Scott, J.:
This is an action brought to recover certain amounts paid by plaintiffs to defendant as “track storage” charges on cars transported by defendant from points within the State of Yew York to Melrose Junction in Yew York city.
The facts are undisputed and the only question of law in the case is as to the binding effect, as an adjudication, of a certain order or resolution of the Public Service Commission, Second District.
The facts as shown by the pleadings and the stipulation are that during the times mentioned in the complaint the plaintiffs were engaged in business as receivers and shippers of hay, straw, grain and feed at 788 Morris-avenue, Yew York city, and the defendant was and now is a common carrier engaged in intrastate commerce, subject to the provisions of the Public Service Commissions Law, and had filed with the said Public Service Commission schedules showing its rates, fares and charges for the transportation of property and terminal charges, and rules and regulations affecting said rates; that the said schedules provided among other things that a consignee of freight shall have forty-eight hours from the first seven A. M. after notice of arrival and placement of a car at destination “free time” in which to unload said car; that if the car is detained beyond the said free time a charge of one dollar per day or fraction thereof called a “demurrage” charge is made to encourage a reasonably prompt release of the car, and another charge called “track storage” is made at certain places where track space is comparatively limited to facilitate the clearance of the delivery or switch tracks and for use of the space occupied by the car.
The charge made for demurrage is one dollar per car per [790]*790day. The track storage charge prior to August 15, 1908, was one dollar per car for the first day, two dollars for the second, three dollars for the third and four dollars for each succeeding day. Since August 15, 1908, the track storage charge has been one dollar per day for the first two days after the free time expired, and two dollars per day for each succeeding day.
The demurrage schedules further provided that the defendant would refund to the consignee of property the “ demur-rage ” charges collected by it when shipments were held in the cars because of the impracticability of unloading under the following conditions if they occurred within the free time specified:
When the condition of the weather during the prescribed free time is such as to make it impossible to employ men or teams in unloading cars without serious injury to freight. When shipments are frozen so as to prevent unloading during the prescribed free time, or when, because of high water or snow drifts, it is impossible to get to cars for unloading during the prescribed free time.
There was no similar provision in the “ track storage ” ' schedules and no provision in said schedules providing for the remission of track storage charges when weather conditions were such as to interfere with the loading or unloading of the property by the consignee.
Between November 1, 1907, and May 20, 1910, plaintiffs received at defendant’s Melrose Junction station, New York city, a number of consignments of freight which originated and terminated within the State of New York and paid thereon track storage charges amounting to $178, which are claimed to have been unlawful and excessive, for the reason that said charges accrued on days when the weather conditions were such as to interfere with the unloading of the property. The demurrage charges which were paid by the plaintiffs to the defendant and which plaintiffs claimed were excessive by reason of weather conditions were refunded by the defendant to the plaintiffs, but defendant refused to refund the track storage charges which accrued under these conditions.
In May, 1911, the plaintiffs filed a complaint with the Public Service Commission, Second District, claiming that said track [791]*791storage charges were unjust and unreasonable, and proceedings were thereafter had before said Public Service Commission which resulted in a resolution of the Commission to the effect that the plaintiffs were entitled to recover the amount of said charges from the defendant.
On or about August 1, 1911, the defendant modified its track storage schedules, and since that time those schedules have contained a provision similar to the one in the demurrage schedules providing for the refund of demurrage charges which accrue when weather conditions prevent unloading.
The Public Service Commission, Second District, concluded that the “ track storage ” charges exacted by defendant and included in its filed schedule of tariffs and charges, in so far as the same applied to days upon which, owing to weather conditions, it was impossible or impracticable to unload, were unreasonable. To this finding the defendant makes no objection and has amended its schedule of rates, tariffs and charges to conform thereto. In addition to this finding the Commission adopted a resolution, which for the purposes of this appeal is assumed to be equivalent to an order, in the following terms:
“ Resolved : That complainants, Murphy Brothers, are entitled to recover from respondent, The New York Central and Hudson River Railroad Company, the aggregate sum of $178.00 with varying amounts of interest computed at the rate of 6 per cent per annum as hereinafter stated, for and on account of exaction by respondent of unjust and unreasonable track storage charges applied to carloads of freight delivered to complainants at Melrose Junction.”
