No. 25826 MONTANA-DAKOTA UTILITIES COMPANY Submitted November 6, 1933. Decided January 11, 1934 Rate charged on wrought-iron pipe, in carloads, from Williston, N.Dak., over an interstate route, to Mandan, N.Dak., found unreasonable. Reparation awarded. Frank B. Townsend for complainant. Conrad Olson, J. P. Plunkett, and T. J. Slattery for defendants. REPORT OF THE COMMISSION DIVISION 3, COMMISSIONERS MCMANAMY, LEE, AND MILLER BY DIVISION 3: The shortened procedure was followed. The parties filed exceptions to the examiner's recommendations and our conclusions differ somewhat therefrom. Complainant corporation alleges by informal complaint filed July 14, 1932, and by formal complaint filed February 23, 1933, that the rate charged on two carloads of wrought-iron pipe shipped on July 12, 1930, from Williston, N.Dak., to Mandan, N.Dak., over an interstate route, and delivered on or after July 14, 1930, was and is unreasonable. Reparation and a reasonable rate for the future are sought. The informal complaint was closed on September 20, 1932. These shipments, aggregating 126,900 pounds, were consigned to the Hope Engineering Company, a corporation which acted as agent for complainant. The freight charges were paid by that company but it was reimbursed by complainant. The shipments moved as routed by the shipper over lines of the Great Northern Railway Company to Sidney, Mont., and the Northern Pacific Railway Company beyond, 321.8 miles. Charges, exclusive of those for demurrage not assailed, were collected at the applicable combination fifthclass rate of 93 cents per 100 pounds composed of 27 cents to Sidney and 66 cents beyond. The applicable rate yielded $1.83 per car-mile and 58 mills per ton-mile. Contemporaneously, a class B rate of 44 cents applied on the considered commodity over an intrastate route from Williston to Mandan, 315.9 miles. Complainant seeks a rate of 46 cents, equivalent to 32.5 percent of the first-class rate prescribed for 321.8 miles in zone III in the western trunk-line revision, and reparation to the same basis. Rates on iron and steel articles were prescribed on the basis of 32.5 percent of first class in that revision. That basis as applied on pipe was subsequently suspended but was approved in Iron or Steel Pipe in Western TrunkLine Territory, 192 I.C.C. 745. Williston and Mandan are in zone III as described in the western trunk-line revision, but the considered shipments moved over a route designated by the shipper which included a haul of 121 miles in Montana. Rates to and from points in Montana were not prescribed in the western trunk-line revision. Complainant contends that the transportation conditions in eastern Montana are sufficiently similar to those in western North Dakota in zone III to justify the same level of rates. Evidence was submitted by it for the purpose of showing that the traffic density and the net railway operating income per mile of line was greater for Montana than for North Dakota and South Dakota. It does not show, however, that transportation conditions in zone III, as a whole, are not more favorable than in Montana. Furthermore, as reparation was not awarded in the western trunk-line revision, this evidence is more pertinent with respect to rates for the future than it is with respect to the basis for reparation. In Public Service Comm. of Wyo. v. Atchison, T. & S. F. Ry. Co., 196 I.C.C. 413, division 3, among other things prescribed for application between points in Wyoming over routes via Billings, Mont., rates made by applying to the distances over such routes a scale of rates made 15 percent higher than the concurrent zone III scale. The zone III first-class rate for the distance of 321.8 miles here considered would be $1.40 and a differential of 15 percent for the 121 miles in Montana would be 14 cents, making a total first-class rate of $1.54. Fifth-class rates prescribed in the western trunkline revision are 37.5 percent of first class, and 37.5 percent of $1.54 equals 58 cents. In Parkersburg Rig & Reel Co. v. Chicago, B. & Q. R. Co., 179 I.C.C. 571, reparation was awarded on tank materials to the basis of 35 percent of first-class rates prescribed in the western trunk-line revision plus differentials aproximately 20 percent higher than zone III rates for hauls in Montana. The shipments therein considered moved much longer distances than did the considered shipments. In our opinion a rate of 58 cents is the proper basis for reparation on complainant's shipments. Williston is not a point of manufacture or distribution and there is little probability of a future movement. Upon this record a rate for the future will not be prescribed. We find that the rate charged was unreasonable to the extent it exceeded 58 cents; that the shipments were made as described; and that complainant bore the charges thereon, was damaged thereby, and is entitled to reparation in the amount of $444.15, with interest. An order awarding reparation will be entered. No. 25877 R. HARDESTY MANUFACTURING COMPANY v. COLORADO & SOUTHERN RAILWAY COMPANY ET AL. Submitted November 28, 1933. Decided January 11, 1934 Rate charged on plate-steel riveted pipe, in carloads, from Gary, Ind., to Denver, Colo., fabricated in transit, and forwarded to Capitan, N.Mex., found applicable. Complaint dismissed. R. L. Ellis for complainant. J. R. Bell, G. H. Muckley, James E. Lyons, and A. L. Whittle for defendants. REPORT OF THE COMMISSION DIVISION 3, COMMISSIONERS MCMANAMY, LEE, AND MILLER BY DIVISION 3: The shortened procedure was followed. Complainant filed exceptions to the examiner's report. Complainant corporation alleges that the rate charged on five carloads of plate-steel riveted pipe shipped between January 31 and April 1, 1931, from Gary, Ind., to Denver, Colo., fabricated