A-66657, OCTOBER 21, 1935, 15 COMP. GEN. 315

A-66657: Oct 21, 1935

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THE TOTAL CHARGE CLAIMED BY BILL 7207-A WAS $304.34 STATED AS. -304.34 THE AMOUNT ALLOWED IN THE SETTLEMENT WAS $293.44. STOCK YARDS BILLS WHICH SHOW THAT 30 CENTS PER HEAD WAS CHARGED FOR YARDAGE FOR ELEVEN HORSES IN ACL CAR NUMBER 140235. YOU WILL NOTE ON PAGE ONE FIRST ITEM UNDER HEADING "YARDAGE. " THAT THIS CHARGE IS PROVIDED FOR. PARAGRAPH (E) STATES WHEN LIVESTOCK IN TRANSIT IS STOPPED FOR FEED. THE ACTUAL CHARGES MADE BY SUCH STOCKYARDS WILL BE ASSESSED AGAINST THE SHIPMENT. PRESUMABLY THE CHARGE IS CLAIMED FOR THE USE OF THE YARDS. - * * * HERE WE HAVE A POSITIVE ENACTMENT OF CONGRESS TO THE EFFECT THAT THE CARRIER SHALL NOT CONFINE LIVESTOCK IN THE COURSE OF AN INTERSTATE MOVEMENT FOR A LONGER PERIOD THAN 28 CONSECUTIVE HOURS WITHOUT UNLOADING IT AT THE CARRIERS' EXPENSE INTO PROPERLY EQUIPPED PENS.

A-66657, OCTOBER 21, 1935, 15 COMP. GEN. 315

TRANSPORTATION OF HORSES - CHARGES FOR USE OF STOCKYARDS WHERE, IN THE COURSE OF TRANSPORTATION OF HORSES FOR THE GOVERNMENT, A CARRIER, IN COMPLIANCE WITH THE ACT OF JUNE 29, 1906, 34 STAT. (PART 1) 607, LIMITING TO 28 CONSECUTIVE HOURS THE PERIOD ANIMALS MAY BE CONFINED IN CARS, UNLOADS THE HORSES IN A STOCKYARD FOR THE PURPOSE OF FEEDING, TC., THE CHARGES FOR THE USE OF SAID STOCKYARD, WHETHER RAILROAD OR OTHER THAN RAILROAD OPERATED, MAY NOT BE ASSESSED AGAINST THE GOVERNMENT.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 21, 1935:

THE ATLANTIC COAST LINE RAILROAD CO., BY LETTER DATED AUGUST 28, 1935, HAS REQUESTED A REVIEW OF SETTLEMENT T 87642, JUNE 14, 1933, WHICH DISALLOWED $10.90 UPON CARRIER'S BILL 7207-A, FOR TRANSPORTATION SERVICES IN CONNECTION WITH THE MOVEMENT OF 21 HORSES FROM CAMP JACKSON, S.C., TO PLANT CITY, FLA., UNDER BILL OF LADING WQ-44751, AUGUST 26, 1932.

THE TOTAL CHARGE CLAIMED BY BILL 7207-A WAS $304.34 STATED AS---

TABLE

WEIGHT CHARGES CAMP JACKSON, PLANT CITY, TO---

JACKSONVILLE ------------------------ 46,000 $168.54

DO ----------------------------- 200 1.22

DESTINATION ------------------------- 46,000 80.50

DO ----------------------------- 200 1.00 FARE OF ATTENDANT:

TO JACKSONVILLE --------------------- --------- 21.14

DESTINATION ---------------------- --------- 6.84

BEDDING -------------------------- --------- 4.00

C. AND D ------------------------- --------- 5.00

YARDAGE AT NATIONAL STOCK YARDS -- --------- 6.30

FEEDING AT NATIONAL STOCK YARDS -- --------- 9.80

TOTAL ----------------------- ---------304.34

THE AMOUNT ALLOWED IN THE SETTLEMENT WAS $293.44, AND INCLUDED $244.44 FOR 2 CARLOADS HORSES, COMPUTED ON MINIMUM WEIGHT 46,000 AT COMBINATION OF RATES TO AND FROM JACKSONVILLE, 36.639 CENTS AND 16.5 CENTS PER 100 POUNDS; THE $1.22 AND $1 CLAIMED ON THE 200 POUNDS AND THE MISCELLANEOUS CHARGES CLAIMED EXCEPT THE ITEM OF $6.30 FOR YARDAGE AT NATIONAL STOCK YARDS.

THE CARRIER'S LETTER REQUESTS PAYMENT OF $6.30 AND STATES IN PERTINENT PART:

I AM ATTACHING COPY OF OUR BILL NO. 7207-C, COVERING THIS OUTSTANDING ITEM, TOGETHER WITH NAT-L. STOCK YARDS BILLS WHICH SHOW THAT 30 CENTS PER HEAD WAS CHARGED FOR YARDAGE FOR ELEVEN HORSES IN ACL CAR NUMBER 140235, AND FOR TEN HORSES IN ACL CAR NUMBER 140393, A TOTAL OF $6.30, THIS AMOUNT HAVING BEEN PAID THE NAT-L STK. YDS., BY OUR DRAFT NO. G 5871, SEPT. 1, 1932. I ALSO ATTACH COPY OF NAT-L STK YDS TARIFF NO. 10-A EFFECTIVE MARCH 1ST, 1932, AND YOU WILL NOTE ON PAGE ONE FIRST ITEM UNDER HEADING "YARDAGE," THAT THIS CHARGE IS PROVIDED FOR.