The amounts thus held to be repayable to plaintiffs covered “track storage” charges from January 11, 1907, to June 14, 1911, all of which had been exacted before the determination by said Public Service Commission that said “track storage charges ” were unreasonable.
Judgment was rendered against defendants upon the specific ground that the resolution or order of the Public Service Commission “is in effect a finding of an unjust discrimination against the plaintiffs, and until reversed or annulled it is binding upon the defendant in this action.”
[792]*792The theory upon which the judgment proceeded is, as indicated by the learned justice who rendered it, that inasmuch as the Interstate Commerce Commission had held “track storage charges ” exacted under like circumstances upon cars engaged in interstate commerce to be unreasonable and unlawful, the exaction of such charges upon cars used in intrastate commerce would constitute unjust discrimination against shippers by the latter class of cars.
We are unable to follow this reasoning. The charges sought to he recovered, and for which judgment has been rendered, cover the period from January, 1907, to June, 1911. There is absolutely nothing in the case to show that defendant did not, during the period mentioned, exact precisely the same “ track storage charges ” from cars employed in interstate commerce. From the statement of facts in New York Central & Hudson River R. R. Co. v. Murphy (224 Fed. Rep.
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Scott, J.:
This is an action brought to recover certain amounts paid by plaintiffs to defendant as “track storage” charges on cars transported by defendant from points within the State of Yew York to Melrose Junction in Yew York city.
The facts are undisputed and the only question of law in the case is as to the binding effect, as an adjudication, of a certain order or resolution of the Public Service Commission, Second District.
The facts as shown by the pleadings and the stipulation are that during the times mentioned in the complaint the plaintiffs were engaged in business as receivers and shippers of hay, straw, grain and feed at 788 Morris-avenue, Yew York city, and the defendant was and now is a common carrier engaged in intrastate commerce, subject to the provisions of the Public Service Commissions Law, and had filed with the said Public Service Commission schedules showing its rates, fares and charges for the transportation of property and terminal charges, and rules and regulations affecting said rates; that the said schedules provided among other things that a consignee of freight shall have forty-eight hours from the first seven A. M. after notice of arrival and placement of a car at destination “free time” in which to unload said car; that if the car is detained beyond the said free time a charge of one dollar per day or fraction thereof called a “demurrage” charge is made to encourage a reasonably prompt release of the car, and another charge called “track storage” is made at certain places where track space is comparatively limited to facilitate the clearance of the delivery or switch tracks and for use of the space occupied by the car.
The charge made for demurrage is one dollar per car per [790]*790day. The track storage charge prior to August 15, 1908, was one dollar per car for the first day, two dollars for the second, three dollars for the third and four dollars for each succeeding day. Since August 15, 1908, the track storage charge has been one dollar per day for the first two days after the free time expired, and two dollars per day for each succeeding day.
The demurrage schedules further provided that the defendant would refund to the consignee of property the “ demur-rage ” charges collected by it when shipments were held in the cars because of the impracticability of unloading under the following conditions if they occurred within the free time specified:
When the condition of the weather during the prescribed free time is such as to make it impossible to employ men or teams in unloading cars without serious injury to freight. When shipments are frozen so as to prevent unloading during the prescribed free time, or when, because of high water or snow drifts, it is impossible to get to cars for unloading during the prescribed free time.
There was no similar provision in the “ track storage ” ' schedules and no provision in said schedules providing for the remission of track storage charges when weather conditions were such as to interfere with the loading or unloading of the property by the consignee.
Between November 1, 1907, and May 20, 1910, plaintiffs received at defendant’s Melrose Junction station, New York city, a number of consignments of freight which originated and terminated within the State of New York and paid thereon track storage charges amounting to $178, which are claimed to have been unlawful and excessive, for the reason that said charges accrued on days when the weather conditions were such as to interfere with the unloading of the property. The demurrage charges which were paid by the plaintiffs to the defendant and which plaintiffs claimed were excessive by reason of weather conditions were refunded by the defendant to the plaintiffs, but defendant refused to refund the track storage charges which accrued under these conditions.
