16.23 I & S Proceedings

16.23 Under Sec. 15 (7) of Act, in any hearing involving a change in rail charges, carrier has burden of proving proposed charge is just and reasonable. No. 20769, Charges For Protective Service to Perishable Frt., 332 I.C.C. 136, 144, 12-22-67, Comm.

16.23 Because these rates are initial rates, burden of proof rests upon protestants. I & S M-21809, Containers, Little Rock, Ark. to Colo., 1-25-68, Rev. Bd. No. 4.

16.23 This is an investigation and suspension proceeding involving changed rates and, under provisions of Sec. 15 (7) of Act, burden of proof is upon respondents to show that increased rates which would result if suspended schedules were allowed to go into effect would be just and reasonable.

Evidence to justify reasonableness of an advance in rates must be concrete, affirmative and persuasive in order to discharge burden of proof resting upon carriers. I & S 8365, Boats on Multi-Level Cars, bet. Pac. Coast and Points in Midwest, South and East, 1-25-68, Rev. Bd. No. 4.

16.23 Regardless of prior publication at sought level and subsequent inadvertent change, instant proposal also represents a change, and proponent of changes in a tariff has burden of proof, pursuant to Sec. 216 of Act. I & S M-21776, Paints Group, Coffeyville, Kans. to Chicago, 2-1-68, Rev. Bd. No. 4.

16.23 Burden of proof is upon respondents to establish by competent evidence that proposed change is justified. I & S M-21619, Lamps and Shades, bet. Central and Southern States, 2-1-68, Rev. Bd. No. 4.

16.23 Trainload and volume rates are not considered initial publications but rather changed rates within meaning of Sec. 15 (7) of Act and are properly referenced in tariffs as reductions. Ex Parte 256, Increased Frt. Rates, 1967, 332 I.C.C. 280, 323, 2-6-68, Comm.

16.23 Since these are changed rates, burden of proof is upon respondent. I& S M-21487, Paper Boxes, Richmond, Va. to N. Car., 2-7-68, Rev. Bd. No. 4.

16.23 Suspended rates are initial rates, and respondent does not have statutory burden of showing them to be just and reasonable. 306 I.C.C. 623, 624. I& S M-21812, Plumbing and Related Articles, bet. Points in the West, 2-16-68, Rev. Bd. No. 4.

16.23 Proposed charges represent increases in cost of transporting certain shipments, and respondent bears statutory burden of proof. I & S M-21872, Delivery Charges at New York, N. Y., Associated Transport, Inc., 3-4-68, Rev. Bd. No. 4.

16.24 General Investigations

16.24 Wages actually paid for first several months of 1967 are at a lower level than in 1966. A partial explanation is that volume of traffic has dropped. However, petitioners have burden of proof in this proceeding and, if subsequent material changes occur, then petitioners may be well advised to present more current data as they have done in certain prior proceedings.

Facts reviewed demonstrate necessity, in connection with any future general revenue proceeding, for petitioners, in sustaining their burden of proof, to undertake a realistic study of unit costs of performing transportation services. Compare 298 I.C.C. 279, including particularly page 348.

Burden of proving lawfulness of proposed increases in switching rates or charges in eastern territory is upon petitioners. Ex Parte 256, Increased Frt. Rates, 1967, 332 I.C.C. 280, 285, 338, 2-6-68, Comm.

16.33 Public Records

16.3 Official Notice

16.33 Any evidentiary lack caused by absence of financial data in statements is no cause for withholding any fitness finding inasmuch as notice is taken of most current financial reports applicant has filed with Commission. MC-42487, Sub 676, Consolidated Frtways Corp. of Del., Ext.-Salt Lake City, Utah (Menlo Park, Calif.), 2-19-68, Rev. Bd. No. 3.

16.34 Commission Proceedings

16.34 Official notice taken of MC-111812, Sub 279, decided September 12, 1967, wherein Commission, division 1, found applicant unfit to receive authority for which it applied because of applicant's high rate of vehicles placed out of service as a result of less than adequate inspection and maintenance procedures. 105 M.C.C. 724. MC-119767, Sub 156, Beaver Transport Co., A Corp., Ext.-Duluth, 1-11-68, Rev. Bd. No. 2.

