when milled in transit at points in Texas on the line of the defendant Gulf results and will result in undue prejudice to the complaining millers and their traffic, at transit points on the Santa Fe in Oklahoma, and undue preference of competing millers and their traffic, located at points in Texas on the line of the Gulf.

An order will be entered requiring the removal of the undue prejudice and preference found to exist, and dismissing the complaint in no. 22946.

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

198 I.C.C.

No. 24834

BUCKEYE COTTON OIL COMPANY v. ILLINOIS CENTRAL RAILROAD COMPANY ET AL.

Decided February 6, 1934

Upon reconsideration, finding in the original report, 196 I.C.C. 4, that rates on cottonseed, in carloads, from points in Louisiana to Jackson, Miss., were unreasonable, affirmed.

H. Ignatius for complainant.

Wallace T. Hughes, A. L. Burford, H. H. Larimore, C. M. Spence, and George W. Holmes for defendants.

REPORT OF THE COMMISSION ON RECONSIDERATION

BY THE COMMISSION:

In the original report, 196 I.C.C. 4, division 3 found that the combination rates on cottonseed, in carloads, from points in Louisiana to Jackson, Miss., were unreasonable in the past and awarded reparation to the basis of joint rates set forth therein. Rates for the future were prescribed in Cottonseed, Its Products, and Related Articles, 188 I.C.C. 605. Complainant was directed to comply with rule V of our Rules of Practice. Upon petition of defendant carriers serving the origin points, the instant case was reopened for reconsideration on the record as made.

The combination rates assailed were based on Vicksburg and Natchez, Miss. The factors of the combinations charged for the haul west of the Mississippi River were prescribed in Corporation Comm. of Oklahoma v. Abilene & S. Ry. Co., 98 I.C.C. 183. The carriers1 that participated in that part of the haul state that they did not concur in the local rate factors east of the river and contend that under these circumstances it is our duty to determine the reasonableness of each factor in accord with the principle laid down in Midland Coal Co. v. M. V. R. Co., 91 I.C.C. 571; Midwest Refining Co., v. G. N. Ry. Co., 122 I.C.C. 205; State Corp. Comm. of N. Mex. v. Atchison, T. & S. F. Ry. Co., 172 I.C.C. 423; and Missouri Gravel Co. v. Chicago, B. & Q. R. Co., 178 I.C.C. 89. In those cases we said in effect that, under special circumstances, we would not hold carriers, participating in hauls for which an unreasonable combination

1 Louisiana & Arkansas Railway Company, the Chicago, Rock Island and Pacific Railway Company, and the Missouri Pacific Railroad Company.

rate is charged, jointly and severally liable, but would determine the extent to which each factor is unreasonable.

This, however, cannot be considered a settled and inviolate rule. The facts in the instant case are practically identical with those in Port Gibson Oil Works v. Louisiana & A. Ry. Co., 183 I.C.C. 608. That case involved combination rates on cottonseed, in carloads, from Louisiana and Arkansas points to Port Gibson, Miss., the factors of which west of the river were prescribed by us. The rates assailed were found unreasonable and, despite the plea of the carriers that participated in the haul west of the river to have the reasonableness of each factor determined, defendants were held jointly and severally liable.

It is well settled that if a through rate, joint or combination, is found unreasonable and reparation is awarded, the order entered may run against the carriers collectively that participated in the transportation. In Alabama Grocery Co. v. Atchison, T. & S. F. Ry. Co., 192 I.C.C. 159, combination rates on beet sugar from points in Colorado, Nebraska, and Wyoming to destinations in Alabama, based on Memphis, Tenn., were found unreasonable to the extent they exceeded joint rates prescribed therein. Upon reconsideration, 197 I.C.C. 726, decided December 12, 1933, we declined to acquiesce in the request of defendant carriers operating east of the Mississippi River for a determination as to which factor of the combination rates caused the unreasonableness, stating that we might award reparation therein against all defendants on the basis of the joint rates prescribed. There is no evidence of record in the instant case in respect of the unreasonableness of the separate factors and the situation does not warrant a conclusion different from that in the last-cited case.

Upon reconsideration, the findings in the original report are affirmed.

LEE, Chairman, dissenting in part:

I approve the report, except that I agree with COMMISSIONER MAHAFFIE that we should determine the responsibility of the respective defendants for the unreasonableness which we now find to have existed.

I am authorized to state that COMMISSIONER TATE concurs in this expression.

