#### George Metzger, Respondent, *v.*New York State Railways, Appellant.

Fourth Department,

June 9, 1915.

Street railways—rule requiring excess charge upon payment of cash fare—propriety of, first determinable by Public Service Commission — assault — removal of passenger for refusal to comply with rule — Railroad Law, section 58, not applicable to street railways.

The question as to the propriety of a rule established by a street railway company and filed with the Public Service Commission, providing for an excess charge of ten cents in case cash fare is paid for more than five cents and that the passenger be given a receipt redeemable for the excess at any ticket office if presented within ninety days, should be first determined by the Commission.

Hence, a complaint in an action for assault brought by a passenger who refused to comply with the rule and was compelled to leave the car, there being no charge that unnecessary force was used, should be dismissed.

Section 58 of the Railroad Law, permitting an excess charge of ten cents where the passenger is not provided with a ticket, is not applicable to street railways,

*188Appeal by the defendant, New York State Railways, from an order of the County Court of Monroe county, entered in the office of the clerk of said county on the 29th day of June, 1914, denying defendant’s motion to set aside the verdict of a jury in plaintiff’s favor for $275, and also from an order entered in said clerk’s office on the 1st day of July, 1914, denying defendant’s motion for a new trial made upon the minutes.

*Paul Folger,*for the appellant.

*Carlton F. Bown,*for the respondent.

Lambert, J.:

The action is for assault. The plaintiff boarded an interurban car operated by defendant at that stop known as Grlen Edith, a short distance out of Rochester, *en route*for Rochester. The regular fare from Grlen Edith to Rochester was eighteen cents, which amount he tendered the conductor in cash. He had no ticket, and in fact had no opportunity to purchase one, inasmuch as the defendant maintains no ticket office at Grlen Edith. He was informed by the conductor that the regulations and tariffs of the company provided for an excess charge of ten cents, in case cash fare was paid, for more than five cents; that he would be given a duplex ticket receipt, which would be redeemable for ten cents at any ticket office of the company, if presented within ninety days. The plaintiff refused to pay such excess, and was informed by the conductor that he would have to leave the car if he persisted in such refusal. The plaintiff did so persist, the car was stopped at a regular stop, and plaintiff was removed therefrom.

There is no charge made of the use of any unnecessary force, nor was the removal of plaintiff accompanied by any abusive or profane talk. In fact there is no material dispute in the evidence.

The plaintiff’s theory of the action is, that the regulation requiring the excess fare was unreasonable, and hence that plaintiff was justified in refusing to pay it. The defense reliés upon the fact that the defendant had filed its tariffs, providing for such excess, with the Public Service Commission; that such regulation was reasonable, and that the refusal *189of plaintiff to comply therewith justified his removal from the car.

Plaintiff has had a verdict, and from the judgment founded thereon and the order denying a new trial, this appeal is taken.

The standing of the plaintiff to bring this action is challenged by defendant. It is urged that the determination of the reasonableness of such a regulation is confided by statute to the Public Service Commission, and is not open to determination by the court. Attention is drawn to sections 28 and 49 of the Public Service Commissions Law (Consol. Laws, chap. 48; Laws of 1910, chap. 480) in support of such contention.

Section 28 provides for the filing by the carrier with the Commission of a schedule of tariffs, together with all rules and regulations to be applied in determining the aggregate of such tariff in each particular case. In that connection it is proven that such a tariff was filed by this defendant, and that such tariff provides for exactly the excess charge attempted to be made in this case.

Section 49 of such statute (as amd. by Laws of 1911, chap. 546) confers upon the Commission a supervisory control over such tariffs, and provides that whenever such Commission shall be of the opinion that the tariffs, regulations or practices of the carrier are unjust or unreasonable, after a hearing, either upon motion of the Commission or upon a complaint duly filed, such Commission shall have power to determine the just and reasonable rates, fares and charges to be thereafter observed by the carrier.

In this connection, it appears that there has been no actual determination by the Commission as to the reasonableness of this particular excess charged.

Our attention is drawn to a determination by the Commission in a similar case. *(Morris*v. *Buffalo, Lockport & R. Ry. Co.,*2 Pub. Serv. Comm. Rep. [2d Dist] 336, decided January 26, 1910.)

