A-83581, NOVEMBER 10, 1938, 18 COMP. GEN. 431

A-83581: Nov 10, 1938

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THE CHARGE FOR THE "SPOTTING" OR "SWITCHING" SERVICE PERFORMED AT PORTAL WAS ADMITTEDLY EXCESSIVE AND THERE WAS ESTABLISHED EFFECTIVE AS OF A CERTAIN DATE. SAID RATE IS ALSO FOR APPLICATION FOR SIMILAR SERVICES PREVIOUSLY PERFORMED NOTWITHSTANDING THE CARRIER'S CONTENTION OTHERWISE. THE CLAIMS INVOLVED ARE THOSE PER BILLS NUMBERED 36826/31. EACH SHIPMENT APPARENTLY WAS FORWARDED FROM THE SHIPPING POINT UNDER A COMMERCIAL BILL OF LADING ISSUED BY THE CANADIAN PACIFIC RAILWAY CO. ISSUED CORRESPONDING UNNUMBERED GOVERNMENT BILLS WHICH WERE THERE DELIVERED TO THE MINNEAPOLIS. THE SHIPMENTS APPARENTLY WERE DELIVERED ON TEAM TRACKS OF THE CLAIMANT CARRIER AT PORTAL. THE CHARGES ORIGINALLY CLAIMED FOR THE THROUGH SERVICES WERE BASED ON RATES FROM THE SHIPPING POINTS IN MANITOBA TO NORTH PORTAL.

A-83581, NOVEMBER 10, 1938, 18 COMP. GEN. 431

TRANSPORTATION - "SPOTTING" OR "SWITCHING" CHARGES - RETROACTIVE APPLICATION OF REASONABLE CHARGES WHERE, IN CONNECTION WITH SHIPMENTS OF STRAW FROM VARIOUS POINTS IN MANITOBA, CANADA, TO PORTAL, N.DAK., MOVING OVER THE CANADIAN PACIFIC RAILWAY TO THE INTERNATIONAL BOUNDARY AT NORTH PORTAL-PORTAL, THENCE OVER MINNEAPOLIS, ST. PAUL AND SAULT STE. MARIE RAILWAY TO THE LATTER CARRIER'S TEAM TRACKS IN PORTAL FOR UNLOADING FOR RESALE TO LOCAL FARMERS AS AN EMERGENCY RELIEF MEASURE, THE CHARGE FOR THE "SPOTTING" OR "SWITCHING" SERVICE PERFORMED AT PORTAL WAS ADMITTEDLY EXCESSIVE AND THERE WAS ESTABLISHED EFFECTIVE AS OF A CERTAIN DATE, BY PUBLISHED TARIFF, A CONSIDERABLY LOWER CHARGE FOR THE SERVICE INVOLVED, SAID RATE IS ALSO FOR APPLICATION FOR SIMILAR SERVICES PREVIOUSLY PERFORMED NOTWITHSTANDING THE CARRIER'S CONTENTION OTHERWISE, THE SEVERAL TARIFFS CITED BY THE CARRIER IN JUSTIFICATION OF A GREATER CHARGE NOT BEING APPLICABLE AND THE LOWER CHARGE ESTABLISHED BY THE CARRIER AS REASONABLE IN CONNECTION WITH THE SUBSEQUENT SHIPMENTS HAVING BEEN FOUND TO BE A REASONABLE CHARGE FOR THE SERVICES INVOLVED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE MINNEAPOLIS, ST. PAUL AND SAULT STE. MARIE RAILWAY O., NOVEMBER 10, 1938:

THERE HAS BEEN CONSIDERED THE MATTER OF CLAIMS SUBMITTED BY YOU FOR TRANSPORTATION OF STRAW FROM VARIOUS POINTS IN MANITOBA, CANADA, TO PORTAL, N.DAK., DURING THE PERIOD NOVEMBER 13, 1934-JANUARY 7, 1935.

THE CLAIMS INVOLVED ARE THOSE PER BILLS NUMBERED 36826/31, INCLUSIVE, 36833/4, 36836/45, INCLUSIVE, 36966/86, INCLUSIVE, 37180, 37182, 37184, 37186, 37188/9, 37191, 37195, 37197, 37199, 37527, 37530/2, INCLUSIVE, AND SUPPLEMENTAL BILLS SIMILARLY NUMBERED BUT WITH THE SUFFIX "A.'

