Transcript of Record — El Dorado Oil Works v. United States

Supreme Court brief1946

Ask Donna

What actually matters in this document.

Text

TRANSCRIPT OF RECORD

f Supreme Court of the United ae 7

ale Seem 83 OCTOBER TERM, 1945 |

| ; A

: No. 428°

EL DORADO OIL WORKS AND EL DORADO TER:

| MINAL COMPANY, APPELLANTS,

ear cae a OR

: rE UNITED STATES’ OF AMERICA, INTERSTATE

° COMMERCE COMMISSION, GENERAL AMERICAN

RT eTAtION CORPORATION, BT AL. .

‘wees Fnow THE DISTRICT cout OF THE UNITED STATES FOR

‘va NORTHERN DISTRICT OF CALIFORNIA

‘

*”

| SUPREME COURT OF 'FHE UNITED STATES

OCTOBER TERM, 1945 —

No. 428. ||

ELDORADO OIL WORKS AND EL DORADO ThR

MINAL COMPANY, APPELLANTS,

renee: | : rs,

THE UNITED STATES OF AMERICA, INTERSTATE,

COMMERCE COMMISSION, GENERAL AMERICAN.

TRANSPORFATION CORPORATION, BP Ai

APPEAL FROM THE DISTRICT COURT. OF THE WNITED STATES FOR

THE NOQKTHERN PISTRICT OF CALIFORNIA

INDEX: , :

(Qriginal Print

Reeerd from D. C.eUS., Nortaern District of Cabtonnia ! 1

Bill of somplaint ..0..... bahia asWee aces as 1 !

Exhibit “A"--Report and order of Interstate Com

merce Commission in’ Docket Noo 28515. April

10, 1944 (omitted in printing) ...........6.86-- ‘

Intervention of, Interstate Conmmeme Commission, 26 oF

Answer of-Tnterstate Commerce Commission... 6.0... oi,

Exhibit No. 1--Report o€ Interstate Commerce Com

taission in Docket No. 28515 Comitted in’ print ;

ae Res Cpa er re a rere Prt ae rye weer ne 34

Exhibit No. 2--Petition of El Derado O71 Works and e

“Fi Dorado Terminal Company in Boeket No, 28515

etre AIS -SSPAMUE y 5-'e 9 a ws Se ee ao 52

Exhibit No. 3--OQrder in Docket No, 28515 ‘omitted

RA OYUN cc ske a so caanees re eee ee ieee es 4

Exhibit No. 4—-Petition for ieave to intervene tos

the General American Transportation Corporation

in Docket No. 28515 (omitted in printing)........ OH.

- ea ioe

Jupp & Detrweiter (INc.), PRINTERS, WASHINGTON, TD). C., Novemngr 27, 145

ee .

—1515

> s ; ‘ 7 >

‘ It ’ INDEX

Record from D c US. Norther Piistriet of ¢ ‘alifornia

Continued ‘

Answer of the v stele MERE fou cs oioc ae nee ea ae

Motion of General American Transportation c orpor: ition:

for leave to intervene | Pas

Notice of motion and aittidavit of service,

Motion of The Alahama (Cireat Sonthern atiroad 0.,

et al, for leave bo SMEOEVORE. Side Sse wes sensed Siena

Notive of motion and_mtidayit of service. oo. 0...

Order granting motions for leave to intervene. PSY rots

scat ____ tion, jntervening defendant »...-.......00.... 0095

‘Answer of "The. Alabama Great ‘Southern Railread Com.

pany, et al. infervening defe nid: ints..... sete eeeee »

Oraer dismissing. GOO a hes Pie cg eee tba aw

Opinion, Goodman. ? rng tte Pre or rr reyes Pree ee

.. Findings of. fact and conclusions of laws... 00.6... 6

° Final decree ........ MOP rae ake Pe a aikics ce ata

Petitic on for appeal and orler allowing same

a Assignments of error

Bond of Appeal «ics... as ... ¢omitted in printing) ..

Aer Citation ......... Ae ae eelt cox as (amitted in printing) ..

Ps i Designation of record on appeal. Comitted in printing) .

Order extending time to docket case on appeal.........

' Stipulation and order extending time to tile designation

of additional portions vel the record (omitted in print.

ing) rr weevny yew ry? ere ee eee .

ToT rey ere ge

(omitted in printing).......... gtk ena Hea ee a

Stipulation re record on apywal. tomitted in printing:

Order extending time te docket Case on appeal...

“Clerk's CCTUACAIO. 6a Soccer . Comited in printing)

haar Plaintiff. Exhibit No. 1 Proceedings before’ Interstate

Commerce Commission in Docket No. 28515 ‘

Petition of EL .Dorado Oi Works et abo... 6.0...

Exhibit SA’ Agreement between General Ameri

ean Tank Car Corp, and Bl Dorado O11) Works,

. Moptouiber 90, GRUB... 6 os iicascoscccssccase:

Order on PStITION,. 206 66s chess aces ee arate Rina eaks

— Ketition of General American’ ‘Transportation. Cor-

‘ = for leave. to intervene... 06... 6 ee eee ,

pact shabeaiand for ‘pettilons * EEA SR aA

e 5 aa . Colloquy between Examiner and counsel.......

