VAN VALKENBURGH, Circuit Judge.
On or about the 19th day of August, 1922, plaintiff in error filed, in the district court for the city of Minneapolis, a suit to recover an alleged overcharge of $5 per car upon 820 carloads of potatoes shipped by plaintiff in error, and received by defendant in error as initial carrier, between the dates of October 15, 1914, and April 15, 1922. These shipments were made, respectively, as set forth in the petition, at intervals throughout the years of 1915, 1916, 1917, 1920, 1921, and during the first 3½ months of 1922. The $5 charge per car, alleged to have been unlawfully exacted, was for the use of refrigerator cars in making these shipments of potatoes, which originated in Minnesota. On September 8, 1922, defendant in error filed petition and bond for removal, and the case was duly removed to the District Court of the United States for the District of Minnesota. A jury was waived by written stipulation, and trial to the court, sitting as a jury, resulted in a judgment of dismissal, to review which action of the trial court this writ is prosecuted.
From the admissions contained in the pleadings, and the evidence adduced, the court found the following facts:
"(1) That the plaintiff is, and at all times herein mentioned was, a corporation duly organized and existing and engaged in the business of shipping potatoes from various points in the state of Minnesota and other states to various places of destination in the Western, Southern, and other states. That the defendant is, and at all the times herein mentioned was, a corporation and a common carrier by railroad, subject to the act of Congress entitled An Act to Regulate Commerce, approved February 4, 1887, and amendments thereto.
"(2) That plaintiff made the nine carload shipments of potatoes described in Plaintiff's Exhibits A to J, both inclusive, which exhibits are by reference made a part of these special findings. That said shipments originated at stations on the railroad of defendant, and were duly transported by defendant and connecting railway companies to their destinations. That plaintiff ordered from defendant, and used for the shipments, refrigerator or insulated cars.
"(3) That the defendant, as initial carrier, received and transported all the shipments described in Plaintiff's Exhibits A to J, inclusive, upon the agreement and understanding that plaintiff would pay all lawful freight and other lawful charges on each shipment from point of origin to point of destination.
"(4) That all the shipments described in Plaintiff's Exhibits A to J, inclusive, moved under tariffs that were applicable to said shipments, and which defendant and the connecting railway companies that participated in the transportation had lawfully and duly filed with the Interstate Commerce Commission and published and posted, and said tariffs were the lawfully published and filed tariffs of the railway companies over the lines upon which said shipments moved. That the aforesaid tariffs named local, joint, and proportionate rates of transportation on potatoes in carloads in `cents per 100 pounds' from the point of origin to the point of destination of each shipment referred to in Plaintiff's Exhibits A to J, inclusive. That said amount in `cents per 100 pounds' is hereinafter referred to as the `line-haul rate.' That said tariffs also published certain additional charges in cents per 100 pounds, effective on carload shipments during the `cold weather period,' October 15th to the following April 15th, inclusive, for which, if the shipper elected to apply for and to load a car under `carriers' protective service,' the carriers undertook to `furnish artificial heat (when required) as protection against frost, freezing, or overheating, but only within the territory covered by the table of charges.' That it was provided that charges shown in said section upon `carriers' protective service' were `in addition to and independent of freight rates.' That said tariffs also provided that between the dates October 15th to the following April 15th, inclusive, shippers might apply for and load cars to be shipped under `shipper's protective service,' and for car so ordered and loaded it was provided:
"`Shipper's Protective Service.
"`(A) Shippers to Provide False Floors, Stoves, Fuel, etc. — When in the judgment of the shippers it is necessary (on account of the nature of the commodity and climatic conditions) to use temporary false flooring or lining or both, or stove (including fuel or fittings for same), they must be furnished and installed by the shipper and at his expense. Heaters and stoves must be of suitable design as to safety, and must be securely fastened and braced. * * *
"`(B) Prewarming Cars. — Carriers will not prewarm cars which are to be handled under this rule.
"`(C) Attention to Fires. — When a portable stove or heater is installed in car, the shipper must send a caretaker from point at which such stove or heater is installed, to look after fires at all points, including destination. * * *
"`(D) Housing. — Cars moving under this rule will not be placed in carriers' warming houses or round-houses at any point, including destination, for protection of contents against cold, nor for the removal of frost from the lading.'
"That said tariffs also provided for the free transportation, going and returning, of each attendant in charge of one consignment (consisting of one or more carloads) between points within the limits of the option territory. That said tariffs also made provision for the return movement to shipper, if desired, of stoves or heaters, fittings therefor, false floors, or wooden linings which had been used in the movement of freight, the published charge for the return movement being `one-half of fourth class freight rate.'
"That if the shipper ordered and used a box car under `shipper's protective service' the tariff charge was the line-haul rate above described. That if the shipper selected `shipper's protective service' and ordered and used a refrigerator or insulated car, the aforesaid tariffs published a charge of $5 per car per trip in addition to the line-haul rate. That the aforesaid tariffs made provision for said charge in an item that read:
"`When shipper uses a refrigerator or other insulated car, during the period from October 15th to the following April 15th, both dates inclusive, for loading, with potatoes or other vegetables classified as taking class C rates in Western Classification, in straight or mixed carloads, to be heated by him or to move without heat, a charge of $5 per car per trip will be made for the use of the car.'
"(5) That the Interstate Commerce Commission, in proceedings duly instituted and after investigations, has found said tariff rule quoted in the foregoing finding not unreasonable, not unjust, and not otherwise unlawful, and that the plaintiff, prior to the commencement of this action, had made no application to said Commission to have said rule suspended or set aside, on the ground that it was unreasonable, unjust, or unlawful.
"(6) That the plaintiff paid to the defendant all its lawful freight and other lawful charges on each shipment described in Plaintiff's Exhibits A to J, inclusive, from point of origin to point of destination, including the $5 rental charge for the use of the refrigerator or other insulated car in which such shipments were made."
The conclusion of law found was in the following language:
"That the defendant is entitled to a judgment of dismissal and to its costs and disbursements herein."
Counsel for plaintiff in error adopt the following statement of the trial court as to the contentions of the parties:
"The plaintiff's theory is that the common-law duty of the defendant required it to furnish refrigerator or insulated cars for the shipment of potatoes, and, that being true, nothing could be legally collected by it beyond the line-haul rate, although required by its tariff. It also contends that the court must find that the line-haul rate was predicated upon the use of refrigerator or insulated cars. The defendant's position is that this court has no jurisdiction to determine the legality of the rental charge, because it involves questions which can only be considered and determined by the Interstate Commerce Commission."
They invoke the rule that a common carrier of freight is required to furnish a shipper with cars suitable and proper for the transportation of the particular commodity, and hold then that shipments of potatoes from Minnesota, at least between October and April of each year, require refrigerator or other insulated cars; that the $5 charge for the use of such cars is not an accessorial charge; that the line-haul rate filed pays fully for the transportation of the particular commodity, and for the use of all instrumentalities and facilities necessary for its proper carriage. It is insisted that the case involves construction of a tariff, and not an administrative finding whether it is unreasonable, unjust, or discriminatory; that for this reason the courts have jurisdiction, without previous reference to the Interstate Commerce Commission; that, in any event, the Commission has held that the $5 in question is not unreasonable nor discriminatory, and therefore that it is unnecessary that the question should again be submitted as a condition precedent to an action in the courts.
The position of defendant in error is that the Interstate Commerce Commission is vested...