EACH SHIPMENT APPARENTLY WAS FORWARDED FROM THE SHIPPING POINT UNDER A COMMERCIAL BILL OF LADING ISSUED BY THE CANADIAN PACIFIC RAILWAY CO., BUT DURING THE PERIOD DECEMBER 21, 1934-JANUARY 18, 1935,"IN EXCHANGE FOR" SUCH BILLS OF LADING CLYDE BARKS, DIRECTOR, STOCK FEED DIVISION, FEDERAL EMERGENCY RELIEF ADMINISTRATION, BISMARCK, N.DAK., ISSUED CORRESPONDING UNNUMBERED GOVERNMENT BILLS WHICH WERE THERE DELIVERED TO THE MINNEAPOLIS, ST. PAUL AND SAULT STE. MARIE RAILWAY CO. AND SUBMITTED BY THE LATTER CARRIER IN SUPPORT OF THE CLAIMS HERE CONCERNED. EACH GOVERNMENT BILL OF LADING BEARS ROUTING DESIGNATION "VIA SOO" AND IN SOME INSTANCES "VIA NORTH PORTAL, SASK., " INDICATING THAT ROUTING INSTRUCTIONS TO THIS EFFECT APPEARED ON THE COMMERCIAL BILLS OF LADING PRESUMABLY IN ACCORDANCE WITH INSTRUCTIONS TO THE INITIAL CARRIERS.

THE SHIPMENTS APPARENTLY WERE DELIVERED ON TEAM TRACKS OF THE CLAIMANT CARRIER AT PORTAL, DAK., AND THE CHARGES ORIGINALLY CLAIMED FOR THE THROUGH SERVICES WERE BASED ON RATES FROM THE SHIPPING POINTS IN MANITOBA TO NORTH PORTAL, SASKATCHEWAN, CANADA, PLUS "MIN. $15.00" PER CAR FROM NORTH PORTAL TO THE TEAM TRACKS AT PORTAL; INDICATING THAT THE SHIPMENTS MOVED OVER THE CANADIAN PACIFIC RAILWAY FROM THE SHIPPING POINTS TO THE INTERNATIONAL BOUNDARY AT NORTH PORTAL-PORTAL THENCE OVER MINNEAPOLIS, ST. PAUL AND SAULT STE. MARIE RAILWAY TO THE LATTER CARRIER'S TEAM TRACKS IN PORTAL. IN MOST INSTANCES THE ORIGINAL BILLS SHOW RATE OF 3 CENTS PER 100 POUNDS (SUBJECT TO THE $15 MINIMUM) CLAIMED FOR SERVICE AS FROM NORTH PORTAL TO THE PORTAL TEAM TRACKS

PRIOR TO THE SUBMISSION OF THE ORIGINAL BILLS TO THIS OFFICE THE MATTER OF THIS $15 CHARGE WAS THE SUBJECT OF CORRESPONDENCE BETWEEN YOU AND DIRECTOR BARKS, TO WIT:

LETTER DATED FEBRUARY 26, 1935, FROM MR. BARKS AS FOLLOWS:

ATTENTION IS AGAIN CALLED TO THE MINIMUM CHARGE OF $15 PER CAR APPLYING ON ROUGHAGE ORIGINATING FROM POINTS ON THE CANADIAN PACIFIC IN CANADA AND DESTINED FOR PORTAL, NORTH DAKOTA.

WHILE WE HAVE DETERMINED ON YOUR CONFIRMATION THAT $15 IS A CHARGE ENTIRELY WITHIN THE TERMS OF THE TARIFF, WE UNDERSTAND THAT THE FEDERAL SURPLUS RELIEF ADMINISTRATION HAS NEGOTIATED REDUCED RATES WITH THE CARRIERS GOVERNING IN SIMILAR CIRCUMSTANCES AS EXIST AT PORTAL. INASMUCH AS $15 IS AN EXCESSIVE CHARGE FOR THE SPOTTING OF CARS AT PORTAL FROM NORTH PORTAL, WE ARE ASKING YOUR CONSIDERATION IN APPLYING A SPOTTING CHARGE OF $6.30 PER CAR FOR CARS DESTINED TO AND UNLOADED AT PORTAL.

YOUR REPLY DATED MARCH 9, 1935 (C-135-PORTAL CC-80-DROUTH), RE: "SWITCHING AT PORTAL, N.DAK., " WAS AS FOLLOWS:

* * * REGARDING CHARGE FOR SWITCHING SO-CALLED "ROUGHAGE" ORIGINATING IN CANADA TO BE UNLOADED AT PORTAL, N.D.

I DO NOT BELIEVE WE CAN QUITE MEET YOUR VIEWS AS TO SWITCHING CHARGE OF $6.30 PER CAR BUT HAVE IN MIND A CHARGE OF ABOUT $10 PER CAR.

WOULD BE GLAD TO HAVE YOU ADVISE ME, PLEASE, JUST WHAT THIS "ROUGHAGE" CONSISTS OF. IS IT HAY, STRAW, OR FEED OR ALL OF THEM AND WILL ANY OF IT BE RESHIPPED FROM PORTAL, IN WHICH EVENT WILL IT BE HANDLED UNDER THE REDUCED RATES PROVIDED IN WESTERN TRUNK LINE TARIFF NO. 315-A?