Testimony, of H. V. Gilmore....... peacecdsutac

’ Stipulation as to tariffs...........° Peee kaa -

z ' Testimony of J. H. Jeffrys.......... ook aaah as

Answer of General American Transportation Corpora: -

. Designations af additional Jportions of the. record.

Original

LOT

208

220

228 .

oon

226

236

242

Onh

309

329

a He

; oe Koes .** < -« we

ce —___—_~ are anne ee

* feeerd from Do US. Northern District of Cubifornia

Continues!

. Plaintiffs’ Exhibit Neo 1° Procemdings before Dftiterstate

Commerce Commission in Docket Ne Usobe Continued f ‘

Transcript of hearing Continued "Original Print

Stipulation as td Certain testimony ! 448 . 133

Opehing statement for respondents os. et me - <

Testimony of ROAD Podlech.- Rad 141

E. SN. Smith aa ao

Wm Digan ee ees 7

PEO = Wm. M. Foster ... 127 ISS

A Dorald Ho Smith : ae ans 1X8 ‘* '

a Thomas BL Kious.. 0... oe. 4 14 * aim *

HV. Gilmore treeatied |. 8 TaN 208 :

-Exhilét -No 9- Comparison of mileage earn-

ea! ; vings and se ‘rvice charges «af Gene ral Ameri. i

; can tank ¢ ‘irs in service of El Dorado, Jani ;

: ary 1, ie re Seprember 200, 10, : an Po:

Exhibit Noo 10--Stutement showing total nti.

ber ef fank cars earning mileage in excess

“ss of service fharges, ete., Juty 2. 184 tecSep -

Setaber BO 2O00. oo. ook fasacccs hes ere re m1 2386

: : Proposed report of Examiner Committed in) print ‘

J) 2 ne en ole i

Petitioners’ exceptions te proposed report of Ex: idan Tate ae ;

ner and brief in support) there “of omitted tn

printing) ........... Wb oh ka hale atala wane dark te yet) ;

Transeript of oral argument. comitted in prtating Te TRS .

ee Report hnforder, MCT FO. PROG osc i xe he 237 ;

: Applic ation for. rehearing, reargument and ree cent

eration (omitted in printing) ere ee teececes hy

Orde redenving pe tition for rehearing. ete... ... LOSS 261 ; .

nee : a

Statement at points to be Yelied BOOM caus s'- bax ist 1 e

Designation of parts of ‘recort te be printed. 00000. 5. aud 204

Stipulation to. diminish printed POCOPE. vy os cae ens “ie : BOS LHe ‘

* Order noting probable jurisdic oo Res Peat enck Scns 2) ae aa

| 2° :

: 2 : . ‘

ow .

. e .

. .

~ i

l tol, 1

. IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE NORTHERN’ DISTRICT OF CALIF ORNEA,

SOUTHERN DIVISION

Civil No. secant

Ki. Dorapo Om Works, a Corporation, and bi Deuace

TexmManan Company, a Corporation, Phatitut

VS.

Untrep States o- Ames rica, Defendant

B SLL of Compt. AINT- Filed Aaiptink 24, mr

KI Dorado Oil Works sas KM) Dgoredo” Ee rininal OMIpAany,

fring this their Bill of ¢ ‘omplaint against the United States.

to set aside, suspe ndoand amiud a certain order of the Inter

state Commeréé C omission Chereimatter called the Corns

niission) and in support of this, their prayer for such relief,

complain and say: | bs

7 ‘o

El 1 Doradd OU Works, at all times hereim mentioned, was

_and is’a corporation organized and existing under and by

virtue of the laws of the State of California; El Dorado

Terminal Company? at tall times Jerein mentioned, was snc

ix a-corporation orginized and existing under and by virtue

_-0f the laws of the State of California; exeh of said plain

[fol. 2] tiffs is a resident of the St: eof Califyriia within

the Northern District of California, Southe my Division.

The order of the Comimission hereinafter referred to, was

“made upon the petition of El Dorado Oil Works and El

Dorado, Terminal Company, and upon the motion of said

CSmmission, eo. tn

This suit is brouglit, in the said Northern District of

California, Southern Division, ander, and the jurisdic H10n

of this Court.is predicated upon, Acts of © OneTress approved

“June 18, 1910 (36 Stat. 539), Mareh 3. 191E (36 Stat. 1149)

and October 22, 1913 (38 Stat. 2199; Code of Lays of the

1 —42s, ry : ¢

United States. Tith 28 Sections. 41,‘par. 28 and 43-48 inehy

sive, Which confer upon the Distrie (Courts of the Urcitend

States jurisdiction of suits to set aside, an nul ar sus prone,

in Whole or in part orders of thé Inte rstate Corimerce Cor

Hissiout,

Iv r

De fondant: U nited States of fa ae is sued Wuder Ver

of Congress approved .Fune IS,19 70 626 Stat. G29), Mare

oe 194 (36 Stat. 1149), and Ov tober 22. 1913 (28 Stat. Jig):

