# Appendix — Western Pacific Railroad v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0195%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1965 - **Citation:** 382 U.S. 237 ## Text PREME COURT OF THE UNITED STATES OCTOBER TERM, 196% /7 65 rh cr ‘THE WESTERN PACIFIC RAILROAD COMPANY, ET AL., APPELLANTS, v8. UNITED STATES, ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA INDEX VOLUME 1 Original Print | Proceedings before the Interstate Commerce Com- a mission | Seeretary’s certificate (omitted in printing) 1 1 Complaint in Docket No. 33679 5 1 ' Separate answer of The Atchison, Topeka and _ Santa Fe Railway Company 17 8 | Separate answer of Northern Pacific Railway Company, Camas Prairie Railroad Company - and Walla Walla Valley Railway Company _. 19 9 _ Answer of Union Pacific Railroad Company and - Spokane International Railroad Company —.. 21 10 __ Answer of Great Northern Railway Company and ' Pacifie Coast B.R. Co. 4 ll _ Answer of Washington, Idaho, and Montana _ Railway Company 28 13 _ Petition of Southern Pacific Company for leave to intervene in opposition to complaint 32 14 Recorp Press, Printers, New York, N. Y., May 27, 1965 Proceedings before the Interstate Commerce Com- mission—Continued Transcript of hearing, May 8, 9, and 10, 1961 __ Appearances Testimony of T. P. Wadsworth— direct (by Mr. Treanor) — Statement.of T. P. Wadsworth entered into record Statement of D. L. Loftus entered into rec- ord— direct (by Mr. Treanor) - Offers in evidence Testimony of D. L. Loftus— cross (by Mr. Hobbs) redirect (by Mr. Burkett) — Offers in evidence Testimony of Grant 8. Allen— direct. (by Mr. Treanor) _. cross (by Mr. Hobbs) — cross (by Mr. Farrell) — cross (by Mr. Burkett) —. eross (by Mr. Farrell) __ redirect (by Mr. Treanor) recross (by Mr. Farrell) _ Offers in evidence Testimony of F. B. Stratton— direct (by Mr. Treanor) _ cross (by Mr. Hobbs) — cross (by Mr. Farrell) _.. Testimony of Charles K. Faye— direct (by Mr. Treanor) __ cross (by Mr. Hobbs) — cross (by Mr. Farrell) _ Statement of A. K. Hinckle entered into rec- ord— direct cross (by Mr. Burkett) — &S 41 Print Seis se 3ePuesaag FSs5 E86 sa 78 101 INDEX iii ; Original Print Proceedings before the Interstate Commerce Com- mission—Continued Transcript of hearing, May 8, 9, and 10, 1961— Continued Statement of F. W. Fuller entered into reec- ord— direct (by Mr. Treanor) 165 106 eross (by Mr. Farrell) ___ 168 108 redirect (by Mr. Treanor) 171 110 recross (by Mr. Farrell) _ 171 110 Statement of M. A. Kasen entered into rec- ord— direct (by Mr. Treanor) _ 172 111 eross (by Mr. Farrell) __ 177 114 Statement of Waldo Wolgamott entered into record— direct (by Mr. Treanor) _ 181 117 eross (by Mr. Farrell) __. 184 119 redirect (by Mr. Treanor) 185 120 Statement of N. C. Kunzmann entered into record— direct (by Mr. Treanor) _ 186 121 cross (by Mr. Burkett) __ 188 122 cross (by Mr. Farrell) ___ 189 123 redirect (by Mr. Treanor) 189 123 recross (by Mr. Farrell) _ 190 124 Statement of John M. Cox entered into rec- ord— direct (by Mr. Treanor) _ 190 124 eross (by Mr. Burkett) __ 193 126 Statement of Robert Stoll entered into rec- ord— direct (by Mr. Treanor) _ 194 127 eross (by Mr. Burkett) __ 196 128 iedirect (by Mr. Treanor) 197 129 recross (by Mr. Burkett) _ 197 129 Statement of C. V. Donaldson entered into record— direct (by Mr. Treanor) _ 199 130 cross (by Mr. Farrell) ___ 203 132 eross (by Mr. Burkett) __ 209 137 > iv INDEX iss ae Original Print Proceedings before the Interstate Commerce Com- mission—Continued _ Transcript of hearing, May 8, 9, and 10, 1961— Continued Testimony of Clifford Worth— direct. (by..Mr..Treanor) — 211 138 eross (by Mr. Burkett) — 216 142 cross (by Mr. Farrell) —.. 222 146 Offer in evidence 225 = 147 Testimony of P. Steele Labagh— direct (by Mr. Treanor) - 225 147 cross (by Mr. Burkett) — 229 150 Statement of Myron Lindgren entered into rec- ord— direct (by Mr. Treanor) -- 231 152 cross (by Mr. Burkett) 234 8614 Statement of Avery M. Cloninger entered into record— direct. (by Mr. Treanor) . 235 14 eross (by Mr. Burkett) — 238 =: 156 Statement of Paul J. Roche entered into rec- ord— direct (by Mr. Treanor) 240 = 158 cross (by Mr. Farrell) —.. 243 =o redirect (by Mr. Treanor) 244 160 Statement of Frank L. Sigloh entered into record— direct (by Mr. Treanor) ~ 244 ~=s 16 eross (by Mr. Burkett) — 247 163 redirect (by Mr. Treanor) 249 164 recross (by Mr. Farrell) — 249 164 Testimony of A. R. Allen— direct (by Mr. Treanor) . 250 = 165 cross (by Mr. Hobbs) —— 254 167 Testimony of T. P. Wadsworth— (resumed )— cross (by Mr. Farrell) 257 169 cross (by Mr. Burkett) 304 =. 202 redirect (by Mr. Treanor) 312 = 209 reeross (by Mr. Farrell) — 314 += 210 roceedings before the Interstate Commerce Com- mission—Continued Transcript of hearing, May 8, 9, and 10, 1961— Continued Offers in evidence Testimony of T. P. Wadsworth— cross (by Mr. Burkett) __ Complainants rest direct case hearse of A. J. Stilling— direct (by Mr. Hobbs) cross (by Mr. Treanor) __ cross (by Mr. Tjosseni) __ redirect (by Mr. Hobbs) _ Offer in evidence Statement of R. B. Hardin entered into ree- ord— direct (by Mr. Higgins) _ cross (by Mr. Treanor) __ cross (by Mr. Pfrommer) _ Offer in evidence Statement of G. E. Roeder entered into reec- ord— direct (by Mr. Treanor) _ cross (by Mr. Burkett) __ cross (by Mr. Farrell) __ redirect (by Mr. Treanor) recross (by Mr. Farrell) _ Testimony of C. W. Evers— direct (by Mr. Hobbs) __ cross (by Mr. Treanor) _. Offers in evidence Statement of L. S. Davis entered into record— direct (by Mr. Farrell) __ cross (by Mr. Treanor) ___ redirect (by Mr. Farrell) _ recross (by Mr. Treanor) _ redirect (by Mr. Farrell) _ Offers in evidence vi Proceedings before the Interstate Commerce Com-. . mission—Continued spr Transcript of hearing, May 8, 9, and 10, 1961— Continued Testimony of Ferdinand Wascoe— ‘e direct (by Mr. Burkett) —_ cross (by Mr. Treanor) — cross (by Mr. Pfrommer) - redirect (by Mr. Burkett) Offers in evidence EXHIBITs : No. 1—Map which shows the Pacific Coast areas involved in this case, as well as the locations of the lines and routes of the complainants and defendants —-.__ No. 2—Map which shows the points in Cali- fornia served by complainants, as well as the relationship between such points and those situated on the Southern Pacific, with whom the defendants maintain joint rates via Portland, Oregon No. 3—Tables 1-18 of Statistical and other data referred to by Witness Wadsworth’s prepared statement — No. 4—Pages of Pacific Southcoast Freight Bureau Tariff 1-S, ICC 1352, containing present routing arrangements in effect via the Southern Pacific Company via Port-: land, Oregon, thence via the Northern Pa- cific Railway or Union Pacific Railroad Company No. 5—Pages of Pacific Southcoast Freight Bureau Tariff 1-8, ICC 1352, containing present routing arrangements in effect via The Western Pacific Railroad Company via Bieber, Cal.. between points in Cali- fornia and points in Oregon, Washington and Northern Idaho Original Print 449 - 37 472 399 475 39 ATT. 80 479 39 482 3% 482 309 483. 3%) 484 33 495 32 501 348 > INDEX vii Proceedings before the Interstate Commerce Com- mission—Continued Transcript of hearing, May 8, 9, and 10, 1961— Continued Exuipirs—Continued No. 6—Map showing “Stations designated in red are junction points between Union Pacific and Great Northern Railway in Oregon, Washington and Idaho, affording interchange of carload freight without transfer of lading” 508 355 No. 7—Map showing “Stations designated in red are junction points between North- ern Pacific Railway and Great Northern Railway in Oregon, Washington and Idaho, affording interchange of carload freight without transfer of lading” === 509 356 No. 8—Page 38 of Southern Pacific Com- pany Freight Tariff 230-K, ICC 4960, containing absorption of Western Pa- cifie’s switching charge at Sacramento on Canned Goods moving from Sacramento via SP to points on NP or UP in Oregon, Washington or Idaho 510 357 No. 9—Statement showing “Representative Commodities on which present combination rates applicable via Bieber and Portland thence Northern Pacific Railway or Union Pacific Railroad Company are compared with joint through rates in effect via de- fendant’s routes with the Southern Pa- cific Company via Portland” == 512 359 VOLUME 2 No. 10—Statement showing “Originations and terminations of Carload freight traffic via Bieber moving west of transcontinental for the years 1955-1959” 556 403 viii INDEX Proceedings before the Interstate Commerce Com- mission—Continued Transcript of hearing, May 8, 9, and 10, 1961— Continued Exurrrs—Continued No. 11—Statement showing “Cars via. Santa Fe Via Bieber or Portland (West of Transcontinental Territory) for the years 1955-1959” No. 12—Statement showing. “Traffic via Bieber compared with total revenue freight traffic handled by The Western Pacific Railroad Company for the years 1955-1959” No. 183—Statement showing “West of Trans- continental Traffic via Bieber compared with other West of Transcontinental Traffic moving via The Western Pacific Railroad Company and with the total rev-. enue traffic handled by that Railroad” _. No. 14—Pages of Pacific Southcoast Freight Bureau Tariff 1-S, ICC 1352, containing present rates on Cast Iron Pipe from Decoto, California on the Western Pacific Railroad to points in Oregon, Washington and Northern Idaho, via Western Pacific to Bieber, Cal.; Great Northern Railway to Portland, Oregon, thence via Northern Pacific Railway Company or Union Pacific Railroad Company No. 15—Pages of Pacific Southcoast Freight Bureau Tariff 1-S, ICC 1352, containing present rates on Automobiles from Oak- land and Decoto, Cal. to points in Oregon, Washington and Northern Idaho, via Western Pacific to Bieber, Cal. Great Northern Railway to Portland, Oregon, thence Northern Pacific Railway Company or Union Pacific Railroad Company — Original Print 557 404 558 405 558a 406 559 401 569 417 Proceedings before the Interstate Commerce Com- mission—Continued Transcript of hearing, May 8, 9, and 10, 1961— Continued Exuits—Continued No. 16—Pacifie Southcoast Freight Bureau Tariff No. 297-D (and Supplements 3 and 4), ICC. No. 1678, containing present rates on Automobiles from points in Cali- fornia on the Western Pacific Railroad Company to points on the Northern Pa- cific Railway and Union Pacific Railroad Company via Western Pacific Railroad Company to Bieber, California, Great Northern Railway to Portland, Oregon, thence Northern Pacific Railway or Union Pacific Railroad Company No. 17—Statement on “Economic Growth” No. 18—Statement on “Production” ____ No. 19—Statement on “The Western Pacific Transportation Plant” No. 20—Map of The Western Pacific Rail- road showing the interchange points between the Western Pacific and the Sacramento Northern, the Tidewater Southern, and other railroads No. 21—Map of U.P.R.R.Co. showing main railroad routes and connections—Port- land, Oregon, Aug. 4, 1960 = No. 22—Statement showing “Gross Ton Miles Trailing East, West & Total” ___ No. 23—Statement showing “Northbound— Southern Pacific Schedules” ss No. 24—Statement showing “Southbound— Southern Pacific Schedules” e No. 25—Statement showing “Comparison between Lowest “Through” rate on Fibre- board boxes, KD Flat from Stockton and Antioch, Calif. to Selected Stations in Washington and Lowest “Combination” Rate Applicable via the Bieber Route” _ 578 . 