MR. BARKS THEN ADVISED YOU BY LETTER DATED MARCH 18, 1935, THAT---

* * * THIS ROUGHAGE CONSISTS OF STRAW, WHICH MAY BE WHEAT, OAT, OR BARLEY, AND PRAIRIE HAY. IT WAS UNLOADED AT PORTAL, PLACED WITH A DEALER UNDER CONTRACT WITH THIS ORGANIZATION, AND IS TO REMAIN THERE FOR RESALE TO LOCAL FARMERS. IT WILL NOT BE RESHIPPED FROM PORTAL.

ACCORDING TO OUR VIEW THE POINT IN QUESTION IS ENTIRELY AS REGARDS A MOVEMENT OF THSE CARS OVER A FEW BLOCKS OF YOUR LINE SO THAT THEY COULD BE PLACED ON A SIDING FOR UNLOADING IN PORTAL RATHER THAN NORTH PORTAL. WOULD NOT HAVE BEEN NECESSARY FOR US TO HAVE HAD THESE CARS MOVED TO PORTAL AT ALL EXCEPT FOR THE REASON THAT IN ORDER TO GET THE ROUGHAGE TO FARMERS AS CHEAPLY AS POSSIBLE RELIEF LABOR WAS USED IN UNLOADING THE ROUGHAGE FROM THESE CARS AND PLACING IT WITH THE CONTRACTED RESALE DEALER. IN ORDER THAT A PROJECT MIGHT BE OPERATED ENTIRELY WITHIN THE TERMS OF OUR REGULATIONS, ALL THE WORK HAD TO BE DONE WITHIN THE STATE OF NORTH DAKOTA, CONSEQUENTLY IT WAS NECESSARY WE HAVE THESE CARS SPOTTED AT PORTAL RATHER THAN NORTH PORTAL. WE DO NOT BELIEVE THAT THIS IS IN ANY SENSE A LINE HAUL AND THAT YOUR EXPENSE OF SWITCHING AND PLACING THE CAR ON SPOT AT PORTAL IS VERY COMPARABLE TO SWITCHING WHICH YOU MIGHT DO AT SOME OF YOUR LARGER YARDS AND FOR WHICH THE CHARGE IS $6.30 PER CAR.

WE AGAIN ASK YOUR CONSIDERATION THAT THE ABOVE CHARGE BE USED ON CARS UNLOADED AT PORTAL.

YOUR REPLY, DATED MARCH 26, 1935 (C-135-PORTAL), SETS FORTH---

* * * IN REGARD TO SWITCHING OF HAY AND STRAW, FROM CONNECTION WITH THE CANADIAN PACIFIC RAILWAY AT PORTAL TO UNLOADING TRACK, WHICH IS TO BE SOLD THERE TO THE FARMERS.

IN VIEW OF WHAT YOU SAY, WE WILL ESTABLISH A SWITCHING RATE OF $6.30 PER CAR FOR THIS MOVEMENT BUT WHEN WE PUBLISH IT, IT WILL BE NECESSARY FOR US TO INDICATE THE NAME OF THE INDUSTRY TO WHOM IT WILL BE CONSIGNED, AS OUR SWITCHING CHARGE MUST BE PUBLISHED TO SPECIFIED INDUSTRIES.

PLEASE GIVE ME THIS INFORMATION AS PROMPTLY AS POSSIBLE SO THAT WE CAN ARRANGE TO PUBLISH THE RATE. YOU UNDERSTAND IT WILL BE ABOUT 35 DAYS BEFORE THE RATE CAN BE MADE EFFECTIVE.

THIS CORRESPONDENCE INDICATES THE UNDERSTANDING BY BOTH YOU AND MR. BARKS THAT $15 WAS THE APPLICABLE MINIMUM CHARGE UNDER TARIFF PROVISIONS FOR THE SERVICE BY THE MINNEAPOLIS, ST. PAUL AND SAULT STE, MARIE RAILWAY; THAT SUCH CHARGE WAS EXCESSIVE FOR SUCH SERVICE; THAT SUCH SERVICE INVOLVED ONLY THE SO-CALLED SPOTTING OF CARS AT PORTAL OR SWITCHING THE CARS A SHORT DISTANCE ("A FEW BLOCKS") FROM THE NORTH PORTAL-PORTAL INTERCHANGE TO THE PORTAL TEAM TRACK; THAT $6.30 WAS A REASONABLE CHARGE FOR SUCH SERVICE; AND UNTIL YOUR LAST LETTER THAT THE QUESTION WAS AS TO THE CHARGE FOR A SERVICE WHICH HAD BEEN PERFORMED PRIOR TO THE INAUGURATION OF THE CORRESPONDENCE. PRESUMABLY IN VIEW OF YOUR LETTER DATED MARCH 26, 1935, MR. BARKS FURTHER WROTE TO YOU APRIL 15, 1935, AS FOLLOWS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 26TH REGARDING THE ESTABLISHING OF A SWITCHING CHARGE OF $6.30 PER CAR FOR CAR LOT MOVEMENTS OF ROUGHAGE FROM NORTH PORTAL FOR SPOTTING AND UNLOADING AT PORTAL.

