No. 22903

LIGHT GRAIN & MILLING COMPANY v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY ET AL.

Submitted May 15, 1930. Decided December 11, 1930

Rate charged on a mixed carload of shorts and bran from Liberal, Kans., to Las Cruces, N. Mex., milled from wheat originating at Hooker, Okla., found inapplicable. Applicable rate found unreasonable and in violation of the fourth section. Lawful rate prescribed in Grain and Grain Products, 164 I. C. C. 619. Waiver of outstanding undercharges authorized. Reparation awarded.

W. E. Bush for complainants.

H. C. Barron and A. B. Enoch for defendants.

REPORT OF THE COMMISSION

DIVISION 3, COMMISSIONERS MCMANAMY, BRAINERD, AND LEE BY DIVISION 3:

Exceptions were filed by complainants and defendants to the report proposed by the examiner. Our conclusions differ from those recommended by him.

Complainants, C. M. Light, Paul W. Light, I. R. Salley, and Mrs. C. M. Light, copartners, operating a flour mill at Liberal, Kans., under the name of Light Grain & Milling Company, by complaint filed November 4, 1929, allege that the rate charged on one mixed carload of shorts and bran milled from wheat originating at Hooker, Okla., moving outbound July 11, 1929, from Liberal to Las Cruces, N. Mex., was inapplicable, unreasonable, and in violation of the longand-short-haul provision of section 4 of the interstate commerce act; and that the rates on grain and its products from Hooker and Liberal to Las Cruces, and destinations intermediate thereto in New Mexico on the Atchison, Topeka & Santa Fe, hereinafter called the Santa Fe, were and are unreasonable and in violation of the fourth section. We are asked to prescribe rates for the future, require waiver of outstanding undercharges, and award reparation, including in the award reparation on shipments made since the complaint was filed. As there is insufficient evidence respecting rates on grain and grain products to destinations in New Mexico intermediate to Las Cruces the allegations in respect thereto will not be considered.

In Grain and Grain Products, 164 I. C. C. 619, decided since the hearing herein, we prescribed rates for future application in the entire western district, in which Las Cruces is located. This report will deal with rates in the past to that destination only. Rates will be stated in cents per 100 pounds.

From Liberal, the main line of the Rock Island extends southward to Hooker, 20.4 miles, thence to Santa Rosa, N. Mex., where it connects with the Southern Pacific which extends southward and connects with the Santa Fe at El Paso, Tex. Las Cruces is on the Santa Fe 44 miles north of El Paso. From Hooker, the Beaver, Meade & Englewood, hereafter called the B., M. & E., extends eastward through Baker, Okla., to Forgan, Okla., where it connects with the Missouri-Kansas-Texas, hereafter called the M-K-T., which line extends southeasterly to a connection with the Santa Fe at Woodward, Okla. The latter line extends westward through Amarillo, Tex., and Vaughn, N. Mex., where it connects with the Southern Pacific, to Belen, N. Mex., a point north of Las Cruces. From Liberal a branch of the Rock Island now extends southward through Baker and connects with the Santa Fe at Amarillo.

In June, 1929, complainants shipped two carloads of wheat over the Rock Island from Hooker to Liberal. The shipment considered, consisting of 15,000 pounds of shorts and 25,000 pounds of bran milled therefrom, moved as routed from Liberal over the Rock Island to Hooker, thence the B., M. & E. and M-K-T. to Woodward, and Santa Fe system to destination, 856.8 miles. A rate of 54 cents was inserted in the bill of lading. The question of misrouting, however, is not in issue. The evidence indicates that regardless of the existence of a lower rate over a shorter route through Santa Rosa, N. Mex., and El Paso, complainants desired the shipment to move as routed and had knowledge of the inapplicability of the 54-cent rate. Charges of $266 were collected at a combination rate of 66.5 cents, which it is conceded was inapplicable. Under the governing tariffs wheat shorts and bran take the rates on corn and related articles. Complainants state that the applicable combination rate over the route of movement was and is 81 cents, composed of 2 cents for an out-of-line haul between Hooker and Liberal, 23.5 cents from Liberal to Woodward, and 55.5 cents beyond. An examination of the tariffs on file, however, discloses that the applicable combination rate was 71 cents, composed of 10 cents, Hooker to Liberal and return, 45 cents Hooker to El Paso, and 16 cents from the latter point to Las Cruces.