16.51 Best Evidence

16.5 Testimony

16.51 Shipper's traffic manager at La Porte facilities testified with respect to carrier service including that provided by Midwest Emery, noting in particular dates on which certain service was requested, dates carrier arrived, and whether it arrived late or failed to arrive for pickup. Information was abstracted by witness in preparation for hearing, from records maintained under his control and supervision. Midwest Emery contends that records themselves are best evidence and that in their absence, this testimony should have been stricken. Challenged testimony was properly admitted. MC-21170, Sub 125, Bos Lines, Inc., Ext.-La Porte, Ind., 106 M.C.C. 581, 583, 584, 1-12-68, Div. 1.

16.52 Verified Statements

16.52 Affiant for applicant and affiants for supporting shippers are qualified by their intimate association and capacity with their respective companies to testify as to facts contained in their statements. Moreover, it is apparent in each affidavit that affiant involved does have knowledge of matters contained therein, and each such pleading has been subscribed and sworn to before a notary public. Such pleadings are in substantial compliance with General Rules of Practice, and motion seeking rejection of such pleadings will be denied. Compare 68 M.C.C. 382, 383. MC-129310, Northwest Crane, Rigging & Transport Co., Com. Car. App., 2-5-68, Rev. Bd. No. 5.

1

16.52

Statements were made and sworn to by Assistant Manager of seed and feed division of one shipper, and by General Manager of other shipper. These witnesses would by reason of their position know of their respective employer's operations about which they testified. Motion to strike verified statements is overruled. Compare 75 M.C.C. 671 and 301 I.C.C. 315. MC107064, Sub 55, Steere Tank Lines, Inc., Ext.-Feed, 2-7-68, Rev. Bd. No. 3.

16.52 Rule 49 (a) of Commission's General Rules of Practice (49 CFR 1100.49) provides that statements filed under modified procedure may contain facts and arguments. Rule 50, however, requires that facts asserted in any pleading filed under modified procedure bear certain evidence of verification. Applicant's reply statement is not verified. Consequently, to extent it seeks to recite facts, applicant's reply will be stricken and remainder considered as argumentative matter. MC-129253, Sub 1, P & H Trucking Co., Cont. Car. App., 2-15-68, Rev. Bd. No. 2.

16.52 As applicant's rebuttal appears to reflect on Clemans' willingness to participate in through interline service, it is appropriate to allow protestant Clemans to present a refutation here. MC-128247, Sub 2, Bursal Transport, Inc., Ext.-Electrodes, 2-16-68, Rev. Bd. No. 1.

16.56 Evidence in Another Proceeding

16.56 Costs from an earlier proceeding are of little value unless shown to be clearly applicable to present movement of traffic. 332 I.C.C. 43, 45. Cost evidence in 329 I.C.C. 61 does not appear to be representative of Lowrance's present costs of moving this traffic from and to points here involved. I & S M-21725, Bananas, Gulf Ports to Ill., Ind., Ky., Mo., Ohio, 1-25-68, Rev. Bd. No. 4.

16.56 Possibility that some trains with which subject trains connect at Kansas City may be permitted to be discontinued has been noted, but is not determinative. Each such proceeding must be decided upon its own record and Commission may not take official notice of evidence in record of another case. F.D. 24773, Atchison, T. & S. Fe Ry. Co.-Discontinuance of Trains Nos. 47 and 48, and 211 and 212 bet. Kansas City, Mo., and Tulsa, Okla., I.C.C. 3-1-68, Div. 3.

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16.6 Documents

16.69 Exhibits

16.69 Exhibits were properly excluded. If distance between points proposed to be served is such that service between them can be rendered in 1 day (as in case here), there is no reason to believe, in absence of proof to contrary, that West will not render such service as proposed. Evidence in offered exhibit that applicant's transit time for existing services over a shorter distance is more than 1 day is not conclusive proof that it will not render 1-day service between points proposed. Service and highway conditions between service points and routes may be so different that what happens in one case may bear no relation to what will happen in other. MC3009, Sub 57, West Bros. Inc., Ext.-Baton Rouge, La., 106 M.C.C. 792, 799, 2-19-68, Div. 1.