595 597 598 8 2 Proceedings before the Interstate Commerce Com- mission—Continued Transcript of hearing, May 8, 9, and 10, 1961— Continued Exuisits—Continued No. 26—Map showing the Union Pacific line in California, Nevada, Utah, Idaho, Ore- gon and Washington indicated in red, the principal lines of the Southern Pacific in Oregon and California indicated in blue and the joint line of the Santa Fe, West- ern Pacific, Great Northern, between Cali- fornia and Portland indiéated in green No. 27—Map of Portland, Ore. and Van- couver, Wash. and Vicinity showing prin- cipal railroad trackage therein —____. No. 28—Statement showing “Northbound Freight Train Schedules Southern Pa- cific—Union Pacific and Bieber Route and Elapsed Times” No. 29—Statement showing “Southbound Freight Train Schedules—Southern Pa- cific—Union Pacific and Bieber Route and Elapsed Times” No. 30—Map showing Lines of Southern Pa- cific indicated in blue, Inside Gateway to Portland, Ore. indicated in green, Lines of Northern Pacific Railway Co. and connec- tions indicated in red, and Lines of Ore- gon Trunk and Spokane, Portland & Seattle Railways indicated in yellow No. 31—Enlarged Map showing Lines of Southern Pacific indicated in blue, Inside Gateway to Portlanc, Ore. indicated in green, Lines of Northern Pacific Railway Co. and connections indicated in red and Lines of Oregon Trunk and Spokane, Portland & Seattle Railways in yellow __ Proceedings before the Interstate Commerce Com- mission—Continued Transcript of hearing, May 8, 9, and 10, 1961— Continued Exuisrrs—Continued No. 32—Exhibit showing comparison of Railroad Distance via Existing joint rate routes with route sought in this proceeding and also routes via Oregon Trunk- Spokane, Portland and Seattle Railway Companies between Representative Points on the Northern Pacific Railway Company and San Francisco and Los Angeles, Cali- fornia No. 33—Statement showing Transportation Conditions of Southern Pacifie Routes Compared with Western Pacific Route via Bieber, California between Portland, Ore- gon and Stockton, California, San Fran- cisco, California, and Los Angeles, No. 34—Statement showing “Freight Train Schedules—Southern Pacific Routes Com- pared with Western Pacific Bieber Route” No. 35—Statement showing “Gross Ton Miles Trailing East, West and Total— Gerber—Dunsmuir” Brief of complainants to the Hearing Examiner, dated and served July 6, 1961 (excerpts) __. Complainants’ reply to exceptions of Northern Pacific Railway Company, Union Pacific Rail- road Company and Southern Pacific Company (excerpts) Transcript of hearing December 14, 1961 (ex- cerpts) Statement by Commissioner Freas and colloquy with Mr. Treanor Complainants’ petition for reconsideration of the report and order of Division 2, dated and served August 27, 1962 (excerpts) _..._ Original Print 612 473 622 483 640 501 641 502 642 503 648 505 654 508 655 508 659 6510 xii Proceedings before the Interstate Commerce Com- mission—Continued Complainants’ petition for further hearing for purpose of introducing newly developed evi- dence, dated December 28, 1962 ~ Order of Commission denying petition for recon- sideration of report and order of Division 2, entered January 18, 1963 Complainants’ petition for waiver of the provi- sions of Rule 1.101(e) of the Commission’s general rules of practice, January 19, 1963 __ Petition of The Western Pacific Railroad Com- pany pursuant to Rule 1.101(a) (4) general rules of practice seeking a finding that an issue of general transportation importance is in- volved, filed January 30, 1963 Reply of defendants Northern Pacific Railway Company, Camas Prairie Railroad Company and Walla Walla Valley Railway Company to complainants’ petition for waiver of Rule 1.101(e) and petition for further hearing —. Reply of defendant Union Pacific Railroad Com- pany to complainant’s petition for waiver of Rule 1.101(e) and petition for further hearing Reply of intervener Southern Pacific Company to complainants’ petition for waiver of Rule 1.101(e) and petition for further hearing —~. Order of the Commission designating this pro- ceeding as one involving an issue of general transportation importance, entered February 14, 1963 Complainants’ petition to the full Commission for reconsideration of the report and order of Division 2 and complainants’ request for oral argument before the full Commission (ex- cerpts) Petition of United States for leave to intervene for the purpose of petitioning the full Com- mission for reconsideration of the report and order of Division 2 and to be heard on oral argument Proceedings before the Interstate Commerce Com- mission—Continued Petition of United States to full Commission for reconsideration of report and order of Division 2 and request of United States for oral argu- ment before full Commission Reply of intervener Southern Pacific Company to petition of Department of Justice for leave to intervene for the purpose of petitioning the full Commission for reconsideration of the re- port and order of Division 2 and to be heard on oral argument dated and served August 1, 1963 Petition of United States to Full Commission (1) to vacate its order served July 30, 1963; (2) to reopen the proceedings for the purpose of considering petitions of the United States filed July 26, 1963 and such responses thereto as may be filed by the parties; (3) to hear oral argument if then warranted; and (4) to issue a decision stating findings and conclusions and the reasons or basis therefor upon all material issues as well as an order granting or denying the relief sought Reply of defendants Northern Pacific Railway Company, Camas Prairie Railroad Company and Walla Walla Valley Railway Company to petition of the United States for leave to in- tervene Order of Commission denying petitions of United States entered August 9, 1963 Motion of Union Pacific Railroad Company, de- fendant, for The Interstate Commerce Commis- sion to deny or reject the petition of The United States for leave to intervene served August 9, 1963 Reply of defendants Northern Pacific Railway Company, Camas Prairie Railroad Company and Walla Walla Valley Railway Company to petition of the United States to reopen pro- ceedings 740 768 7174 783 794 796 573 577 589 590 592 xiv INDEX Proceedings before the Interstate Commerce Com- mission—Continued Reply of Union Pacific Railroad Company, De- fendant, to petition of The United States to reopen proceedings served August 16, 1963 _.. 821 = 6 Reply of intervener Southern Pacific Company to petition of United States to reopen proceed- ing served August 21, 1963 830 = 610 Letter from Secretary, Interstate Commerce Commission to Mr. John N. Dougherty, De- partment of Justice, dated September 10, 1963 835 = 613 Record from the United States District Court for the Northern District of California, Southern Division 836 = 614 Complaint 836 = 64 Exhibit “A”—Report and Order of the Com- mission, Division 2, Commissioner Freas, de- cided July 26, 1962 and served August 2, 1962 846 = 6 Exhibit “B”—Notice of denial of hearing by the full Commission, dated July 12, 1963 and service date of July 30, 1963 871 —s 6 Exhibit “C”—Report and Order recommended by Hearing Examiner, John F. Wright, dated July 31, 1961 and served August 10, | 1961 872 Order granting motion of Northern Pacific Rail- way Company, Camas Prairie Railroad Com- pany and Walla Walla Valley Railway Com- pany to intervene as defendants, November 4, 1963 878 656 Answer of intervening defendants Northern Pa- cific Railway Company, Camas Prairie Rail- road Company, and Walla Walla Valley Rail- way Company filed November 4, 1963 880 6H Order granting motion of Union Pacific Railroad Company to intervene as defendant, November 26, 1963 884 = 660 Record from the United States District Court for the Northern District of California, Southern Division—Continued Answer of intervening defendant Union Pacific Railroad Company filed November 26, 1963 __. Order granting motion of Interstate Commerce Commission to intervene as defendant, Decem- . ber 16, 1963 Answer of intervening defendant, the Interstate Commerce Commission filed December 16, 1963 Answer of the United States of America filed December 16, 1963 Order granting motion of the Southern Pacific Company to intervene as a defendant, dated December 16, 1963 Answer of intervening defendant Southern Pa- cific Company filed December 16, 1963 _._.__ Order allowing intervention of The Atchison, Topeka, and Santa Fe Railway, dated Janu- ary 13, 1964 Answer of intervening defendant, The Atchison, Topeka and Santa Fe Railway Company filed January 13, 1964 Transcript of hearing on motion to enjoin, set aside, suspend and annul order of Interstate Commerce Commission Appearances Argument by Mr. Treanor on behalf of plain- tiff Argument by Mr. Ginnane on behalf of Inter- state Commerce Commission Argument by Mr. Higgins on behalf of Union Pacific, intervening defendant — Argument by Mr. Farrell on behalf of North- ern Pacific, the Camas Prairie and Walla Walla Railroads Rebuttal argument by Mr. Treanor Opinion and judgment, Zirpoli, J.—Order deny- ing petition, June 19, 1964 xv Original Print 886 661 890 664 891 665 896 669 898 669 900 670 905 674 907 675 909 676 909 677 910 677 938 693 960 707 975 715 983 720 998 730 xvi INDEX Record from the United States District Court for the Northern District of California, Southern Division—Continued Notice of appeal to the Supreme Court of the United States Designation of additional portions of the record, ete. 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(OBE Ieee iodo cc ecereceopececsoseosererese SII@ rreeres 1 OpT s01@ poues 06 sha H‘o‘a ‘a JOPPUCWOM, MON GLB Otl ete ee er me td OM fee de bey PPrrerTr Cree ee 1s1t@ eeeesece OFI COl@ cto | | H 0 ‘a‘a | O1l@Fe =| SIT sone? Tereeer,) @Pee eee, Bee e eee Sit Olt orl pst) 4 ps 94 gel eseeeveere 5 we | ‘ad IGANOIUY A 00.8 PS APPS. FE ee oml oboe dane oI £01® 96@#l scevecse gz Perse re. Vv - RR ee ee Rees BLD ot edt 1zz@ soe er eee ogee eee ereeee Loz@ weet eeerr Powter eere re) )o'a e8200f) COULLg COPSP) °o basa wee cr eee ec esosesestserrs $ezt ervveceven ceeseses $601 wodbeveceheovesesesteeeres et v@l'o ‘e** ***SLIOFOLA P98 ~ eevateet ees eonG 9208 ee oo en lgtecs dome - een ici Ave Vion oe Dares a | Pe poo 4 i eet et Ne ee an + damarnee PSS rs pia‘a'o'v keer pa Olt OLL@# ? I g Bane tess ae! Sad PO 3g PP cS fc errr re? eee ees Cee eee SII@® eee eeeee OPI rs 4) (a) 240 94 56 H‘p‘a‘a 10)907UrI}8044 “ON OBTSt o1r aoe eee Sr ott nae a ee Mees Se so Helen ope ect ee wI® ae Se Ede ae yk Oe © ae, OS wa 2, MORE He a [fom we |S | woa'a worucmerg 0800r me eeeee eit ee eae weer eeee ait Bae ane rere? eee eee eee 2, a Pana ores g 9I@® | vet se G01D® | vet ca CODD | tt rrsseessegy | °BlA uo moped our[pvoy 07 syujod ouropTs (oSvoraD 32Cd) 9T Aner (cosjouvig weg) 9T noi “QOTL PUY OOTL ‘FIL ‘OTL Sur] O08 ‘sous ¢ 40 FF ‘DH ‘a ‘TC *c ‘gl SY BUNJOD SuPes SofoHAT Jo YY 49.7 “QSTZ 9 OPIL SUI0}] Ul poquosep su ‘seTIPATY [e034 10 WOT] pure ¢ ENON O98) dn yee “yqB10x3 ‘seTTGoMOINY rata “(g OJON 008) SOTOIAY JOTI PUB ‘1070UT ‘SOT>TIOA : Wo s[ddv seqei y wamjop ures] S779 0} Cowr0ze2 OYToeds SuPywUL S072 qI}m WoP}oeMUCO Uy Ayu seTTddy ~poreo0} 8} aupod oq} WOTGA WO SUT] Ou soz8oTPUT PUT quNN ZepUy eu? sf CUTIE WoTIeys ¥ Oy PeyeId JOquINT ONL “saoquan q dnosg £q pegeudpsep squpod 20; ,, ‘oUtaekseyy, 09601 > “yuoures,) OSS “qeum’*"*** cp CoP eeneeheoseee Z8e 782 s “gor Breic) o6r8 SpuowIpy OF60T » *'* SUOqny 0648 “Spl oesepind SBrs eze jooe jsze jooe j6iz 61Z "ysem ey jew joy sre syeo “SP]""U0{M MOT CFE eC" ane O1Z0T £98 98 £98 e98 008 00g eeeeeeeeeeees (urey & L; -qInWIeqD $8901 -Burtjog) ez dnoip ee | ores coe eee lee |e oe oes san oe a ‘eiQ"uMboyryD OZgot|| sze |eze jsze |sze | Lz 74 *(3;0104q]) Voz dnospy 2 ee: tomad gee®)| eze@) sze®) sze@|19e® | 9e®@_ =| “MO O[LAeurzg Spo szeg Lve§ Lyz§q_ |" * “amos se ydeoxe 8%E | 80E@| 8zE Son | Lee 122@Q | ‘(o17980g) gz dnosp wile lol: nog pear Semen SRO 907 90F o0P 907 Ore ore . oye] ees eee 8ZE 00g eereereee 61ze *"mmoys se ydeoxe 8280W® SOTOT ‘(pavyii0g) 2z dnosp) eeeeetlereee SZE Sze wets et | afl (ateee lpedlladel a ape a if & fone ie H H Babes — ere _ §g 8 ae : g 3 * * e “Oud .' =. kl 2 2] 25 "mom | “OSE0T WEI] 908 ‘say~s g 10 y TUMIOD FuryT) sopONTE 70 YT] JOT “Pevsoor sf sumed errs worg. wo ou oq} 8e380;pU} Puy sequin peyeadysep syujod 103 , LOpU] Oy} 8] CUI TOTIe}S € 04 ddy sey qo mM OL Put UIOLgZ S}U}Og JO XepU],, oeg -eBueqQ¥ ‘qezp oBeg [wuBuK 04 paxeyorer; 4zy SBUZ PomLAsy 3817 UO UMOYS Ajs0mII0} OFEOT WIV (9¢e9 Vu) “QLI-X WIT UT 04 paszEyer SoPNaIOTT] 07 oO[qGus 10N@ “SIS-X 20 QOC-X ‘B6I-X ‘grI-X SuNZ] BI 0} Poss9yes SoPVaIDUT 07 309!qns ON@ tik Seo tiodsta ‘alm wie "10 “ooo Gene Paw Spo femeio mk pet ws detrei? : ‘dm M4 JQ wo * paspog) ee “poqes0] 8] 3apod oq} TORI Wo eur oq) SeqeoIPUT DUS squNE mPUT eqs S}oureT WORT ¥ OF peryerd sequInT od L -szoquiny dnozp £q pereudmep eyuped 203 , Aiidy sesey GOMLA OL PUT WOIg F3T}Od JO NPT, 098 a eee lived eee (fol. 574] vad | ("| 8 | 8 RERRRRSHRR| 8 | BRERERR t > EFFECTIVE SEPTEMBER 15, 1960 M. A. NELSON, Tariff Publishing Officer, Issued in} Izarkot Street, San Francisco 3, Cal. moana 5088 8 Hi $a988 8|88| § it ee . dit , oan en honhentand i! bs i reg reed s |G RARRNRAAER] 8 | RARRRBEIE : acammgmn| ol 8 | ansuwaanae| & | saananslansaaleazsaaly | : 3 bd: LARRRRnnr ee Unnnnn BORE EYE Rane nner 9 : Le iris HA B || gas : ce gi deg cable iio 38 Ie : cH a uldeleailliils lub anluntienss =f EL BISSEAU SSR EL H Ie oo'ta | (eleaees s]aa] +a i cvero'vs Gn) |. |g /eeges 8 || & “4g Screg ronen wa | \n|@[Seaee 8} | Sept (iwc lal leleuase 8 na il; od cog ji 5 an| rf i f i aa | “Il assuEgp JULY 29, 1960 | || C-2500—Authy, C-7776. t motor, list of 11635 Chewelah. Wash. 384 PLELT WORDSIION — "OLLL-O “AqNY—0092—9 *g oospouvly “200139 2ONIVIT LTL ‘sooo SUTIN UNVL NOSTAN “VW ponss] Oost ‘es ATOAL AAASSI OO6T ‘ST UAAWALAAS AZAILOWIAL 40 seein ou pas ovo buoy wos “ABLY © “ ay Pp worroag UoT00g See [fol. 575] : "OSSOT wea] 998 ‘soy¥s G 40 ¥ BUMIOD BuIYe, sZoHIZ0 Jo yey 30.1 | Seeee en ne ean acRRe oan Ee eT 20,0 “SOTOTGCA |) A-OOSOT Te3Iy f | a NR Te Ne one em na ier pete eevecear arias alae ie a . (fol. 576] ZGB9T_WOTZI0170H “Rg “g oosjues.z ung ‘799299 2ONTCTT JTL "SH LN *“A4I"V—0097—-90 ‘sO TUTSHINA WHEL ‘NOSTAN “V “WAG ponssy o06t ‘St ANNE AAILOALAT o6t ‘9 AV AANSSI ‘S843 "a goouny "4, poy he aid pis puviyod Hn i a pened’ ASL via hag wed ay gai. ‘pusyz0g ates 42g) pusyywod “di f7 yaSny tA dope ickeneiia Adds You 800) u ZIP errr est eriagngw 8x eee eeeeet ® **+ t(aneeweneens AAs oe imeem 206th tt tthe 9: I ae Slt ’ 44 ab weceee =©—U™lUC«&WS OQ Lome *** eel etl poeta iter ereee eee Ree ees Oe oe eee see | Se cep 878@} LOO “vqUOUIAA SPSL * se be oo oo Rae a ae hg. aeso coo as his Asi9q suguu0;g ul @A0LT) 038330) SBOST