In May, 1911, the plaintiffs filed a complaint with the Public Service Commission, Second District, claiming that said track [791]*791storage charges were unjust and unreasonable, and proceedings were thereafter had before said Public Service Commission which resulted in a resolution of the Commission to the effect that the plaintiffs were entitled to recover the amount of said charges from the defendant.
On or about August 1, 1911, the defendant modified its track storage schedules, and since that time those schedules have contained a provision similar to the one in the demurrage schedules providing for the refund of demurrage charges which accrue when weather conditions prevent unloading.
The Public Service Commission, Second District, concluded that the “ track storage ” charges exacted by defendant and included in its filed schedule of tariffs and charges, in so far as the same applied to days upon which, owing to weather conditions, it was impossible or impracticable to unload, were unreasonable. To this finding the defendant makes no objection and has amended its schedule of rates, tariffs and charges to conform thereto. In addition to this finding the Commission adopted a resolution, which for the purposes of this appeal is assumed to be equivalent to an order, in the following terms:
“ Resolved : That complainants, Murphy Brothers, are entitled to recover from respondent, The New York Central and Hudson River Railroad Company, the aggregate sum of $178.00 with varying amounts of interest computed at the rate of 6 per cent per annum as hereinafter stated, for and on account of exaction by respondent of unjust and unreasonable track storage charges applied to carloads of freight delivered to complainants at Melrose Junction.”
The amounts thus held to be repayable to plaintiffs covered “track storage” charges from January 11, 1907, to June 14, 1911, all of which had been exacted before the determination by said Public Service Commission that said “track storage charges ” were unreasonable.
Judgment was rendered against defendants upon the specific ground that the resolution or order of the Public Service Commission “is in effect a finding of an unjust discrimination against the plaintiffs, and until reversed or annulled it is binding upon the defendant in this action.”
[792]*792The theory upon which the judgment proceeded is, as indicated by the learned justice who rendered it, that inasmuch as the Interstate Commerce Commission had held “track storage charges ” exacted under like circumstances upon cars engaged in interstate commerce to be unreasonable and unlawful, the exaction of such charges upon cars used in intrastate commerce would constitute unjust discrimination against shippers by the latter class of cars.
We are unable to follow this reasoning. The charges sought to he recovered, and for which judgment has been rendered, cover the period from January, 1907, to June, 1911. There is absolutely nothing in the case to show that defendant did not, during the period mentioned, exact precisely the same “ track storage charges ” from cars employed in interstate commerce. From the statement of facts in New York Central & Hudson River R. R. Co. v. Murphy (224 Fed. Rep. 407), which plaintiffs cite, and on which they rely to sustain this judgment, it appears that the order of the Interstate Commerce Commission declaring the exaction of track charges unreasonable was not made until December, 1911, so that it may be reasonably inferred that for the period covered by the refund directed by the judgment appealed from the defendant exacted the same track charges from cars engaged in interstate and intrastate commerce. The plaintiffs’ judgment can, therefore, be sustained, if at all, solely upon the theory that the resolution or order of the Public Service Commission directing a refund of certain charges is a valid and binding adjudication.
The power to make such an adjudication must be sought in the Public Service Commissions Law (Laws of 1907, chap. 429; revised by Consol. Laws, chap. 48; Laws of 1910, chap. 480). The sections pertinent to the questions now under consideration may be summarized as follows:
Section 28 requires common carriers to file with the Commission rates, fares and charges for the transportation of persons and property and all rules and regulations which in anywise affect the value of the service.
Section 29 provides that unless the Commission otherwise orders no change shall be made in the rates, fares or charges so filed except after thirty days’ notice.
[793]*793Section 33 prohibits the transportation of property by the carrier until rates are filed with the Commission.
