This complaint is based upon the premise that it is unreasonable to charge a higher rate by reason of the reconsignment when the shortline distance rate applies through the reconsigning point in the event that the shipment is not reconsigned. A rule providing for charges for out-of-line hauls where through rates apply from origin to final destination through the reconsigning point is unreasonable. Recon signment and Diversion Rules, 58 I. C. C. 568, 573.

It is found that the applicable rate was unreasonable to the extent it exceeded 90 cents. Defendants are authorized to waive collection of the outstanding undercharges. An appropriate order will be entered.

235 I. C. C.

No. 28199

JOHN I. HAAS, INCORPORATED, v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY ET AL.

Submitted October 13, 1939. Decided November 14, 1939

Formal complaint, alleging that the rate charged on one carload of hops from Salem, Oreg., to Atlanta, Ga., was unjustly discriminatory and unduly prejudicial, found barred by the statute. Complaint dismissed.

T. W. Greve for complainant.

J. E. Lyons for defendants.

REPORT OF THE COMMISSION 1

ALLDREDGE, Commissioner:

The shortened procedure was followed. Complainant filed exceptions to the examiner's report.

Complainant corporation alleges by complaint filed December 27, 1938, as amended, that the rate charged on one carload of hops, shipped July 23, 1936, from Salem, Oreg., to Atlanta, Ga., was unjustly discriminatory and unduly prejudicial. Reparation only is sought. By letter dated January 19, 1939, complainant's agents advised that they had concluded not to allege unreasonableness. On June 7, 1937, for the purpose of tolling the statute pending preparation and filing of a completed special-docket application, defendants in behalf of complainant filed an uncompleted special-docket application relating to this shipment for authority to make refund to the basis of a rate of $1.75, minimum 25,000 pounds. The special-docket application stated that the rate charged was unreasonable and made no mention of any claim based on unjust discrimination and undue prejudice. Consequently, the formal complaint based on unjust discrimination and undue prejudice is barred by the statute.

It is found that the formal complaint is barred by the statute. The complaint will be dismissed.

1 Under the authority of section 17 (6) of the Interstate Commerce Act, the above. entitled proceeding was referred by the Commission to Commissioner Alldredge for consideration and disposition.

235 I. C. C.

No. 281821

MID-CONTINENT PETROLEUM CORPORATION v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY

Submitted October 14, 1939. Decided November 15, 1939

Emergency charges collected on carload shipments of gasoline and other petroleum products, in tank cars, from origins in Oklahoma to destinations in Missouri, Kansas, and other States, found applicable. Complaint dismissed. L. W. Witte and J. R. Lewallen for complainants.

B. H. Stanage and Nathan S. Sherman for defendants.

REPORT OF THE COMMISSION 2

MAHAFFIE, Commissioner:

The shortened procedure was followed. Complainants filed exceptions to the examiner's report, and the issues were orally argued. Complainant corporations allege that the emergency charges collected on numerous carloads of gasoline and other petroleum products shipped in tank cars on and after January 15, 1936, in the title proceeding, and on and after February 25, 1936, in No. 28182 (Sub-No. 1), from origins in Oklahoma to destinations in Missouri, Kansas, and other States, were and are inapplicable. Reparation in the amount of the emergency charges collected is sought. Rates are per 100 pounds and do not include emergency charges.

In the title proceeding, typical shipments, weighing from 27,040 to 67,478 pounds, moved over defendant's line from Tulsa, Okla., to Springfield and Clinton, Mo., 185.3 and 218.2 miles, respectively. Typical of the shipments involved in No. 28182 (Sub-No. 1) is the shipment weighing 51,731 pounds, which moved over defendants' lines from Drumright, Okla., to Frontenac, Kans., 188.7 miles. For these respective distances, rates of 21.5, 24.5, and 21.5 cents, the rates which were charged and which are not assailed herein, are provided in item 2165 of Agent Peel's tariff I. C. C. No. 2751. They were published to meet motortruck competition. Under the provisions of item 2170 of this tariff, these rates applied on petroleum products,

1 This report also embraces No. 28182 (Sub-No. 1), Tide Water Associated Oil Company v. Atchison, T. & S. F. Ry. Co. et al.