INASMUCH AS THE MOVEMENT COVERED BY THIS AUTHORIZATION HAS BEEN COMPLETED, WE ARE ASKING YOUR PERMISSION TO ESTABLISH REPARATION CLAIMS ON SUCH CAR LOT MOVEMENTS BILLED TO THE F.E.R.A. FOR NORTH DAKOTA AT PORTAL WHICH HAS TAKEN PLACE SINCE NOVEMBER 1ST, 1934.

IN REPLY TO THIS, MR. E. F. RICE, ASSISTANT GENERAL FREIGHT AGENT, ADVISED BY LETTER DATED APRIL 25, 1935 (K-58), THAT---

THE QUESTION APPARENTLY RELATES LARGELY TO THE SWITCHING CHARGE ASSESSED FROM NORTH PORTAL.

WE SHALL INVESTIGATE THIS MATTER AND IT IS HOPED THAT DEFINITE REPLY MAY BE FORWARDED TO YOU IN THE VERY NEAR FUTURE.

NO FURTHER REPLY WAS RECEIVED AND SUBSEQUENTLY SUPPLEMENT 16 (ITEM 255) TO MINNEAPOLIS, ST. PAUL AND SAULT STE. MARIE RAILWAY CO. LOCAL SWITCHING TARIFF NO. 222-D, I.C.C.NO. 6509, NAMED CHARGE OF $6.30 PER CAR "EFFECTIVE MAY 20, 1935," ON HAY AND STRAW, CARLOADS,"FROM CONNECTION WITH CANADIAN PACIFIC RAILWAY AT PORTAL, N.DAK., TO MINNEAPOLIS, ST. PAUL AND SAULT STE. MARIE TEAM TRACK AT PORTAL, N.DAK.' IT IS NOTED THAT THIS CHARGE APPEARS UNDER THE CAPTION ,MISCELLANEOUS SWITCHING RATES.'

THEREAFTER THE CLAIMS ON BASIS OF $15 MINIMUM CHARGE PER CAR FOR THE SERVICE BY THE MINNEAPOLIS, ST. PAUL AND SAULT STE. MARIE RAILWAY CO. WERE RECEIVED IN THIS OFFICE BUT WITHOUT ANY INDICATION THAT THIS CHARGE OR THE CHARGE OF $6.30 PER CAR HAD BEEN THE SUBJECT OF THE CORRESPONDENCE HEREINBEFORE QUOTED; AND UPON EXAMINATION HERE OF SUCH CLAIMS AND PERTINENT TARIFFS THERE INSURED FURTHER CORRESPONDENCE, THIS TIME BETWEEN THIS OFFICE AND YOU, TO WIT:

LETTER OF THIS OFFICE TO J. H. REES, GENERAL FREIGHT AGENT, DATED MARCH 18, 1936, SETTING FORTH THAT---

* * * JUST PRIOR TO PUBLICATION OF ITEM 255 IN SUPPLEMENT 16 TO YOUR TARIFF 222-D, THERE WERE SEVERAL CARS OF HAY, ORIGINATING AT VARIOUS CANADIAN POINTS, DESTINED PORTAL, NORTH DAKOTA, ON YOUR LINE, ROUTED C.P.RWY., PORTAL, YOUR LINE, FOR RELIEF PURPOSES.

AND REQUESTING HIM TO---

ADVISE IF * * * AGREEABLE TO PROTECT PROVISIONS OF ABOVE ITEM * * * ON SHIPMENTS IN QUESTION, ALL OF WHICH WERE CONSIGNED TO F.E.R.A. WORKERS.

YOUR REPLY DATED APRIL 3, 1936, UNDER FILE E-80-DROUTH, ADVISED---

I DO NOT KNOW OF ANY AGREEMENT THAT THIS RATE WOULD BE MADE RETROACTIVE AND IN THE ABSENCE OF SAME I AM NOT PREPARED TO AUTHORIZE ANYTHING DIFFERENT THAN THE PUBLISHED TARIFF RATES IN EFFECT ON THE DATE OF MOVEMENT.

A FURTHER LETTER DATED APRIL 11, 1936, TO YOU SETS FORTH---

UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT, THE CHARGE OF $6.30 PER CAR ON SHIPMENTS THAT MOVED PRIOR TO PUBLICATION OF ITEM 255 OF SUPPLEMENT 16 TO YOUR TARIFF 222-D COULD BE PROTECTED.

IN VIEW OF THE FACT THAT THERE WAS NO RATE PUBLISHED PRIOR TO ABOVE MENTIONED ITEM, AND THERE WAS NO APPLICATION WHERE A MILEAGE RATE COULD BE APPLIED, NOR ANY MILEAGE PUBLISHED, WILL ASK THAT YOU GIVE FURTHER CONSIDERATION TO PROTECTION OF RATE IN QUESTION.

