B-130181, MAY 3, 1957

B-130181, MAY 3, 1957

TO MR. ERNEST FREY, CHIEF TRAFFIC CLERK, SUPER SERVICE MOTOR FREIGHT COMPANY:

WE HAVE CONSIDERED YOUR LETTER OF DECEMBER 18, 1956, FILE OC 6201, 6269, 6306, AND 6358, SUGGESTING THAT WE TEMPORARILY WITHHOLD DEDUCTION ACTION ON CERTAIN OVERPAYMENTS STATED AGAINST FIVE OF YOUR BILLS.

THE OVERPAYMENTS TO WHICH YOU REFER WERE DETERMINED IN OUR TRANSPORTATION DIVISION BY THE USE OF AGGREGATES OF INTERMEDIATE RATES WHICH PRODUCED LOWER CHARGES THAN THE ONE-FACTOR THROUGH TARIFF RATES PUBLISHED AND FILED WITH THE INTERSTATE COMMERCE COMMISSION UNDER SECTION 217 OF THE MOTOR CARRIER ACT, 49 U.S.C.A. 317. CITING THE EXAMINER'S PROPOSED REPORT IN DOCKET NO. MC-C-1849, UNITED STATES V. DAVIDSON TRANSFER AND STORAGE COMPANY, YOU STATE THAT THE INTERSTATE COMMERCE COMMISSION IS WITHOUT JURISDICTION TO DETERMINE THE REASONABLENESS OF PAST MOTOR CARRIER RATES.

THE QUESTION OF THE COMMISSION'S POWER UNDER THE MOTOR CARRIER ACT TO DETERMINE WHETHER RATES CHARGED ON PAST SHIPMENTS WERE APPLICABLE AND LAWFUL AND TO AWARD REPARATIONS FOR DAMAGES SUSTAINED BY THE PAYMENT OF INAPPLICABLE, UNREASONABLE, UNDULY PREJUDICIAL OR UNJUSTLY DISCRIMINATORY RATES WAS FIRST RAISED IN W. A. BARROWS PORCELAIN ENAMEL CO. V. CUSHMAN MOTOR DELIVERY COMPANY, 11 M.C.C. 365, DECIDED IN 1939. THE COMMISSION FOUND THAT IT HAD NO POWER UNDER THE ACT TO AWARD REPARATION FOR DAMAGES, BUT THAT IT DID HAVE THE POWER TO MAKE FINDINGS ON THE APPLICABILITY OR LAWFULNESS OF RATES CHARGED IN THE PAST BY COMMON CARRIERS BY MOTOR VEHICLE. THE PRINCIPLE IS WELL ESTABLISHED THAT A JOINT THROUGH RATE HIGHER THAN THE AGGREGATE OF INTERMEDIATE RATES IF PRIMA FACIE UNREASONABLE (VICTORY GRANITE CO. V. CENTRAL TRUCK LINES, 44 M.C.C. 320), AND CAN BE OVERCOME ONLY BY A CLEAR SHOWING THAT THE LOWER AGGREGATE IS LESS THAN THE MAXIMUM REASONABLE RATE BECAUSE OF SOME INFLUENCE BEYOND THE CONTROL OF THE CARRIER. SCHAEFER, INC. V. RED STAR TRANSIT, INC., 66 M.C.C. 790.

OUR TRANSPORTATION DIVISION, IN ITS AUDIT OF CARRIERS' ACCOUNTS, IS REQUIRED TO GIVE EFFECT TO PRINCIPLES ESTABLISHED BY THE INTERSTATE COMMERCE COMMISSION IN SIMILAR CASES, SINCE, GENERALLY, OUR OFFICE IS THE FINAL ARBITER ON THE QUESTION OF THE LEGALITY OF EXPENDITURES FROM PUBLIC FUNDS, EXCEPT WHEN RECOURSE IS HAD TO THE COURTS. SEE UNITED STATES EX REL. SKINNER AND EDDY CORP. V. MCCARL, 275 U.S. 1, FOOTNOTE ON PAGES 4 AND 5. IN VIEW OF THE ESTABLISHMENT OF THE BASIC PRINCIPLE IN SIMILAR CASES AND OF THE COMMISSION'S DETERMINATION THAT IT HAS AUTHORITY TO CONSIDER THE REASONABLENESS OF PAST RATES, THE EXAMINER'S PROPOSED REPORT IN THE DAVIDSON CASE AFFORDS NO LEGAL GROUND FOR WITHHOLDING THE COLLECTION OF THESE OVERPAYMENTS. ACCORDINGLY, THEY SHOULD BE REFUNDED PROMPTLY TO OBVIATE COLLECTION BY OTHER AVAILABLE MEANS.