Northern Pac. Ry. Co. v. Baker

• Citation: 3 F. Supp. 1
• Decision Date: 21 March 1933
• Docket Number: No. 456.,456.
• Parties: NORTHERN PAC. RY. CO. et al. v. BAKER et al.
• Court: U.S. District Court — Western District of Washington

3 F. Supp. 1

NORTHERN PAC. RY. CO. et al. v. BAKER et al.

No. 456.

District Court, W. D. Washington, S. D.

March 21, 1933.

COPYRIGHT MATERIAL OMITTED

L. B. da Ponte, and Thos. H. Maguire, both of Seattle, Wash., and J. W. Quick, of Tacoma, Wash., for plaintiff Northern Pac. Ry. Co.

F. M. Dudley, I. S. Crawford, and O. G. Edwards, all of Seattle, Wash. (A. J. Laughon, of Seattle, Wash., on the brief), for plaintiff Chicago, M., St. P. & Pac. R. Co.

Thomas Balmer and A. J. Clynch, both of Seattle, Wash., for plaintiff Great Northern Ry. Co.

Arthur C. Spencer, of Portland, Or., and O. G. Edwards, of Seattle, Wash., for plaintiff Oregon-Washington R. & Nav. Co.

G. W. Hamilton, Atty. Gen., John H. Dunbar, (former) Atty. Gen., and John C. Hurspool, Asst. Atty. Gen., for defendants.

Hance H. Cleland and Raymond W. Clifford, both of Olympia, Wash., for defendant J. L. Bridge.

Before WILBUR, Circuit Judge, and PRAY and CUSHMAN, District Judges.

CUSHMAN, District Judge (after stating the facts as above).

Because of the fact that certain shippers who shipped logs after the issuance of the interlocutory injunction and prior to the filing of the tariffs so reducing log rates were not parties to the settlement, they would have a right of action upon the bonds given by plaintiffs at the time of securing the interlocutory injunction, should such injunction have been wrongfully granted. For this reason, despite the fact of the filing of such later tariffs reducing rates, the present suit has not become moot. Groesbeck v. Duluth, South Shore & Atlantic Railway Company, 250 U. S. 607-609, 40 S. Ct. 38, 63 L. Ed. 1167; Southern Pacific Company v. Interstate Commerce Commission, 219 U. S. 433-452, 31 S. Ct. 288, 55 L. Ed. 283.

No suggestion has been made that jurisdiction be retained because of the fact that the tariffs filed after the bringing of suit "postponed" the effective date of the tariffs involved in the suit until and including September 9, 1935.

The claimed want of requisite findings by the department will be first considered. In so far as deemed necessary upon this point, the findings are as follows:

"Economic facts have always exerted a definite influence upon the rate making processes of both carriers and regulatory bodies. If economic facts were to be disregarded there would be little occasion for the classification of freight. That a regulatory body has authority in the exercise of its rate making power to consider economic facts and specifically to consider the conditions in a particular industry is sufficiently declared in the recent decision of the United States Supreme Court in Ann Arbor Railroad Company et al. v. United States et al., 281 U. S. 658, 50 S. Ct. 444, 74 L. Ed. 1098 from which the following is quoted:

"`In rate making under existing laws it has been recognized that conditions in a particular industry may and should be considered along with other factors in fixing a rate for that industry and in determining their reasonableness; and it has also been recognized that, so far as can be done with due regard for the interests affected, rates should be such as will permit the commodities to which they relate to move freely in the channels of commerce.' * * *

"The Department in order to determine as nearly as possible the actual situation as to rail movement of lumber manufactured by mills receiving logs over the lines of respondents made an investigation of this subject. We first secured from all of the principal log shippers the total footage of their log shipments over respondents' lines for the year 1929 by consignees. The total log shipments of 23 log shippers amounted to 1,112,381,895 feet. We then secured details of the rail shipments of the identical sawmills receiving the logs. The result was that these mills shipped in the same year via respondents' lines 4,225 carloads of manufactured products to destinations in Washington and Oregon and 39,143 carloads to long-haul destinations beyond the borders of the above states. Based upon an average of 27,000 feet per car furnished by the West Coast Lumbermen's Association which was secured by a study of the 1927 shipments of its members this equals 1,170,936,000 feet; a small excess over the total footage of inbound logs.

