "to fix tables of maximum charges.” Laws 1883, c. 101, § 4. If the Legislature had One other consideration remains: The intended to make the existing tables or schedknowledge available in 1883 of the character ules of charges a fixed maximum in detail of the then existing rates. It is unnecessary it can reasonably be assumed that they would to take into consideration the conclusion of have used the language they employed in the Public Service Commission, reached in placing the duty as to detail upon the com1912 after most laborious and exhaustive in-missioners. The policy of the state as to vestigation, in which the rates existing in legislative regulation of freight tariffs had |