Under the authority of section 17 (6) of the Interstate Commerce Act, the aboveentitled proceeding was referred by the Commission to Commissioner Mahaffie for consideration and disposition.

such as gasoline, kerosene, and lubricating oils, in straight or mixed carloads.

The tariff naming the rates charged provided, under the heading "Application of Emergency Charges":

Charges resulting from the rates in this tariff are subject to the provisions of Tariff of Emergency Charges No. 223-A, J. R. Peel's I. C. C. No. 2739, supplements thereto or successive issues thereof.

Exception. (1) All items or rates in this tariff bearing an expiration date will be treated as motor truck or water competitive rates in determining the application of emergency charges, if any. (See Item 5 of said Tariff of Emergency Charges.)

Item 5 of the emergency tariff, under "General Rules Governing Parts 1, 2 and 4", reads as follows:

No emergency charge will be assessed in connection with carload rates established to meet truck or water competition (and so indicated in tariffs) if no emergency charge would be applied under Tables 1, 2 or 3 of Part 2 on lessthan-carload shipments between the same points.

Table 3, referred to in the above-quoted matter, was specifically limited to apply only when tariffs subject to the emergency-charge tariff did not make specific reference to tables 1 or 2. The tariff naming the applicable line-haul rates did not refer to tables 1 or 2, and therefore the provisions of table 3 apply here. That table provides for an emergency charge of 1 cent per 100 pounds on less-thancarload shipments when the first-class rates between the considered points exceeded $1.06 but did not exceed $1.17. No emergency charge was provided when the rate was less than $1.06. Thus the amount of the emergency charges, if any, depended on the amount of the firstclass rates on less than carloads rather than the amount of the applicable line-haul rates. There were two sets of first-class rates from and to these points. Agent Peel's I. C. C. No. 2719 contained distance scales for first-class rates. These were the so-called normal first-class rates and were not published with an expiration date or indicated as truck competitive. Agent Peel's I. C. C. No. 2627 contained lower first-class rates from and to these points. The first-class rates in the former tariff, on less than carloads between the points considered, were between $1.06 and $1.17, but the first-class rates in the latter tariff were lower than $1.06. The title page of the latter tariff stated that the rates therein were established to meet motortruck competition.

Note 1 of table 3, in effect during the considered period, provided: The first-class rates referred to in the tables are the through single factor first-class rates from origin to destination. Where there are two such first-class rates, one of which is indicated as truck competitive or bears expiration date, the first class rate which is not so indicated or does not bear expiration date will be used to determine emergency charge rate *

Complainants contend that the lower first-class rate in Agent Peel's I. C. C. No. 2627 superseded those in Agent Peel's I. C. C. No. 2719, inasmuch as the former were applicable on first-class traffic from and to these points; that there cannot be two applicable rates; and that, therefore, the provisions of note 1 have no application here, because there is only one first-class rate. In other words, complainant's position is predicated on the theory that a rate which is not applicable is not a rate, and that therefore the reference in note 1 to two rates is meaningless. Complainants are in error in their assumption that note 1 refers to two applicable first-class rates. The note is merely a formula for the determination of emergency charges by the application of the rules of that note. Proper construction of tariffs requires that the interpretation used will accord some meaning to all provisions of the tariff. It is clear that, in the determination of emergency charges, note 1 prohibits the use of first-class rates indicated as truckcompetitive when other first-class rates are available for the computation of such charges. In Consolidated Stone Cases, 200 I. C. C. 65, interterritorial rates on stone were approved in certain instances on the basis of stated percentages of a constructive first-class rate. These so-called constructive first-class rates were computed by combining the K-2 and Q-1 scales prescribed in the southern class-rate revision, but no such rates were actually applicable in any instance. This combining was a convenient formula upon which the stone rates could be based, and the fact that such rates had no legal existence per se did not vitiate the formula.

It is found that the assailed emergency charges were and are applicable. The complaint will be dismissed.

235 I. C. C.