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No. 25833

AMERICAN FIELD SEED COMPANY v. CHICAGO & NORTH WESTERN RAILWAY COMPANY ET AL.

Submitted October 21, 1933. Decided December 13, 1933

Rates on sweetclover seed, in carloads, from Watertown, New Effington, Brandt, Toronto, Ramona, and Lake Preston, S.Dak., to Chicago, Ill., found unreasonable. Reparation awarded.

J. W. Goodman for complainant.

P. F. Gault, O. H. Timm, E. A. Tharp, J. N. Davis, A. B. Enoch, and A. H. Lossow for defendants.

REPORT OF THE COMMISSION

DIVISION 3, COMMISSIONERS MCMANAMY, LEE, AND MILLER BY DIVISION 3:

Exceptions were filed by defendants to the report proposed by the examiner.

Complainant, a corporation, buying and selling seeds at Chicago, Ill., by complaint filed March 6, 1933, following the filing of an informal complaint on January 9, 1931, which was closed December 7, 1932, alleges that the rates charged on eight carloads of sweetclover seed from certain points in South Dakota to Chicago, delivered between September 1 and November 26, 1929, inclusive, were unreasonable. Reparation only is sought. Rates will be stated in cents per 100 pounds.

These shipments of sweetclover seed were packed in seamless cotton bags, and weighed from 33,919 to 57,440 pounds. Three of them originated at Watertown, S.Dak., and one each at New Effington, Brandt, Toronto, Ramona, and Lake Preston, S.Dak. They moved over the various lines of defendants to Chicago. The rates charged were 57.5 cents from Watertown, 61.5 cents from New Effington, and 53.5 cents from the four remaining origins. These were the applicable class A rates, except that the rate charged on the shipment from New Effington was the applicable combination composed of the class D rate to Minneapolis, Minn., plus the class A rate beyond.

Complainant contends that the rates assailed were unreasonable to the extent that they exceeded the contemporaneous class D rates, and

in support thereof relies on Aberdeen Cham. of Com. v. Chicago, M., St. P. & P. R. Co., 168 I.C.C. 611, 191 I.C.C. 156, hereinafter called the Aberdeen case, wherein, among other things, rates on sweetclover seed, in carloads, from points in South Dakota to Chicago, were found unreasonable and reparation was awarded to the basis of the contemporaneous class D rates between the same points. In that case we stated at page 615:

The record is convincing that the assailed rates were and are unreasonable under any adjustment, and that the contemporaneous class D rates are a fair basis for reparation on past shipments.

The class D rates herein sought are 34 cents from Watertown, 44 cents from New Effington, 29.5 cents from Brandt, Ramona, and Lake Preston, and 28 cents from Toronto. The present rates are 53 cents from Watertown and Lake Preston, 56 cents from New Effington, 52 cents from Brandt and Toronto, and 50 cents from Ramona. In Grain and Grain Products, 164 I.C.C. 619, the flaxseed rates, based on 112 percent of the contemporaneous rates on wheat between the same points, were recognized as reasonable for the future on sweetclover seed. That proceeding was reopened and is now pending on further hearing.

Defendants submit comparisons of the classes A, B, and D rates, the commodity rates on wheat, and rates on basis of 112 percent of the wheat rates, applicable prior and subsequent to December 3, 1931, from various points in South Dakota, Nebraska, Minnesota, and Iowa, to Kansas City and St. Louis, Mo., Sioux City, Iowa, St. Paul, Minn., and Chicago. They urge that the rates assailed were not unreasonable as compared with contemporaneous rates in the same general territory. They point out that the application of class D rates on sweetclover seed was restricted to traffic to Minneapolis and a few other points over the lines of certain carriers which directly reach these grain markets or by other carriers which sought to meet competition at such points, and that the prevailing bases for many years had been class A east of the Missouri River and class B from points west of the Missouri River. In the Aberdeen case we considered the class A and class D ratings stressed by the defendants. The record herein does not warrant conclusions different from those reached in the Aberdeen case, which were followed also in Rudy-Patrick Seed Co. v. Atchison, T. & S. F. Ry. Co., 181 I.C.C. 571, and later cases.

We find that the rates assailed were unreasonable to the extent that they exceeded the contemporaneous class D rates between the same points; that complainant made shipments as described and

paid and bore the charges thereon at the rates herein found unreasonable; that it was damaged thereby in the amount of the difference between the charges paid and those which would have accrued at the rates herein found reasonable; and that it is entitled to reparation, with interest. Complainant should comply with rule V of the Rules of Practice.