gaqivigaigyv e v 4 aivigagiyv Vv Vv 4 rg er “ oni Sposa 00 A gga 80 SEL nN ee os Ba sr anesp ( ¢ “ORLOT W209] Cos ‘wows G] 40 y UUINIOL BULyW, SOPOTIZE Jo Y81] 204 W934 ARLE ERS AAP ‘10,001 “SOFOFUOA | (fol. 577] ‘90013 20RIVA LIL ‘mogo Merenand DVL NOSTEN Ye penss] 696t ‘) UMAOLOO ZAILOMAAE "dn “910 ‘paspzog ‘ND “INO ‘0qerg “AM B14 soddy—s “aoT;ONpeYP Busy h oe eusgodg o2z0e || 98 | soe 06Z Piet Aouey) 99208 || Ver | Fer ELE aie | SIF SE Se | » 7 UBUIGSICL OOTOS || HOF | FOF 8ZE zai propjooy OZIOS || WE | H8E SZE “GeUMA** PIOYATEA OTTO |] STF | STF ong Lie i a gi8% 8553 RR ee | ” teens yf WOIU) O206T * +++ -qsrudaequny O9O6I ” RRESSSRER P33 en ve gon surest 02861 || Gee | Gee ee eS eg Ziv | StF Bre B¥e “ee “pPeyreD OOBET || 8ZE | 8ZE 29% "Spl" *““Mooso~y S¥R6I |] B2E | 8zE me les eae wear Ogs6l || Sze | Bze rd Ye *** XBH1OD OORET |] SZE | Sve - ee te 828 | 828 £9% ese | 88€ oze eee aaah: TeuUOD 09261 ese | £88 0z8 0ze “SUONAGSE MA SZL6T ote WOPUOD STS8I ese | Esse 0ze OZE | “Y®%M "988015 BT OLET . erin > eis ea St96I || Sze | Sze L¥e Li@ ‘AOUIVA 888IE) OSZ8T . “episAuung SScé6l ge te SN ee O10 OFZST sce | 8ze 29% 29% “MOTAPUBIE) SE96I ages OO8BM SZLBT “jew AoUMouUESE $Z¥6I eae | dtd ee cane OhAST ZOE | ZOE 628 et Ce ee ge puouipey 00z8T Zee | 268 62E by e3pod Ofv6l Of OTTACUL $698T ese | ese 028 ce | » '°' 7 MOMNqIwIg OIF ee seIpy 9998T ee | ele 608 RE es ats workec OL86I || 8ZE | 008 61z 612 | » ** “SONS CYL, GODT goe | 998 WE we | » °°“ Binqswem Ose6r Maar JO180W SZ98I soe | 998 HOE | eS 7300801 OFE6T » JAI POOH OZS8I EB —_ po Re RR SIIFM FIFA OTS6T = 2efqns ere ‘ojezey3 squowertddns ut pue ‘jz3xT1e] styQ ut se -82ey> pue sejer ‘seZieyd pue sejez ze[noT3j1ed Yat wot QoeuUCD UT pepzAoId estmreyj0 se ydeoxq NOI LVOI IddvV SNOILIVTNSTY GNV SAIN TVYINAD ~ SNOISLAOYd ONINYAAOD MaHLO GNV Sane. 4 T96t ‘Ot AUVONV GHOSSI |, INUVL UV LV14d BITNVaAL | [MEE Ge cos sabi tes NOOTaO ¥¢ VINaO4TTVD VEVINOR OHVal ol now 8292 LZ UO peyodsuan pus sseT7es], BO pepecy SepoTTeA GO Ayu erquondcy SJ1IDIHIA YOLOW NO salva LNIOf G-£66 4d1aVL LAOS € LNXNAIddls woby ‘Ny3uNd LHOI8I ISVOHLNOS IHDVd Tea 8 yee eo tO my -. § ; ra na ts & - a me. x zi & yf ° Hog! et B be i- Boi sx hel |e : pe ed ( y By ms 4 eo we 4 a i) # Peed a> a: ee a oy — : 1, rai at i iff. Note 1.—Substitution will only be at carrier’s option at Cancel ; provisions of Item 65 will apply. @ 70-A |} SECTION 1—PROPORTIONAL RATES Vehicles, as described in, and subject to, the provisions of Item 400, taking Columns A, B or C rates. HB, Yao | i3- $113.70) 11 90} 11 i SESS RSR S288 70 154 20 155 Ree RERS Sous sess $135.80 160.30} 130.00} 108. . $167.50 90 = sdoaltiites dddda defies gi ber ee FROM POINTS ON SP IN CALIFORNIA ~~ ~aeeed S2888 RSRA , + s * ARSGE 8584 R28RR SEAR SSSR ARSE SSRe9 BeBA RESSS ase ..eee} 135.50} 110.20] + 92.30 +] $182.40) $123.70 . . . . . . . FROM POINTS ON WP IN CALIFORNIA | Decoto, Melrose (Oakland Oakland, Pag a meng $ Route . (see Section 3) Rg RARAAAS SRARRSR Vebicles, as described in, and subject to, the provisions of Item 400, taking Columns A, B or C rates. PO “quevzejddng #rq3 £-98 20 1-90 “H-96 “G-00 “C1-06 ‘ST “PI ‘ET ‘ZT ‘OT ‘6 '8 ‘L ‘9 ‘9 ‘g eNO THA BoROoUUOD aT ATuO SEHAGVS | s Surpnjouco eee ‘syIvUI eouDIEsS! Joq}O Jo DOF wUV[dxe OF Aaeat “fjoo pourea syayod 09 soddy@D | | en eo Rt SeSSS See eSSeeSSSSSSSSSSESHSESSSSSSSSOES® SOS SSS SSSCHESSSSSSSSSSSSSSHSHSSHSSSSSHENS | 0-4 ave V-¥E ao Ob 0 6S OO CH OSES SSS ORSS FSS OS HF SOCOT SOME } 20 22 ESO wee cdececesseessseSSsesesessssesesssesee® [fol, 582a] 61 ‘ST 0&® 40 SI . Ax | (g woRseg 09g) eynoy VINUOATTVO NI dA NO SLNIOd NOMA “eo83 () 20 G “Y SUUINIOD SUPTE ‘OOF UIEr] Jo SuOWACId oq} 07 yoo[qns PUL UT PeqHosep SE 'SOTYPA ere eee etee fo | ‘1-00 ‘He ‘D9c| 08" eeeeeeeenee ) Ot ‘bt ‘et ‘et ‘It : wee weet teens O-O1 ‘A-Ol “VOI g ‘ett ; eee eee eeeee It 20 6 ’ 19% ; | I-96 } ‘aed ‘O-%) 09" | (g BoRI0g 908) omnog ts | 9m won20g sim | woSose A PoE (see Section 3) Column E SOS xs +SS eK as + san 2 *so9***s* FERSSSAR S ae. #2 @ @ pir BSSIS FER 88 SB FASS Fk FRSR He “aaa” "az "s Column D Vie ae (or Ce eS 8 Mt ae ee ae as ee EO ae te ae cen ee ee SS eee: ae ae ee Se 6) C8 e. eis ee ae ee ee Ba ORM Ot 8D 6. Se Oe RO eS tae ee OM ase ® ee SX Sn tee he ee en he ae ae a ee, a a Bri bons! Be Re 2 62 Re BO & 8.’ @ - gee Le RD eae oe ea) -e 8 we €¢ e Gh ROE Talk Te SBR AT ee ee Sa et FROM Renton, Wash. Column C 61:9.) 2. AC SE 0 4.8 8. 0 bee Oe Say ew: Ore ers Po Oey O98 Ry eee ye i ee ee Pe ee Se Ae Oe eee ee Ph Oe O58 ORs Gee’ wR Oe We, Eo ee me 4, Os. 0) Me ee Oa ee 2 Sy Oe we ee ee ee ae , A te ae ee ay eee e.@ = ex 9 6) Si Oe a AS bare ° Te ee te ae . us at Meee ‘SNssess ; Cee Ce 2 be Os eS ho ae ee ee ee. € a's Oc e. 2-56 _* © we * ERS ae Ee A, | 889484889 S28 "$ "S85 | $8 RRS s38R8 $= e 82 poi eS aoe a ae ow OE Se RE 8 ee Lee a F208 aA OS i 6 eerie eS “eRe eee Ree ee eae AR See iat ee BE wae eR O32 ¢ a eee = a. 6 Cee re he ©: ee PKR ae ee TP ee ee 9 ee eee oer « te | Vehicles, as described in, and subject .., the provisions of Item 400, taking Columns A, B, C, D or E rates. } 1030-B * juouay t 8)eBed Surpnjouco ove ‘exIvUl GoUdIEJOI 12430 Jo UOI;UB|axe 104 ‘ade tt ee ‘a1}}8Og Wor Pepracid os1m19Y70 8978I9F : pOyTUTUNTIO GOVT Y FF ee ee OS Se 952/88 x den¢ | ae a3 SR R288 BSS way | "So4z SF 10 C1 ‘D ‘g ‘Y STUMIOD BuPIe ‘OOF wer] Jo FuoYACId OT~'04 yoolque pur “al pequosep oF ‘seTINeA Hf RESRSVRRSAKS ZFSSEEERSEEE SRISRSISRSRA SSSREVZASBSS ASBassBsRzsr SSSSEKSERSSS SESnSsesaess SSisserssese SERRGSSSE BLSSSIBIFS FSSESRESRARSAB gstasangsnas ee seseanssesse Seestcsgeses | on eel SESSRZSRBSSESS SERSSEEBSSE a ZSSSSSSSSR2I8 nessereaneas BRSISRSAS S*uagstc SSSSSSLANTBS ZSARSIEVSIRE SBSRSLAEKBES BSRRGZRRIARAS RRSSRSSASSsy PrP T Tied ptt SSLSEZRASESE SRZLRESRINRVSG BSSEASRBS RINRRRALR SSISISSSEAASS BRSZLRSBSRRI ZESSaRRSSRER RRAGRSISREES SSRESSZBB accorded substitute service under provisions of Item 68. as noted. of other reference marks, see concluding page(s) of this Supplement. ON TS&D only in connection with shipments except tion y TO POINTS IN WASHINGTON (JT-9770) For j i ii 3 _ "007 tue] 09g -orwnbs oq} UNyILA pesofous sequin Suprweq yuourepddns wow penssoy | = Y -® pexyerd e783 4q poseaco syusudrys uo Ajddv you seop 038y a “Si 000'g poses 04 900 ofppyDs. 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FROM POINTS IN MONTANA (VIA ROUTE 28) FROM POINTS IN MONTANA (VIA ROUTE 28) "28:10| 22:48) 18:73) 37.47 ia: 76)” 83.80) 60:83] 130-67]...°..]...1--]-.2.L... 198-28 20.60| 25.50) 51. +*++[-g3'55|"70'60) 68.68 /4i7.67].-..-.|.-..-[e0.ce-[->-.--] 28-24| 18.62] 16-47] 30,98) 85.96) 28.20) 23.57 “a1 F ibaux..... ‘ul . . . : : g |i a i i ae Vehicles, as described in, and subject to, the provisions of Item > “F Pes dee an Os RSGHSS caeuae s | SSSSRS RSS | BVIESE | 89% o8SS93 | SANSSS | ASRSRS BSsss | RRSSR4 | S8auss A |Shsaxee o$55838 | S823 SRSSR | wth | al go cal 3 Ce Oe Te Se Oe Ee oes.) 69’ Ger: 2". 6 Ce ee e442 Pt ae ie. a Re, Ae a Oe Re, SOR OF 060: Be OP TE SOR Be ge! ES 6 ee oh SU Se Oe ia Cet EPR Ta teh. et Be Se "te ok ot be ae, ae ee 226 ee te ar ey on Oe eg hee ae Che Ee Soe aun ee eS i: ye ee ee ee ee, we Oe eS let ee Oe Coe Poems teem. € Ce Oo OR AS a a 8) eh a ae ee a ee ee 0. 88 Oe BE Be Se eee "© © © © © © © © # © @ 8 08 w 0 Se acai oe ¢. &0 6 68 [9 ee 6 8). 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Pus JEped| ONE ee eee re ah pl io . e u @2}AJOS gM U! S4J@D P ) - vom me 7S ct 101) et UJ9YINOS JO2EMOP! | PUG UJOYIION OJUeWRIDeS SOepPN) cu} *$403@30d0 19430 02 pesee| 3nq peuMo Sje> sozesebisjes Sepnioxg - vj HIE %1 ru peddjnbe jejoeds yee14 (2301 JO % £69 992 rl 47 peddinbz 40430 6S1‘t LOv gd $7 peddinbz 10)4934} z7S9' I L99 661 peddinbg je;2eds (e301 zz 779909 27Hge's 196‘ T7 saeg e301 230014 49 346s014 Blt 6$2 ‘Ol trh9‘6 19Z°6 34053@ 9A}3DE42 *Sqi 00D *49M0g 9A! IOW S5ET-HSET rn 2 2158 (4) UP #681 2:15P(3 r, Seattle 10:00P(3) UP #681 8:00P(4 1:30A(3) UP #681 8:00P(4 ly. Albina UP #198 * 11:00P(4) UP #198* 11 :00P(3 . Spokane 10:00a(4) UP #298 $:00P(5 10:00a(3) PW #298 8:00P(4 10:00a(5) “Bir, Baker UP #IDS_—- 8:00 (6 UP #IDs_~ = 8:00a(5 os Angeles to Seattle 67'00" 89100" 51130" 70 '00" Bien Francisco to Seattle 51'00" 7300" 45'30" 644008 Pekland to Seattle 48'00" 70*00" 42'30* 61'00" Bios Angeles to Spokane 7900" 113 "00" 6000" 94,00" 100 130" fn Francisco to Spokane 63 '00" 9700" 54°00" 88100" 8300" yfftukland to Spokane 60 "00" 94,'00" 51'00" 85 '00" 81159" “ios Angeles to Baker | 125 100" 106 '00" “Tin Francisco to Baker 109'00" 100 '00" ‘Pikland to Baker 106 '00" 97'00" ther to Oakland tker to San Francisco ker to Los Angeles to Oakland to San Francisco to Los Angeles [fol. 609] Berore SOUTHBOUND FREIGHT TRAIN SCHEDULES SOUTHERN PACIFIC - UNION PACIFIC AND BIEBER ROUTE AND ELAPSED TIMES UNION PACIFIC UNION PACIFIC UNION PACIFIC NIC Drag : | Drag And #151 #151 #690 #692 And #151 #151 #690 6:00P(0) : pee 11:00P(1) 11:00P(1 11:00P(0 ye 11:00P(1 11:00P(1 11:00P(0) 4,:00a(1 11:00F 7 en 5:30A(1) 1:00P(1 5230A SOUTHERN ‘PACIFIC \ ADV. BAS PNL PCW ADV. PIL =e SiW-CS TFC SFC CaL 5:00A(1) 5;00A(1) 8:50a(1) 5:00P(1) 5:00P(1) 12:01a(1) 43:30P(1) 4:45P(2) 5:05A(2) 8325P(2 8 :00P(3) 10:30P(2) 11:30P(2 4:00P(3) 11:30a(3) 6:30a(2) 1:00P(4) 70945" 59'05" Th 45" 74," 00" 74," 008 76' 30" 77 30" 94 oo" 89! 30" 60! 30" gi! 0o# 91! 0o* 65'45" 54°05" 69'45" 71°30" 72°30" 89! oo" 84! 30" 55! 30" 42°05" 45'45" 88" 48'30" 91'0 7T2' 30® 113! ¢ 40' 20" 43°30" 55130" 50! 30" OVERSIZE PAGE SEE NEXT FRAME FOR REMAINDER OF PAGE (fol. 609] | Berore THE Iwrerstate ComMMERCE CoMMISSION : SOUSNOUD FREIONT TRAIN SOMMDGLES 47° SOUTHERN PACIFIC - UNION PACIFIC AND BIEBER HOUTE Exner No. 29 AND ELAPSED TIMES UNION PACIFIC : and #151 #151 #690 #692 CaL Gus SP-OCM GN-Gus 6:00P(0 11:00R(1 11:00P 3 6:50a(1) 6:50a(1) S) 11;:00P(1 11:00P(0) 4:00a(1 : a ah 1:00P(0) 2:00a(1) 5:30A(1) | 1:00P(1 ee 5330a(1 1:00P(1 ema a : ADV. PIL «= SM-CS_-—s TC SHC CaL Gus 4330P(1 5:00a(2 ; f oo zone oo sizortss 3200 4:00P(2) oe) 8:00P(3 gon} 11:30P(2 6:00P 7:00P(2) 6:00P(3 9:00P(3) 63 12:30a(3) 6:30a(2) 1:00P(4) 4:00P(5) 1:00P(3) 4:00P(4 4:00P(4) 43:00P D5" 7h' 45" 74," 00" 74," 00® 77' 30" 89" 30" 60' 30" 91100" 91' 00" Ds® 69'45" 61' 10" 56' 10° 72" 30" 62' 10" 59' 10" 45°45" 8800" 83008 51°00" 61'00" 48' 30" 91'00" 86' 00" 54°90" 64'00" 113' 00" 108" 00" — 72°00" 86'00*" 40' 20" 43°30" fe re (%2 a Bzvore rue IwrerstaT:. Commence Commission Exuzrr No. 32 Exhibit Showing Comparison of Railroad Distance via Existing Joint Rate Routes with Route Sought in This Proceeding and also Routes Via Oregon Trunk-Spokane, Portland and Seattle Railway between Representative Points on the Northern Pacific Railway C,mpany and San Francisco and Los Angeles, California. From San Francisco, Cal. Portland, Ore. San Francisco, Cal. Bieber, Cal. Portland, Ore. Sai; Francisco, Cal. Bieber, Cale. ¢, Bend, Ore. Wishran, Vancouver, Washs: San Francisco, Cal. Portland, Ore, San Francisco, Cal. Bieber, Cal. Portland, Ore. San Francisco, Cal. Bieber, Cal. Bend, Ore. Wishranm, Wash, Vancouver, Wash. San Francisco, Cal. Portland, Ore. San Francisco, Cal. Bieber, Cal. Portland, Ore. San Francisco, Cal. Bieber, Cal. Bend, ore. Wishram, Wash, Vancouver, Wash. San Francisco, Cal. Portland, Ore. San Francisco, Cal. Bieber, Cal, Portland, Ore. San Francisco, Cal. Bieber, Cal. Bend, Ore. Wishram, Wash. Vancouver, Wash. Te Portland, Ore. Hoquiam, Wash. Bieber, Cai. Portland, Ore. Hoquiam, Wash. Bieber, Cal. Bend, Cre. Wishram, Wash. vancouver, Wash. Hoquiam, Wash. Portland, Ore- Shelton, Wash. dieber, da2. Portland, Ore. Shelton, Wash. Bieber, Cal. Bend, Ore. Wishram. Wash. Vancouver, Wash. Shelton, Wash. Portland, Ore. Seattle, Wash. Bieber, Cal. Portland, Ore. Seattle, Wash. Bieber . Cal. Bend, Ore. Wishram, Wash, Vancouver, Wash. Seattle, Wash. Portland, Ore, Bremerton, Wash. Fleber, Cal, Fortland, Ore. Rremerton, Wash. Bieber, Cal. Pend, Ore. Wishram, Wash, Vancouver, Wash. Bremerton, Wash. ale 1039 1070 1050 1055 portland, Ore. Wash, Cal. ae ” Vancouver, Wash, Cal. To Portland, Ore. Everett, Wash, Bieber, Cal. Portlaad, Ore, Everett, Wash. Bieber, Cal. Bend, Ore. Wishram, Wash, Vancouver, Wash. Everett, Wash. Portland, Ore. Bellingham, Wash. Bieber, Cal, Portlend, Ore. Bellingham, Wash. Bieber, Cal. Bend, Ore. Wishram, Vash. Vancouver, Wash. Bellingham, Wash. Portland, Ore. Yakima, Wash. Portland, Ore. Pasco, Wash. Yakima, Wash. Bieber, Cal. Portland, Ore. Yakima, Wash, Bieber, Cal. Bend, Ore. Wishram, Wash. Pasco, Wash. Yakima, Wash. Portland. Ore. Pasco, Wash. Portland, Ore. Pasco, Wash, Bieber, Cal, Fortland, Ore. Pasco, Wash, -2= 2 Cox = Z@nOoz x= = ZnaCg= =@zagt =z 325 e* aa opt es 325 535 38 og2 8s S25 5% od Sai 325 5% |p 2 a hese pe bee lekway hese late bez lseuge ieee kee exes lees kee E ~ 8 1179 1159 1106 1275 £76 (fol. 615] From San Francisco, Bieber, Cal. Bend, Ore. Wishram, Wash. San Francisco ’ Portland, Ore. San Franciseo, Portland, Ore. Pasco, Wash. San Francisco, Bieber, Cal. Portland, Ore. Bend, Ore. Wishram, Wash. Pasco, Wash. San Francisco, Portland, Ore. San Francisco, Portlamd, Ore. Pasco, Wash. San Francisco, Bieber, Cal. Portland, Ore. San