in transit and forwarded to Capitan, N.Mex., was inapplicable. Reparation is sought. The shipments moved over lines of the Elgin, Joliet & Eastern Railway Company to Munger, Ill., the Illinois Central Railroad Company to Council Bluffs, Iowa, the Union Pacific Railroad Company to Denver, the Colorado & Southern Railway Company to Sixela, N.Mex., the Fort Worth and Denver City Railway Company to Dalhart, Tex., the Chicago, Rock Island & Gulf Railway Company and the Chicago, Rock Island & Pacific Railway Company to Santa Rosa, N.Mex., thence southwest over the main line of the Southern Pacific Company to Carrizozo, N.Mex., and east over a spur of that carrier to Capitan. Charges were collected at a combination rate of $1.25 per 100 pounds, constructed $1 to Carrizozo, named in Agent Toll's tariff I.C.C. no. 1246, reissue of no. 1224, and 25 cents beyond, named in Southern Pacific tariff I.C.C. no. 4521, plus 2 cents for fabrication in transit, not assailed. Complainant relies on item 500-F of Rock Island tariff I.C.C. no. C-11716 which tariff names joint class rates over certain routes from Gary to Capitan. That item provides: H. G. Toll's (Agent), I.C.C. If the rates and charges published in * No. 1224, * * effective from points of origin named in this tariff or as amended, to Deming, N.Mex., make lower charges than are provided in this tariff or as amended, from the same points of origin, respectively, to destinations in this tariff or as amended, made subject to this rule * the said rates and charges in aforementioned tariffs of Agent H. G. Toll as in effect to Deming, N.Mex., will apply. The Rock Island tariff provides routing from Gary to Capitan of " E. J. & E., Joliet, Ill., C. R. I. & P. with additional routing, same as provided for Joliet, Ill., on C. R. I. & P." The additional routing referred to is over lines of the Rock Island system to Santa Rosa and the Southern Pacific beyond. These routing provisions are prefaced with the statement that the routes shown are to be used except as otherwise specifically provided. Had the shipments moved over one of those routes the class rates then would have alternated with a rate of $1, minimum 46,000 pounds, named in the Toll tariff from Gary to Deming. Since the shipments did not move over a route authorized in the Rock Island tariff the $1 rate did not apply under the Rock Island tariff. In Otis Gin & Warehouse Co. v. Gulf, C. & S. F. Ry. Co., 172 I.C.C. 635, which involved rates from Galveston, Tex., to certain New Mexico points under a maximum provision similar to item 500-F, it was found that the specific restrictions in the routing in connection with the lower rate in the agency tariff were inseparable from the application of that rate and prevented application of the lower rate over the route of movement. Complainant here contends that the routing in Toll's tariff was unrestricted but overlooks the fact that the Toll tariff authorized the application of the $1 rate only to directly intermediate points. Carrizozo is, but Capitan is not, directly intermediate to Deming over the route of movement. Movement to Deming by way of Capitan would necessitate an out-of-line and back haul over the Southern Pacific spur from and to Carrizozo. Inasmuch as the $1 rate did not apply to Capitan over the route of movement under either the Rock Island or the Toll tariff, item 500-F has no application here. We find that the rate charged was applicable. The complaint will be dismissed. 198 I.C.C. No. 252541 CHAMBER OF COMMERCE OF FARGO, N.DAK., ET AL. v. AKRON, CANTON & YOUNGSTOWN RAILWAY COMPANY ET AL. Submitted November 20, 1933. Decided January 11, 1934 Rates on sweetclover seed, in carloads, from points in Minnesota, North Dakota, and South Dakota to interstate destinations in South Dakota, North Dakota, Minnesota, Iowa, Wisconsin, Upper Peninsula of Michigan, Nebraska, Missouri, Kansas, and Illinois found unreasonable. Reasonable rates prescribed for the future. Reparation awarded. Neal E. Williams, T. A. Durrant, and Charles A. Carr for complainants and certain interveners. Herman L. Bode, C. S. Bailey, J. C. Winter, D. L. Kelley, E. M. Hendricks, F. P. Aughnay, R. B. Willard, P. R. Wigton, and J. George Mann for other interveners. P. F. Gault, J. P. Plunket, Conrad Olson, Merrill Shepard, Harry Gillies, O. H. Timm, J. N. Davis, and E. A. Tharp for defendants. REPORT OF THE COMMISSION DIVISION 3, COMMISSIONERS MCMANAMY, LEE, AND MILLER BY DIVISION 3: Exceptions to the examiner's proposed report were filed by defendants and two of the complainants and the cases were orally argued. By complaint filed April 25, 1932, as amended, complainants in the title case 2, allege that the rates on sweetclover seed, in carloads, from points in Minnesota, North Dakota, and South Dakota to interstate destinations in South Dakota, North Dakota, Minnesota, Iowa, Wisconsin, Upper Peninsula of Michigan, Nebraska, Missouri, Kansas, and Illinois, and to destinations beyond in official and southern classification territories to which rates are based on the combination of factors, were and are unreasonable. Reparation on shipments This report also embraces No. 25254 (Sub-No. 1), Dakota Feed & Seed Company et al. v. Chicago & North Western Railway Company et al. 2 Complainants in no. 25254 are Chamber of Commerce of Fargo, N.Dak., a nonprofit organization, Interstate Seed & Grain Company, Magill & Company, Northwest Seed Growers Association, Newday Seeds, Incorporated, corporations, and Goldberg Seed and Feed Company, a copartnership, all of Fargo, N.Dak.; N. J. Olsen Company and Moorhead Farmers Elevator Company, corporations, of Moorhead, Minn. Complainants in no. 25254 (sub-no. 1) are Dakota Feed & Seed Company, and Von Wald-Lovre Company, corporations, Watertown, S.Dak. |