Codes f Laws of the United States, Title US, s@etions 41,

par. 28 and 43-49 j ine lusive, set aside and annul or suspen

a certain order entered by the Conmission on the Loth d: is

oF April, 1944, "in an investivation proceeding pntithed + ly

~ the Matter of the Petition of El Dorado Oil Works ani

Kl Dorado Terminal C ompany for hivestigafion of oe

Aliowances by Titerstate Carrio rs for the Use of Tank «

of P rivate Owne ‘rship’’, Docket No, 2? 8915. The proces ein

Was disposed Of-at a General Session of the CCorumeisst on

The majority ap inion Was: Joined in by Coninissioner Pat.

{iol 3] terson “and ¢ ommissioners Sel awn, Miller ane

Alldredge joined itr a dissenting opinion. A copy of <:tid

Oreer of the Interstate Commerce Cofumission, tovethe

Jwith’a copy of its report npom which said order purports

to be based, and the said dissenting Opinion are attached

here ‘to, tharked Exhibit A and made a part’ hereof.

° wie a — “

«< \

On the 7th day of June, 1944, ‘aiiaee. filed with said

Commission an applieation for Rehearing, Reargument and

Roeonsideration of said Order of April 10, 1944. ° nosate

application plaintiffs particularly averred. that the oe

mission's order of April 10, 1944, herein complained «

Was incomplete,. inadequate and erroneous, that it} Was Con

trary to the evidence, unsupported hy the evidence, aprac.

ticable and ¢ an usurpation of the province of the éixil COUTTS

and in excess of the jurisdiction we authority of the Cor

‘mission, that the C ommission failed te make a finding on

Indterial issue, that the conclusions were UBSUpported In

findings of faet, that erroneous conclusions of law were

‘applied and the @ ‘commission failed te vive effect to the sian

‘datecof the Sapre me Court ie General Americ am Tank Ot

, Corporation vs, El Dorado Terminal Chmpand, 308 US

» 422. That said applic ation for Re ‘hearing, Rearguinent a

. ° ‘ ee

. . @- ; . .

. ‘ > :

° ‘* . 7 tis

S ° /

Reconsideration was denied hy ‘order sof the (oon Histon

e “ .

orabout July 3f,

1W944.- ¢

Phat said order of the Commission dated Apri la, 1g4.

purports to determ

ine the lawfulnes. of the praetioes oo!

plaintiffs. under the terms off a contraci dated Seydediber

2s, 1933, between the J8l Dorado Oil Works and the Genera!

American Tank ‘a’

of the allowance to

of tank Cars furnis|

(fol. 4} Works for

t Corfloration, and the rendtonableness

be paid by railroad catriers forthe geo

led such carriers By the El Dorada Oi

the transportation of ir% produets ‘in

interstate commerce during the period frome January fb,

1934 to December 31, 1936. The sald order Purperts te”

require that fie m

. v 2 ‘ . 1 7)

aNimuin allowance tobe paid by rail

varriers to the Kb Dorado OF Works for tite nse of tank

cars furnished: by it-should net exceed the rental paid hy

El Dorado Oil Wo

28, 1933. Said orde

rks under said contragt og -Septeniber

‘vy further purports to deny El Dorads

Oil Works any allowance from the rail carrier or carriers,

‘directly er through the General Ameriein Tank Car Cor po

ration for the expense of cleanine ‘and preparation-of the

tank cars for the transper Mioliof its Gommuodity durine

the period of the agreenit, January 1, 1934. to December

51, 1936. That said

sonabie allowance te

furnishing of tank

goods. In and. by.

. establish*a uniforn

KI Dorado Oit Wor

order fails to eStablish a uniforn res

y be-paid to shippers by carriers for the

ears for-use in the transportation of

said order the Commission refused ta

t reasonable allowanee tea he paid’ to

ksand El Dorado Terminal ¢ ‘OMAN,

or to other shippers by cagriers for the furnishing of tants

cars for use in the transportation of woods during the

period trom Januar

ing any other time.

v 1, 1934 to DecOnber OL, W8, or din

VII

Plaintiffs allege that the said.order of the Coniniission

dated April 10, 1944, In-so fae as it purports toe lifnit: the

reasonable allowance, as a maximum to be paid by the rail

carriersto the El Dorado Oil Works for the furnishing of |

Q * 8): . P be +

tank cars, to an amount not excedding Mie rental paid mteder

said contract of Se

- as urju@® unreason:

Mm excess of said re

ptember 28. 1933) and te characterize

ible and a preference any amounts priicd

ntal, and to dehy an allowance for thie

vhs

‘

necessary cleaning and preparation of the tank cars =e lity:

the period of said agreement, and tails to éstablish a nn

lfotio} Yorn: re asonable, allowance to shippers for tan!

ears furvished to carriers for use in the transportation ot

woods, is without foundation in law, is based upof errey-

of law, isnot supported by evidence, is hot supported: |a

adequate findings, is avainst the manifest weight of the-evi

dence, Is confiscatory, exceeds the regulatory power of the

* Commission and is arbitrary and void for the. followings

Fi asO1s ‘ ; -

() ‘Said order. is not an order which tlie -Commission

is empowered to make “under the provisions of the Inte:

state Commerce Act. ¢

(2) The Commission tailed to grant plaintiffs a fair and

— he: fring. alee ie.