Francisco, Bieber, Cal, Bend, Ore. hwishram, Wash. Pasco, Wash. San Francisco, Portland, Ore. San Francisco, Portland, Ore. Pasco, Wash. San Francisco, Bieber, Cal. Portland, Cre. Cal. Cal. Cal. Cal. Cal. Cale Cal. Cal. i} Bieber, Cal. Bend, Ore. Wishram, Wash. Pasco, Wash. Portland, Ore. Walla Walle, Wash. Portland, Ore. Pasco, Wash. Walla Walla, Wash. Bieber, Cal. Portland, Ore. Walla Walla, Wash. Bieber, Cal. Bend, Ore. Wishram, Wash. Pasco, Wash. Walla Walla, Wash. Portland, Ore. Pendleton, Ore. Portland, Ore. Pasco, Wash. Pendleton, Ore. Bieber, Cal. Portland, Ore. Pendleton, Ore. Bieber, Cal. Bend, Ore. Wishram, Vash. Pasco, Wash. Pendleton, Ore. Portland, Ores Athena, Ore. Portland, Ore. Fasco, Wash. “Kthena, Ore. Bieber, Cal. Portland, Ore. Athena, Ore. WP 39 GK 236 OT 152 SRS 125 OT 152 S&S 125 YP 64 WP 391; re koh ee WP 39h, GN 236 oT 152 SKS 125 YP _) SP 719 8 SP 719 S&S 233.35 YP 6 uP 39h or u9u YP W435 Cal. , Cal. Cal. y Cale 2 Bieber, Cal. Bend, Ore. Wishram, Wash. Pasco, Wash. Athena, Ore. Portland, Ore. Spokane, Wash. Portland, Ore. Pasco, Wash. Spokane, Wash. Spokane, Wash. Portland, Ore. Riparia, Wash. Lewiston, Ida. Portland, Ore. Pasco, Wash. Riparia, Wash. Lewiston, Ida. Bieber, Cal. Fortland, Ore. Riparia, Wash. Lewiston, Ida. Bieber, Cal. Bend, Ore. Wishram, Wash. Pasco, Wash, Riparia, Wash. Lewiston, Ida, E 3 ae 955 3 leswes Nes lege ke leks 3 LSb ls & 478 [fol. 617] From los Angeles, Cal. Portland, Ore. Los Angeles, Cal. Stockton, Cal. Bieber, Cals Portland, Ore. Los Angeles, Cal. Stockton, Cal. Bieber, Cal, Bend, Ore. Wishram, Wash. Vancouver, Wash. Vancouver » Wash. los Angeles, Cal. Portland, Ore. los Angeles, Cal. Stockton, Cal. Bieber, Cal. Portland, Ore. los Angeles, Cal. Stockton, Cal. Bieber, Cal. Bend, Ore. Wishram, Wash. Vancouver, Wash. Los Angeles, Cal. Fortland, Ore. los Angeles, Cal, Stockton, Cal. Bieber, Cal. Portland, Ore. To Portland, Ore. Hoquiam, Wash. Stockton, Cal. . Bieber, Cal. fortland, Ore. Hoquiam, Wash. Stockton, Cal. Bieber, Cal. Bend, Ore. . Wishram, Wash. — Vancouver, Wash. Hoquiam, Wash. Portland, Ore. Shelton, Wash. Stockton, Cal. Bieber, Cal. Portland, Ore, Shelton, Wash. Stockton, Cal, Bieber, Cal. Bend, Ore. Wishram, Wash. Vancouver, Wash. Shelton, Wash. Portland, Ore. Seattle, Wash. Stockton, Cal. — Bieber, Cal, Fortland, Ore. Seattle, Wash. Stockton, Cal. Bieber, Cal. Bend, Ore. Wishram, Wash. Vancouver, Wash. Seattle, Wash. Portland, Ore. Bremerton, “ash. Stockton, Cal. Bieber, Cal. Portland, Ore. Bremerton, Wash. —ts - Bremerton, Wash. Fortland, Ore, Everett, Wash. Stockton, Cal. Bieber, Cal. Portland, Ore. Everett, Wagh. Stockton, Cal. Bieber, Cal. Bend, Ore. Wishram, Wash, Vancouver, Vash. Everett, Wash. Portland, Ore, . Bellingham, Wash. Stockton, Cal. Bieber, Cal. Portland, Ore. Bellingham, Wash. Stockton, Cal, Bieber, Cal. Bend, Ore. Wishram, Wash. Vancouver, Wash, Bellingham, Wash. Portland, Ore. Yakima, Wash, Portland, Ore. Pasco, Wash. Yakima, Wash. Stockton, Cal. Bieber, Cal. Fortland, Ore. Yakima, Wash. BR issee lee bt anuee bese bE lesuese ewe EE ke -] 1507 1383 8 E los Angeles, Cal. Portland, Ore. los Angeles, Cal. Portland, Ore. los Angeles, Cal. Portland, Ore. los angeles, Cal. Portland, Ore. Pasco, Wash. To Steckton, Cal. Bieber, Cal. Bend, Ore. Wishram, Wash. Pasco, Washes Yakima, Wash. Fortland, Cre. Pasco 5 Wash. Portland, Ore. Pasco, Wash. Stockton, Cal. Bieber, Cale Portlam, Ore. Pasco, Washe Stockton, Cal. _ Bieber, Cal. Berd, Ore. Wishram, Wash. Pasco, Wash. Portland, Ore. Walla Walla, Wash. Portland, Ore. Pasco, Wash. Walla Walla, Wash. Stockton, Cale Bieber, Cal. Fortland, Ore. Walla Walla, Wash» Stockton, Cal. Bieber, Cal. Bend, Ore. Wishram, Wash. Pasco, Wash. Walla Walla, Wash. fortland, Ore. Pendleton, Ore. Portland, Orc. Pasco, Wash. Fendleton, Ore. re Stockton, Cal, Bieber, Cal. Portland, Ore. Pendleton, Ore. Stockton, Cal, Bieber, Cal. Bend, Ore. ‘ Wishram, Wash. Pasco, Wash. Pendleton, Ore. Portland, Ore. Athena, Ore, Portland, Ore. Pasco, Wash, Athera, Ore. Stockton, Cal. : Bieber, Cal. Portland, Ore. ‘Athena, Ore, Stockton, Cal. Bieber, Cal. Bend, Ore, Wishran, Wash. fthena, Ore. Portland, Ore. Spokane, Wash. Portland, Ore. Pasco, Wash. Spokane, Wash. Stockton, Cal. Bieber, Cal. Portland, Ore. Spokane, Wash. Stockton, Cal. Bieber, Cal. Berd, Ore. Wishram, Wash. Pasco, Wash. Spokane, Wash. leiweee bee lee’ 8 lunes kee eed ee hiwase less 1753 3 § 175 g R 1643 1475 482 [fol, 621] coe los Angeles, Cal,. Portland, Ore, SP 1092... , Ore. Riparia, Wash, NP 45u Riparia, Wash. Lewiston, Ida. Cam.P, _ 72 los. 2: » Cal. Portland, Ore. SP 1092 Pasco, Wash. SF&S 231... Pasco, Wash. Riparia, Wash. NP feee ON Riparia, Wash. Lewiston, Ida. CameP, 72 Ios Angeles, Cal,.. Cal. AT&SF 516 . 9 Cal. Bieber, Cal, WP 30—« Bieber, Cal. » Ore. oy a Portland; Ore. Riparia, Wash. FP Us. Riparia, Wash. Lewiston, Ida, Cam, P, ai? iw los «ngeles, Cal, Stockton, Cal. AMSF 516. Bieber, Cal. WP 300. Bieber, Cal. . Bernd, Ore. it J 236 Bend, Ore. ~ Wishram, W oT 152 Wash. Pasco, Wash, S&S 125. Pasco, Wash. Riparia,; Wash, YP 67 Riparia, Wash. Lewistor, Ida. Cam.P, _ 72 of tions Cam. Pe * Camas Prairie Railroad Company a a ee NP Oo LES Ore. Oregon oT “Oregon Trunk Railway Company SP - Southern Pacific Company | ( Spokaney Portland & Seattle Railway Company WP “Restore Pacific Railroad Company ee Ice i-6710 WP - 1500=1 Tec 9759 oT 97-K -. Ic 732 sP ~ h20-D - Ic S&S - .685-K wee 732 WP ~~ 39-6 Ivc 490 ‘483 ffol. 622] [S00 ts} BerorRE THE IwrerstaTe CoMMERCE Commssio Exuzir No. 33 : : aa aw 5 + Pe | ar es ' . Pra 4 8 *3 Y' 4 Ld Portland, Oregon to San Francisco, Californ: 3? Row t Ral ii 5° Route vic ~ Be aa Be: ima tee ee § eke eae bis e: sae oe 9 e ae tS. _ _ 4 & bi hy al eee i Me += ine ene, 4h ae hey eit er G i 3 > 2 g pees ed «& | ae . i “7 | - =| a ST LS “4 a , - Pi alk ” ty La Hes. Sib > r i: she 1 la es fee's a am as ee - [fol. 624) oe iit es ‘ 4 ae 3 be § age z § 4: (i i ; 3 aes $ iy vf ‘ Riya ae *. PN 4) am . eal i is Re ge a9 eg wh e35 sail ivi nageeaqel ep iW ix prasaeaah BF ikesssssmie: | i SELETAEE ee eRRGREARA ioe wet ye PRR REE > : if ¥ vs te ee ee ee 4 e ot TRANSPORTATION CONDITIONS - FORTLAND, OREGON TO SAN FRANCISCO, CALIFORNIA ; > : ar ghers PACIFIC ROUTE VIA DAVIS - OAKLAND, CALIFORNIA ; SOUTHERN » CALIFORNIA ; . pa t 12 “ fok 680) : ; 4 3 fli saesacae, A by yegena. J ie Fang. 8, t ibp hegagaeg y He 293 eae qe 7 | me - Qregon Trunk; WP - Western Pacific mye Senelen ~ Bieber to Portola, California; 2/- Mngine District - Portola to ee i 52 ae ee S+ Barge 880 47,0% 8,793 =“ HH AH eA Aw Oe : ’ hor ey. - i . a a Be e yy . 708 Portland, then over the Bieber run, through Bend, Bieber, to California points. The Commission accordingly, because over-all single component rates are involved, which involves the carriers in the over-all transportation, the Commission must then compare the over-all circumstances and conditions over the [fol. 962] two allegedly preferred and allegedly prejudiced routes. And that is just what the Commission did in re. gard to that matter. They did compare one route versus the other. The component north of Portland, the Portland interchange, the No. 1 route over the other, the circum. stances and conditions, in fact, of the two routes. They also compared the over-all circumstances such as comparative distances from the same point in California to the same point in the Northwest, again one route versus the other. They compared also over-all transit lines, one route versus the other. Now, to avoid any confusion respecting the respective routes, I would like to mention that the route of the Union Pacific from certain parts of the Northwest area, generally east of the Cascades, to a rather limited area in the Los Angeles area, that there are joint rates in effect over that route which are the equivalents as to both points and as to a limited number of commodities as like rates over the Southern Pacific route from Portland. Judge Zirpoli: When you say “limited,” doesn’t it apply to all commodities? Mr. Higgins: No, sir, it does not. Furthermore, the Western Pacific does not allege that . [fol. 963] this route is prejudiced at all. It is not com- ' plaining of that route or complaining of the rates for that route, and that is irrelevant to the issues before the Com- mission. I think we would take the position that the Union Pacific as to points at which it provided service from this area through this area here (indicating on map) is entitled te compete with the other route, and nobody has objected to that. There is one other circumstance, one other route that should be mentioned and that is from all points served by the Great Northern in the Northwest, the full line of joint 709 rates is the same as in effect over the Southern Pacific route, are in effect to destinations of the Western Pacific and the Santa Fe in California as an existing route. Now, when Mr. Treanor refers to performance, and when he says that the Bieber Route is the equal of the Southern Pacific’s Portland route, he is talking about that route. He is talking about present movement on the Great North- ern over the Bieber Route. The shippers who testified in the case for the Western Pacific were using that route. That meant the shipments from points such as Seattle would go through Vancouver, on down across the Columbia River, down here. From points in this area shipments [fol. 964] would go here—not to Portland but via Great Northern right on down. : Now, that route isn’t in issue. That is present. That is being used. It’s not an allegedly preferred route, it is not an allegedly prejudiced route. The shippers who testified in this case in no case have ever used the proposed sup- posedly prejudiced Bieber Route. They have never done it. They have never shipped from a point in this area east of the Cascades to Portland over the Great Northern and then over the—I beg your pardon, they have never shipped from points east of the Cascades via Northern Pacific or the Union Pacific, then to Portland and then back over the Great Northern. All the evidence in this case relating to route comparisons have demonstrated that the Bieber Route, if it were to be participated in by the Northern Pacific and the Union Pacific, would be decidedly inferior from all ordinarily accepted operating characteristics to the present Southern Pacific-Portland-Union Pacific-North- ern Pacific route, which is allegedly the preferred route. Judge Merrill: Would you concede a similarity of cir- cumstances between the Great Northern route to Wishram and south and the Great Northern-Southern Pacific con- nection at Portland and south? Mr. Higgins: I don’t know, sir. There was no attempt to compare the two. It has no relevance. The Great [fol. 965] Northern did not introduce any evidence as to the characteristics of their route to the north. Now, I would like to emphasize that the Commission did not consider only the circumstances and conditions south of Portland—the Bieber Route vis-a-vis the Southern 710 Pacific route up to Portland. They went beyond that and considered the over-all conditions over the two routes, Now, just as the plaintiff in this case has been hesitant to come to grips with the test of connecting line status, so have they been uncertain as to the actual test of simi. larity of circumstances and conditions. I think you have to establish a principle first and see if the Commission has applied or misapplied the facts to the principle. Before the Commission the Western Pacific has con- tended that the test must be confined to the transportation conditions over the route of the defendants—that is, the conditions north of Portland—and in the opening briefs of this court it stated that the only lawful test is whether there are more costly or more difficult transportation con- ditions imposed upon those allegedly discriminating, that is, Union Pacific and Northern Pacific north of Portland. _Now, in the complaint to this Court the Western Pacific (fol. 966] said that the error of the Commission was that in applying the test of physical operating conditions it limited itself to the route south of Portland. But the Com- mission did not do that. In their reply brief there seems to be a certain change in the test that the Western Pacific feels is applicable in that they said that the Commission should review the evi- dence as it applies to the routes as a whole, in their entirety, and not fragmented north and south, which we contend the Commissioners do. Now Western Pacific asserts that the error of the Com- mission was in requiring that the inherent physical char- acteristics of the two routes must be identical. I submit that the Commission’s report contains no such language and no such finding. The Commission in its report said that, “Equality of treatment is determined by similarity of circumstances and conditions.” They referred then to the Routing, Coal case, 313 1.0.C. 752. In that case there was a comparison of over-all cir- cumstances and conditions over the entire routes. In the district court proceeding, 205 Fed Supp 360, the conten- tion was