Complainants contend that there was contemporaneously in effect a combination rate of 49.5 cents to El Paso, composed of 8 cents from Liberal to Hooker, plus an out-of-line charge from Hooker to Liberal

of 2 cents, and 39.5 cents beyond Hooker, which applied through Las Cruces over the route of movement to El Paso, and that consequently the applicable rate was in violation of section 4. Reparation to this basis is sought.

As evidence of the unreasonableness of the rate assailed, complainants instance rates of 64 and 62.5 cents on wheat and related articles from Fairholm and Hickok, Kans., respectively, on the Santa Fe, to Vaughn and Las Cruces which do not exceed those to El Paso to which Vaughn and Las Cruces are intermediate. They refer to Light Grain & Milling Co. v. A., T. & S. F. Ry. Co., 146 I.C.C. 743, wherein it was found that the rates charged on a mixed carload of wheat flour, corn meal, and bran from Turpin, Okla., on the B., M. & E., to Mountainair, N. Mex., 575 miles, were unreasonable to the extent that they exceeded rates of 49 cents on wheat flour and 44 cents on corn meal and bran contemporaneously in effect from Turpin to El Paso, 840 miles.

Defendants state that the short route to Las Cruces from Hooker, via Liberal and return to Hooker, is over the Rock Island and Southern Pacific to El Paso, thence Santa Fe to destination, 599.4 miles, over which route the combination rate was and is 68.5 cents; that the 89.5-cent factor from Hooker to El Paso is predicated upon the distance over the short-line formed by the Rock Island to Santa Rosa and the Southern Pacific beyond, 514 miles, and did not apply over the route traversed, 860 miles, which is approximately 67 per cent circuitous. There is merit in this contention. This component is the result of our findings in Oklahoma Corporation Commission v. A. & S. Ry. Co., 101 I. C. C. 116, wherein the rates on grain and grain products between points in Oklahoma and Texas were under consideration. Subject to a prescribed formula governing the computation of short-line distances, defendants therein were authorized to establish the lowest rate so made over all routes between points covered by that report and to maintain higher rates from, to, or between intermediate points, provided that such rates did not exceed rates under the scales prescribed. Rates from Oklahoma to New Mexico were not in issue in that proceeding. Under the tariff application the short-line rate is limited to routes not more than 65 per cent circuitous. No relief from the provisions of section 4 was granted in the instance of longer routes such as here considered. The rate applicable from Hooker to El Paso over the route through Las Cruces was and is 45 cents.

Defendants argue that even though the factor from Hooker to El Paso did apply through Las Cruces there was no fourth-section violation because the rates here in issue were combination rates; but that if, as a result of such rate situation, the fourth section was con

travened it was justified by the fact that they proposed schedules, to become effective prior to this movement, which would have removed such departures had these schedules not been suspended by us in a pending proceeding. Defendants stress the failure of complainants in attacking the applicable rate to indicate which factors they deem unreasonable, also the fact that complainants knew of the short-line rate and should not complain of the higher rate in effect over the longer route specified by them. Nevertheless, complainants were and are entitled to a reasonable rate over the route traversed, irrespective of the manner of its construction, and as the applicable rate was higher than that maintained to El Paso it contravened the long-andshort-haul clause of section 4. This raises a presumption that the rate assailed was unreasonable, which presumption has not been rebutted. Patterson v. L. & N. R. R. Co., 269 U. S. 1.