YOUR REPLY DATED APRIL 14, 1936 (E-135-PORTAL CC-80 DROUTH) POINTED OUT--

THE $15.00 CHARGE ASSESSED AT THE TIME THESE SHIPMENTS MOVED WAS THE LEGAL RATE APPLICABLE AT THAT TIME. THE REGULAR PUBLISHED RATE WAS THE FIVE MILE DISTANCE RATE AS PUBLISHED IN OUR FREIGHT TARIFF, 41-C, AND DUE TO THE FACT THAT THIS RESULTED IN LESS THAN $15.00 PER CAR CHARGE THE LATTER ASSESSED PER RULE 13, WESTERN CLASSIFICATION 9.

I DO NOT KNOW OF ANY UNDERSTANDING OR AGREEMENT THAT THE $6.30 RATE WAS TO BE MADE RETROACTIVE AND WHILE I AM AWARE OF THE FACT THAT UNDER SECTION 22 OF THE INTERSTATE COMMERCE ACT THIS RATE COULD BE APPLIED RETROACTIVE, WE DO NOT FEEL THAT WE SHOULD BE CALLED UPON TO DO THIS.

EXAMINATION OF TARIFF NO. 41-C SHOWS THAT IT "APPLIES ONLY ON INTRASTATE TRAFFIC, I.E., TRAFFIC HAVING ORIGIN, DESTINATION, AND ENTIRE MOVEMENT WITHIN THE STATE OF NORTH DAKOTA; " AND RULE 13 OF CONSOLIDATED FREIGHT CLASSIFICATION 9 SPECIFICALLY PROVIDES THAT THE $15 MINIMUM CHARGE THERE NAMED "DOES NOT APPLY TO CHARGES FOR SWITCHING SERVICE" AND THAT "IN CASE OF A CONTINUOUS THROUGH MOVEMENT OF A SHIPMENT HANDLED ON A COMBINATION OF SEPARATE RATES * * * THE $15 PER CAR MINIMUM HEREIN PRESCRIBED DOES NOT APPLY TO THE SEPARATE FACTORS BUT TO THE TOTAL OF THE COMBINED ARGES.'

A FURTHER LETTER OF THIS OFFICE DATED JUNE 9, 1936, POINTED OUT THAT --

* * * SAID TARIFF (41-C) INDICATED THERE ARE NO PUBLISHED RATES FROM NORTH PORTAL TO PORTAL, DUE TO THE FACT THAT NO PUBLISHED MILEAGE APPEARS IN TARIFF.

AND REQUESTED YOU TO ADVISE---

* * * CORRECT RATE APPLICABLE ON TRAFFIC ORIGINATING AT POINTS IN CANADA DESTINED TO PORTAL, NORTH DAKOTA, COMBINATION OF RATES MADE ON PORTAL.

IN THIS CONNECTION YOUR LETTER DATED JUNE 26, 1936 (E-135-PORTAL CC 80- DROUTH CC-58-F.E.R.A.) STATES---

* * * THE ACTUAL MILEAGE DISTANCE FROM THE CONNECTION FROM NORTH PORTAL AND PORTAL TO POINT OF UNLOADING WAS APPROXIMATELY 2 MILES.

THE REASON THAT THE TARIFF (41-C) REFERRED TO DOES NOT PUBLISH RATES FROM NORTH PORTAL IS THAT THIS STATION IS IN SASKATCHEWAN AND LOCATED ON THE CANADIAN PACIFIC AND A CAR ARRIVING AT NORTH PORTAL ON THE CANADIAN PACIFIC WOULD BE DELIVERED TO US BY THE BORDER POINT, AND THE CHEAPEST RATE PUBLISHED AT TIME OF MOVEMENT FOR THE HANDLING FROM CONNECTION WITH CANADIAN PACIFIC TO THE ACTUAL POINT OF UNLOADING WAS THE 5 MILE DISTANCE RATE, AS OTHERWISE UNDER TARIFFS WE WOULD BE COMPELLED TO ASSESS RATE FROM PORTAL TO THE NEXT STATION BEYOND AND APPLY THIS RATE ACCOUNT OF POINT OF UNLOADING BEING INTERMEDIATE WITH PORTAL AND FIRST STATION BEYOND.

IT SEEMS THAT IN ANY EVENT TARIFF NO. 41-C WOULD NOT BE APPLICABLE AND IT IS NOTED THAT THE STATEMENT OF DISTANCE IS NOT CONSISTENT WITH MR. BARKS' LETTER DATED MARCH 18, 1935, AND RELATED CORRESPONDENCE.