made that the Commission should have looked only at the portion of the transportation provided by the 711 allegedly discriminated carrier. In this case that would [fol. 967] be only the-service performed by Northern Pacific and Union Pacific north of Portland. The Court and the Commission both rejected that argu- ment and said there must be an evaluation of over-all cir- cumstances and conditions to determine if there is suffi- cient similarity to require equal rate treatment. That was affirmed by the Supreme Court, 371 U.S. 6. Now, the Commission, after asserting the principle of the Routing Coal case, went on to make this finding: “The route sought through Bieber and Portland is longer and involves more difficult operating condi- tions that the Southern Pacific route, and they require hauls in a general direction opposite to the direct move- ment.” Now, that implies an evaluation of more than just the route south of Portland because the haul in the opposite direction is north of the Columbia River, back and forth. Judge Zirpoli: When you consider the similarity and dissimilarity, do you consider them as they relate to the effect on transportation or do you consider them because of physical differences? Isn’t it the ultimate effect on trans- portation which determines whether it is similar or dis- similar? Mr. Higgins: I would say it is a dual test, a test of {fol.968] operating characteristics and also the test of the effect upon the allegedly discriminating carrier. Judge Zirpoli: Would the time consumed in shipping be a major consideration? Mr. Higgins: It would be a very, very significant factor. It might explain the reason why carriers such as Union Pacific or Northern Pacific decline to participate in joint rates on this route. I don’t know. Judge Zirpoli: When you look at it from the shipper’s point of view in which time might not be an important factor, where you look at the shipper’s point of view where the only important factor to him may be cost—or do you just look at it from the point of view of the railroads? 712 Mr. Higgins: We look at it from the point of view of the railroad and the shipper. The railroads are not ina position of encouraging circuitous, round-about, slow and costly routes if that is not going to provide a good service to the shipping public. This is a competitive situation be. tween the Northwest and California, not only between rail. roads but between other forms of transportation as well, and if a railroad in one case were to offer service over a route that just does not make sense from an operating or competitive standpoint, that railroad will be hurt the next (fol. 969] time it solicits a shipper against a truck opera. tion. That is one of the reasons why Union Pacific has de- clined to participate in what it considers to be an inefficient, slow and circuitous route. Judge Merrill: Well, this is what troubles me about this: We are talking about similarity of circumstances which might be relevant in a consideration of a granting of a through route through public necessity or anything of that sort. The similarity of circumstances that we are con. cerned with here would be those that would disqualify some- one from claiming to have been discriminated against, and in this case by virtue of the rates charged. Now, what possible relevancy is there to the round-about route south of Portland that would justify discrimination as to rates charged north of Portland? Mr. Higgins: Your Honor, there is no rate charged north of Portland. If we had segmented rates, rates which broke on Portland, one north and one south, perhaps there would be a relevance in examining only the portion relating to that rate either north or south, but these are over-all single factors, one component rate. Judge Zirpoli: Would a division of rates then be of some significance for that purpose? Mr. Higgins: Not to this extent, sir, no. That question was reserved later. The charges that accrue under the rate, [fol. 970] of course, are divided between the carriers upon a basis which was in the formula which in a number of circumstances included circuity and number of miles of routes, and so forth. 713 But I would like to point out briefly that the test of simi- larity of circumstances and conditions was, as used by the Commission in this case, adopted previously. The Supreme Court has affirmed the use of that principle and that test. The Western Pacific contends that the facts are different. Of course they are. Elements present in one instance are not present in the other. I think it is fair to say that in this case there were more and different dissimilar circum- stances than there were that the Commission considered in the Routing Coal case. Judge Zirpoli: Well, there is some dissimilarity in every competing line, isn’t there, in every competing line situa- tion? Mr. Higgins: Yes, sir, there would be. No two routes are identical. The Commission did not observe that test. They did not require identical physical characteristics. Judge Zirpoli: What I am trying to get at, what is the ultimate basic objective which determines whether or not similarity of circumstances exists or does not exist? Is it [fol. 971] the ultimate transportation benefits that a ship- per gets between Sacramento and Seattle, or what is it? Mr. Higgins: It rests in the ultimate discretion of the Commission as to whether the conditions and circumstances are so dissimilar that the carrier that is allegedly discrimi- nating has a good reason for doing it. I would like to point out, first of all, that this is a com- plaint case. The Western Pacific came in this case attempt- ing to upset and attacking a long-established rate structure. They had the burden of proving similarity. They admit that that is the test and they had the burden of proving it. However, there was no evidence introduced by the Western Pacific that compared one route versus the other. In fact, the Western Pacific witness who testified on the operating circumstances acknowledged that there was circuity and back-hauls and less favorable interchange at Portland. The only over-all evidence introduced by the Western Pacific was the miles between northwest points and Cali- fornia points, and in every case the mileage was consid- erably longer over the supposedly prejudiced route than it is over the present Southern Pacific route. I would like to point out, if I may, to the Court why the Union Pacific considered the circumstances so different 4 (fol. 972] that it is justified in declining to participate jp joint rates with the Bieber Route and the Great Northern, For more than 50 years the Union Pacific had participated with rates and routes with the Southern Pacific from Points such as Spokane to the east and Seattle to the west. There was a direct movement from Portland by the Union Pacifo. and at that point there was a short interchange at Po four and one- miles to the Southern Pacific. Shipments were then moved over the Southern Pacific route to and from points in California. The Southern Pacific did not compete in the Northwest with the Union Pacific, and when. ever a shipment was originated by the Union Pacific at one of these points and delivered to the Southern Pacific, that is as far as it would go. It received the full haul. On the other hand, if joint rates were put into effect at Union Pacific points in the Northwest to Portland over the Bieber route, this would be the result: A typical shipment would move over the same trackage to a point in Portland as it did in the first instance. But at Portland, instead of being interchanged for the short four-and-one-half mile distance, it would have to be interchanged to the Great Northern at Vancouver, Washington, across the Willamette River, across the Columbia River, some twelve and one-half [fol. 973] miles. At that point the Great Northern would move the shipment back east along the north bank of the Columbia River. The Union Pacific shipment moves this way, west on the south bank, and then south to the Cali- fornia destination. Now, it is apparent, first of all, in every case from points east of the Cascades there is, in fact, a reverse movement. The result of this, and the evidence also indicated numer- ous other characteristics where the supposedly prejudiced —(unintelligible)—the result is there’s a slower time and a longer distance between comparable points. For example, from Los Angeles to Seattle the mileage over the present Southern Pacific route is 1,275 miles to the Union Pacific points in Seattle. If the Bieber Route were used, the mile- age over the Bieber Route to Portland and then Union Pacific would be 1,493 miles. The scheduled transit time over the present Southern Pacific route is 44 hours. If 715 the same service were provided over the Bieber route, the scheduled transit time would be 70 hours. Another circumstance, the Great Northern competes with the Union Pacific at all points in the Northwest. And the Union Pacific also has a trackage which goes along the ‘Columbia River at this point, and then south to Bend, Oregon. Every shipment received and originated by the Union Pacific at one of these points is delivered to the [fol. 974] Northern—that is, the Great Northern points, would be moved along a track parallel to the Union Pacific, and for a distance of 246 miles, which is the distance of the Union Pacific, that they themselves could serve. Judge Zirpoli: Why is it the only interchange is at Port- land? Why is there an interchange there? Mr. Higgins: Because that is the place where the com- plainant, Western Pacific, alleges discrimination results. We have had no request from Great Northern, or, appar- ently, to participate in rates at Bend or Wishram. Perhaps they don’t want it. They haven’t appeared and haven’t complained, Your Honor. I submit, then, that the circumstances and conditions are so dissimilar over the two routes—and the Commission found this and decided to fix rates, comparing one route as against the other, reached the final conclusion that the Western Pacific did not prove the similarity required, and beyond that found a dissimilarity in all respects—opera- tional, competitive—and the final result was they found that they are so strongly dissimilar that the different rate struciure was justified, one route versus the other. Thank you. ArcuMENT By Mr. Farre.. on BEHALF OF NorTHERN PaciFic, ET AL. Mr. Farrell: May it please the Court, my name is Frank [fol.975] Farrell. I represent the Northern Pacific, the Camas Prairie and Walla Walla Railroads. I understand the Court is concerned about competition. Well, they should be. At the time the Interstate Commerce Commission authorized the construction of the Western Pacific North Bieber to meet the needs of the Great North- ern, and for the Great Northern construction to their junction 490 miles from the point of interchange, which 716 the plaintiff Western Pacific seeks in this proceeding, the parties represented to the Commission—and that went on into the field of the federal court and ultimately was heard _ —if this construction was authorized, they would establish joint through routes and rates between points in the states of Oregon, Washington and Idaho to points in California, They fulfilled that obligation, and they have worked as team in the movement of freight between these points, My company, the Northern Pacific, also maintains rates, but the rates we maintain are local rates from Portland to points within the state, with certain exceptions which the Court has referred to, namely, on livestock, on pipe, on automobiles, and what are called class rates which are not here involved. The circumstances of those, in 1951, the United States Pipe Company, which established a plant at Tecopa, (fol. 976] California, that if it had shipments going to points on the Northern Pacific in these northern states, it would therefore like joint through rates. A complaint was filed with the Interstate Commerce Commission. Before the matter came on for hearing we had agreed to and we did publish those joint through rates. Cars have continued to move on those rates, and still do. In 1959 an automobile manufacturer said it was going to establish an automobile assembly plant in Northern (Cali- fornia. Again a complaint was filed. We did establish those rates. The plant was not built and no movement has ever occurred on it. But here there is no question: Through routes, which is what the Western Pacific seeks in this proceeding, do not exist. The Western Pacific has conceded it before the Commission, and they concede it in the brief before this Court at page 8, and they said that under the rule of the Thompson case, 343 U.S., through routes do not presently exist. That is their objective. That is what they seek. That’s what they want. So there is no dispute about it. We cite that case at some length. In that case the Commission held not that through routes do exist. The Supreme Court in overturning it said that if you take the construction which the Commission [fol.977] had taken in that proceeding and hold, well, 717 the subject is a rate for one point, and there is another rate beyond another point, that through routes exist, then through routes will exist between all points in the United States. I think it is a very important case in this proceed- ing, if the Court please. So, then, if they could have proceeded under 1(4) and under 15(3) and 15(4), as this Court well knows—and they did start to proceed on that basis—if the public interest required it, the Commission could have required through routes. Not the circuitous routes which would be here in- volved, but they could have required, for example, that other roads participate, so that here when you get up to here, for example, you get on the S.P. and §. lines, and the §.P. & S. Railroad could have been included in those routes and in those rates and could have actually participated in the revenue. Here the S.P.