16.75 Hearsay

16.7 Admissibility

16.75 Situation is comparable to that in 310 I.C.C. 391, where an exhibit offered by an intervener tabulating results of a questionnaire circulated to its members was held to be properly excluded from evidence because witness offering exhibit, although he had assisted in its preparation, was not a regular employee of intervener and could not know truth of matters contained therein. For same reason, instant motion to strike is hereby granted and witness' evidence excluded from record. No. 20769, Charges for Protective Service to Perishable Frt., 332 I.C.C. 136, 143, 12-22-67, Comm.

16.75 Commission, as an administrative agency, is not bound by technical rules for exclusion of evidence, including rules for exclusion of hearsay, which apply in jury trials at law. Compare 312 U.S. 126, 155 and 84 M.C.C. 703, 705. MC-129310, Northwest Crane, Rigging & Transport Co., Com. Car. App., 2-5-68, Rev. Bd. No. 5.

17.00 Modified Procedure

17. Hearing 17.0 Requisites

17.00 Commission's rules of procedure are liberally construed to secure just, speedy, and inexpensive determination of issues presented. In proceeding herein, there is no reason why need for requested modification cannot be evaluated properly on basis of submitted statements, and modified procedure is appropriate for disposition of issue. Record, in its entirety, convinces that oral hearing and cross-examination regarding matters indicated would not materially affect determination of need for modified service, and is not required. MC-115162, Sub 75, Walter Poole, Petition for Modification of Ctfe. (Evergreen, Ala.), 2-14-68, Rev. Bd. No. 5.

17.02 Formal Hearing

17.02 Protestant asserts that it has evidence in its possession which would show that applicant's unauthorized operations have continued. It asks for an oral hearing to present such evidence and to cross-examine applicant's witnesses concerning alleged violations of act. Protestant, however, fails to indicate why such evidence could not have been submitted in form of verified statements in accordance with Commission's established rules for modified procedure. In absence of a more tangible offer of proof, Commission is not justified in requiring parties to sustain delay and attendant expense of an oral hearing. MC-36222, Sub 11, John L. Fanshaw, Jr., Ext.—Whitakers, N. Car., 1-15-68, Rev. Bd. No. 1.

17.02 While hearings on applications filed under Sec. 206(a)(7) are not encouraged and are rarely held, Commission is not prevented from assigning matter for hearing, in its discretion.

Where a hearing is deemed necessary in a certificate of registration case, assignment to an examiner is not precluded by terms of Sec. 205, and in fact accords with requirement of Sec. 206 (a)(7) that “Issues arising in determination of such applications shall be determined in most expeditious manMC-F-9015, All-American Transport, Inc.-Control And Merger-Pals Transfer, Inc., 104 M.C.C. 396, 399, 401, 2-1-68, Div. 3.

ner

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17.02 As there are no material facts in dispute, within meaning of Rule 1.53 of General Rules of Practice, and no pertinent issues to be resolved requiring an oral hearing herein, alternative motion for oral hearing denied. MC-129310, Northwest Crane, Rigging & Transport Co., Com. Car. App., 2-5-68, Rev. Bd. No. 5.

17.02 Commission's General Rules of Practice specifically provide in Rule 53(a) that cross-examination of any witness may be ordered only in such cases when "material facts are in dispute" (49 CFR's 1100.53(a)). Protestants contend that specific facts such as protestant's solicitation of supporting shipper's traffic and whether protestant's authorized territory "would help" shipper are in dispute. These are not such "material facts" as are contemplated by aforecited section permitting oral hearing for purposes of cross-examination. MC-129297, Sub 1, Asbestos Eastern Transport, Inc., Com. Car. App., 2-15-68, Rev. Bd. No. 2.

17.02 Nothing in Sec. 205 (a), or any other portion of Act, imposes upon Commission a nondiscretionary obligation to process applications for certificates under oral hearing procedure; and there is nothing in Sec. 7(c) of Administrative Procedure Act which compels a like duty. Pertinent sections of Commission's Rules of Practice, relating to modified procedure clearly indicate conditions under which, at Commission's discretion, an oral hearing may be directed.

Upon consideration of record and protestant's petition and argument, disposition of subject proceeding under modified procedure accords protestant its full due process, and will not prejudice its rights in any material respect. MC-99427, Sub 7, Arizona Tank Lines, Inc., Ext.-Ciniza, N. Mex., 2-27-68, Rev. Bd. No. 1.