IN A FURTHER LETTER OF THIS OFFICE IT WAS URGED---

THE SERVICES RENDERED BY THE SOO LINE ON THESE MOVEMENTS WERE SWITCHING MOVEMENTS AS EVIDENCED IN PUBLICATION OF ITEM 255, SUPPLEMENT 16 TO TARIFF 222-D, AND * * * RULE 13, * * * CLASSIFICATION 9 SPECIFICALLY STATES THAT MINIMUM OF $15.00 PER CAR WILL NOT APPLY FOR SWITCHING SERVICE, THEREFORE, ADVICE IS REQUESTED FOR AUTHORITY TO PROTECT ACTUAL CHARGES, WITHOUT OBSERVING THE $15.00 PER CAR MINIMUM ON SHIPMENTS IN QUESTION. YOUR REPLY IN THIS CONNECTION BY LETTER DATED JULY 28, 1936 (E-135-PORTAL; CC-80- DROUTH; CC-58-F.E.R.A.) SETS FORTH---

I DO NOT FEEL THAT THE HANDLING OF THIS SHIPMENT WAS ACTUAL SWITCH HANDLING. AS FAR AS WE ARE CONCERNED, IT WAS HANDLED IN LINE HAUL SERVICE AND I AM NOT AGREEABLE TO CANCELLATION OF THE $15.00 PER CAR MINIMUM. THIS ASSERTION AS TO THE SERVICE DOES NOT SEEM CONSISTENT WITH THE PRIOR CORRESPONDENCE WITH DIRECTOR BARKS; NOR WITH THE PUBLICATION EFFECTIVE AFTER THE SERVICE, OF THE $6.30 RATE AS A SWITCHING RATE APPLICABLE TO SIMILAR SERVICE.

IN A FINAL LETTER OF THIS OFFICE TO YOU, IT WAS POINTED OUT---

THE DISTANCE RATES PUBLISHED IN YOUR TARIFF 98-A (NOT PREVIOUSLY REFERRED TO) ARE STATION-TO-STATION RATES, AND IN VIEW OF THE INTERSTATE COMMERCE COMMISSION'S DECISION IN THE SHEBOYGAN CASE AS SHOWN IN VOLUME 215, PAGE 66 OF DOCKET 26730, WHICH DECISION HAS BEEN CALLED TO ATTENTION SINCE PREVIOUS CORRESPONDENCE. PLEASE ADVISE AUTHORITY TO PROTECT LINE-HAUL CHARGES ON SHIPMENTS IN QUESTION.

IN THE CITED CASE, CITY OF SHEBOYGAN, WIS., ET AL. V. CHICAGO AND NORTH WESTERN RAILWAY COMPANY, ET AL., 215 I.C.C. 65, THE INTERSTATE COMMERCE COMMISSION SAID (P. 66):

COMPLAINANTS THROUGHOUT THEIR EVIDENCE TREAT THE DISTANCE RATES AS APPLICABLE, BUT AN EXAMINATION OF THE TARIFFS CONTAINING THOSE RATES DISCLOSES THAT THEY ARE PUBLISHED ONLY AS STATION-TO-STATION RATES, THAT THEY DO NOT APPLY ON A MOVEMENT ENTIRELY WITHIN A SWITCHING DISTRICT OF A TERMINAL, AND THAT NO BASIS OF CHARGES FOR THE SERVICE HERE UNDER CONSIDERATION IS PROVIDED BY OTHER TARIFFS. * * *

IN THIS CONNECTION YOUR LETTER DATED AUGUST 6, 1936 (E-135-PORTAL; CC-80- DROUTH; CC-58-F.E.R.A.) STATES---

IN MY LETTER OF APRIL 14TH I QUOTED AUTHORITY FOR THE CHARGE WE HAD ASSESSED ON THIS SHIPMENT.

I HAVE REFERRED TO THE INTERSTATE COMMERCE COMMISSION DECISION REFERRED TO BY YOU AND DO NOT FEEL THAT IT IS COMPARABLE. WITHOUT DOUBT THE MOVEMENT OF CARS INVOLVED IN THE DECISION WAS MATERIALLY GREATER THAN IN THIS PARTICULAR INSTANCE, AND I DO NOT FEEL THAT WE SHOULD BE ASKED TO HANDLE THIS CAR FOR LESS THAN THE REGULAR ESTABLISHED $15.00 MINIMUM CHARGE.

YOUR LETTER DATED APRIL 14, 1936, CITED RULE 13 OF CONSOLIDATED FREIGHT CLASSIFICATION NO. 9 AS AUTHORITY FOR THE MINIMUM CHARGE OF $15 BUT AS HAS BEEN POINTED OUT HEREINBEFORE THE CITED RULE SPECIFICALLY PROVIDES THAT THIS MINIMUM CHARGE AS THERE NAMED DOES NOT APPLY IN THE SITUATION APPARENTLY ATTENDING THE SHIPMENTS HERE CONCERNED. AND IT IS NOTED THAT IN THE CITY OF SHEBOYGAN CASE CONCERNING WHICH YOU STATED THAT "WITHOUT DOUBT THE MOVEMENT OF CARS (THERE) INVOLVED WAS MATERIALLY GREATER" THAN IN THE INSTANCES HERE CONCERNED, THE INTERSTATE COMMERCE COMMISSION POINTED OUT (P. 71/---

THE APPLICABLE INTRASTATE CHARGE BETWEEN INDUSTRIES IN THE SHEBOYGAN SWITCHING DISTRICT IS $11.25 PER CAR WHICH IS DIVIDED $8.10 TO THE ORIGINATING CARRIER AND $3.15 TO THE DELIVERING CARRIER.

