No. 18189

BIRMINGHAM SASH & DOOR COMPANY ET AL. v. ALABAMA & VICKSBURG RAILWAY COMPANY ET AL.

Submitted November 22, 1933. Decided February 6, 1934

Upon further hearing, reparation due under findings in former report, 185 I.C.C. 7, determined.

C. E. Jones for complainant.

H. L. Walker for defendants.

REPORT OF THE COMMISSION ON FURTHER HEARING

BY THE COMMISSION:

No exceptions were filed to the report on further hearing proposed by the examiner.

The original report herein is embraced in Southwestern Rates, 185 I.C.C. 7. We there found, among other things, that rates assailed on window glass, in carloads, from Shreveport, La., to Birmingham, Ala., would be unreasonable for the future to the extent that they exceeded the column 321⁄2 rates established pursuant to the southwestern revision; and that, as applied to complainant's shipments made prior to the establishment of rates for the future. pursuant to our findings, the rates assailed would be unreasonable to the extent that they exceeded the column 35 rates established pursuant to the southwestern revision, subject to a minimum of 40,000 pounds. We also found that complainant received window glass, in carloads, at Birmingham, shipped from Shreveport, on which it paid and bore charges at rates found unreasonable; was damaged thereby; and was entitled to reparation in the sum of the difference between the charges paid and those which would have accrued at the rates found reasonable, with interest. Complainant was directed to file statements in accordance with rule V of the Rules of Practice. The parties were unable to agree on such statements and the proceeding was set for further hearing. Rates stated herein are per 100 pounds.

At the further hearing, complainant Birmingham Sash & Door Company introduced evidence which establishes that during the period from September 27, 1924, to December 27, 1927, it received nine carloads of window glass at Birmingham from Shreveport

weighing in the aggregate 485,900 pounds, on which it paid and bore charges at the rate of 68 cents found to have been unreasonable, and that it is entitled to reparation under our finding in the previous report to the basis of the column 35 rate of 62 cents, found reasonable. We find that complainant, Birmingham Sash & Door Company, received shipments as described and paid and bore the charges thereon; that it was damaged thereby in the amount of the difference between the charges paid and those which would have accrued at a rate of 62 cents; and that it is entitled to reparation in the sum of $291.54, with interest. An appropriate order will be entered.

COMMISSIONER SPLAWN did not participate in the disposition of this case.

198 I.C.C.

No. 24718

WHITE EAGLE OIL CORPORATION v. BIG FORK & INTERNATIONAL FALLS RAILWAY COMPANY ET AL.

Decided February 6, 1934

Upon reconsideration, findings in former report, 192 I.C.C. 552, with respect to the reasonableness of rates for the future on asphalt, in tank-car loads, from Casper, Wyo., to points in North Dakota and western Minnesota, modified. Former finding with respect to rates in the past, affirmed. Appearances as stated in original report.

REPORT OF THE COMMISSION ON RECONSIDERATION

BY THE COMMISSION:

In the former report herein, 192 I.C.C. 552, division 3 found that the rates on asphalt, in tank-car loads, from Casper, Wyo., to points in North Dakota and to points in Minnesota, north and west of the line of the Great Northern Railway Company from Sioux Falls, S.Dak., through Willmar and St. Cloud, Minn., to Duluth, Minn., were not unreasonable in the past; that the rates to destinations in western North Dakota over routes operating through Montana would be unreasonable for the future to the extent that they exceed rates based on the scale entitled "scale A" in appendix 2 to the report; that the rates to destinations over routes through South Dakota, except those through Sioux City, Iowa, and Sioux Falls, would be unreasonable for the future to the extent that they exceed rates based on scale B in the appendix; that the rates to destinations over routes through Sioux Falls or Sioux City and Willmar would be unreasonable for the future to the extent that they exceed the lowest combination that may be constructed by using commodity rates on asphalt from Casper to the above-named border points, plus the full class D rates beyond; provided, however, that said combinations would be unreasonable to the extent that they may exceed rates based on scale B in appendix 2. Upon petitions filed by the parties we vacated the order entered therein, as subsequently modified, and reopened this case for reconsideration on the record as made. The pertinent facts are set forth in the former report and will not be restated here, except insofar as may be necessary to a clear understanding of this report. Rates and differences in rates will be stated in cents per 100 pounds.

The rates assailed on asphalt from Casper to points in western Minnesota and eastern North Dakota over routes other than the few that pass through Montana, are, generally speaking, through commodity rates based on the lowest combinations, which usually are made up of commodity rates to the border points such as Willmar, Paynesville, Duluth, and St. Cloud, or in a few cases, interior North Dakota junction points such as Oakes and Edgeley, and factors beyond which are equivalent to the local class D rates. Rates applicable over routes through Montana to destinations in the western part of North Dakota, including such points as Dickinson, Brunswick, Beach, and Minot, are generally 6 cents under the corresponding refined-oil rates.

