United States v. Missouri-Kansas-Texas R. Co., 9737.

• Decision Date: 15 June 1937
• Docket Number: No. 9737.,9737.
• Citation: 21 F. Supp. 931
• Parties: UNITED STATES ex rel. SONKEN-GALAMBA CORPORATION v. MISSOURIKANSAS-TEXAS R. CO. et al.
• Court: U.S. District Court — Western District of Missouri

21 F. Supp. 931

UNITED STATES ex rel. SONKEN-GALAMBA CORPORATION v. MISSOURIKANSAS-TEXAS R. CO. et al.

No. 9737.

District Court, W. D. Missouri, W. D.

June 15, 1937.

Ringolsky, Boatright & Jacobs, of Kansas City, Mo., for relator.

Ellison Neel, of Cooper, Neel, Kemp & Sutherland and George Mersereau, of Lathrop, Crane, Reynolds, Sawyer & Mersereau, both of Kansas City, Mo., for respondents.

REEVES, District Judge.

This proceeding is authorized by section 49, title 49 U.S.C.A., relating to the subject of transportation. Such section of the statute authorizes the issuance of a writ of mandamus in favor of a shipper so as to enable such shipper to obtain equal facilities for the transportation of his property with those given other shippers under similar conditions and for like traffic.

The relator is engaged in handling scrap iron and scrap steel and has been so engaged for many years. At the present time it has a large quantity of old scrap steel and scrap iron which it has tendered to the respondents for shipment. Such shipments have been refused by the respondents upon the ground that such material is not scrap iron and scrap steel within the tariff rates authorized by the Interstate Commerce Commission, but the same constitute secondhand material and should be given such classification.

The tariff rates upon the two classifications are quite different. A much larger rate is charged for secondhand material than for scrap iron or scrap steel, and in consequence it becomes a matter of great importance, both to the shipper and to the carrier.

There are two questions presented by the pleadings and by the testimony: (1) Whether the tariff rate on scrap iron or steel relates to such material as will give it a peculiar meaning and thus invoke the exclusive jurisdiction of the Interstate Commerce Commission for its clarification; and (2) whether upon the evidence it should be held that the material tendered for shipment is secondhand material, thereby possessing a recognized commercial value and against which a higher rate should be applied.

The material in question is made up for the most part of steel plates, obtained and assembled from the dismantling of numerous oil tanks in the oil fields of Oklahoma and elsewhere. Such tanks have been in use over a period of fifteen to twenty-five years. They were employed for storing crude mineral oils. They have become obsolete both because of their age and long use and from the improved construction of modern tanks. Such obsolete and antiquated tanks were dismantled by cutting away the metal fastenings and then throwing or lowering the separate plates from the tops of the tanks to the ground. The dismantling process involved operations from the top of the tank downward. During the years that the material was employed in oil tanks it was exposed to the weather. When abandoned for newer types of storage tanks, the material was sold for junk or scrap steel.

There was evidence that, in a few instances, selected portions of the steel plates taken from dismantled tanks were refabricated and used in the construction of smaller tanks. The evidence was that this involved a high degree of selectivity and was disappointing because of the rust and corrosion of the plates, the extent of which not readily appearing upon casual inspection. The plates thus selected and used again in the construction of oil tanks constituted a negligible percentage of the total number of plates assembled from dismantled tanks. The evidence did not tend to disclose any commercial value in the use or the employment of the plates taken from dismantled tanks, save only as scrap steel.

The above questions will be discussed and further statement of facts, if pertinent, will be made in the course of this memorandum opinion.

1. It is urged by the respondents that the tariff on scrap iron and scrap steel involves a peculiar meaning, and therefore the matter here in controversy must be determined alone and in the first instance by the Interstate Commerce...