market, and there is no reason to believe that healthy competition between all of these railroads would have been in any respect lessened by one joint market instead of two. Insofar as the obligation of railroad officers to their particular railroad is concerned, especially since the Transportation Act, 1920, the paramount consideration is and should be the public interest, "for now the interests of the individual carrier must yield in many respects to the public need." United States v. Illinois Central R. Co., 263 U. S. 515, 525. When railroad officers persist in feeling that their obligation to their particular railroad requires the building of two produce terminals where only one is needed, and the consequent needless expenditures of hundreds of thousands of dollars of railroad funds, it would seem that the public interest in a healthy national transportation system demands that the future be made more secure against such practices. This we are now forced to believe can be accomplished only by additional legislation. This proceeding is discontinued. COMMISSIONER CASKIE did not participate in the disposition of this proceeding. APPENDIX I A. Gross expenditures of the Union Pacific Railroad Company at the Denver Food Terminal Market B. Major items comprising the “miscellaneous" entry 500 dinners and expenses, April 10, 1939, entertaining retail growers, Miscellaneous expenses in connection with the opening of the Food $833.36 193.98 Orchestras and entertainments. $350.00 Payment to Public Service Company of Colorado, installing and removing poles and flood lights.. 775.48 Premiums on liability insurance from May 20, 1939, to 90.75 Installation of public-address system--- 50.00 Miscellaneous items, including time allowed trainmen and enginemen attending celebration, decoration, construction of model of Food Terminal, etc- 441.72 1,707.95 Payment to Denver Tramway Corporation for bus service to Denargo One-half expense Polo Club luncheon and entertainment in March 1939- Arbitrary assignment account meals served on business car. APPENDIX II 590. 17 113.58 144.50 3,722. 36 150.00 1. Estimated gross expenditures of the associated railroads incident to organization and development of The Denver Market & Produce Terminal, Inc., as of July 31, 1939 Estimated incidental costs for rearrangement of Rio Grande tracks or facilities to permit access to Wazee market site. These expenditures advanced by Rio Grande subject to reimbursement by associated railroads. Chargeable to operating expenses---Estimated cost of right-of-way, trackage, and paving to serve The Denver Market & Produce Terminal, Inc., to be owned by the associated railroads. Costs, other than right-of-way advanced entirely by Rio Grande, to be billed against other four lines (see details below) -- Property acquired or to be acquired by the market company, including construction cost of facilities on Wazee site, and acquisition of real estate on Market Street. This represents expenditures by The Denver Market & Produce Terminal, Inc., to be financed through purchase of $250,000 in stock by the five associated railroads, and advances in equal proportion of amounts necessary to complete (see details below)---. or estimated cost of entertainment, advertising, promotion, etc., incident to establishing market. Chargeable to railroad operating expenses (see details below). Grand total__ $25,000.00 205, 468. 69 994, 130.00 12,500.00 1, 237, 098. 69 B. Engineer's estimated cost of jointly owned trackage and of land and facilities, Item in detail Estimated cost Jointly owned trackage: Engineering (4 percent of expenditures, excluding Walnut St. track, and land). Other right-of-way expenditures (clearing site). Ties. Rail.. $2,825,72 114, 000, 00 3,575,00 6, 180.00 7,089.85 5,405, 00 9, 536, 34 2,700,00 7,650,00 28, 506, 78 18, 000, 00 205,468, 69 16,000.00 250,000.00 10, 630.00 18, 000, 00 3,800.00 3, 500 00 5,000.00 14,000.00 46,500,00 29,000.00 117,000.00 101,000.00 Building 4, administration building_ Building 5, garage-type units. Building 6, produce warehouse. Landscaping.. General expenses (rent, stationery, insurance, etc.). Taxes. Other expenditures (contingencies). Real estate on Market St. Total.. 57,000.00 16, 500.00 19,000,00 109, 000, 00 200.00 2,500.00 5,000.00 26,000.00 144,500.00 994, 130.00 C. Detailed promotion expenses by associated railroads at Wazee market Estimated additional expenditures to time of completing market, including cost of opening on August 1------ 4,807.63 Grand total____ 12,500.00 These expenditures advanced by Rio Grande, subject to reimbursement by associated railroads, to insure equal participation in cost. Chargeable to operating expenses. 