3) The Commission failed Yo consider: and give .duc

we elt to evidence introduced before it by plaintiffs,

; (4) Said order and the findings ef the Commission upon

which it: purports to, be based are without ‘any evidence

.. Whatever to support them. . aor

(a) Phat the € omission failed to make findings upon a

miaterial issue.

(6) That the Commission invaded and usurped the -prov-

ince of the civil courts.

. 1

_ (7) That the conclasions of the Commission were er

roneous in law.

That ‘Said order. i is contise atory, vas

; Vil es Ber:

The pn the Commission will, unless annulled, set

aside and su pe nded, cause irrepar: able injury and damage

to plaintiffs in that ‘said order purports to be a’ finak ad

_ juci¢ation of the rights ef plaintiff tovan allow: ance for the

furnishing of tank.cars to carriers, and further. purports > *

to adjudicate the rights of plaintiffs undér the terms of said

contract of September 28, 19338, and to deny ‘to plaintiff

{fol. 6] recovery of the’ moneys te which they are entitled

wider the said cont ict of September 28, 1932.

. .

All at the matte rs here iN slice reds plat mntifts offer to prave

Wherefore, pleintitts: respetlly pray." 2F > . 8

First, ‘Bhat Supe the filitix of this peQtion the preseding

Judve of this. ¢ ‘qurtcshail cathto duis assistance ithe desir

ing and determination ef this cause; two other judges, of

Whom one at least shall bea cire ‘Uited ud Ke ;

Second. That process may issue, against ‘the dk fendant

the Fnited States of America:

Third, That after not less than three days’ notice to the

Interstate Commerce € ommission and to the Attorne Vv Gen

eral of the United States, as provided be lawyer hearin:

shall be held and a te Mporary stay or suspension of the sais 1

order of the Commission be issued, pending, hearing snd

determination of plaintiffs’ application for a’ final: deere:

annuiling, setting aside ¢ and suspe nine said order

Fourth. That after not less th: an) ee lays’ notice to the

Interstate ( ommerce omission dnd to the Atiorne wi

eral of the United™States, us provided by faw, a ete

shatl. be held, and a decree be issued staying and suspend.

‘the thes sald order of the Interstate seas ( ONUNESSION,

“Fifth. That upon tinal hearing of this cause a final deeree

shall be issued, deereeiny- that, said order of the Commis:

sion as aforesaidgis null and void, and is set aside ,amnulled

and suspended, and that Bs enforcement, “execution ainiel

operation shall be fore ver annulle - a °

* Sixth> That this ¢ ourt grant to the pli Lintiffs Snel othie

and further velief as oy it may be deemed proper in the

premises, . -

“WF. Willi: Angi on W iligmson® & am ‘allace, Attories ~

SSeS Plaintifis, 3

ted i Rm privting, 7 a

. —————

—

. [fols. 7-25) Duly sworn to by ’S. M. Waste th. duarat nnit-

‘6 ‘

(fol, 26] Ix Unirep Staves District Court ii

Z [Title omitted

Iw1 ERVENTION OF INTERSTATE ComMERcE CoM MISSION,

To the Hcndratile Joleta of Said C wink ,

‘In accordance with the provisions of Section 219. of the-

. Judicial Code (35 Stat. L. 1150, 28 U.S. C2 45a), we hereby

enter the appearance of the Interstate Commerce —

Mission as a party defendant in the above entitled case, andl

of ourselves as its Counsel. fae ,

é Daniel W. Knowlton, Chief’ Gounsel; J. Stanley

Payne, Assistant Chief Counsel, Washington, 'D. ©.

fol. 2 7 | Ix Untrep. Strares Distier Court

[Title omitted]

Answer or [xterstare Commerce ComMMission—Filed

: October 23, 1944

The literstate Commerce Commission, intervening de

‘fendant in the Ahove- entitled Cause, for answer to the com

plaint herein, respectfully states:

, eS.

‘

The “Commission neat thé: allegatic ns of paragraph I.

cof the complkaint. ~ \

IIs.

The Commnrission admits the allegations of paragraph i

of the comptaint.

ee x

Answering’ paragraph IIT of the complaint, the Com

anission admits that the Urgent Deficiencies Act of October

22, 1919 (39 Stat. 219; 28 U.S. C., see. 41 (27) and (28)

and sees, 43-48), confers jurisdiction upon the district

courts of the Fnited States, when specially constituted: of

[fol 28] three judges, to enjain, suspend, set aside, and

annul certain orders of the Commission, and the Commis-

: 4. _'

. i

"sion admits that this suit purports to he brought under that

Act, but the Commission allewes that the order soneht

to-he set aside in this suit is one of the nature whieh, inder

the terms of said Act as construed ‘in decisions of the

Supreme Court of ‘the Waited States. is uot reviewable

under the pravisions of said Act.

