No. 20139 1

CHARLES B. JUSTICE COMPANY v. HOLTON INTERURBAN RAILWAY COMPANY ET AL.

Submitted January 17, 1929. Decided April 17, 1929

1. Rates charged on baled hay, in carloads, from Yuma and Araby, Ariz., and from numerous points in California to San Diego, Calif., Lakeside, Calif., and related points over a route through Mexico, with certain exceptions, found not unreasonable. Complainants not shown to have been damaged by the alleged undue prejudice.

2. Rates charged on similar traffic from El Centro, Calif., and prior to May 7, 1927, from Holtville, Fondo, Westmorland, Moss, Orita, Curlew, and Sandia, Calif., to San Diego and related points, and from Campo, Holtville, Fondo, Westmorland, Moss, Orita, Curlew, and Sandia, Calif., and Araby, Ariz., to Lakeside and related points found unreasonable. Reparation awarded.

C. F. Reynolds, C. J. Gamble, and F. A. Jones for complainants in No. 20463; and L. H. Stewart for complainant in No. 20139.

J. R. Bell, G. H. Muckley, Read G. Dilworth, A. Burton Mason, and James E. Lyons for defendants.

J. J. Deuel and Edson Abel for California Farm Bureau Federation; Edgar B. Byers and F. A. Jones for San Diego Chamber of Commerce; and C. F. Reynolds, C. J. Gamble, and F. A. Jones for Yuma County Farm Bureau Marketing Association, Chula Vista Chamber of Commerce, National City Chamber of Commerce, San Diego Poultry Association, Incorporated, T. H. Fisher, J. T. Wright, and E. F. Sanguinetti, interveners.

REPORT OF THE COMMISSION

DIVISION 3, COMMISSIONERS AITCHISON, TAYLOR, AND PORTER BY DIVISION 3:

These cases present similar issues, were heard together, and will be disposed of in one report. Exceptions were filed by complainants and defendants to the report proposed by the examiner, defendants replied to complainants' exceptions, and oral argument was had. Our conclusions differ slightly from those recommended by the examiner.

Complainant in No. 20139, a corporation dealing in hay at San Diego, Calif., by complaint filed September 27, 1927, alleges that

1 This report also embraces No. 20463, Butler's Feed Mills et al. v. Holton Inter-Urban Railway Company et al.

the rates charged by defendants on that commodity, in carloads, shipped during the period July 22, 1926, to May 6, 1927, inclusive, from Holtville, Moss, and Orita, Calif., to San Diego and from Orita to Chula Vista, Calif., were unreasonable.

In No. 20463, William J. Butler and John R. Sullivan, copartners trading under the firm name of Butler's Feed Mills; Isaac I. Irwin, an individual trading under the name of Irwin & Company; Charles B. Justice Company, a corporation; Fred C. Silverthorn, an individual trading under the name of Fred C. Silverthorn & Sons; all of San Diego, Calif.; William H. Peters, an individual at Chula Vista, Calif.; John L. Bacon and Harold Bacon, copartners, trading under the firm name of Santee Supply Company at Santee, Calif., Elliott Gates and William Jacob Kuhner, individuals, William McClain and George McClain, copartners, trading as McClain Brothers, and Ralph E. Foster and Clarence H. Foster, copartners, trading as Foster Brothers, all of Lakeside, Calif., the Pure Milk Dairy Company, a corporation, Adolph Levi and Edgar B. Levi, copartners trading as Adolph Levi & Son, at San Diego, O. N. Shaw, an individual engaged in sheep feeding at National City, Calif., and the National City Packing Company, a corporation, of National City, Calif., allege by complaint filed November 8, 1927, that the rates on hay, in carloads, from Araby and Yuma, Ariz., and from numerous points in California to San Diego, Lakeside, and related points were and are unreasonable, unjustly discriminatory, and unduly prejudicial as compared with the rates on like traffic from the same points of origin to Los Angeles, San Pedro, Santa Ana, Newport Beach, Calif., and related points. Reparation only is sought in this and in the title complaint.

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At the hearing on April 13, 1928, it developed that shipments on which reparation was sought by complainant O. N. Shaw as an individual were consigned to Shaw Brothers, a copartnership consisting of O. N. Shaw and I. H. Shaw, and leave was granted to amend the complaint to include I. H. Shaw as a copartner. The shipments consigned to Shaw Brothers were delivered within two years prior to the date of hearing.

The San Diego Chamber of Commerce, California Farm Bureau Federation, Yuma County Farm Bureau Marketing Association, E. F. Sanguinetti, San Diego Poultry Association, Incorporated, National City Chamber of Commerce, T. H. Fisher, J. T. Wright, and the Chula Vista Chamber of Commerce intervened at the hear

Campo, Dixieland, Edgar Siding, Lumber Spur, Seeley, Aspara, Blue Goose, Wilsie, El Centro, Meloland, Holtville, Calexico, Heber, Imperial, Brawley, Calipatria, Estelle, Niland, Fondo, Westmorland, Moss, Orita, Curlew, and Sandia.

