No. 25758 STATE OF IOWA, EX REL., ET AL. v. CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD COMPANY ET AL. Submitted December 7, 1933. Decided January 10, 1934 Rates on bituminous coal, in carloads, from Atkinson, Ill., to Oakton, Iowa, found to have been unreasonable. Reparation awarded. J. H. Henderson and Walter Condran for complainants. REPORT OF THE COMMISSION DIVISION 3, COMMISSIONERS MCMANAMY, LEE, AND MILLER BY DIVISION 3: No exceptions were filed to the report proposed by the examiner and our conclusions are in accord with his recommendations. By complaint filed January 23, 1933, the State of Iowa on behalf of the Board of Control of State Institutions in Iowa, hereinafter called complainant, alleges that the rates charged on 88 carloads of coal from Atkinson, Ill., to Oakton, Iowa, between January 24, 1931, and July 31, 1932, were unreasonable, unjustly discriminatory, and unduly prejudicial. Reparation only is sought. Rates will be stated in amounts per net ton and do not include the formerly authorized emergency charges. The considered shipments aggregated 9,275,487 pounds and moved over the lines of the Chicago, Rock Island & Pacific Railway Company and the Chicago, Milwaukee, St. Paul & Pacific Railroad Company. Charges were collected at the applicable rates of $1.62 prior to September 14, 1931, $1.57 between September 14, 1931, and June 7, 1932, and $1.52 thereafter. The rate sought is $1.15. In Intrastate Rates on Bituminous Coal in Illinois, 182 I.C.C. 537, decided March 8, 1932, we found inter alia, that for the future a rate of $1.62 on bituminous coal from Alpha, Ill., to Oakton, 42 miles, was unreasonable to the extent that it exceeded 92 cents and awarded reparation to the basis of a rate of $1.15 which was found to have been reasonable in the past. The distance from Atkinson to Oakton is 34 miles. On August 1, 1932, defendants established the rate of 92 cents prescribed in the case cited from Alpha to Oakton and at the same time voluntarily established that rate from Atkinson to Oakton. It is still in effect. Defendants offer no opposition to an award of reparation on the basis sought. The record does not support a finding that the rates complained of were unjustly discriminatory or unduly prejudicial. We find that the rates assailed were unreasonable to the extent that they exceeded $1.15; that complainant made the 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 rate herein found reasonable; and that it is entitled to reparation with interest. Complainant should comply with rule V of our Rules of Practice. 198 I.C.C. No. 254071 REED & WHEELOCK v. CHICAGO, BURLINGTON & Submitted November 21, 1933. Decided January 10, 1934 1. In no. 25407, rate on sand and gravel, in carloads, from Oreapolis, Nebr., to Prescott, Iowa, found not unreasonable. Complaint dismissed. 2. In no. 25407 (sub-no. 1), rate on like traffic from Oreapolis to Bedford, Iowa, found not unreasonable in the past, but unreasonable for the future. Reasonable rate prescribed. Stanley B. Houck for complainants. Henry Christianson, Walter McFarland, and Eldon M. Martin for defendant. REPORT OF THE COMMISSION DIVISION 3, COMMISSIONERS MCMANAMY, LEE, AND MILLER BY DIVISION 3: Exceptions were filed by complainants and defendant to the report proposed by the examiner, and the case was orally argued. Complainants are E. D. Reed and G. L. Wheelock, copartners, engaged in highway construction under the firm name of Reed & Wheelock. By complaint filed June 20, 1932, in no. 25407 they allege that the rate charged on 33 carloads of sand and gravel from Oreapolis, Nebr., to Prescott, Iowa, delivered between June 20 and July 1, 1930, were and are unreasonable; and in the subnumbered complaint, filed July 5, 1932, they make the same allegations with respect to the rate charged on numerous similar shipments from Oreapolis to Bedford, Iowa, delivered between July 5 and September 10, 1930. Reasonable rates for the future and reparation are sought. Rates will be stated in amounts per net ton. Oreapolis is on the Platte River about 2 miles west of the Missouri River and 17 miles southeast of Omaha, Nebr. The destinations are in southwestern Iowa, Prescott on defendant's main line and Bedford on a branch line 35 miles south of Creston, Iowa. The short single-line distances from Oreapolis are 78 miles to Prescott and 107 miles to Bedford. The rates at which charges were collected on the shipments considered, $1 to Prescott and $1.30 to Bedford, are those under the so-called Nebraska-Iowa scale applying generally on sand and gravel over defendant's lines from 1 This report also embraces No. 25407 (Sub-No. 1), Same v. Same. points in Nebraska to destinations in Iowa. The rates sought, 90 cents to Prescott and $1.05 to Bedford, are the rates for 78 and 107 miles under the single-line scale prescribed in Sand, Gravel, Crushed Stone, and Shells, 155 I.C.C. 247, for application in the Southwest, and in Sand, Gravel, and Crushed Stone, 177 I.C.C. 621, for application between points in Missouri, Kansas, Oklahoma, and Arkansas. Complainants rely chiefly upon our findings in the above cases and McGrath Sand & Gravel Co. v. Atchison, T. & S. F. Ry. Co., 165 I.C.C. 454, hereinafter referred to as the McGrath case. In the