° IV. *

s Re 4 ‘ at

~The Conimission admits that it made the report referred

to in paragragh LV of. the complaint, entitled Allowances ©

for Privately-Ovwned Tank Cars,” decided April 10, 1944,

a typewritten. copy of which, together with the order of

the same date, discontinuing the proceeding, is attached

~ ‘to the complaint marked ‘Exhibit A." An officially orinted

copy of the report, which appears in 28 TCs Cl 871, is

appended hereto, marked ** Exhibit No. 1,”’

o , / oy

. Cae oan

~AnswWering paragraph V of the complaint, the Comping

sion admits that on June 16, 1944, plaintitfs filed with ti

‘Commission. an application, dated June 7, 144. for re.

hearing, reargwnent and reconsideration, and that. the

Commission denied the same, Siae

Further answering ‘sai paragraph Vy the Commission

admits and alleges: In June 1935, the El Dorado Terminal

Company (hereinafter called the Terminal Company), as

assignee of the Kl Dorado Oil Works (hereinifter, called

_ the Oil Works), brought, I this Court, an action ino as

sumpsit against ‘the General American Tank Car Corpo

ration to recover-a sum alleged to he duecit by the Car

Corporation under the terms ofa certain car leasife agree

ment, This*Court rendered judgment for the Car Corpo-

ration. The judgement was reversed by the Cirenit: Court

ot Appeals, which lieid that the Terminal Company was en-

[fol. 29] vitled to the full amount ekrimeds 104 F.2d OR OTaS

The Supreme Court eranted certiorari and in its opinion, *

rendered January 2, 1940, General. American, Tank Car

Corp. v. Bl Dorado Terminal Co., BOS U.S. 422. it held

‘that the suit was within the jurisdietfon of this Court.

since the action was an erdinary one in assumpsit on ‘a

-, Written contract, and that the Court had jurisdiction of

the parties, but it further held that the case involved an

administrative question subjected by the Interstaié Com.

‘meree Act to the administrative authority of the Commis

sion and that, when it appeared in- the course of the litiza

tion’ that an administrative problem, committed to the Com

mission, was involved, the Court should have stayed its

hand pending the Commission’s détermination of this ad-

ministrative preblem, namely, the mesernete and the reat

sonabieness of the practices of. the*parties“ander The terms

of the Interstate “‘ommeree Aet. The Supreme Court

. further me Bord there should not be @ dismissal, but that

the cause shehld be-held pendivg the conclusion of an ap

propriate administrative proceeding. Accordingly, thie

judgment of the Cireuit Conrt of Appeals was reversed and

the cause remanded to this Court for further proeeedines

in conformity to tl opinion. Said canse is now pending

in: this Court. : '

Thereafter, the OF1 Works and the Torwinal Company

filed a petition with the Commission, on June 7, 1940,

citing the Supreme Court’s opinion in the above-cited ease,

and requesting that the Commission determine the admin

istrative questions involved in the aforesaid litigation. A

copy of said petition (minus the agreement referred te

therein, which-is reproduced-in the Appendix to the Com

-tission’s report) . is appended hereto, marked ** Exhibit

y ae . won uy

By order dated July 24, 1940, the Commission instituted

“an investigation to determine said administrative question-,

[fol 80] naming respondents a, large number of common:

carriers Sy rajlroad engaged in ‘the transportation of coco

nut oil from California points to various points in th

United States. A copy of this order is appended hereto,

marked “Exitthit No. 3." ‘ ,

The matter was assiwned for. hearing and heard ‘by fore

an examiner of the Commission at San Francisco, Caltt..

Dee ember 9 and 10, 1940, -The Oi Works and the Terminal.

Company, by their: counsel,,and the respondent carrier:

by their COUNSE I ‘appeared and participated therein. The 0

General American Transportation Corporation, successor

in interest to the General American Tank Car C orporation,

by its counsel, also appeared at the hearing, there pre

sented a petition for leave’ to intervene, which was &ranted, ,

“and-participated in. the hearing. Substantial evidence wa-

submitted by the respective parties, the typewritten tran-

script of the testimony filling 271 typewritten pnges, which

was supplemented by eight physical exhibits (samples of

. : 9

oi} and two documentary exhibits. A copycat the General

American Transportation Corporation’s petition for leave.

to intervene bs appended herefoo marked “Exhibit No. 4.

After the close of the hearing the respective parttios

filed briefs. On Maw 34,0941, an examiner’. proposed

report Was issued and served, te which exceptions were

filed by the OU Works and the Teruinal @ompmany. On

November 5, 1941, the proceeding was argued orally before

the ( ‘otumission at rat wi DD. 2) tem conynissioners

sitting. :

On April. 10; TO44; the Fale Hission issued its pert: iis

‘aforesaid, containing its findings, diteranin: tions and con-

clusions upon the vedituinistrative qnestions presented te it.