&S. is not named as a defendant in this proceeding. The S8.P.& S. could then have taken the traffic going to Eastern Washington, east of the Cascades. The S.P.& S. could have then moved that traffic directly to points east, from which it then could have been inter- changed at Pasco or Spokane to the Northern Pacific and moved on to destinations further east. Now, that is what they could do under Paragraph 1(4) of the Act. And the same going west here (indicating on [fol. 978] map), and you would have had very efficient routes. But the Commission found that the public interest did not require it. The plaintiff agrees with the Commission and says the public interest does not require it. But it says that these defendants have violated Paragraph 4 of Sec- tion 3 of the Act. ~Well;-Paragraph 4 of Section 3 of the Act came into the Act at the very inception and is not changed in the 77 years that have elapsed. At that time carriers were under no injunction to establish through routes or through rates. They had a completely free hand, subject only to 3(4). And 3(4) provides that you cannot discriminate in facilities. But how can you extend facilities to a point that is a thousand or two thousand miles away? Congress was talking about the common law duty that carriers that met together in the same town, they had to treat each other alike. They couldn’t just go ahead and 718 establish routes with one carrier and refuse to establish | them with another. They also provided that you could not discriminate jp your rates. That provision remained unchanged, and finally in 1906 they said, “Well, there are some through routes in the (fol. 979] United States, but there are not enough.” Noy, a through route is a simple thing. A through route jg simply a holding out of the roads together to move freight over that route. So in 1906 in the Hepburn Act Congress gave the Commission powers for the first time to prescribe through routes. Then the Supreme Court held in 1907 that, well, if there was one through route, that the Commission could not require that a second route be prescribed so there could not be competition. Congress said this was bad. So in 1910 they again ex. tended it and gave the Commission powers to prescribe through routes, subject to the short haul limitation that a carrier was entitled to have its long haul protected. Then there are two exceptions to that in the Act today, If efficient and economical transportation is required and will not result in a—(word unintelligible)—or in circuity, they can short-haul it. And of course there is a short haul involved here because my road, the Northern Pacific, owns a half interest in the S.P.& S. Railroad. We are under common management and control. And the S.P.& S. comes down to Bernd. So does the Union Pacific. So, of course, if what is sought here is accomplished, we will be short- hauled some 246 miles up to Bend. (fol. 980] The plaintiff says, “Well, that isn’t involved because I don’t seek through routes direct. All I seek to do is end the discrimination at this junction 490 miles from my railroad, so it should not be considered.” The findings with respect to the short haul related simply and solely to their finding that through routes and rates were not required under 1(4), 15(3) and 15(4) of the Act. Now, I think it is interesting they have gone ahead and completely abandoned that. They say, “Well, now, there is discrimination.” 719 I think it should also be mentioned, too, despite all their work on this case, they have come up with one case, 270 U.S., with which the Court is familiar. And as the Court well knows, Michigan City, Indiana, all that was involved was switching. Five carriers. One carrier says he has switching arrangements with Carrier No. 2, “We do not have switching arrangements with other freight carriers. We think we have been discriminated against.” The Com- mission so held. On appeal the plaintiff said to the Su- preme Court—what they said was, “Well, we do not have a direct physical connection.” There was actually a dis- tance of a little over 1.38, a little over three miles—“and therefore there is a difference in circumstances and con- ditions.” (fol. 981] They did not say, “We are not a connecting line within the meaning of the Act,” they said, “There is a difference in circumstances and conditions, such that we should not be required.” The Court held discrimination could, of course, be re- moved, and held that despite the fact that there was a difference, true, the Commission had found there to be sufficient similarity that they could not substitute their judgment for that of the Commission. I submit it’s clearly distinguishable and in no way in point in this proceeding. So I might say further, too—and I guess I am out of time, unfortunately—but we have—I just want to clear this one point up—the Northern Pacific has for more than 50 years participated via Portland with the Southern Pacific in joint through rates. It has not done so with Western Pacific because of the tremendous back haul. For example, let’s take just one illustration. Let’s take a ship- ment going to Portland. If the joint through rates that the plaintiff seeks were established, that shipment comes up the Bieber on the Western Pacific, at Bieber it goes to the Great Northern, the Great Northern takes it up to Wish- ram, 106 miles west of Vancouver, the Northern Pacific gets it at that point and takes it up around Auburn, and [fol. 982] then over to Spokane. That bill of lading that goes along with that shipment shows the route. The Great Northern knows where that shipment is going. If the ship- ment is routed Great Northern, it goes directly north to Wishram and back east to Spokane. 720 Plaintiff says, “Well, I don’t seek through rates. Al] J seek to do is eliminate discrimination. I don’t care how Northern Pacific handles that shipment north of Portland” But the short answer to that is Paragraph 8 of Section 15 requires that Northern Pacific follow the routing that the shipper affixes on the bill of lading, and follow it right to the T. But even assuming their whole argument, assuming that they could do anything with it despite the Act, despite what the rulings provide, nevertheless you would still have 106 miles west and 106 miles east. All of that could have been eliminated if plaintiff had gone ahead and proceeded under 1(4) and 15(3) and 15(4) of the Act in asking the Commission to prescribe joint through routes and rates, which it has not done, and which it has completely aban- doned. So I submit, Your Honors, that if connecting line is con- strued as this plaintiff would seek to have it construed, there would be no need for Congress to confer its power (fol. 983] on the Commission to prescribe through routes and rates and expanding that power in 1910. It is wholly without precedence, wholly without authority. I am sorry, I think my time has elapsed. I thank the Court. Judge Merrill: Do you have some rebuttal argument to present, Mr. Treanor? ResuttaL Arcument spy Mr. Treanor Mr. Treanor: Yes, Your Honor. Your Honors, first I would like to observe that in the rather dramatic pointing out of the Commission’s efforts to compare transportation characteristics over the pre- ferred and discriminated line, that while there was em- phasis to point to the movement along this line over the prejudiced line, there was a studious avoidance of showing the various directions the shipment on §8.P. routes take. There was an avoidance of pointing out that in the Los Angeles area where the Santa Fe is the beneficiary of the routes, the non-discriminatory routes and rates that we seek, that there is as much of a bend coming into Los a 721 Angeles over the Santa Fe as there is in this direction. As a matter of fact, when the Commission compared the alleged length of the two routes, it compared only the single (fol. 984] line shorter portion of the Southern Pacific route, and compared at all times the longer length of the Western Pacific route. 3 Mr. Farrell—and I don’t want to let this get away from me—persists in pointing out that if the Southern Pacific traffic comes to this point, destined to points on the North- ern Pacific east of the Cascades, it moves over their sub- sidiary, S.P.& S., and he says they would have to move our traffic up to Auburn and over and not use their sub- sidiary because their subsidiary is not a defendant in this case. We say that if the order to cease and desist from dis- crimination is entered, the Northern Pacific will soon voluntarily find that they will publish the same rates over their subsidiary. But I would like to point something else out to the Court. Mr. Farrell says that the law requires them to follow the shipper’s routing, and if the Northern Pacific is in there and not the S.P.& S., they must move it via Auburn. If that is the case, their chief witness at the hearing testified that he is violating the law, because he testified that as a matter of operating convenience, regardless of the routing shown in the bill of lading, to a Northern Pacific point east of the Cascades, the traffic is moved over their shorter sub- sidiary route. [fol. 985] Now, the Commission has made, and we think correctly, a point of emphasizing to us that the S.P.& S. must, for rate-making purposes, be considered a part of the Northern Pacific-Great Northern system, and I don’t know how they can eliminate rate discrimination them- selves and not eliminate it over their subsidiary. The Commission, I believe, Your Honors,—Mr. Ginnane stated right at the outset this is a question of: How is the Western Pacific being hurt and the public interest is really not too involved here? We think it is. We have the same conviction that the public interest is involved, and we sub- mit to Your Honors that the overwhelming testimony, the 722 only testimony, as a matter of fact, regarding the public interest was put in by Western Pacific. And we s that any discrimination, an act of discrimination— Judge Zirpoli: Does this become germane siice yoy abandoned 1(4)? Mr. Treanor: Yes, sir, to this extent—only to this ex. tent: The shipping interest is always in competition, | don’t think you can disregard the shipper interests with regard to the competition. As a matter of fact, Your Honor, when the Bieber Route was born by the Commission, the whole emphasis was on “At last we have a route which will compete with the Southern Pacific and give it—” Ip (fol. 986] fact, almost the words of the Commission was, “The only area that has any competition, that will give any competition to the Southern Pacific, is a small area around Los Angeles served by Union Pacific.” Now, the Commission mentioned the Rio Grande case to you. However, Your Honors, the Rio Grande case was not decided on the question of connecting line status. And Mr. Farrell said to you, and he tipped his hat and said that Western Pacific worked very hard in this case, but they could only come up with one case—the Chicago, Indianap. olis & Louisville. Well, I submit, Your Honors, that all of them in their number have worked very hard, too. And what have they come up with? They come up with Atlantic Coastlines vy, The United States, the issue which we have already dis. cussed. There is very little case law on the subject. But I do submit to you that in their attempt to discredit the applicability of Chicago, Indianapolis & Louisville, they have overlooked the very precise language of the Court that there-was a complaint made to the Court that causing discrimination to cease would have the effect of estab- lishing through route and joint rates. Now, Your Honors, if the absence of joint rates, through routes, and the absence of joint service referred to, con- [fol. 987] sidered by the Court there, is not clearly indi- cated by that language, I don’t know how clearer it can be. Both of the elements that we are complaining about here were present in that case. 723 Now, mention has been made of the pipe traffic, the cast iron pipe traffic. That traffic, Your Honors, moves and has moved for over ten years in substantial quantities over the very route that will exist if the discrimination ceases. This record contains not one word of testimony which casts an adverse reflection upon the service which that traffic has had over the Bieber Route to its destinations on the Union Pacific and Northern Pacific. The Examiner so found. There is no reason why all classes of traffic cannot move as expeditiously, as economically, and as efficiently as that traffic. We have been accused of putting in comparisons of serv- ice from points east of the Cascades via Wishram. That is not so, Your Honors. Seattle, Washington, is a point served in common by the various defendants. Consolidated Dairy Company, a major shipper located in Seattle on the lines of the Northern Pacific, testified without contradiction that he prefers to use the Bieber Route. If he wants to use the Bieber Route, he must ask the Northern Pacific, on whose line he is located, to come in, pick up his traffic, [fol. 988] and ship it to the Great Northern for movement via the Vancouver-Portland area and then south over the Bieber Route. That witness testified that he finds he has to wait 24 hours at Seattle for that switch from the North- ern Pacific. And yet the service is faster. So he has been putting most of his traffic over the Bieber Route from Seattle, and the only difference will prevail, if this dis- crimination is struck down, will be that he won’t have to wait 24 hours to put his traffic in the flow of commerce. He can move it down over the Northern Pacific. And inci- dentally, the Northern Pacific will benefit because they will get the revenue which now goes to the Great Northern. And I don’t see how tl ey can complain about correcting that situation. It has been emphasized to you that the essence of a through rate or a through route is the holding out. But the essence of discrimination is the holding out to one and the withholding from the other. And this is what we com- plain about. 