"It is true that the outbound movement was not divided as between the various carriers in accordance with the inbound log movement. Some of the roads got more and others less than the equivalent of logs hauled in, but as a whole respondents did receive more outbound lumber from these mills than the product of the inbound logs. * * *

"Mr. Peterson and other witnesses for the N. P. selected the month of November, 1927, which the record shows to have been a better than average month, and endeavored to find the actual cost of transporting logs during that month. * * *

"The Department is of the opinion and finds that the distance rates and scaling rules named in Tariff No. 51-B are unjust and unreasonable and more than the traffic can bear. The Department is of the further opinion that the said distance rates are improperly constructed, particularly in the lower steps. For example, the difference in the mileage rate between the first two steps is 22 cents; between the second and third step the difference is 16 cents and thereafter the scale increases 8 or 9 cents for each five miles up to one hundred miles. The Department can see no justification for this disproportionate variation. The record and particularly Mr. Peterson's exhibit, shows that the greater portion of the costs of the log traffic would not be materially affected by a difference of five miles in the haul. Obviously, such major items as switching costs, trainmen's wages and interest charges would not ordinarily be so affected.

"The Department is of the opinion and finds that the following schedule of maximum rates per car, based on the use of cars not exceeding 43 feet in length and 80,000 pounds capacity, is just, fair and reasonable for logs in Western Washington:

                10 miles or less..............................  $16.50
                Over 10, not over 15 miles....................   17.00
                Over 15, not over 20 miles....................   17.50
                Over 20, not over 25 miles....................   18.00
                Over 25, not over 30 miles....................   18.40
                Over 30, not over 35 miles....................   18.80
                Over 35, not over 40 miles....................   19.20
                Over 40, not over 45 miles....................   19.60
                Over 45, not over 50 miles....................   20.00
                Over 50, not over 55 miles....................   20.40
                Over 55, not over 60 miles....................   20.80
                Over 60, not over 65 miles....................   21.20
                Over 65, not over 70 miles....................   21.60
                Over 70, not over 75 miles....................   22.00
                Over 75, not over 80 miles....................   22.40
                Over 80, not over 85 miles....................   22.80
                Over 85, not over 90 miles....................   23.20
                Over 90, not over 95 miles....................   23.60
                Over 95, not over 100 miles...................   24.00
                Over 100, not over 105 miles..................   24.40
                Over 105, not over 110 miles..................   24.80
                Over 110, not over 115 miles..................   25.20
                Over 115, not over 120 miles..................   25.60
                Over 120, not over 125 miles..................   26.00
                Over 125, not over 130 miles..................   26.40
                Over 130, not over 135 miles..................   26.80
                Over 135, not over 140 miles..................   27.20
                Over 140, not over 145 miles..................   27.60
                Over 145, not over 150 miles..................   28.00
                Over 150, not over 155 miles..................   28.40
                Over 155, not over 160 miles..................   28.80
                Over 160, not over 165 miles..................   29.20
                Over 165, not over 170 miles..................   29.60
                Over 170, not over 175 miles..................   30.00
                Over 175, not over 180 miles..................   30.40
                Over 180, not over 185 miles..................   30.80
                Over 185, not over 190 miles..................   31.20
                Over 190, not over 195 miles..................   31.60
                Over 195, not over 200 miles..................   32.00
                

"The rates found reasonable herein for ten miles and under and for other short distances are substantially higher than the existing or proposed rates. We feel that since these rates for short-haul movements require the same amount of terminal service, and since practically the same use is made of the equipment as in the longer haul movements, respondents are entitled to relatively higher rates for short hauls. The record indicates that there is a growing tendency to move short-haul shipments of logs over the highways by truck. Since our order provides maximum rates, respondents will be left in a position to exercise managerial discretion in the matter of providing lower rates to meet auto truck competition when they can be justified by the circumstances encountered in such cases.

"The exhibits of respondents show the details of their log movements for various periods. The N. P. made a complete study of individual movements for the month of November, 1927, showing distances hauled and revenue collected. While certain figures were shown for other periods they were not in sufficient detail for the purpose of determining revenue results. Later figures were not available because when the N. P. sought to make a more up-to-date study it was found that many of the important movements had been suspended on account of the depressed conditions. G. N. revenue figures relied upon were for November, 1929, and total movement figures were for the year 1929. The Milwaukee figures were for the year 1929. It was therefore impossible for the Department to determine exactly the revenue increases which would result based on the present log movement or to estimate what that movement might be in the future.

"From the information of record the Department constructed a composite statement to show the number...