With the report the Commission issued an order which

rewls as follows:

fol. 31p 0 Tt appearing, That by order dated July 24,

140, the Conenission, in response to a joint petithon

filed by El Doredo Oi Works amd El Dorado Tertinal

rh oMmpyny, instituted® cin investigation toe determine the

lawfulness of the practice s under the terms of a con

-tract dated September 28, 1083, hetween the El Dorade

Oil Works and the General American Tank Car Cor-

poration, apd the reasonableness of the allowance to be

. paid by carriers by railroad for the use of tank cars

furnished such carriers by-the El Deo ado Oi Works

for the transportation of its pociuets im ivterstate eon:

meree during the period from Janae’ 1 Wd. te

December 31, 1036:

It further appearing, That a full inve Stigation of the’:

matters and things involved has been > and that the

parties have been fully heard. and that t!

on the date hereof, has made: and filed a report com

- tainiag its findings of fact pnd conclusions ‘thereon,

which said reports is hereby referred to and made

part hereof:

It is ordered, That the proce ceding b and it is hereby,

discontinued. ”’

TOR isslon,

Said order contains no nid of command, and requires.

neither the plaintiffs herein nor any other party te do or

to refrain from doing anything, Tt simply discontinnes

said proceeding. eee °

- On June 16, 1944, the Oil Works and the Terminal € om:

pany Med ‘a petition for rehe aring, rearguime nt and re-

as -

consideration. Replies ‘thereto were filed by the Genera!

American Transportation Corporation and the respondent

carriers. By order dated July 31, 1944, the Conintission

denied said petition. Pin tee 20

. ‘VI. |

Answering paragraph VI of the complaint, the Commis-

sion respectfully refers the Court to the report of Apri!

10, 1944, for full, aceurate and complete information as*

to its contents.

“

VIL ; .

The Commission denies e: ich of mee all vn flegations in’

paragraph VII of the complaint, and alleges that the find.

ings, dete ‘rininations and conclusions of fact contained in

said report of April 10, 1944, were and are,- and that each

of them was and is, fully supported by the evidence.

(fol. 32) ee

punettes parexravh VIII of the. complaint, the Com

mission denies that said order of the Cojmprissiom will cause -

irreparable injury or damage to plaintiffs, and denies eac!:

of and all‘other allegations in said paragraph VIII.

= aired =.

Further, and affirmatively answering the complaint, thy

( ommission respectfully alleges that the relief sought should

be de nied for the following reasons:

(a) The Subject matter o f the complaint is an order of

the Commission which hae en neither the doing, nor the

abstaining from doing,.of any act by plaintiffs.

(b) Said order.is not ai order within the meaning of the

U rgent Deficiencies Act or any ‘other act authorizing suit-

in the district courts of the United States to enjoin, set

aside, annul, or suspend orders of the Commission.

(¢) The coniplaint does not contain either statements or

eA a of fact which show that said order of the Com

mission Causes plaintiffs, or will cause plaintiffs, ‘such lee!

injury, or threatened legal injury; as entitles them to main-

tain this suit. oo i .

(ay The report, setirced to in and made a part of the

order, does notuing more than fo make certain administra-

. .

. . ‘

. ~ .

- \ , °

at Se ee Beg

tive findings upon certain questions involved ina siit at taw

pow pending befere thrs-tomrty regularly constituted as ae

District Court of one judge, in whieh plaintiffs seek to®re-

cover certain sums of monev. Said report, ti which the

Commission mterely makes certain admunistrative: findings

upon questions which arose in the suit at law for the recoy-

ery of money now pending before this Conrtas a reenlarty

constituted District Courtof one. judwe, ts netan order re

viewable inthis Court when specially eonstituted af three

[fols. 38-71] judges, Oneca cirenit: judee, under the provi

‘sions of the Urgent Deficiencies Acts from: whose jecderent

a direct appeal would lietto the Supreme Court of tips vies

State Ba : ;

(e) Plaintiffs have a full, adequate. sand completa remedy

at law. .

(f) Plaintitfs’ complaint fails to ricet the requisites. of

equity afd fails to state a-eause of action. cognizhble in

equity.

“All of which matters and things the Conmission is ready

to aver, maintain and prove, and hereby prays that said

complaint be dismissed,

Interstate Coniunerce Commission, By J. Ste aril

Payne, Assistant Chief Connsel: Daniel Wok now,

ton, Chref Counsel, of Counsel,

Duly sworn toa? lry ( Tad Bo Aitéhison. jurat omitted bile

siti tin q.