MILLER, Commissioner, dissenting:

I am unable to concur in the award of reparation.

No. 23813

ARIZONA SEED & FLORAL COMPANY ET AL. v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY ET AL.

Submitted October 24, 1933. Decided December 13, 1933

Upon further hearing, rates on ryegrass seed, in carloads, from San Francisco, Calif., and certain points in Oregon to Phoenix, Ariz., found unreasonable. Reasonable rate from San Francisco to Phoenix prescribed for the future. Reparation awarded. Finding in original report, 178 I.C.C. 414, modified.

Appearances in former report.

REPORT OF THE COMMISSION ON FURTHER HEARING

DIVISION 3, COMMISSIONERS MCMANAMY, LEE, AND MILLER BY DIVISION 3:

Exceptions were filed by complainants and defendants to the report proposed by the examiner, defendants replied to complainants' exceptions, and the case was orally argued. Our conclusions differ somewhat from those recommended by the examiner.

In the original report, 178 I.C.C. 414, we found that the rates on ryegrass seed, in carloads, from Albany, Brownsville, Shedd, Halsey, Tangent, Harrisburg, and Junction City, Oreg., and San Francisco, Calif., to Phoenix, Ariz., were unreasonable prior to August 1, 1931, to the extent they exceeded 82.5 cents from the Oregon points and 64.5 cents from San Francisco, which are equivalent to 112 percent of the rates contemporaneously in effect on wheat from and to the same points. Reparation was awarded. Rates for the future were sought but that issue was not considered as we then assumed that the rates on this traffic suitable for the future had been established on August 1, 1931, as a result of our decision in Grain and Grain Products, 164 I.C.C. 619, hereinafter called the Grain case. Upon petition of defendants, we reopened the case for reconsideration. Subsequently, on our own motion we granted a rehearing. Rates will be stated in amounts per 100 pounds, and do not include the recent authorized emergency charges.

The claims for reparation herein are predicated largely upon the findings in the Grain case. The rates supposedly prescribed in that case for application on grass seed, which included ryegrass seed,

between the points here considered, based on the average short-line distances of 1,323 miles from the Oregon points and 787 miles from San Francisco, were 72 cents from the Oregon points and 49.5 cents from San Francisco. Such rates, however, were not established by the carriers. Moreover, pursuant to the decision of the Supreme Court in Atchison, T. & S. F. Ry. Co. v. United States, 284 U.S. 248, the order entered in the Grain case was later vacated and the case reopened. Further hearings have been held in that proceeding. The findings therein may not, therefore, be regarded as decisive of the issues in the instant case.

The value of ryegrass seed, f.o.b. point of origin, ranged from a maximum of 5.5 cents per pound in 1930 to a minimum of about 2 cents per pound in 1932. The 1930 prices of other grass seed produced in this origin territory were shown to be approximately 25 percent higher than ryegrass seed. These prices, it was testified, have declined proportionately. At the present time ryegrass seed from the Oregon points considered to Phoenix moves almost entirely by truck to Portland, Oreg., thence by water to Los Angeles Harbor, Calif., and thence by truck beyond at an aggregate rate of 70 cents. Only 17 shipments, averaging 37,410 pounds, have moved from the origins concerned to Phoenix since August 26, 1928. Three of these shipments were made subsequently to the original hearing.

Ryegrass seed, in carloads, in common with various other seeds of the same general class, is rated class A, minimum 30,000 pounds, in the governing western classification. Prior to November 1, 1928, the applicable combination rate from the Oregon points was $1.905, composed of a 20-cent commodity rate to Portland, and class A rates of 39.5 cents from Portland to San Francisco, and $1.31 beyond. On November 1, 1928, the latter class A factor was reduced to $1.10. Prior to December 29, 1930, a commodity rate of $1.65 applied on grass seed, including ryegrass seed, from Pacific coast origins to certain transcontinental destinations over routes through Phoenix. On that date, this rate was made applicable under an intermediate rule to Phoenix. From San Francisco to Phoenix the applicable class A rates were $1.31 prior to November 1, 1928, and $1.10 thereafter. On August 3, 1931, the rate from the Oregon points was reduced to $1.25 to meet coordinated truck-water-truck competition via Portland and Los Angeles Harbor. On January 1, 1932, the transcontinental rate of $1.65 was reduced to $1.05 to meet Panama Canal competition and on July 15, 1932, this rate was made applicable from San Francisco and from the Oregon points to Phoenix. On January 9, 1933, a rate of 89 cents was voluntarily established by defendants from the Oregon points to Phoenix.

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