In that instance the Commission approved a practice such as this carrier sought to adopt. That determination, while instructive as a precedent, does not of course have any force other than that of a precedent, and hence is not *res adjudícala*to this particular case.

*190Neither is there any assistance to be obtained from the cases against steam railroads, inasmuch as section 58 of the Railroad Law (Consol. Laws, chap. 49; Laws of 1910, chap. 481) expressly permits an excess charge of ten cents in those instances where the passenger is not provided with a ticket. There is no such statute applicable to street railways.

In their general plan the above sections of the Public Service Commissions Law are very similar to the Interstate Commerce Act. By the Interstate Commerce Act it is provided that the carrier shall file with the Commission its schedule of tariffs, and the Commission is given authority of its own motion, or upon formal complaint, and after hearings, to make orders regulating in various manners the tariffs, rates and practices of the carrier. (See 24 U. S. Stat. at Large, 380, § 6, as amd. by 34 id. 586, § 2, and 36 id. 548, § 9; 24 id. 384, § 15, as amd. by 34 id. 589, § 4, and 36 id. 551, § 12.)

The structure of the two acts is sufficiently similar to make applicable, as precedents, the authorities under the Interstate Commerce Act as to the jurisdiction of the courts to regulate or determine the reasonableness of the tariffs and regulations of a carrier.

In the case of *Pennsylvania Railroad Co.*v. *Puritan Coal Mining Co.*(237 U. S. 121, 131) this question of jurisdiction was fully gone into, and the court there said:

*“*There are several decisions, already cited, which hold that suits against Railroads for unjust discrimination in interstate commerce can only be brought in the Federal courts. But it must be borne in mind that there are two forms of discrimination— one in the rule and the other in the manner of its enforcement; one in promulgating a discriminatory rule, the other in the unfair enforcement of a reasonable rule. In a suit where the rule of practice itself is attacked as unfair or discriminatory, a question is raised which calls for the exercise of the judgment and discretion of the administrative power which has been vested by Congress in the Commission. *It is for that body to say whether such a rule unjustly discriminates against one class of shippers in favor of another.*Until that body has declared the practice to be discriminatory and unjust, no court has jurisdiction of a suit against an inter*191state carrier for damages occasioned by its enforcement. When the Commission has declared the rule to be unjust, redress must be sought before the Commission or in the United States courts of competent jurisdiction, as provided in § 9.*

“But if the carrier’s rule, fair on its face, has been unequally applied, and the suit is for damages, occasioned by its violation or discriminatory enforcement, there is no administrative question involved, the courts being called on to decide a mere question of fact as to whether the carrier has violated the rule to plaintiff’s damage. Such suits though against an interstate carrier for damages arising in interstate commerce, may be prosecuted either in the State or Federal courts. ”

The effect of the holding by the United States Supreme Court is to accord to the filing of the tariff an effect consonant with an actual determination of reasonableness by the Commission. Such a conclusion is, to my mind, to be justified only upon the argument that the carrier is to be restricted only within the confines of the statute, and that by the filing of the tariff such carrier has complied with the full statutory requirement, so that the tariff charged becomes presumably reasonable, and that such presumption obtains until the Commission has otherwise determined in a proceeding to that end.

The above views seem at first sight to be at variance with many of the expressions in *Loomis*v. *Lehigh Valley R. R. Co.*(208 N. Y. 312).

A closer examination, however, discloses that there is no necessary discrepancy between the two holdings. In the *Loomis*case the question at issue was the obligation of the railroad company to furnish properly equipped cars. There the court said: “ Primarily the question is not one of rates or regulation at all, but of the carrier’s failure to perform its initial duty to give the shipper cars fit for the service for which they were furnished.”

The application of the decision in *Pennsylvania Railroad Co.*v. *Puritan Coal Mining Co. {supra)*to the present case cannot be doubted. There is no claim made of any discriminatory application of the rule. The complaint lies against the *192rule itself, which permitted the making of this excess charge. The question of the propriety of the rule seems to be confided for initial determination to the Public Service Oommission.

These views require reversal and, inasmuch as there cannot be a recovery under the conceded facts of the case, the complaint should be dismissed.

All concurred.

Judgment and order reversed and judgment directed for the defendant dismissing the complaint, with costs, including the costs of this appeal.

*

 See 24 U. S. Stat. at Large, 382, § 9.— [Rep.