724 We don’t think the defendant should be able, that should be allowed to pick and choose who will be able to participate in this traific. The seriousness of the situation I think is most empha. sized by the fact that annually 2,500 carloads of traffic which either originate or terminate on the plaintiff's ling ({fol. 989] must be surrendered to the Southern Pacific only because they are destined or have originated at points served by the Northern Pacific and the Union Pacific. And when one of the parties says to you, “Well, 30 cars found their way over the Bieber Route to our line by mis. take,” let me say to Your Honors that it is no mistake which has happened here. The shippers are forced to give up—give their traffic which could move over the Bieber Route. And much emphasis has been made about the fact that the Southern Pacific through the Bay Area is a single-line road. And yet what do the discriminatory practices dot They take traffic which originates on the Western Pacific Railroad, which belongs on the Western Pacific Railroad, and it must be surrendered to the Southern Pacific. That makes it automatically a two-line haul. And if the two-line haul is so odious that it doesn’t justify an end to this dis. crimination, it certainly doesn’t justify it being maintained, And this is something that we think the Commission com. pletely missed in their evaluation of the evidence. The comment has beer made that for 25 years Western Pacific has sat back on this. Well, I don’t know why hey did before I got there. I don’t know whether their previous (fol. 990] counsel failed to see—and I don’t mean to take any bouquets for myself, but when this case was presented to me within a year after I joined the carrier from another carrier, I had no difficulty in seeing it. But in investigating why this had happened in the past, why we waited so long, I got the following answers: 1. In the early years— Picture this little railroad trying to build up to the giant of the Southern Pacific— In the early years it probably wasn’t prepared to take on the battle. It probably couldn’t show that it could perform as well as the Southern Pacific did. 725 And then the war came along and the Bieber Route was used to a tremendous capacity, and the road grew strong, and the road grew firm. And it took on new management after the war, aggressive management. And all these peo- ple that tell you we put in no testimony about our com- parative statistics of our line overlook—and I don’t know why—the testimony of Mr. Donald Loftus, Director of Research for our railroad. And Mr. Loftus, in addition to putting in tremendous testimony on the economic growth of the area, testified as to the tremendous improvements that have been made in the physical plant of the Bieber [fol.991] Route as it applies to the Western Pacific seg- ment thereof. And so in 1952 when the pipe company asked for the rate, and they were turned down until they went through the formal complaint route, they put the rates in. All right, the Western Pacific was lulled into a false sense of security. “We are going to get them now. They are going to work with us.” Well, nothing happened until 1959 when the automobile plant sought some of our property. And then once again we said, “Please put the rates in.” Nothing doing. We filed a complaint. They withdrew from battle and put the rates in immediately before the hearing. But they didn’t tell you this, Your Honor. That plant wasn’t just not built. That plant went to our competition which had the routes and the rates that we are seeking here. And that plant is built, but it is served only by Southern Pacific. They couldn’t wait for us to correct this situation. And so finally we decided that it was time to face up to the issue and not be led to the conclusion that we might get them by their grace, by their extending them to us. Judge Sweigert: Pardon me, Mr. Treanor. Can I ask you one question, and the line of your argument suggests it: You are arguing that various circumstances considered [fol. 992] by the Commission, and so forth, as though it were still an open, factual question. Now, as I understand it, the Commission finally found that there was dissimi- larity of circumstances. 126 Now, would you state what you would suggest be the theory of this Court in upsetting that finding of the Com. mission, having in mind the limited power that the Court has? Mr. Treanur: Yes, Your Honor. Two points: First, we believe that the ultimate conclusion does not qualify as a bona fide finding under the Act. To say that the Western Pacific or the Bieber Route is longer and involves more operating condition, that finding, standing by itself, has had no proper foundation laid for it, and therefore, stand. ing by itself, is not a finding on a material issue of fact such as the Commission is required to make under the Administrative Procedure Act. Now, proceeding beyond that, however, if Your Honor should find that conclusion, or such other conclusions ag may be culled out of the record, or the Commission’s report, if they qualify as findings, then we ask that you find them to be absolutely arbitrary and capricious and beyond the power of the Commission because they are directly contrary (fol. 993] to the record. For example, if we can assume— Judge Zirpoli: What is the test to apply to find out whether they are arbitrary or not? What is the test that we are to apply to determine what constitutes a similarity or a dissimilarity? Mr. Treanor: I would say, Your Honors, that the major test is performance. As Your Honor inquired earlier of some of the previous arguers here, is it the inherent physi- cal layout or is it the effect upon the moving, the hauling of goods? Me Judge Zirpoli: Has anyone so defined the test for simi- larity or dissimilarity? one Treanor: I thought I had to the Commission, Your onor. Judge Zirpoli: I don’t mean counsel; I am talking about some court or someone who has had some approval. Has someone defined it before so that it has some acceptance! Mr. Treanor: Well, Your Honor, I would say this: The very fact that the saw fit to refer to Routings Coal as its authority for its proposition here is an indica- 727 tion that there is no really clear-cut, definable judicial or administrative authority for the test which is to be applied. I think the test has to be applied on each set of facts as it comes up. [fol. 994] And as indicated earlier in questions, from the Court, the question of transportation characteristics from Southern California to Portland, that bridge was crossed a long time ago by the Interstate Commerce Commission when it, in full recognition of our somewhat longer length, in full recognition of the operating characteristics that we would have to encounter, still permitted us to establish the route for the purpose of meeting the competition of Southern Pacific. Now, as to the conditions north of Portland, Mr. Higgins refers to the interchange differences up there, overlooking the fact completely that Northern Pacific interchanges at exactly the same point with the Bieber Route as they inter- change with Southern Pacific, overlooking the fact that the Commission— And this is something we do have some authority on—the Commission has repeatedly said that interchange arrangements are an operating matter to be arranged by mutual agreement between the carriers in- volved. And it has prescribed certain standards. The receiving carriers, for example, will decide where, within reason, it will receive the cars from its connection. So it is a mutual operation, a mutual obligation there. And the Commission has said, “If you can’t agree as an oper- [fol. 995] ating detail as to how you will interchange, we will do it for you. We have the facilities set up to do that for you. We will litigate that for you.” So, therefore, I say that the facts of this case—and this is why we complained to this Court, Your Honors. We are not here saying that the Commission looked at the evidence, found us wanting, and yet obviously we should have won. Now, in the Routings case which they rely on, it is sig- nificant that the facts were not in dispute. The facts of dissimilarity were not in dispute. And the party that was complaining there said, “Don’t look at what the evidence is, but only apply the test beyond the point of interest.” 728 We don’t say that, Your Honor. We are complaining because the evidence has not been looked at. And I don’t think that the Commission by merely saying, “Look, we did refer to the Southern Pacific evidence”—which was a care- fully contrived and selected study—“and compared it to your route, and that shows you shouldn’t be performing as well as you are.” We say the test should be: What did the 16 shippers testify? Well, they testified, most of them, as to per- formance. - Judge Merrill: You had better bring your argument to a close, if you will. [fol. 996] Mr. Treanor: Thank you, Your Honor. The only thing that I would like to close with is the position that, contrary to what the Interstate Commerce Commis- sion has suggested, there is only one thing we see here, Your Honors. That is the opportunity to make our physical route a practical route, under the test suggested by the Southern Pacific, and that is by non-discriminatory rates, Thank you. [fol. 997] [File endorsement omitted] Iy tHe Unrrep States District Court For THE NortHErn Disteict oF CaLirorNnia SoutHern Division No. 41779 Civil Tae WesTERN Paciric Ramroap Company, et al., Plaintiffs, vs. Untrep States or America, et al., Defendants. Walter G. Treanor, E. L. Van Dellen, R. W. Bridges, San Francisco, California, Attorneys for Plaintiffs The Western Pacific Railroad Company, Sacramento Northern Railway and Tidewater Southern Railway Company. William H. Orrick, Jr., Assistant Attorney General, Cecil F. Poole, United States Attorney, Charles Elmer Collett, Assistant United States Attorney, Attorneys for Defendant United States of America. Robert W. Ginnane, General Counsel, Robert S. Burk, Attorney, Interstate Commerce Commission, Washington 25, D. C., Attorneys for Intervenor Interstate Commerce Commission. Charles W. Burkett, W. Harney Wilson, San Francisco, California, Attorneys for Intervenor Southern Pacific Com- pany. Vaughan, Paul & Lyons, Varnum Paul, San Francisco 4, California ; Earl F. Requa, Frank S. Farrell, St. Paul, Minnesota, Attorneys for Intervenor Northern Pacific Railway Com- pany, Camas Prairie Railroad Company and Walla Walla Valley Railway Company. 