B-134315, APR. 29, 1958

B-134315: Apr 29, 1958

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TO UNION PACIFIC RAILROAD COMPANY: REFERENCE IS MADE TO YOUR LETTER. THE DEDUCTION WAS MADE TO RECOVER AN OVERCHARGE OF THAT AMOUNT WHICH HAD BEEN PAID ON YOUR BILL TW-147468 FOR THE TRANSPORTATION OF A SHIPMENT OF AMMUNITION FOR CANNON WITH EXPLOSIVE PROJECTILE (SHELL. THE OVERPAYMENT WAS PREDICATED. WHICH WAS APPLIED FROM BALDWIN. THIS RATE IS SHOWN IN ITEM 7450 OF THE TARIFF TO APPLY VIA THE MISSOURI PACIFIC RAILROAD. IS. - * * * FROM ANY POINT OR ORIGIN FROM WHICH A COMMODITY RATE ON A GIVEN ARTICLE TO A GIVEN DESTINATION AND VIA A GIVEN ROUTE IS NOT NAMED IN THIS SECTION OF THIS TARIFF. WHICH POINT IS INTERMEDIATE TO A POINT FROM WHICH A COMMODITY RATE ON SAID ARTICLE IS PUBLISHED IN THIS SECTION OF THIS TARIFF.

B-134315, APR. 29, 1958

TO UNION PACIFIC RAILROAD COMPANY:

REFERENCE IS MADE TO YOUR LETTER, WRITTEN UNDER FILE GW-147468, PROTESTING THE DEDUCTION OF $1,420.27 IN MAKING PAYMENT OF YOUR BILL NO. W -279667 IN JANUARY 1957. THE DEDUCTION WAS MADE TO RECOVER AN OVERCHARGE OF THAT AMOUNT WHICH HAD BEEN PAID ON YOUR BILL TW-147468 FOR THE TRANSPORTATION OF A SHIPMENT OF AMMUNITION FOR CANNON WITH EXPLOSIVE PROJECTILE (SHELL, GAS, PERSISTENT, HT. 4.2 INCHES) FROM BALDWIN, ARKANSAS, TO CLOVER, UTAH, ON BILL OF LADING WT-5544474, IN NOVEMBER 1944.

THE OVERPAYMENT WAS PREDICATED, IN PART, ON THE BASIS OF A COMMODITY RATE OF $1.46 1/2 PER 100 POUNDS PUBLISHED FROM NEW ORLEANS, LOUISIANA, TO SALT LAKE CITY, UTAH, IN ITEM 2930, PART 3, OF WESTERN TRUNK LINES' FREIGHT TARIFF NO. 124-K, I.C.C. NO. A-3521, WHICH WAS APPLIED FROM BALDWIN, ARKANSAS, CONSIDERING THE LATTER POINT INTERMEDIATE FROM NEW ORLEANS. THIS RATE IS SHOWN IN ITEM 7450 OF THE TARIFF TO APPLY VIA THE MISSOURI PACIFIC RAILROAD, THROUGH BALDWIN, ARKANSAS, TO KANSAS CITY, MISSOURI; THE ATCHISON, TOPEKA AND SANTA FE RAILWAY TO DENVER, COLORADO; AND THE UNION PACIFIC RAILROAD TO SALT LAKE CITY, UTAH. ITEM 2450, IN PART 3 OF THIS TARIFF, IS, IN PERTINENT PART, AS FOLLOWS:

"COMMODITY RATES APPLICABLE FROM INTERMEDIATE POINTS.--- * * * FROM ANY POINT OR ORIGIN FROM WHICH A COMMODITY RATE ON A GIVEN ARTICLE TO A GIVEN DESTINATION AND VIA A GIVEN ROUTE IS NOT NAMED IN THIS SECTION OF THIS TARIFF, WHICH POINT IS INTERMEDIATE TO A POINT FROM WHICH A COMMODITY RATE ON SAID ARTICLE IS PUBLISHED IN THIS SECTION OF THIS TARIFF, VIA A ROUTE THROUGH THE INTERMEDIATE POINT OVER WHICH SUCH COMMODITY RATE APPLIES TO THE SAME DESTINATION, APPLY FROM SUCH INTERMEDIATE POINT TO SUCH DESTINATION AND VIA SUCH ROUTE THE COMMODITY RATE IN THIS SECTION OF THIS TARIFF ON SAID ARTICLE FROM THE NEXT POINT BEYOND FROM WHICH A COMMODITY RATE IS PUBLISHED IN THIS SECTION ON THAT ARTICLE TO THE SAME DESTINATION VIA THE SAME ROUTE.'

THUS, UNDER THE INTERMEDIATE APPLICATION OF THE TARIFF, THE RATE OF $1.46 1/2 WAS USED IN DETERMINING THE OVERPAYMENT OF $1,420.27 ON THE SHIPMENT. UPON YOUR FAILURE TO REFUND THE OVERPAYMENT, THIS AMOUNT WAS DEDUCTED IN MAKING PAYMENT OF OTHER AMOUNTS DUE YOU.