The rates from Casper to points in the destination territory range from 72 to 100 percent of the refined-oil rates, while the rates from the same origin to equidistant points in territory directly adjacent to that involved in this case average but 71.64 percent of the corresponding rates on refined oil. From the Midcontinent field the asphalt rates to the destination territory are generally 80 percent of the refined-oil rates. From Casper to seven representative points in the destination territory, for distances ranging from 615 to 947 miles, the rates range from 46.5 to 74.5 cents and produce average ton-mile and car-mile earnings based on 80,000 pounds of 16.8 mills and 67.9 cents respectively. From the same origin to six representative points in adjoining territory for distances ranging from 601 to 925 miles, the rates range from 31.5 to 47.5 cents and produce ton-mile and carmile earnings averaging 10.7 mills and 43 cents respectively. From Whiting, Ind., to eight representative points in Minnesota, South Dakota, and North Dakota, for distances ranging from 607 to 902 miles, the rates range from 23 to 58.5 cents and produce ton-mile and car-mile earnings averaging 10.9 mills and 43.6 cents respectively. Petroleum products move into the destination territory principally from the Midcontinent field, the Wyoming field, Whiting, and from refining points in the Illinois area and from St. Louis, Mo. Defendants show that the controlling factor in the making of rates to the destination territory is the low competitive basis in effect from the Midcontinent field and from Whiting to the Twin Cities and Duluth. The rates to these important consuming points are held as maxima at such points as Paynesville, Willmar, and St. Cloud, and, as above stated, serve as the basis for making the through commodity rates into the higher rated territory west of the lines of the Great Northern from Paynesville to St. Paul. Defendants contend, therefore, that the rates assailed are not unreasonable but, on the contrary, are depressed on account of the low rates to the border points.

The asphalt rate from Casper to the Twin Cities is 31.5 cents for a haul of 840 miles, producing ton-mile earnings of 7.5 mills.

We generally have recognized the propriety of applying on lowgrade oils rates made approximately 80 percent of those on refined oil. As hereinbefore stated, many of the assailed rates exceed 80 percent of the refined-oil rates from and to the same points, although some are less in percentages. In Standard Oil Co. (Indiana) v. Chicago & N. W. Ry. Co., 197 I.C.C. 325, hereinafter called the Standard Oil Co. case, decided after the original report herein, reasonable and nonprejudicial rates were prescribed for the future on petroleum and petroleum products from the Wyoming field to certain points1 in South Dakota, eastern North Dakota, and western Minnesota somewhat lower than those assailed therein. Except indirectly, we had never before passed upon the reasonableness of the refined-oil rates from the Wyoming fields to most of the destination territory here considered. The rates prescribed therein to representative destinations in North Dakota for distances from 729 to 967 miles range from 57 to 74 cents and those to representative destinations in western Minnesota for distances ranging from 761 to 948 miles from 59 to 73 cents. Upon further hearing in Rates on Petroleum and Its Products in Montana, 176 I.C.C. 707, a scale of rates was prescribed on petroleum products for application from Wyoming producing points to Montana destinations. In Mountain-Pacific Oil Cases, 192 I.C.C. 599, decided after the former decision in the instant case, we found that scale to be less than a reasonable maximum and prescribed in lieu thereof a slightly higher scale. To representative destinations in western North Dakota from Casper for distances ranging from 615 to 922 miles the latter scale produces rates ranging from 63 to 80 cents. From Casper to Fargo, a representative eastern North Dakota destination, 787 miles, and to Bemidji, a representative western Minnesota destination, 939 miles, the rates prescribed on petroleum in the Standard Oil Co. case are approximately 80 and 85 percent, respectively, of the rates prescribed for corresponding distances in the Mountain-Pacific Oil cases. The 80-percent basis generally prescribed on low-grade oils applied to the rates prescribed in the Standard Oil Co. case to points in western Minnesota and eastern North Dakota would produce rates ranging from 46 to 59 cents for distances from 729 to 967 miles. This same

The destination territory covered by the Standard Oil Co. case, insofar as North Dakota and Minnesota are concerned, is limited on the east to an irregular tract extending from the Canadian border southward to the Missouri River, including Noyes, Thief River Falls, Cass Lake, Brainard, Sauk Center, and Morris, Minn., and on the west to an irregular tract extending from the Canadian border southward through Hansboro, Devils Lake, Page, Casselton, and Wahpeton, N.Dak.