[fol: 72 | Ix Ustrep Scares Disriter Covi

Lai [Tithe omitted} «0:

jurisdiction of thits suit,

ANSWER or THE Unirep Srares— Filed Oe tober ve, 1944

Now comes ‘the United States of «Ainerica, defendant

herein, and in answer to the eemplaint sav:

First Defense

JAs a first defense to the coniplaint and in auswer to

paragraph 3 thereof, denies that this Court as condtitted

under the Ureent Defteiencies Act of October 22, 1912) lias

. Defendant further alleges that in order to understand

thie question it is necessary to consider the history of thi.

litigation, which is as follows:

In June 1935, the El Dorado Terminal € ompany che rod

after called. the Terniinal Compay), as assignee of the EE

‘Dorado Oil Works (hereinafter called. the Oil Works),

brought in this Court (i.e. a single-judge districts Gonrt), at

action in assumpsit against the General American Tank Cx

Corporation to recover a sum alleged to be due it’ by th

_ Car Corporation under the terms of a certain ear leasine

agreement. This sum consisted of amounts paid by rail.

carriers to the Car Corporation as allowances for the use o!

tank cars, owned by the Jatter-and leased to the Terminat

Company for shipment of its products. This Court -rer

[fol. 73] dered judgment for the Car Corporation. Tl

judgment was reversed by the C irenit Court of Appeals,

which held that the Terminal ( ompany was efititled to the

full aniount claimed, 104 F.. (2d) 903, 916. The Supre mie

C ~~ eranted certiorari and in its opinion, rendered Jani’

ary 2, 140,.Gencral American Tank Car Corp. vy. El Dorud™

TT rminal C 0., 808 FOS. 422, it held that the snit was withi:

the jurisdictjon of this Court, since the action was an ordi

navy one in assuinpsit on a written contract,.and that t!

Court had jurisdiction of the parties, but it further hel

that the case iny volved an administrative question subject:

hy. the Interstate Conimerce Aet to the administrative an

thority of the Cagmmission and that, when it appeared in

the course of the litigation that an administrative problet;

‘conimitted to thes Commission, was involved, the Cour

should have stayed its hand pending the Commission's de.

termination of ‘this administrative problem, namely, thi

Jawfulness, and the reasonableness of the practi Ges of the

“parties under the terms of the Interstate Commerce .Ac!

The Supreme Court further held that there should not be

a dismissal, but that the cause should be held pending th:

conclusion. of an appropriate adininistrative. proceeding.

Accordingly, the judgment of the Cirenit Court of Appeals

was reversed and the’ cause remanded to. this Court. for

further proceedings in conformity to the opinion. This -

cause is now pending in this Court.

Thereafter, the Oil Works and the Terminal Company

fited a petition with the Commission, on June 7, 1940, ¢itine

the’ Supreme Court's opinion in, the above-cited case, and.

eaicors : 13

requesting that the Conuuissien determine the administra

tive questions involved in’ the aforesaid litigation,

By. order dated July 24, 1940, the Commission instituted

an investigation to dete rinine said adfuinistrative questions,

hating as ‘respoudents ‘a large number of common carriers

by ‘railroud engaged in the trimsportition of coconut oil

from California points to various points ino the United

’ States.

(fol. 74] The matter was assigned for hearing and heard

before an examiner of the Comunission at San. Francisco,

California, December 9 and 16,1940, The Oi Works and

the Terminal Company, by their counsel, and the respondent

‘carriers, by their counsel, appeared and participates

therein, The General American Transportation Corpora

tit, snecessor in interest to the General American Tank

Car Corporation, by its counsel, also appeared at the lear

ing, there presented a petition for leave to intervene, whieh:

was granted, and participated im the hearing. Substantial

evidence Was submitted hy the respective parties, the type

written transcript of the testimony filing 271 typewritten

pages, Which was supplemented by eight physigal exhibit-

(samples of oil) and two documentary exhibits.

Following written and oral argument the Conunixsien is

shed its report as aforesaid, containing -its lindines, deter

Iwinations and conelusions upon the adnitnistrative (ules

fions presented to it. With the report the Cominis<ion i-

sued an order which reads as follows:

it appearing, That by order dated July 24, 1040, the

Commission, in response to a joint petition tiled, be bl

Dorado Oil Works and El Dorado Terminal Company,

instituted an investigation to determine the lawfulness

‘of: the practees under the termscof a-contract dateck

September 28, 1933, between the El Dorado Oil Works

and the General American Tank Gar Corporation, and *

the reasonableness of the allowance to be paid by car

riers by railroad for ‘the use of tank cars furaished

such carriers by the El Dorado Oil Works for the trans-

portation of its products in interstate commerce during

the period from January 1, 1934, to December 31, 1036;

It further appe aring, That agfull invetigatjon of the

matters and things involved has been had, andl that the

. parties have been fully’ hes ard, and thet the © on HInSsion,

+ SPH - £ — ee - ~ sh. ~~

“8, Ores

on the date hereof, has made : and filed a report gontain-

“Tne its findines of fact and conelusions thereorwk whichis

said report is ereby referred to and made ¥ part

hereof: SS :

It is ordered, That the proceeding be, and it is here

discontinue vel.

iB. More particukarly, de iaileict alleges that iucisdic tion

does not exist here because the conventional requisite sof

equity jurisdiction, which are-also requisites. for. jurisdic

tien under the Urgent Defictencies Act, are not established.