730 (fol. 998] F. J. Melia, J. H. Anderson, William P. Higgins, Omaha, Nebraska; Robert N. Lowry, San Francisco, California, Attorneys for Intervenor Union Pacific Railroad Com. pany. No appearance for Intervenor The Atchison, Topeka & Santa Fe Railway Company. OPINION AND JUDGMENT Orxver Denyine Petrrrion—June 19, 1964 Before Merrill, Circuit J udge, and Sweigert and Zirpoli, District Judges. ZiePout, District Judge This is an action brought ‘under the Judicial Code, Sec- tions 1336, 1398, 2284 and 2321 through 2325 of Title 28, United States Code, to enjoin, annul and set aside a report and.order of the Interstate Commerce Commission. The plaintiffs, Western Pacific Railroad and its subsidiaries,’ claim that the defendants? are engaged in discriminatory * The Sacramento Northern Railway and the Tidewater Soutlhern Railway Company. * The defendants named in the complaint filed in the Commission action were: The Atchison, Topeka & Santa Fe Railway Company; The Great Northern Railway Company; The Northern Pacific Railway Company; The Union Pacific Company; The Camas Prairie Railroad Company, jointly owned by Northern Pacific and Union Pacific; The Pacifie Coast R.R. Co.; The Spokane: In- ternational Railroad Company, a subsidiary of the Union Pacific; and the Washington, Idaho and Montana Railway Company. The 731 rate practices at the Portland, Oregon interchange, in vio- lation of Section 3(4) of the Interstate Commerce Act; 49 U.S.C. §3(4). Section 3(4) provides as follows: “All carriers subject to the provisions of this part shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the inter- [fol. 999] change of traffic between their respective lines and connecting lines, and for the receiving, forwarding, and delivering of passengers or property to and from connecting lines; and shall not discriminate in their rates, fares, and charges between connecting lines, - or unduly prejudice any connecting line in the dis- tribution of traffic that is not specifically routed by the shipper. As used in this paragraph the term ‘con- necting line’ means the connecting line of any carrier subject to the provisions of this part or any common carrier by water subject to part III.” Several issues were ruled on by the Commission which are challenged here;* but since we agree with the Commis- *The Commission noted that although plaintiffs had “indicated a willingess to rely alone on the alleged violation of Section 3(4)”, they had not withdrawn their Section 1(4) [Title 49 US.C. See. 1(4)] allegations nor their request for “prescription of through routes”, a remedy related to a Section 1(4), rather than a Section 3(4) violation (316 I.C.C. at 810). The Commission ruled on both issues. On the Section 3(4) issue, after a lengthy discussion of the law and the facts, the Commission found (316 I.C.C. at 810): “There is, therefore, no basis for a finding that the carriers are connecting lines within the meaning of section 3(4).” It then went on to say: “Even if the complainants were connecting car- riers, the evidence of record does not establish the similarity of circumstances and conditions which justifies equality of treatment.” This last quoted issue this Court need not and does not reach. On the section 1(4) issue, which plaintiffs do not now urge, the Com- mission found (316 I.C.C. at 811): “On the basis of this record, we cannot find that the public interest would be served by re- quiring the establishment of joint rates and through routes which are substantially slower and costlier than the present route.” The Cone r ion ordered plaintiffs’ complaint dismissed because (316 C. 811): (footnote continued on next page) 732 sion’s conclusion that plaintiffs are not a “connecting line” within the meaning of Section 3 (4) of the Act, we find it unnecessary to resolve the remaining issues presented by the complaint. The factual background of this case is as follows: The two routes considered herein are called the Bieber route and the Southern Pacific route. The former was created by an order of the Commission in 1931 and was designed to be a competitor with the Southern Pacific route. See Great Northern Ry. Co. Construction, 166 L.C.C. 3, 170 (fol. 1000] I.C.C. 399. For purposes of this case, the Bieber route consists of the Santa Fe from points in southern California to Stockton, California, thence Western Pacific to Bieber, California, and thence Great Northern to Port- land, Oregon. This line extends along the eastern side of northern California through eastern Oregon to Wishram on the Columbia; from Wishram the line runs to Vancouver, Washington and thence to Portland, Oregon. The Southern Pacific route extends from points in southern California by either Santa Fe or Southern Pacific, through the central part of northern California and central Oregon to Port- land. Southern Pacific and defendants have maintained a system of through routes and rates at the Portland in- terchange for over 50 years. With the exception of a few “We find that the failure and refusal of the defendants to establish through routes and joint rates with the complainants through Bieber and Portland, between points in California, on the one hand, and points in Oregon, Washington, and Idaho, on the other, on the same basis as those published in connection with the Southern Pacific through Portland, is not shown to be unjust or unreasonable, nor to result in discrimination against the com- plainants in violation of section 3(4) of the act; and that the establishment of through routes and joint rates in connection with the complainants, through Bieber and Portland, is not shown to be necessary or desirable in the public interest.” Other issues raised in the complaint before this Court, and which this Court need neither reach nor resolve, relate to the evidence, testimony rejected and findings of fact that the Com- mission is alleged to have either failed to make or erroneously found. 733 commodities, defendants have refused to establish a similar system of through routes and rates with Western Pacific. A connecting line within the meaning of Section 3(4) is one which has either a direct physical connection at the common interchange or is one which makes up “through route” through the interchange point. Atlantic Coast Line R. Co. v. United States, 284 U.S. 288 at 293 (1932). Because Western Pacific terminates at Bieber, California and is therefore the middle link in a three line route, it does [fol. 1001] not have a direct physical connection with the defendant at Portland, Oregon. The criteria for the determination of whether a through route exists are set forth in Thompson v. United States, 343 U.S. 549, 557 as follows: “Existence of a through route is to be determined by the incidents and circumstances of the shipment, such as the billing, the transfer from one carrier to another, the collection and division of transportation charges, or the use of a proportional rate to or from junction points or basing points. These incidents named are not to be regarded as exclusive of others which may tend to establish a carrier’s course of business with respect to through shipments. “In short, the test of the existence of a ‘through route’ is whether the participating carriers hold themselves out as offering through transportation service. Through carriage implies the existence of a through route whatever the form of the rates charged for the through service.” (Emphasis added) Plaintiff properly concedes that it does not meet the above test* because the existence of a few instances of joint rates ‘Plaintiffs’ opening brief, page 8, states: “There is little doubt that, under the doctrine of the Thompson case, supra, there are not, as yet, a full line of through routes over the Bieber route to or from Northern or Union Pacific points.” 134 and through routes on some commodities is not sufficient to erally. Chicago M. St, P, ¢ ast Line case, it is not within the meaning of section 3(4), Plaintiff’s reliance on Chicago, I & L. Ry. v. United’ States, 270 U.S. 287 (1926) is misplaced. This case in- volved reciprocal switching arrangements and presented no question of whether the carriers in that case were “con- (fol. 1002] necting lines” for section 3(4) purposes. More. over, the case was decided prior to the Atlantic Coast Line case. Plaintiff’s principal argument is that the definition of a “connecting line” is not limited to the definition of Atlantic Coast Line. This Court is satisfied that the present definition fully comports with the statutory purpose, and that any further expansion of the term is not warranted, Because the Supreme Court has not rendered any decision on this question since Atlantic Coast Line, this Court is bound to follow that decision. Any further liberalization of the present definition will have to come from the Su- preme Court. It Is Therefore Ordered that the petition to enjoin, annul and set aside the order of the Commission is denied, and the complaint is dismissed. Dated: June 19, 1964. Charles M. Merrill, Circuit Judge, William T. Swei- gert, District Judge, Alfonso J. Zirpoli, District Judge. ‘ (fol. 1003] [File endorsement omitted] Iw THE Unrrep States District Court For Tue Nortnern Disraict or CaLirornia SoutHern Drvision Civil Action No. 41779 Tue Western Pacrric Ramroap Company, et al., Plaintiffs, v. Untrep States or America, Defendant. Norice or AppgaL To THE SuPREME COURT OF THE Unrrep States—Filed August 17, 1964 I Notice is hereby given that The Western Pacific Rail- road Company; Sacramento Northern Railway ; and Tide- water Southern Railway Company, plaintiffs in the above- entitled case, hereby appeal to the Supreme Court of the United States from the final judgment dismissing the com- plaint against the report and order of the Interstate Com- merce Commission and thereby denying the petition to enjoin, annul and set aside such order, which judgment was entered on June 22, 1964. This appeal is taken pursuant to 28 U.S.C. 441253 and 2101(b). Ul The clerk will please prepare a transcript of the record in this case for submission to the Clerk of the Supreme Court of the United States, and include in said transcript the following: 1. The complaint, including appendices A, B, and C attached thereto, filed September 20, 1963. . Answer of intervening defendants Northern Pacifie Railway Company, Camas Prairie Railroad Com. [fol. 1004] pany, and Walla Walla Valley Railway Company, filed on ox about November 4, 1963. - Answer of intervening defendant Union Pacific Rail. road Company filed on or about November 25, 1963, . Answer of intervening defendant Southern Pacific Company filed on or about December 16, 1963. - Answer of intervening defendant Interstate Com- merce Commission filed on or about December 16, 1963. . Answer of the United States of America filed on or about December 16, 1963. . Answer of intervenor The Atchison, Topeka and Santa Fe Railway Company filed on or about Janu- ary 13, 1964. . Transcript of Oral Argument, June 5, 1964. - That portion of the record before the Interstate Com- merce Commission comprised of the following items submitted to the Court by plaintiffs: Certified copies of the following documents in Docket No. 33679—The Western Pacific Rail- road Company, et al. v. Camas Prairie, et al, (1) Complaint, filed February 10, 1961, (2) Separate Answer of The Atchison, Topeka and Santa Fe Railway Company, filed March 2, 1961, (3) Separate Answer of Northern Pacific Railway Company, et al., filed March 10, 1961, (4) Answer of Union Pacific Railroad Company and Spokane International Railroad Company, filed March 13, 1961, 737 (5) Answer of Great Northern Railway Company [fol. 1005] and Pacific Coast R. R. Co., filed March 15, 1961, (6) Answer of Washington, Idaho, and Montana Railway Company, filed March 16, 1961, (7) Petition of Southern Pacific Company for leave to intervene, filed at hearing held May 8, 1961, (8) Transcript of proceedings held in San Francisco, California, May 8, 1961, (9) Transcript of proceedings held in San Francisco, California, May 9, 1961, (10) Transcript of proceedings held in San Francisco, California, May 10, 1961, (11) Exhibits 1 to 35, both inclusive, filed at the hear- ings held May 8, May 9, and May 10, 1961 at San Francisco, California, (12) Order of the Commission denying Petition for Reconsideration of Report and Order of Division 2, entered January 18, 1963, (13) Petition of The Western Pacific Railroad Com- pany, et al., seeking finding that issue of general transportation importance is involved, filed Jan- uary 30, 1963, (14) Order of the Commission designating this pro- ceeding as one involving an issue of general transportation importance, entered February 14, 1963, (15) Petition of United States for leave to intervene for the purpose of petitioning the Full Commis- sion for reconsideration of the Report and Order of Division 2 and to be heard on Oral Argument, filed July 26, 1963, (fol. 1006] (16) Petition of United States to Full Commission for reconsideration of Report and Order of 738 Division 2, and request of United States for Oral Argument before Full Commission, filed July 26, 1963, (17) Order of the Commission denying petitions of United States, entered August 9, 1963, served September 9, 1963, (18) Petition of United States to Full Commission (1) to vacate its Order served July 30, 1963; (2) to reopen the proceeding for the purpose of considering petitions of the United States filed July 26, 1963 and such responses thereto as may be filed by the parties; (3) to hear Oral Argu- ment if then warranted; and (4) to issue a deci- sion stating findings and conclusions and the reasons or basis therefor upon all material issues as well as an Order granting or denying the relief sought, dated August 7, 1963, (19) Carbon copy of letter dated September 10, 1963, at Washington, D.C. addressed Mr. Joh [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0195%3A02. Public record. Not legal advice.