Benjamin N. Cardozo

“ By implication of law there had been written into the statute a to all concerned that payments exacted by a carrier in conformity with a published tariff were subject to be refunded if found thereafter, upon sufficient evidence, to be excessive and unreasonable. The Constitution of the United States would have nothing to say about the validity of a notice of that tenor written in so many words into the body of the act. Carrier and shipper would be presumed to bargain with each other on the basis of existing law. ”

“ There might be no differences at all, and still the meaning of the Montana statute would be a problem for the Montana courts, and not one for us after they had had their say.
2. If the carrier did not suffer a denial of due process through the action of the trial court in subjecting the published tariff to the doctrine of the Doney Case then standing unimpeached, the petitioner, to prevail, must be able to show that a change was brought about through something done or omitted by the Supreme Court of Montana in deciding the appeal. ”

“ By a statute of Montana (Rev. Codes 1921, § 3794) the Board of Railroad Commissioners is empowered to fix rates of carriage for intrastate shipments. The rates thereby established are not beyond recall. They may be changed by the board itself on the complaint either of shipper or of carrier, if found to be unreasonable. Revised Codes of Montana, § 3796. In an action against the board, they may be set aside upon a like showing by a judgment of the court. ”

“ Southern Railway Co. (C.C.A.) 51 F. (2d) 443, 447. The statute of Montana differs in many ways from the act considered by this court. We do not need to ask ourselves the question whether the differences, to our thinking, are important or trivial. ”

“ Indeed, there are cases intimating, too broadly (cf. Tidal Oil Co. v. Flanagan, supra) , that it must give them that effect; but never has doubt been expressed that it may so treat them if it pleases, whenever injustice or hardship will thereby be averted. ”