IN OTHER WORDS FOR A COMPLETE TERMINAL SWITCH MOVEMENT INVOLVING TWO CARRIERS THE CHARGE WAS ONLY $11.25 OF WHICH THE DELIVERING CARRIER RECEIVED ONLY $3.15 FOR ITS SERVICE BETWEEN INTERCHANGE POINT AND INDUSTRY, BEING THE "MOVEMENT * * * INVOLVED" AND WHICH YOU URGE WAS ,WITHOUT DOUBT MATERIALLY GREATER" THAN IN THE INSTANCES HERE CONCERNED. AND IT IS WELL ESTABLISHED THAT THE CHARGE FOR INTERCHANGE SWITCHING SERVICE ASSESSED FOR ONLY THE TERMINAL SERVICES ON A THROUGH MOVEMENT SHOULD NOT BE IN EXCESS OF THAT FOR A COMPLETE TERMINAL SWITCH MOVEMENT.

THE ONLY TARIFF APPLICABLE ON INTERSTATE MOVEMENTS OF HAY AND STRAW AT THE TIME OF THESE SHIPMENTS WHICH HAS BEEN BROUGHT TO THE ATTENTION OF THIS OFFICE IS MINNEAPOLIS, ST. PAUL AND SAULT STE. MARIE RAILWAY CO., FREIGHT TARIFF NO. 98-A, I.C.C.NO. 5336, NAMING RATES BETWEEN ,ASHLAND, WIS., DULUTH, MINN. * * * AND OTHER POINTS SHOWN ON PAGES 16 TO 24 * * * AND STATIONS ON THE * * * MINNEAPOLIS, ST. PAUL AND SAULT STE. MARIE RAILWAY * * * IN * * * NORTH DAKOTA * * * ALSO RATES LOCALLY BETWEEN STATIONS IN * * * NORTH DAKOTA.'

TARIFF NO. 98-A DOES NOT NAME ANY RATES SPECIFICALLY APPLICABLE BETWEEN THE NORTH PORTAL-PORTAL INTERCHANGE AND THE PORTAL TEAM TRACKS. TARIFF SECTION 2 NAMES DISTANCE RATES WHICH APPLY "LOCALLY * * * BETWEEN STATIONS ON THE M.ST.P. AND S.S.M. RY. * * * IN NORTH DAKOTA," THE LOWEST OF SUCH RATES BEING 5.5 CENTS PER 100 POUNDS (MINIMUM WEIGHT 20,000 POUNDS FOR CAR 36 FEET 6 INCHES IN LENGTH), FOR DISTANCE OF 5 MILES OR LESS. SINCE THE RATES NAMED IN TARIFF NO. 98-A APPLY ONLY BETWEEN STATIONS IT SEEMS THAT THEY ARE NOT APPLICABLE FOR SERVICE BETWEEN THE NORTH PORTAL-PORTAL INTERCHANGE (WHICH IS NOT SHOWN AS A STATION ON THE MILWAUKEE, ST. PAUL AND SAULT STE. MARIE RY.) AND PORTAL (SEE CITY OF SHEBOYGAN CASE); AND THE INTERSTATE COMMERCE COMMISSION HAS ADVISED THIS OFFICE THAT---

AN EXAMINATION HAS BEEN MADE OF THE TARIFF PROVISIONS ON FILE WITH THE COMMISSION AND IT IS FOUND THAT NO CHARGE HAS BEEN PROVIDED FOR TRANSFERRING A SHIPMENT FROM THE CONNECTION WITH THE CANADIAN PACIFIC RAILWAY TO THE TEAM TRACK OF THE SOO LINE PRIOR TO MAY 20, 1935, WHEN A CHARGE OF $6.30 PER CAR WAS ESTABLISHED IN SOO LINE SWITCHING TARIFF I.C.C.NO. 6509. * * * THE COMMISSION HOLDS THAT WHERE A CHARGE IS NOT PUBLISHED FOR THE SERVICE PERFORMED, THE CARRIER IS ENTITLED TO A REASONABLE CHARGE. HOWEVER, WHAT CONSTITUTES A REASONABLE CHARGE, THE COMMISSION IS UNABLE TO SAY ON THE PRESENT RECORD.