AGENT SPEIDENS TARIFF 100-O ICC 1407, ITEM 51, PARAGRAPH (E) STATES WHEN LIVESTOCK IN TRANSIT IS STOPPED FOR FEED, WATER, AND REST AT OTHER THAN RAILROAD-OPERATED STOCKYARDS, THE ACTUAL CHARGES MADE BY SUCH STOCKYARDS WILL BE ASSESSED AGAINST THE SHIPMENT.

A COPY OF THE TARIFF OF THE NATIONAL STOCK YARDS, JACKSONVILLE, FLA., DESIGNATED "TARIFF NO. 10 A, EFFECTIVE MARCH 1, 1932," APPARENTLY NOT FILED WITH THE INTERSTATE COMMERCE COMMISSION, SHOWS A CHARGE FOR "YARDAGE INCLUDING THE SERVICES OF WEIGHING, INSPECTION, GRADING, AND SORTING STRAIGHT CARLOAD SHIPMENTS PER HEAD .30.' THE SHIPMENT HERE CONCERNED DID NOT REQUIRE THE SERVICES OF WEIGHING, INSPECTION, GRADING, OR SORTING; PRESUMABLY THE CHARGE IS CLAIMED FOR THE USE OF THE YARDS.

THE ACT OF JUNE 29, 1906, 34 STAT. (PT. 1), 607, PROVIDES THAT NO CARRIER SHALL CONFINE ANIMALS IN CARS "FOR A LONGER PERIOD THAN 28 CONSECUTIVE HOURS WITHOUT UNLOADING THE SAME IN A HUMANE MANNER INTO PROPERLY EQUIPPED PENS FOR REST, WATER, AND FEEDING, FOR A PERIOD OF AT LEAST 5 CONSECUTIVE HOURS," AND THE CASE OF STRAUSS AND ADLER, INCORPORATED, V. NEW YORK CENTRAL RAILROAD COMPANY, ET AL., 153 I.C.C. 609 (617), WHEREIN THE INTERSTATE COMMERCE COMMISSION, IN REFERRING TO THIS STATUTE, STATED---

* * * HERE WE HAVE A POSITIVE ENACTMENT OF CONGRESS TO THE EFFECT THAT THE CARRIER SHALL NOT CONFINE LIVESTOCK IN THE COURSE OF AN INTERSTATE MOVEMENT FOR A LONGER PERIOD THAN 28 CONSECUTIVE HOURS WITHOUT UNLOADING IT AT THE CARRIERS' EXPENSE INTO PROPERLY EQUIPPED PENS. THIS NECESSARILY IMPLIES THAT THE CARRIER MUST FURNISH SUCH PENS OR PROCURE THEM TO BE FURNISHED. * *

AND REFERRING TO OTHER THAN RAILROAD-OPERATED STOCKYARDS, STATED THAT THEY---

* * * ARE IN EFFECT "FACILITIES" OF THE CARRIER FOR THE PERFORMANCE OF THE OBLIGATIONS IMPOSED BY STATUTORY ENACTMENT UPON CARRIERS ENGAGED IN INTERSTATE TRANSPORTATION OF LIVESTOCK.

IN CONNECTION WITH TARIFF PROVISIONS SIMILAR TO THOSE IN AGENT SPEIDEN'S TARIFF 100-O I.C.C. 1407, ITEM 51, PARAGRAPH (E), REFERRED TO BY THE CARRIER, THE COMMISSION STATED---

THE CARRIERS PUBLISH IN THEIR TARIFFS TWO SETS OF RULES RELATING TO THE HANDLING OF LIVESTOCK IN TRANSIT. ONE SET COVERS "RAILROAD OPERATED STOCKYARDS" AND THE OTHER COVERS "OTHER THAN RAILROAD OPERATED STOCKYARDS.' THE CHARGES FOR SERVICES PERFORMED AT "RAILROAD OPERATED STOCKYARDS" ARE PUBLISHED IN THE CARRIERS' TARIFFS, BUT WHERE THE SERVICE IS PERFORMED AT NONRAILROAD-OPERATED STOCKYARDS THE CARRIERS' TARIFFS PROVIDE THAT THE CHARGES MADE BY SUCH STOCKYARDS * * * WILL BE ADVANCED BY THE CARRIERS AND ASSESSED AGAINST THE SHIPMENT. THE CHARGES OF THE NONRAILROAD-OPERATED STOCKYARDS ARE NOT ON FILE WITH US * * *.

