Padroni, Nebr... Denver, Colo... 1, 302 McCook, Nebr..... Hastings, Nebr.. Grand Island, Nebr..... Superior, Nebr..... Sidney, Nebr.... Lorenzo, Nebr..... Oct. 1, 1928, to Dec. 2, 1931.. 937 July 1, 1922, to July 14, 1922. 1,240 July 1, 1922, to July 14, 1922.. 1,234 July 1, 1922, to July 14, 1922. 164 208 164 208 270 270 July 1, 1922, to July 14, 1922.. 202.5 1, 2. July 15, 1922, to Sept. 30, 1928. 2. 1, 2. 6. 1, 2, 3. 1, 2. 1,2. It will be noted that the rates on chassis did not fluctuate as in the case of automobiles and that they appear to have been more closely related to distance. The difference between the rates charged and those to which reparation is sought is but 3.5 cents. From a comparison of the rates assailed with the rates prevailing in the territory here considered, we are of the opinion that an aggregate rate of 279 cents on the shipments of automobiles and the rates charged on the shipments of automobile chassis are reasonable maxima. We find that the assailed rates were applicable; that they were not in violation of the aggregate-of-intermediates provision of section 4 of the act; and that the assailed rates on automobile chassis were not unreasonable. We further find that the rates charged on the shipments of passenger automobiles were unreasonable to the extent that they exceeded 279 cents; that complainant made the shipments as described, and paid and bore the charges thereon; that he was damaged thereby in the amount of the difference between the rates charged and those herein found reasonable; and that he is entitled to reparation, with interest. Complainant should comply with rule V of the Rules of Practice. FARRELL, Chairman, concurring in part: I concur in the report of the majority to the extent that relief is accorded to the complainant, but am of opinion that the facts stated in the report establish a violation of what is known as the intermediates clause, contained in section 4 of the act. The pertinent language of that section is: That it shall be unlawful for any common carrier subject of the provisions of this Act to charge any greater compensation as a through rate than the aggregate of the intermediate rates subject to the provisions of this Act, As a matter of law, it is my understanding that carriers cannot render this prohibition inapplicable in a particular instance and avoid the result of its application by providing in their tariffs that one of the intermediate rates subject to the act and covering a portion of the through route shall not be applicable to transportation over the through route. BRAINERD, Commissioner, concurring in part: Complainant concedes that a rate of 294.5 cents on the passenger automobiles would have been a reasonable charge and I am of the opinion that an award of reparation to a substantially lower basis is not justified. MCMANAMY, Commissioner, dissenting: I disagree with the decision of the majority, because it will have the effect of permitting the carriers at will to nullify an important provision of the law. From July 15, 1922, to October 1, 1928, the rate on passenger automobiles from Detroit, Mich., to McCook, Nebr., was 294.5 cents, which is the sum of the following three factors: Detroit to Burlington, Iowa, 110.5 cents; Burlington to New London, Iowa, 12 cents; New London to McCook 172 cents. Each of these factors was prescribed by us as a maximum reasonable rate. The factor from Detroit to Burlington was prescribed in C.F.A. Class Scale Case, 45 I.C.C. 254, that from Burlington to New London in the Interior Iowa Cases, 46 I.C.C. 39, and that from New London to McCook in Iowa State Board Railroad Commissioners v. A.E.R. Co., 28 I.C.C. 563, 34 I.C.C. 379, 46 I.C.C. 488. Surely a through rate so constructed is a maximum reasonable rate. In 1928 the carriers increased the through rate from Detroit to McCook but could not change any of the intermediate rates because all had been prescribed by us as maximum reasonable rates. To circumvent the application of the provision of the act, which makes it unlawful "to charge any greater compensation as a through rate than the aggregate of the intermediate rates subject to the provisions of the act", the carriers proceeded to nullify that provision by the simple expedient of inserting in their tariffs a statement that one of the factors composing the intermediate rates would not apply on a through shipment. The majority apparently gives no weight to the fact that section 4 does not purport to deal with the fixing of rates. Its purpose is prohibitory. It forbids the charging for an entire movement more than the aggregate of the charges for the same movement in stages. The question here is not whether any intermediate rate could under its terms be used as a factor in a rate on a through shipment actually made, but is solely whether the sum of the intermediate rates legally applicable upon shipments from one intermediate point to another is less than the prescribed through rate. The words "intermediate rates " as used in the act must mean rates effective for shipment over fractional portions of the route covered by the through rate and, if the through rate charged is greater than the sum of the effective rates for the portions of the whole route, the charge for the through transportation is in violation of the aggregate-of-intermediates provision of the act. After making it possible for the carriers to nullify by tariff provision the aggregate-of-intermediates clause of the fourth section, the majority then proceeds to award substantially more reparation than complainant asked for. The rate charged was 305.5 cents. Complainant sought reparation to the basis of the aggregate of intermediates, which is 294.5 cents. The majority awards reparation to the basis of 279 cents, which is a rate that was in effect for a 7-month period during 1931, and declares that to be the maximum reasonable rate for the period involved, regardless of the fact that for six years immediately prior to the establishment of the 305.5cent rate the aggregate of intermediates sought by