Tia Juana, Palm City, Chula Vista, National City, Lemon Grove, La Mesa, El Cajon, and Santee.

ing in behalf of the complainants in No. 20463. The San Diego Poultry Association, a corporation, seeks reparation on shipments of hay which moved during 1927 from certain of the points of origin to San Diego. Complainants and interveners will hereinafter be termed complainants. Rates will be stated in cents per 100 pounds.

No evidence of unjust discrimination was presented, and no attempt was made to show what damage, if any, resulted from the undue prejudice alleged. Consequently those allegations need not be further considered.

Campo, Dixieland, Edgar Siding, Lumber Spur, Seeley, Aspara, Blue Goose, and Wilsie are local stations on the San Diego & Arizona. El Centro is the junction of that defendant and of defendants Southern Pacific and Holton Inter-Urban. Holtville is the eastern terminus of the Holton Inter-Urban. The other points of origin are local stations on the Southern Pacific, Tia Juana, Palm City, Chula Vista, and National City are south of San Diego, on the San Diego & Arizona, and Lemon Grove, La Mesa, El Cajon, Santee, and Lakeside are on the Lakeside line of that defendant northeast of San Diego. The shipments, consisting of baled hay, moved from points on the San Diego & Arizona over the line of that defendant to Division, Calif., the Tijuana & Tecate through Mexico to Tijuana, Mexico, and the San Diego & Arizona to destinations; from Holtville, over the Holton Inter-Urban to El Centro, and from points on the Southern Pacific, generally over the lines of that defendant to El Centro, and thence to destinations over the San Diego & Arizona, the Tijuana & Tecate, and the San Diego & Arizona, as aforesaid. The rates charged were joint rates from and to most of these points and from and to the others combination rates of which the components for the haul through Mexico from the origin or base point to the destination or base points in the United States were joint rates.

Defendants challenge our jurisdiction because part of the haul was through a foreign country, citing News Syndicate Co. v. N. Y. C. R. R., 275 U. S. 179. The court held in that case that the damage caused to the plaintiff there by the payment of an unreasonable joint rate in effect from a point in Canada to a destination in the United States was due to the failure of the carriers defendant within the United States to establish a reasonable rate applicable to the transportation within the United States. Defendants show that during the periods covered by the complaints the San Diego & Arizona published local rates on hay from Tia Juana, Calif., to the destinations here considered, and that either combinations of locals or rates based upon the rates to San Diego as maxima were in effect from the points of origin to Division, Calif. A crossing charge on carload

freight was also maintained between Tia Juana and Tijuana, Mexico, and between Division and Lindero, Mexico. Defendants contend that there was therefore no failure on their part to comply with the interstate commerce act such as was found by the court in that case, and hence no violation of the act for which damages may be awarded, and that we are without jurisdiction to award reparation on a finding that the rates assailed were unreasonable. This contention must be rejected. It overlooks the fact that the applicable rates on the traffic here considered, which rates defendants were required by law to charge on complainants' shipments, were either the joint or combination rates assailed. Any damage sustained by the complainants herein would therefore result from the maintenance of those rates. Atlantic Fish Co. v. Canadian N. Rys., 148 I. C. C. 533. Complainants compare the rates charged with intrastate and interstate specific and distance commodity rates on hay from and to a number of points on the Southern Pacific and on certain other carriers in mountain-Pacific territory. Complainant in the title case also compares the rates charged on its shipments with rates for corresponding distances based on the scale of single-line rates on hay, referred to herein as the southwestern scale, prescribed in Oklahoma Corporation Commission v. A. & S. Ry. Co., 101 I. C. C. 116, from Oklahoma to Texas and between points in Oklahoma, on the one hand, and points in Kansas and Missouri, on the other. That complainant contends and introduced evidence designed to prove that the rates charged on its shipments were unreasonable to the extent that they exceeded rates based on the southwestern single-line scale. The rates which complainants in No. 20463 claim were reasonable on their shipments are, as hereinafter indicated, lower than the rates in that scale. The distances, the rates charged, and the rates sought by complainants in No. 20463 from representative points of origin to San Diego and Lakeside, together with comparisons of those rates with the rates on hay from certain of the same points to Los Angeles and Newport Beach and the rates for corresponding distances under the southwestern single-line standards scale are shown in the following table. The rates assailed and the rates sought to designations south of San Diego are the same as those shown to San Diego. The rates sought to destinations on the Lakeside line are the same as those shown to Lakeside.

153 I. C. C.

? In effect on and after November 4, 1926. Rate in effect prior to that date 30.5 cents.

The rate in effect prior to May 7, 1927, from Holtville to San Diego was a combination rate composed of the local rate of the Holton Inter-Urban to El Centro and a joint rate beyond. That rate, it will be noted, exceeded the rates contemporaneously in effect for greater distances to San Diego from a number of points on the Southern Pacific and between February 16, and May 7, 1927, the rates for greater distances from Fondo, Westmorland, Moss, Orita,