latter case division 4 prescribed a scale of distance rates on sand and gravel from certain points in Illinois and from LaGrange and Reading, Mo., to destinations in Iowa as far west on defendant's lines as Red Oak and Shenandoah, Iowa, under which the rates for singleline hauls of 78 and 107 miles are 95 cents and $1.10 respectively. Reparation was there awarded to the basis of rates for those distances of $1 and $1.17. The single-line Nebraska-Iowa scale begins at 70 cents for 50 miles and progresses 10 cents for each additional 10 miles up to 100 miles and 10 cents for each 15 miles from 100 to 175 miles. The McGrath case single-line scale commences at 80 cents for 50 and over 40 miles and progresses 5 cents for each additional 10 miles up to 170 miles. The shipments here considered moved about 4 miles in Nebraska and from 74 to 103 miles in Iowa. From 36 to 65 miles of the hauls in Iowa occurred within the territory embraced by the findings in the McGrath case. Defendant points out that the Nebraska-Iowa scale, with a differential of 20 cents for joint-line hauls, was prescribed in American Sand & Gravel Co. v. C. & N. W. Ry. Co., 88 I.C.C. 1, for application from certain South Dakota points to destinations in Minnesota, and in Hopeman Material Co. v. N. P. Ry. Co., 98 I.C.C. 361, for application for certain points in Minnesota to various destinations in North Dakota. It relies particularly on Combination Rule on Sand, Gravel, and Stone, 112 I.C.C. 231, in which we required the cancelation of proposed schedules of increased rates on sand, gravel, and crushed stone moving over lines of defendant and its connections from points in Nebraska 28 to 65 miles from Council Bluffs, Iowa, to destinations in southwestern Iowa, but stated that such action was without prejudice to the establishment from points in Nebraska on defendant's lines to Iowa destinations within a "reasonable shipping distance" of rates upon substantially the basis prescribed in the American Sand & Gravel Co. case and Hopeman Material Co. case. Complainants presented no evidence of probative value concerning the relative transportation conditions in southwestern Iowa and in the territories for which rates were prescribed in the cases upon which they rely. Defendant urges that, considered in the light of the relative transportation conditions as reflected by the varying levels of class rates prescribed by us for the several rate territories, our decisions affecting rates on sand and gravel are inconsistent, and that no greater justification exists for using the southwestern sand and gravel scale as a measure of the reasonableness of the rates assailed than for using the somewhat higher scales prescribed for application in central and eastern trunk-line territories. Concerning a similar contention in the McGrath case, division 4 said: From the standpoint of what we believe to be relative transportation conditions, there has undoubtedly been an inconsistency between our decisions with respect to rates on sand and gravel in southern and southwestern territories and our decisions with respect to corresponding rates in official territory. That is why both complainants and defendants have been able here to cite our previous decisions in support of the very different scales which they respectively propose. These commodities, however, are of exceedingly low grade and are normally transported under very favorable transportation conditions. In fixing the rates on these low-grade commodities in different territories we have been influenced to a considerable extent by the prevailing level of rates within the particular region in question. We have also taken into consideration the different distribution of the transportation burden in the respective territories under the existing rate structures. The rate of $1 charged to Prescott is only 5 cents higher than the rate for the same distance under the scale prescribed in the McGrath case. The same difference results from a comparison of that scale and the Nebraska-Iowa scale for the distances from Oreapolis to the destinations considered in Combination Rule on Sand, Gravel, and Stone, supra. Defendant asserts that the rates here assailed were established in exact conformity with our findings in the latter case, and contends that a finding of unreasonableness, particularly as to the past, is therefore not warranted. In Harrison Engineering & Const. Corp. v. C., B. & Q. R. Co., 195 I.C.C. 1, we found not unreasonable the Nebraska-Iowa scale rates charged on shipments of gravel made between April 19 and July 30, 1930, from Oreapolis, Louisville, and South Bend, Nebr., for hauls over defendant's lines ranging from 27 to 80 miles to destinations in southwestern Iowa. The record does not warrant a different finding concerning the assailed rate to Prescott. Under the Nebraska-Iowa scale there is a difference of 30 cents between the rates for 80 and 110 miles. The corresponding difference is 15 cents under the southwestern, Missouri-Kansas, and McGrath case scales. Recently in Rates on Crushed Stone, Gravel, Sand, and Slag, 191 I.C.C. 206, we prescribed distance rates 15 cents higher for 110 than for 80 miles for application on sand and gravel from points in Pennsylvania to destinations in Ohio. |