WITH YOUR REQUEST FOR REVIEW OF THE ACTION TAKEN IN THIS AUDIT YOU FURNISH A COPY OF A LETTER, DATED OCTOBER 2, 1957, FROM THE GENERAL FREIGHT AGENT OF THE MISSOURI PACIFIC RAILROAD COMPANY, IN WHICH HE URGES THAT THE RATE OF $1.46 1/2 PER 100 POUNDS IS APPLICABLE FROM BALDWIN, ARKANSAS, TO SALT LAKE CITY, UTAH, INASMUCH AS ITEM 2930 OF THE TARIFF--- THE ITEM NAMING THE $1.46 1/2 RATE--- MAKES REFERENCE TO ITEM 615 OF TARIFF NO. 124-K, WHICH PROVIDES THAT "RATES NAMED IN ITEMS MAKING SPECIFIC REFERENCE HERETO WILL NOT APPLY FROM STATIONS IN THE STATES OF ARKANSAS AND LOUISIANA (WEST OF THE MISSISSIPPI RIVER) TO STATIONS IN THE STATES OF COLORADO, IDAHO AND UTAH.' YOU REQUEST THE ALLOWANCE OF THE AMOUNT OF $1,420.27.

SECTION 4 (1) IN PART 1 OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 4 (1), PROVIDES:

"IT SHALL BE UNLAWFUL FOR ANY COMMON CARRIER SUBJECT TO THIS PART OR PART III TO CHARGE OR RECEIVE ANY GREATER COMPENSATION IN THE AGGREGATE FOR THE TRANSPORTATION OF PASSENGERS, OR OF LIKE KIND OF PROPERTY, FOR A SHORTER THAN FOR A LONGER DISTANCE OVER THE SAME LINE OR ROUTE IN THE SAME DIRECTION, THE SHORTER BEING INCLUDED WITHIN THE LONGER DISTANCE, * * * BUT THIS SHALL NOT BE CONSTRUED AS AUTHORIZING ANY COMMON CARRIER WITHIN THE TERMS OF THIS PART OR PART III TO CHARGE OR RECEIVE AS GREAT COMPENSATION FOR A SHORTER AS FOR A LONGER DISTANCE: * * *"

THE APPLICATION OF ITEM 615 OF THE TARIFF TO THE RATE IN QUESTION RESULTS IN THE CREATION OF A VIOLATION OF SECTION 4 (1) OF THE INTERSTATE COMMERCE ACT, WHICH IS UNLAWFUL BY EXPRESS STATUTORY PROVISION, UNLESS RELIEF FROM COMPLIANCE WITH THE FOURTH SECTION OF THE INTERSTATE COMMERCE ACT HAS BEEN GRANTED BY THE INTERSTATE COMMERCE COMMISSION. IN THIS CONNECTION, THE COMMISSION HAS FREQUENTLY HELD THAT IT IS PRIMA FACIE UNREASONABLE TO CHARGE A GREATER RATE FROM THE INTERMEDIATE POINT (BALDWIN, ARKANSAS) THAN THE MORE DISTANT POINT (NEW ORLEANS, LOUISIANA), THE SHORTER HAUL BEING INCLUDED IN THE LONGER HAUL. PATTERSON V. LOUISVILLE AND NASHVILLE RAILROAD COMPANY, 269 U.S. 1, 10; CENTRAL CO-OPERATIVE, WHOLESALE V. NORTHERN PACIFIC RAILWAY COMPANY, 274 I.C.C. 144; WISCONSIN LAND AND LUMBER COMPANY V. ANN ARBOR RAILROAD COMPANY, 194 I.C.C. 395; CARUSO, RINELLA, BALTAGLEA COMPANY, INC. V. CINCINNATI, NEW ORLEANS AND TEXAS PACIFIC RAILWAY CO., 194 Y.C.C. 556-557; AND FEDERATED METALS CORPORATION V. PENNSYLVANIA RAILROAD COMPANY, 178 I.C.C. 186-188.

SINCE THE RECORD IN THIS CASE CONTAINS NO EVIDENCE THAT ANY SPECIFIC FOURTH SECTION RELIEF HAD BEEN GRANTED IN CONNECTION WITH THE RATE UNDER CONSIDERATION--- BUT DOES CONTAIN SOME EVIDENCE TO THE CONTRARY-- AND EVEN WITHOUT ANY STATUTORY ENACTMENT THE EXACTION OF THE HIGHER CHARGE FROM THE INTERMEDIATE POINT WOULD BE PRIMA FACIE UNREASONABLE, THERE SEEMS TO BE NO PRESENT JUSTIFICATION FOR PAYMENT OF THE HIGHER CHARGE FROM PUBLIC FUNDS.

ACCORDINGLY, UPON THE PRESENT RECORD, AND IN VIEW OF THE RECENT DECISION OF THE UNITED STATES SUPREME COURT IN THE CASE OF UNITED STATES V. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD, 355 U.S. 253, THIS DEDUCTION APPEARS PROPER AND IS SUSTAINED.