THEREAFTER THE CARRIER'S CLAIMS WERE CERTIFIED FOR PAYMENT IN GENERAL ON BASIS OF RATES CLAIMED AS FROM THE SHIPPING POINTS TO NORTH PORTAL BUT FOR THE SERVICE FROM THE INTERCHANGE POINT TO THE TEAM TRACK AT PORTAL ON BASIS OF $6.30 PER CAR BECAUSE "NO PUBLISHED RATE IN EFFECT * * * $6.30 APPEARS TO BE A REASONABLE CHARGE FOR SERVICE PERFORMED.' PAYMENT WAS MADE ACCORDINGLY DURING OCTOBER 1936 BY G. F. ALLEN, CHIEF DISBURSING OFFICER, ON VOUCHERS 588279/84, INCLUSIVE, 588285/96 INCLUSIVE, 573167/77 INCLUSIVE, 604135/44 INCLUSIVE, 640463/9 INCLUSIVE, 640471/3 INCLUSIVE, 604131/4 INCLUSIVE; AND SUBSEQUENTLY THE CLAIMS PER THE BILLS SUFFIXED "A" WERE SUBMITTED IN TOTAL AMOUNT OF $374.49, COMPUTED ON BASIS OF RATE OF 5.5 CENTS PER 100 POUNDS (MINIMUM WEIGHT 20,000 POUNDS; ACTUAL WEIGHT WHERE GREATER) AS FROM THE NORTH PORTAL-PORTAL INTERCHANGE TO PORTAL TEAM TRACK,"RULE 10 OF SOO 98-A" BEING REFERRED TO AS AUTHORITY FOR THE RATE SO CLAIMED. RULE 10 OF TARIFF NO. 98-A PROVIDES---

DISTANCE RATES NAMED IN THIS TARIFF MUST BE COMPUTED ON BASIS OF ACTUAL MILEAGE, DISTANCES TO BE OBTAINED FROM * * * M., ST.P. AND S.S.M., G.F.D.NO. 25000, I.C.C.NO. 4460 * * * SUPPLEMENTS THERETO, OR REISSUES THEREOF. WHEN RATES FOR EXACT DISTANCE ARE NOT SHOWN, USE RATES FOR NEXT GREATER DISTANCE FOR WHICH RATES ARE SHOWN IN THIS TARIFF.

BUT IT APPEARS THAT I.C.C.NO. 4460 OR SUCCEEDING ISSUES IN EFFECT AT THE TIME OF THIS SERVICE DID NOT NAME DISTANCE BETWEEN NORTH PORTAL PORTAL INTERCHANGE AND PORTAL, AND ACCORDINGLY THERE WAS NO BASIS FOR APPLICATION OF RULE 10 OF TARIFF NO. 98-A. SEE ALSO PREVIOUS REMARKS PERTAINING TO APPLICATION OF THIS LATTER TARIFF ON THE SERVICE HERE CONCERNED.

THE RECORD SET FORTH HEREIN INDICATES THAT THERE HAS BEEN A GENERAL MISCONCEPTION OF THE APPLICABILITY OF THE SEVERAL CITED TARIFFS; THAT THERE HAS BEEN A SIMILAR MISCONCEPTION OF THE APPLICABILITY IN ANY EVENT OF A MINIMUM CHARGE OF $15 FOR THE SERVICE APPARENTLY PERFORMED BY OU; AND THE CORRESPONDENCE WITH MR. BARKS AND LATER PUBLICATION OF THE $6.30 CHARGE INDICATES ACQUIESCENCE IN HIS REPEATED CONTENTION THAT THE LATTER AMOUNT WOULD BE THE REASONABLE CHARGE FOR SUCH SERVICE. THE ADVICE OF THE INTERSTATE COMMERCE COMMISSION IN THE PRESENT MATTER IS THAT ,WHAT CONSTITUTES A REASONABLE CHARGE, THE COMMISSION IS UNABLE TO SAY ON THE PRESENT RECORD," BUT IT IS NOTED THAT IN SWITCHING CHARGES AT TEXAS POINTS, 197 I.C.C. 513, AND CASES CITED THEREIN, RECIPROCAL SWITCHING CHARGES APPLYING FROM INTERCHANGE POINTS TO INDUSTRIES AT NUMEROUS IMPORTANT CITIES WERE APPROVED IN AMOUNTS OF $5.50, $6.30, AND $6.50 PER CAR AS REASONABLE MAXIMUM AMOUNTS; AND MR. BARKS' LETTER OF MARCH 18, 1935, INDICATES THAT THE SERVICE HERE CONCERNED WAS LESS IN EXTENT AND EXPENSE TO THE CARRIER THAN AT ITS OTHER AND LARGER STATIONS AT WHICH THE CHARGE WAS $6.30 PER CAR.

UPON THIS RECORD THIS OFFICE FINDS NO BASIS FOR ALLOWANCE OF CHARGES IN EXCESS OF $6.30 PER CAR FOR THE SERVICE IN QUESTION, AND ACCORDINGLY PAYMENT HAVING BEEN MADE ON BASIS OF $6.30 PER CAR, THE CLAIMS PER THE CARRIER'S SUPPLEMENTAL BILLS ON BASIS OF 5.5 CENTS PER 100 POUNDS FOR THIS SERVICE LEGALLY MAY NOT BE ALLOWED.