17.02 In view of elaborate information supplied in pleadings of parties hereto, including Drum, it does not appear that an oral hearing is required or would serve any useful purpose here. Accordingly, Drum's motion for an oral hearing will be overruled. MC-129262, Ayers & Maddux, Inc., Com. Car. App., 2-29-68, Rev. Bd. No. 3.

17.03

Cross-Examination

17.03 Matters which are asked to be stricken are clearly pertinent to an alternate-route application of this type. Protestant has not established that veracity of applicant's witness is at issue and no real purpose would be achieved by cross-examination, or by examination of applicant's documents. MC-35320, Sub 96, T.I.M.E. Frt., Inc., Ext.-Alternate Route Memphis, Tenn., 1-24-68, Rev. Bd. No. 1.

17.03

Verified statements referred to, in addition to those of protestants, comprise a proper and adequate record for proper determination of issues; appearance of witnesses for purpose of cross-examination by Braswell would result in unnecessary and undue burden on parties to this proceeding; and said request for cross-examination accordingly should be denied. MC-128343, Sub 3, C-Line, Inc., Ext.-Pawtucket, R. I., 2-14-68, Rev. Bd. No. 1.

17.03 Protestant's statement includes a request for an oral hearing for purpose of cross-examining supporting shippers regarding adequacy of protestant's service. Protestant is not in a position to provide needed service. In circumstances, oral hearing would serve no useful purpose and request is hereby denied. MC-127898, Sub 1, Direct Air Frt. Corp., Com. Car. App., 106 M.C.C. 785, 789, 2-23-68, Div. 1.

17.03 As concerns requests for oral hearing for purpose of cross-examination, rule 53 of Commission's General Rules of Practice provides that unless material facts are in dispute, oral hearing will not be held for sole purpose of cross-examination. Requests here fail to point out specifically those material facts which are in dispute. Accordingly, oral hearing is not necessary for disposition of issues and requests for oral hearing for purpose of cross-examining supporting witnesses submitting verified statements are denied. MC-119268, Sub 67, Osborn, Inc., Ext.-Textiles, 2-26-68, Rev. Bd. No. 5.

17.03 By letter of November 20, 1967, Maxwell requests oral hearing for purpose of cross-examination of supporting witnesses. Material facts which might be in dispute are not specified, and request, accordingly, is hereby denied in accordance with Rule 53 (a) of Commission's General Rules of Practice. MC-109637, Sub 326, Southern Tank Lines, Inc., Ext.-Detroit, Mich., 3-6-68, Rev. Bd. No. 2.

17.20 With respect to motion to strike, protestant's statements are within realm of legitimate argument and hence are not objectionable as such. Motion overruled. MC-60012, Sub 74, Rio Grande Mtr. Way, Inc., Ext.Molybdenum, 1-17-68, Rev. Bd. No. 3.

17.20 Portions of reply statement represent respondents' attempt to answer certain criticisms made by protestants concerning respondent's cost evidence. They are in nature of rebuttal, and motion to strike is denied. I & S 8365, Boats on Multi-Level Cars, bet. Pac. Coast and Points in Midwest, South and East, 1-25-68, Rev. Bd. No. 4.

17.20 While protestant identified its pleading as a motion to strike, pleading, in fact, makes contentions regarding weight to be given to shipper's statements. Pleading then, in reality, is more in nature of a reply to a reply and, as such, contravenes Commission's rules. Accordingly, no consideration will be given pleading as a reply and as a motion to strike it is not justified and will be overruled. MC-42487, Sub 671, Consolidated Frtways Corp. of Delaware, Ext.-Toledo, Ohio, 2-7-68, Rev. Bd. No. 3.

17.20 Statements sought to be stricken are responsive to issue of need for modified service proposed in petition and are properly for consideration herein. Accordingly, motion to strike is overruled. MC-115162, Sub 75, Walter Poole, Petition for Modification of Ctfe. (Evergreen, Ala.), 2-14-68, Rev. Bd. No. 5.

17.20 Pertinent facts are so intertwined with non-essential facts that it would generally not be feasible to separate one from other. Accordingly, facts in Mr. Berrey's verified statements to which petitioners' various motions are directed, will be considered with other facts of record and given weight to which they are entitled rather than attempt to weed out some facts to possible detriment of Shannon and K Lines, Inc. Therefore, all