We find that the rate charged was inapplicable, and that the applicable rate was 71 cents. We further find that the applicable rate was unreasonable and in violation of section 4 of the act to the extent that it exceeded 55 cents; that complainants made the shipment as described and bore the charges thereon; that they were damaged thereby in the amount of the difference between the charges collected and those which would have accrued at the rate herein found reasonable; and that they are entitled to reparation in the sum of $46, with interest. As to any shipments that may have moved during the pendency of this proceeding complainants should comply with Rule V of the Rules of Practice, accompanying the statements with proof in affidavit form that they paid and/or bore the charges thereon. If defendants object to this method of proof complainants may request a further hearing. Defendants are hereby authorized to waive collection of the outstanding undercharges. An order awarding reparation will be entered.

BRAINERD, Commissioner, concurring:

The rate charged to Las Cruces, an intermediate point, over the route of movement was higher than the rate to El Paso, a more distant point, and was unreasonable to the extent it exceeded the rate to the latter point. I concur in the award of reparation as made.

169 I. C. C.

TABLE OF COMMODITIES

The numbers in parentheses following citations indicate where commodity is considered]

AMMONIA, SUlphate of. Central and eastern trunk-line territories to southern territory, 126.

APPLES. Virginia, West Virginia, and Maryland to destinations on and east of
Mississippi River, 295.

ASPHALT. Silver City, N. Mex., to Pecos, Tex., 653.
AUTOMOBILES AND EXTRA PARTS.

Lake City and Ogden, Utah, 97.

Flint, Mich., and St. Louis, Mo., to Salt

AXLES. Houston, Tex., to Port Arthur, Tex.

Export, 753 (772).

BAGGING AND BAGS. Port Arthur, Tex., from Beaumont and Orange, Tex., and to Galveston, Houston, and Texas City, Tex. Import, 753 (770). BAGS, BURLAP. Port Arthur, Tex., to Dallas and Fort Worth, Tex. Import, 753 (770).

BAKERY GOODS. Arkansas, Illinois, Kansas, Louisiana, Missouri, Oklahoma, and Texas from and to Arkansas, Illinois, Kansas, Louisiana, Missouri, Oklahoma, and Texas, 325.

BANANAS. Mobile, Ala., New Orleans, La., and Gulfport, Miss., to Lincoln, Fairbury, Hastings, and Grand Island, Nebr., 213.

BARLEY. California to Port Arthur, Tex. Export, 753 (772).

BARRELS, WOODEN, TIGHT, EMPTY, OLD. Buffalo, N. Y., Cincinnati and Ivorydale, Ohio, Columbus and Jeffersonville, Ind., Louisville, Glens Creek, and Owensboro, Ky., and Milwaukee, Wis., to Saginaw, Mich., and Rochester, Syracuse, and Webster, N. Y., 518.

BARS, IRON:

Chicago, Ill., district to Davenport, Iowa, 609.

Gary, Ind., and Chicago, Ill., district to Moline and East Moline, Ill., 583. Silver City, N. Mex., to Pecos, Tex., 653.

BARS, STEEL:

Chicago, Ill., district to Davenport, Iowa, 609.

Gary, Ind., and Chicago, Ill., district to Moline and East Moline, Ill., 583. BARS, STEEL, REINFORCING. Houston, Tex., to Shamrock, Tex., 725. BARYTES, Ground. Cartersville, Ga., to Marysville, Mich., 722. BEANS, SOY AND VELVET. Southern classification territory.

698.

BENZOL. Pittsburgh, Pa., to Newark, N. J., 747.

Less-than-carloads,

BLACK, SPENT BONE. Sugarland, Tex., to Port Arthur, Tex. Coastwise, 753 (770).

BLOWERS. Louisiana, New Mexico, Oklahoma, and Texas to Arkansas, Louisiana, Oklahoma, New Mexico, and Texas, 653.

BOARDS, PAPER:

Wabash, Ind., and Urbana, Ohio, to Chicago, Ill., St. Paul, Minn., and Wisconsin, 543.

Whippany, N. J., to Massachusetts and Connecticut, 536.

BOLTS. Los Angeles, Calif., to Casper, Wyo., 283.

BORATE, CRude. California to Port Arthur, Tex. Export, 753 (772).

BOTTLES, GLASS. East St. Louis, Ill., to Griffin, Ga.

45732°-31-VOL 16951

Mixed carloads, 731.

801