MAHAFFIE, Commissioner, dissenting:

We reopened this case for reconsideration. On the merits the complaint should be dismissed. The complainant has not shown the rates to be unreasonable. The best the division apparently could do on the record was a sort of negative finding:

But there is no showing that would justify the application of rates on cottonseed from the origins to the destination herein under consideration higher than those prescribed in the cases hereinbefore cited and used as a basis for awarding reparation on shipments from nearby points of origin to the same destination, moving during the same period of time.

This is not sufficient for an award of damages. See Louisville & N. R. Co. v. United States, 238 U.S. 1.

The majority not only affirm the award, but decline to find which of the defendants are responsible for it. The combination rates found unreasonable are made up of separately published factors. The factor applying west of the river was prescribed by us. The factor east of the river was the local rate of the lines delivering the traffic. Lines on neither side of the river concurred or joined in the factor applicable on the other side. For the rates east of the river the east-side lines are solely responsible. For those west, we are responsible. In view of this we should now determine which factor caused the damage to the shipper which the defendants are required to pay, and make our award accordingly. This is particularly necessary when so many of the carriers in the territory are insolvent and cannot be compelled to pay any part of an award. The result of our failure to make such a determination is that a solvent carrier having only a minor part of the haul may be required to pay in damages much more than it received for its share of the transportation charge.

In dealing with a similar situation in Midwest Refining Co. v. G. N. Ry. Co., 122 I.C.C. 205, at page 207 division 4 said:

It is well settled that where an unreasonable joint rate has been charged the liability of the carriers is joint and several. But in the case of a combination rate an entirely different situation is presented. In the present case neither the Great Northern nor the Chicago, Burlington & Quincy had control over any factor of the combination rate except that maintained by it, nor did either of these carriers contribute in any way to the injury resulting from any unreasonableness existing in the rate maintained by the North & South. To find in such a case that carriers are jointly and severally liable would be to require two carriers to bear in part the injury done by the third carrier, where the former had no control over the action or rates of the latter.

That reasoning is applicable here. In many precisely what the majority here refuse to do. opinion, is improper.

cases we have done That refusal, in my

I am authorized to state that COMMISSIONER MILLER concurs in this expression.

COMMISSIONER SPLAWN did not participate in the disposition of

this case.

No. 157881

PARKERSBURG RIG & REEL COMPANY v. CHICAGO & NORTH WESTERN RAILWAY COMPANY ET AL.

Submitted January 4, 1934. Decided February 6, 1934

1. Upon reconsideration, reparation award in no. 15788 and sub-no. 1 found not to be precluded by Arizona Grocery Co. v. Atchison, T. & S. F. Ry. Co., 284 U.S. 370.

2. Upon further hearing in no. 15788 (sub-no. 1) found that complainant had observed the substantial conditions of the governing transit tariff. Rates considered from origins to destinations found applicable by way of Parkersburg, W.Va., and Chicago, Ill. Prior report, 179 I.C.C. 571.

3. Upon further hearing in nos. 17212 and 18697, found that complainant paid and bore the charges based on rates found unreasonable in prior reports, 168 I.C.C. 449 and 181 I.C.C. 252.

Appearances as in prior reports, and John J. Fitzpatrick for defendants.

REPORT OF THE COMMISSION ON RECONSIDERATION AND FURTHER HEARING

BY THE COMMISSION:

Exceptions to the report proposed by the examiner were filed by defendant the Baltimore & Ohio Railroad Company, to which complainant replied. We have heard the parties in oral argument.

No. 15788 and No. 15788 (sub-no. 1).-In the original report, 179 I.C.C. 571, division 2, among other things, found the rates on iron and steel tank material, in carloads, from specified origins in Pennsylvania, Ohio, and West Virginia, fabricated in transit at Parkersburg, W.Va., and moving thence to certain destinations in Colorado. Wyoming, and Montana, unreasonable but not otherwise unlawful. Reasonable rates were prescribed for the future except to Kemmerer, Wyo., and destinations in Montana, on the basis of 32.5 percent of the corresponding first-class rates under the western trunk-line classrate revision. Reparation was awarded to the basis of 35 percent

1 This report also embraces No. 15788 (Sub-No. 1), Same v. Baltimore & Ohio Railroad Company et al., No. 17212, Same v. Atchison, Topeka & Santa Fe Railway Company et al., and No. 18697, Same v. Atchison, Topeka & Santa Fe Railway Company et al.