UNDER THE VIEW WE TAKE OF THESE SO-CALLED SERVICE CHARGES, NAMELY, THAT THEY ARE CHARGES FOR ,TRANSPORTATION" WITHIN THE MEANING OF THAT TERM AS DEFINED IN SECTION 1 OF THE INTERSTATE COMMERCE ACT, IT IS THE DUTY OF THE CARRIERS, IN THE EVENT THAT ANY SUCH CHARGE IS JUSTIFIED, TO PUBLISH THESE "SERVICE CHARGES" IN THEIR TARIFFS ON FILE WITH THIS COMMISSION. THEIR COLLECTION OF SUCH CHARGES WITHOUT PROPER TARIFF AUTHORITY VIOLATES SECTION 6 OF THE INTERSTATE COMMERCE ACT AND TARIFF CIRCULAR NO. 20 OF THIS COMMISSION RELATING TO THE CONSTRUCTION AND FILING OF TARIFFS IN CONFORMITY WITH THE PROVISIONS OF THAT SECTION * * *.

THUS IT APPEARS THAT THERE IS NO BASIS FOR ASSESSING A SHIPPER WITH CHARGES FOR THE USE OF THE CARRIER'S STOCKYARDS AT JACKSONVILLE, FLA., NOR FOR THE USE OF A FACILITY SUBSTITUTED BY THE CARRIER IN LIEU OF THE CARRIER'S STOCKYARDS.

THE PRESENT SHIPMENT IS DESCRIBED IN THE BILL OF LADING (TYPEWRITTEN DESCRIPTION) AS CONSISTING OF DRAFT AND RIDING HORSES; ALSO, APPEARING ON THE BILL OF LADING IS THE NOTATION, IN GREEN K,"MILITARY IMPEDIMENTA, 46000 1-200.' THE BILL OF LADING DOES NOT SHOW BY WHOM OR WHEN THE NOTATION WAS MADE. THE NOTATION, HOWEVER, IS IN THE SAME COLORED INK AND APPEARS TO BE IN THE SAME HANDWRITING AS THE TARIFF REFERENCES INSERTED ON THE BILL OF LADING, APPARENTLY BY THE CARRIER. IN CONNECTION WITH THE MATTER THE TRANSPORTATION OFFICER, ONE HUNDRED AND SIXTEENTH FIELD ARTILLERY, FLORIDA NATIONAL GUARD, STATES,

NO MILITARY IMPEDIMENTA WAS LOADED IN CARS WITH ANIMALS OF THIS ORGANIZATION ON RETURN TRIP FROM CAMP JACKSON.

ACCORDINGLY, IT APPEARS THAT THE ALLOWANCE OF $2.22 IN THE SETTLEMENT ON THE ITEM SHOWN AS 200 POUNDS WAS IMPROPER.

AGENT SPEIDEN PUBLISHES A PROPORTIONAL COMMODITY RATE OF 40 CENTS PER 100 POUNDS ON HORSES FROM CAMP JACKSON, S.C., TO JACKSONVILLE, FLA., PER TARIFF I.C.C. 1335, AND A PROPORTIONAL COMMODITY RATE OF 33 CENTS PER 100 POUNDS FROM JACKSONVILLE TO PLANT CITY, FLA., PER TARIFF I.C.C. A-681 (GLENN'S SERIES), BOTH TARIFFS BEING SUBJECT TO THE RULES AND REGULATIONS PUBLISHED IN TARIFF I.C.C. 1407 IN EFFECT AT THE TIME OF SHIPMENT. TARIFF I.C.C. 1407 PROVIDES THAT $2.50 WILL BE ASSESSED FOR CLEANING AND DISINFECTING AND $2 PER CAR FOR BEDDING.

THE CHARGES ON THE SHIPMENT ARE PROPERLY COMPUTED---

TABLE TO JACKSONVILLE 46,000 LBS. AT 40 CENTS OR $184.00 LESS

8.402 PERCENT L.G. --------------------------------------- $168.54 PLANT CITY, 46,000 LBS. AT 33 CENTS OR $151.80 LESS

50 PERCENT L.G. ------------------------------------------ 75.90 BEDDING 2 CARS AT $2 PER CAR --------------------------------- 4.00 CLEANING AND DISINFECTING 2 CARS AT $2.50 PER CAR ------------ 5.00 FEED -------------- ------------------------------------------- 9.80 ATTENDANTS' FARES TO JACKSONVILLE, $23,08 LESS 8.402 PERCENT

L.G. ----------------------------------------------------- 21.14 PLANT CITY, $13.68 LESS 50 PERCENT L.G. ---------------------- 6.84

TOTAL ---------------------------------------------- 291.22 PAID BY CERTIFICATE T 87642 ---------------------------------- 293.44

OVERALLOWANCE -------------------------------------- 2.22

THE AMOUNT $2.22 SHOULD BE REFUNDED WITHIN A REASONABLE TIME, OTHERWISE AN EQUIVALENT DEDUCTION WILL BE MADE IN THE SETTLEMENT OF A CURRENT BILL OF THE CARRIER.