Section 34 provides that no common carrier shall permit any person or corporation to obtain transportation for any passenger or property between points within the State at less than the rates established and in force in accordance with the schedules published and filed with the Commission, and prohibits any person from obtaining or seeking to obtain transportation for property at less than the rates contained in the schedules filed with the Commission.
Section 49 provides that whenever the Commission shall be of the opinion, after a hearing had upon its own motion or upon a complaint, that the rates, fares or charges demanded or collected by a common carrier, or that the regulations or practices of such carrier are unjust, unreasonable or discriminatory or otherwise in violation of the provisions of the statute, the Commission shall determine the just and reasonable rates, fares and charges to be thereafter observed and in force as the maximum to be charged for the service, to be performed, and if the regulations of the carrier are unjust or unreasonable, the Commission shall determine the just and reasonable regulations to be observed by the carrier, and thereafter it shall be the duty of the carrier to obey such order as the Commission may make with respect to the reasonable rates to be charged or practices to be observed by the carrier in the future. (See, also, Laws of 1911, chap. 546, amdg. said § 49.)
It is apparent that section 49 contains no specific authority to the Public Service Commission to make a valid adjudication that the carrier shall refund charges exacted in strict conformity with its filed schedule, but which the Commission deems to have been unreasonable. Everything in the section relating to what must be done by the carrier looks to the future. When the Commission shall have determined that a given rate is unreasonable or unjust, and shall have determined what is a just and reasonable rate, such rate or charge is thereafter to be observed and in force, and it is made the duty of the carrier thereafter to abide by such decision. It is sought to spell out authority for the adjudication as to the refund of past charges from the language of section 48 of the Public Service Oommis[794]*794sions Law, but that section simply authorizes the Commission, in acting upon a charge against a common carrier, to “ take such action within its powers as the facts justify.” This still leaves it necessary to resort to other sections of the act to ascertain what powers are given to the Commission, and we are able to find no provision which gives the Commission power to adjudge that the carrier shall refund past charges. It is true that the Interstate Commerce Commission makes such orders which the Federal courts enforce and accept as adjudications of liability on the part of the carrier. But this is because the Interstate Commerce Act expressly authorizes such orders and makes them binding adjudications. Section 16 of that act provides: “ That if, after hearing on a complaint made as provided in section thirteen of this act, the Commission shall determine that any party complainant is entitled to an award of damages under the provisions of this act for a violation thereof, the Commission shall make an order directing the carrier to pay to the complainant the sum to which he is entitled on or before a day named. If a carrier does not comply with an order for the payment of money within the time limited in such order, the complainant * * * may file in the Circuit Court of the United States * * *, or in any State court of general jurisdiction having jurisdiction of the parties, a petition setting forth briefly the causes for which he claims damages, and the order of the Commission in the premises. Such suit in the Circuit Court of the United States shall proceed in all respects like other civil suits for damages, except that on the trial of such suit the findings and order of the Commission shall be prima facie evidence of the facts therein stated. * * * All complaints for the recovery of damages shall be filed with the Commission within two years from the time the cause of action accrues, and not after, and a petition for the enforcement of an order for the payment of money shall be filed in the Circuit Court or State court within one year from the date of the order, and not after.” (24 U. S. Stat. at Large, 384, § 16, as amd. by 34 id. 590, § 5, and 36 id. 554, § 13.)
It is because of this section that the Federal courts enforce orders of the Interstate Commerce Commission for the refund of charges, and not by reason of any supposed inherent or [795]*795implied power in the Commission to make a binding adjudication. (See New York Central & Hudson River R. R. Co. v. Murphy, supra.)
No similar or corresponding section is to be found in the Public Service Commissions Law, and its omission is most significant as indicating that the Legislature deliberately and intentionally withheld such power from the Public Service Commission.
The judgment appealed from rests solely, as has been said, upon the supposed force and effect of the order of resolution of the Public Service Commission as a valid adjudication. It must, therefore, be reversed and the complaint dismissed, with costs in all courts.
Ingraham, P. J., McLaughlin and Clarke, JJ., concurred; Laughlin, J., dissented.