APPENDIX B Certain minor modifications as to factual matters set forth in the initial decision (1) Footnote 54 on page 24 indicates that the record does not reflect whether Milwaukee is a party to a reciprocal switching agreement. Milwaukee actually commenced setting rates and absorbing charges on the same basis as other lines upon its entry into Portland on March 22, 1971. (2) Due to a decline in business, BN and UP, effective September 17, 1974, obtained OPUC authority to close the North Portland agency discussed on page 23 of the initial decision. The Yard Office was also closed at the same time. (3) Pages 32 and 35 should be modified to indicate that Seattle trains pick up and set out Portland traffic, not vice versa. (4) Pages 33 and 34 should be modified to indicate that transfers are on a 7-day a week basis. (5) Since the close of the record, construction of 4 additional tracks totaling approximately 20,000 feet has commenced in Barnes Yard (Barnes Yard tracks are discussed at pages 38-39 of the initial decision) and a new agency and yard office at Barnes has been opened to replace the Terminal 4 facilities. (6) At page 81 it is indicated that Milwaukee is receiving bridge trackage rights over BN's trackage to Peninsula, South Rivergate, and North Rivergate. Actually, the bridge trackage rights Milwaukee is receiving to enable it to reach South Rivergate are over UP trackage. ORDER At a General Session of the INTERSTATE COMMERCE COMMISSION, held at its office in Washington, D.C., on the 28th day of July 1975. FINANCE DOCKET NO. 24679 SPOKANE, PORTLAND & SEATTLE RAILWAY COMPANY AND UNION PACIFIC RAILROAD COMPANY-CON TROL-PENINSULA TERMINAL COMPANY FINANCE DOCKET NO. 24890 SOUTHERN PACIFIC CO.-COMMON USE OF TERMI- FINANCE DOCKET NO. 24891 SOUTHERN PACIFIC CO.—COMMON USE OF CERTAIN TERMINAL FACILITIES-UNION PACIFIC RAILROAD CO. Investigation of the matters and things involved in these proceedings having been made, a hearing having been held, and the Commission on the date hereof, having made and filed a report containing its findings of fact and conclusions thereon, which report, and the report of the Administrative Law Judge served August 22, 1974, are hereby referred to and made a part hereof: It is ordered, That the request of UP and BN for oral argument, be, and it is hereby, denied. It is further ordered, That in Finance Docket No. 24679, Spokane, Portland & Seattle Railway Company and Union Pacific Railroad Company-Control-Peninsula Terminal Company, acquisition by each applicant (SP&S and Union Pacific) and of the inclusion therein of Milwaukee and Southern Pacific as joint and equal owners, of control of Peninsula, through purchase of the outstanding stock of Peninsula and of the additional equal contribution by each of the four acquiring rail carriers for payment of an unsecured $70,000 locomotive equipment open account owed by Peninsula to United Stockyard Corporation, be, and they are hereby, approved and authorized, subject to the conditions hereinbefore set forth. It is further ordered, That the authority granted in Finance Docket No. 24679 shall not be exercised prior to the effective date of this order. It is further ordered, That if the authority herein granted in Finance Docket No. 24679 is exercised, SP, UP, Milwaukee, and BN shall submit for the consideration of this Commission three copies of the journal entries required to record the transaction, and shall advise this Commission, in writing, immediately after consummation of the transaction, the date on which consummation actually took place. It is further ordered, That unless the authority granted in Finance Docket No. 24679 is exercised within 180 days from the effective date of this order, this report and order, insofar as it concerns Finance Docket No. 24679, shall be of no further force and effect. It is further ordered, That in Finance Docket No. 24890, Southern Pacific Co-Common Use of Terminal Facilities-Peninsula Terminal Co., the application filed by Southern Pacific be, and it is hereby, denied. It is further ordered, That in Finance Docket No. 24891, Southern Pacific Co. Common Use of Certain Terminal Facilities-Union Pacific Railroad Co., use by Southern Pacific of the terminal facilities and trackage of Union Pacific, between the East Portland Interlocker Plant and Peninsula, including the terminal facilities and trackage (either controlled or enjoyed by Union Pacific) in the, North Portland Interchange Yard, a distance of approximately 6.75 miles, via Albina Yard, St. Johns Junction, the UP tunnel, and Peninsula Junction, as described in the report hereto, be, and it is hereby, approved and authorized subject to the conditions hereinbefore set forth. It is further ordered, That in Finance Docket No. 24891, Southern Pacific and Union Pacific, respectively, shall submit, within 180 days from the effective date of this order, for consideration and approval of the Commission, the respective joint agreements containing the terms and compensation covering the operations of the respective terminal and track facilities, the use of which is herein authorized; and in the event such agreements for any reason cannot be reached, a petition may be filed requesting the Commission to determine such just and reasonable terms and compensation. It is further ordered, That the enjoyment of the use of the involved terminal facilities and trackage herein required in Finance Docket No. 24891 shall be subject to the right of the Union Pacific Railroad Company to require that the compensation paid for the said use shall be adequately secured to it before the said use shall be commenced. It is further ordered, That if the parties notify the Commission that the transactions as authorized in Finance Docket No. 24679 with the prescribed conditions will be consummated within the time limits hereinbefore specified, a petition may be filed by them requesting the Commission to vacate that portion of the order pertaining to Finance Docket No. 24891. It is further ordered, That the authority granted in Finance Docket No. 24891 shall not be exercised prior to the effective date hereof. It is further ordered. That in these proceedings the recital of balance sheet and other financial data shall not be construed as approval of accounting methods which have been followed, or expenditures represented thereby. It is further ordered, That the jurisdiction of this Commission in these proceedings be, and it is hereby, expressly retained for a period of 5 years from the effective date of this order for the purpose of making such further order or orders as may be necessary or appropriate; and It is further ordered, That this order shall take effect and be in force 35 days from and after the date of service hereof. 348 I.C.C. FINANCE DOCKET NO. 20812 RAILWAY EXPRESS AGENCY, INC., NOTES Decided July 28, 1975 On further consideration, held that issuance of notes to evidence funds advanced on open account, referred to as “non-negotiable debt," properly authorized in prior order (not printed), decided September 21, 1959, since non-negotiable debt was, in fact, debt. John M. Cleary, Michael Lang, F. Douglas Rudd, and Arthur M. Wise hart for REA Express, Inc. Charles B. Evans, S. William Livingston, Jr., Sidney Weinberg, and Edwin M. Zimmerman for certain railroads. REPORT OF THE COMMISSION ON FURTHER CONSIDERATION BY THE COMMISSION: This proceeding was reopened for further consideration by order of January 9, 1973, following the entry on December 20, 1972, of an order by the United States District Court, Southern District of New York, granting a motion made by this Commission to intervene and to stay further court proceedings in a civil action entitled REA Express, Inc. v. The Alabama Great Southern Company, et al., 71 Div. 4278. A central issue in the court action is the enforceability of certain notes issued by the Railway Express Agency, Inc. (REA), the predecessor of the plaintiff in the court action, following authorization by the Commission in this proceeding (Finance Docket No. 20812). By order of September 25, 1959, (Appendix A) the Commission, Division 4, acting pursuant to section 20a of the Interstate Commerce Act, authorized REA to issue nonnegotiable promissory notes to 66 of its controlling railroads in the amount of $27,637,053.80 (1959 notes). The 1959 notes were issued to "evidence *** open-account indebtedness" of REA to these railroads in the same amount. We have reopened this proceeding, and the court has agreed to stay its proceeding, in order that we may consider the question whether the 1959 notes were, in fact, issued for "debt," the bearing of that question on the correctness of our |