235 I. C. C. No. 16300 1 ARMSTRONG PACKING COMPANY v. ABILENE & SOUTHERN RAILWAY COMPANY ET AL. Submitted June 15, 1939. Decided January 8, 1940 1. Upon reconsideration, finding in prior report, 234 I. C. C. 74, that trustees of the successor of a complainant abandoned rights in reparation claims of this complainant, and the denial of a motion to substitute a trustee as complainant, reversed. 2. Amounts of reparation under findings in prior reports, 201 I. C. C. 393, 206 I. C. C. 325, 208 I. C. C. 483, and 234 I. C. C. 74, on certain shipments of cottonseed oil, in carloads, from origins in Texas to destinations in California, Oregon, and Washington, determined and ordered paid. Appearances same as in prior report. REPORT OF THE COMMISSION ON RECONSIDERATION BY THE COMMISSION: In the prior report in these proceedings, 234 I. C. C. 74, division 4, among other things, denied a motion to substitute E. L. Flippen as complainant in the complaint of the Armstrong Packing Company and said, at page 79: Since a motion to substitute the trustees of the Pioneer Packing Company as complainants in the complaint of the Armstrong Packing Company was not made before the expiration of the legal existence of the Pioneer Packing Company extended three years after dissolution, for the purpose of settlement of its affairs, the trustees are deemed to have abandoned any rights in the reparation claim of the Armstrong Packing Company. Upon petition of Edgar L. Flippen, trustee, in which it is contended that he is entitled to reparation to which the complainant Armstrong Packing Company may have been entitled, the proceedings were reopened for reconsideration insofar as they pertain to claims of that complainant, which was a Texas corporation. As stated in the prior report, on January 28, 1928, the Armstrong Packing Company changed its name to Pioneer Packing Company, and on March 21, 1928, the latter corporation was dissolved. The motion to substitute Edgar L. Flippen as complainant was made January 21, 1937. Under provisions of statutes of the State of Texas, 1 The report embraces also proceedings of the same number, subnumbered 1 to 5, inclusive, Armstrong Packing Company et al. v. Abilene & Southern Railway Company et al. quoted in the prior report, the existence of a corporation may be con tinued for 3 years after its dissolution for the purpose of enabling those charged with the duty to settle its affairs, and, unless a receiver is appointed, the president and directors or managers at the time of dissolution become trustees of the creditors and stockholders, to whom they are responsible to the extent of the corporation's property and effects that shall have come into their hands. Flippen was president of the corporation and held all but three shares of stock assigned to three directors. He was authorized by the directors to proceed with the adjustment of outstanding accounts of the dissolved corporation. As indicated, division 4 found that, since the request for substitution of trustees in the complaint, which was filed before the dissolution of complainant, was not made prior to the expiration of the 3-year period designated in the Texas statute, the reparation claim of the Armstrong Packing Company was abandoned. In Burkburnett Refining Co. v. Ilseng, 116 Texas 366, 292 S. W. 179, the Supreme Court of Texas held that the directors of a corporation had the right to be substituted as parties plaintiff in a pending suit filed in the name of a corporation dissolved after the suit was brought, notwithstanding that over 3 years had elapsed since the corporation's dissolution. The president and directors of the Pioneer Packing Company at the time of dissolution became trustees of the creditors and stockholders to whom the trustees are "severally responsible" as provided in article 1388 of the Texas statutes, quoted in the prior report. Because of this statutory provision, the assignment, dated June 17, 1929, of the reparation claims of the Pioneer Packing Company to Flippen as trustee for the stockholders, discussed in the prior report, must be construed as an assignment to Flippen as trustee for both creditors and stockholders. Other findings in the prior report, relating to shipments made by the Armstrong Packing Company, the payment of charges thereon, and the extent to which findings in other prior reports embrace these shipments, are not disputed and are therefore affirmed. The finding of division 4 in the prior report that trustees of the successor of complainant, Armstrong Packing Company, abandoned rights in the reparation claim of this complainant, and the denial of a motion to substitute Edgar L. Flippen as complainant, are reversed. We further find that complainant, Armstrong Packing Company, made shipments of cottonseed oil, in carloads, from origins in Texas to destinations in California, Oregon, and Washington embraced by prior findings in these proceedings, and paid the freight charges thereon found unreasonable therein; that this complainant was damaged thereby to the extent of the difference between the charges paid |