complainant of 294.5 cents was charged, and of the further fact that in the Western Trunk-Line Class Rates, 164 I.C.C. 1, we prescribed, effective December 3, 1931, a rate of 220 cents as a maximum reasonable rate. No reason is given in the report for the selection of the rate of 279 cents and it is wholly without support on the record; nor is any reason given for the denial of reparation on the shipments of automobile chassis the rates on which in my opinion were also unreasonable to the extent that they exceeded the aggregate of the intermediate rates. It is true that the finding of the majority is supported by some precedents but I think the weight of the precedents supports the contrary view. In Western Trunk-Line Class Rates, 196 I.C.C. 494, upon a state of facts the same as here presented, we found that the 2-factor class rates from points east of the Illinois-Indiana State line to Alliance, Nebr., were unreasonable to the extent that they exceeded 3-factor combinations made on Burlington and interior Iowa points and awarded reparation accordingly. A like finding should be made in the instant case. I am authorized to state that COMMISSIONERS LEE and TATE concur in this expression. No. 23823 1 GYPSUM ASSOCIATION ET AL. v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY ET AL. Submitted June 8, 1932. Decided December 11, 1933 1. Rates on plaster board, in carloads, from Fort Dodge, Iowa, Southard, Okla., and Sweetwater, Tex., to points in western trunk-line territory found unreasonable, but to points in the Southwest found not unreasonable. Reasonable rates prescribed to western trunk-line territory. 2. Minimum weights in connection with rates on plaster board, in carloads, from Fort Dodge, Southard, and Sweetwater to points in western territory, except transcontinental destinations, found unreasonable. Reasonable minimum weight prescribed. 3. Rule governing the movement of plaster and plaster board, in mixed carloads, from Fort Dodge, Southard, and Sweetwater to points in western territory found unreasonable. Reasonable rule prescribed. 4. On reconsideration certain findings in Upson Co. v. Ann Arbor R. Co., 157 I.C.C. 586, modified. Luther M. Walter, C. R. Hillyer, and H. D. Driscoll for complainants. Thomas F. King, Guy A. Gladson, Douglas F. Smith, A. H. Lossow, R. J. Hagman, J. P. Plunkett, M. L. Countryman, Conrad Olson, Walter McFarland, P. F. Gault, J. N. Davis, A. B. Enoch, E. A. Smith, R. S. Outlaw, J. E. Lyons, J. M. Souby, Fred L. Wallace, M. G. Roberts, C. S. Burg, C. M. Spence, E. A. Boyd, H. C. Barron, J. E. Flansburg, O. H. Timm, Henry Christianson, H. W. Schaffer, A. R. Hayward, W. D. O'Brien, H. P. Norden, H. J. Carr, G. A. Ryser, W. A. Blank, R. E. Smith, B. F. Moffatt, R. P. De Camp, W. C. O'Heron, and F. M. Steele for defendants. Hugh La Master, D. L. Kelley, Herman L. Bode, C. A. Sorensen, C. A. Ross, I. C. Peterson, Charles W. Steiger, F. P. Aughnay, Ben C. Larkin, C. W. McDonnell, Fay Harding, E. M. Hendricks, J. W. Scott, J. H. Henderson, J. E. Johnston, William J. Wolff, Irwin Huseby, L. M. O'Leary, H. M. Wasem, and J. H. Webb for various State commissions and other interveners in support of complaint. H. C. Lust, W. H. Fitzpatrick, William N. Webb, George H. Kinney, T. B. Munroe, and A. W. Brown for interveners in opposition to complaint. R. J. Henderson for other intervener. This report embraces also No. 17006, Upson Company v. Ann Arbor Railroad Company et al., on reconsideration on the record as made. REPORT OF THE COMMISSION AITCHISON, Commissioner: Complainants are the Gypsum Association and member concerns manufacturing gypsum and gypsum products at points throughout the United States. By complaint filed August 20, 1930, they assail as unreasonable the carload rates and minimum weights on plaster board and plaster wall board, and the rule governing mixed carloads of gypsum and gypsum products, from Fort Dodge, Iowa, and producing points in Oklahoma and Texas, to points west of the Mississippi River and points in Wisconsin, and the Upper Peninsula of Michigan. Proportional rates from Texas and Oklahoma to St. Louis or other Mississippi River gateways on traffic to southern Illinois and southern Indiana are also alleged to be unreasonable. The complaint further alleges that, compared with rates on like traffic in the opposite direction from producing points in California, the rates on plaster board and plaster wall board, in carloads, from Fort Dodge and points in Oklahoma and Texas to points in California and certain other destinations in transcontinental territory are unduly prejudicial to complainants and preferential of California producers; and that the grouping of Oklahoma and Texas producing points with Fort Dodge to destinations in California is unreasonable and results in undue prejudice to the Oklahoma and Texas plants. The prayer is for reasonable rates and minimum. weights and a reasonable mixed-carload rule. Consideration of the mixing rule assailed will cover only its application to the mixture of plaster and plaster board as complainants' evidence on this issue relates solely to those commodities. The complaint included a prayer for reparation but it has not been pressed and has apparently been abandoned. This report will consequently be confined to rates for the future. Southard, Okla., and Sweetwater, Tex., are representative of the Oklahoma and Texas producing points, respectively Rates will be stated in amounts per 100 pounds. The railroad commissions of North Dakota, South Dakota, Nebraska, Iowa, and Kansas, the Fort Dodge Chamber of Commerce, the Wasem Plaster Company, a corporation manufacturing gypsum products at Fort Dodge, and several associations 2 of retail buildingmaterial dealers located at points in western territory and in Illinois intervened in support of the complaint. 2 Northwestern Lumbermen's Association, Southwestern Lumbermen's Association, Western Retail Lumbermen's Association, Wisconsin Retail Lumbermen's Association, and Illinois Lumber and Material Dealers Association. 198 I.C.C. |