[fol 75] Specitically, it alleges that such re quisites of equits

* jurisdiction do not exist because the present: report and

order of the'Commission do not constitute a clear and: in

mediate threat of interference with plaintiffs’ legai right

and because plaintitfs have an adequate legal remedy te

review the Conmngission’s action. The present report and

ofder of the Commission do nothing more than’ to make

certain administrative findings upon certain questions iy

volved in the aforementioned suit at law pending het ore

a single-judge court in this distriet. The Comunission’s de

termination ts merely ancillary to that suit. It can direcths

—atfect plaintiffs”: ights only upon the éontingene v of further

judicial tction, namels the approval and adoptic on of the

Commission's findings by the single-judeeé district court

Furthermore, defendant alleges. that plaintit? will have an

adequate opportanity to review the Commission's action it

such suit at Taw ; :

Sec rand Detes hse

Admits the allegations of paragraphs I and TL oft!

complain ,

Admits the Snegations of paragraphs TLD and TV, ex

oe denies, for the reasons indicated in the First Deters:

that this Court has jurisdiction.

‘\, Z ~

3. Admits the allegations of par agraph V.

4. Admits the ajlegations of paragraph VE to the’extent

that they are consistent with the findings and conelusion=

‘in the report and orderyof the Commission, to which the

Court is referred for a more complete statement concerning

* the matters referred to in this paragraple

Denies the-allegations of paragraphs VIT and VIIE of

the complaint.’

° ’

@ bad : e s @

W herefore: His respectfully praved that the cormpl: “int

be dismissed. ;

oe Robert L. Pierce, Special Assistant te the Riches

_ General, Department of Justice, Washington, D.

C. Attorney for the United States of Mmerica,

defendant. ge ey :

{fol 76) 0 Wendell, Berge, Assistant Attorney. General,

Frank J. Hennessy, United States Attorney. William i,

Licking, Asst. Tnited States Mttornes v *. :

-? Certificate of Service

I hereby certify that T served a copy of the above wuswer

upon eae hoof the Yollowing cousrsel this 14th day of Ov ‘tober r,

M44, by miatiling them a copy thereot :

~ W. EF. Williamson, Msquire, Williamson & F Wallace DLO

Sansome Street, San Francisco 4, California.

Daniel We Knowlton, Esquire, Chief Counsel, Interstate

Commerce Commission,” Washington 25, D.C. >

o- Allan -P. Matthew, Esquire, 1500" Balfour Suilding, San

Francisco 4, California. ‘

Douglas F. Smith, Esquire, 11 Souths Las: alle Street, Chi

caso, [inois.

J. Carter Fort, Esquire, Generitt®Counsel, Assoc ‘igtion of

American Railroads, Transportation Building, Washine:

‘ton, D.C, .

Robert L. Pierce, Special Assistant te the Attorney

General,

- + [File endorsement omitted. |

ao an

; bs

- \

[foi 77 | Ix Unsizep Staves Distrier Cover

[Title omitted |

Motion ror Leave te- INTERVENE AS A DrrENDANT— Filed

October 30, Last | aaa

Applicant, General Ainerican Transportation Corpora-

tion, a corporation, moves for leave to intervene as ay

defendant in this action, in order tw cassert. the defenses,

set forth in. its preposed answer, of which a copy’ és

(fol. 78] hereto’ attached, upon the grounds “that: “appl.

cant Was a party in ‘interest, to wit, an intery ner,

_--?

to the proceeding | before the Interstate Commieree Com

‘mission referred to ine the complaint herein’ and pa

‘ticularly in paragraphs TT to VITL therevot, entitled: 1

the Matter of the Petition of El Dorado Oil Works ‘a

ki Dorado ‘Terminal Conipany, for Investigation of Mile

ave Allowances by duterstate Carriers far the Use ef Tar!

Cars of Private Ownership’, Docket NO. 28d). Tn sais

proceeding the Ipterstate+tomiteree-Commiission made its

order, a copy of which is attached to the complains here:

asa part‘of ‘*xhibit A’. and which order the plaintit-

pray by their complaint herein to have declared mull and

void. As appears from the report and order of the Lite:

state Commerce, Commission in said proceeding, the i:

terests of applic autave involved in this action. By reason

‘of the premises, applieant has an = right te

intervene herein under the provisions of U. A. Title

28, Section 45a, and makes this motion for Petes to iiptes

vene as of right. ° ,

W.S. Hetferan, Jr, 135 South LaSalle Street, Chi-

ro OO, Tlinois; Kenneth F. Burgess, Douglas F.

Smith, 11 South LaSalle Street, Chicago 3, Tinney:

Allan P. Matthew, Burnham Enerson, (ot Bai-

four Building, San Francisco 4, Californias Attor:

neys for General American Transportation Cor

poration, Applicant for Intervention.

° Sidley, Austin, Burgess & Harper, 11 South LaSal)

Street, Chicago 3, Hlinois; MeCutchen, Thornas, “Matthew,

Griffiths & Greene, 1500 Balfour Buitding, San Frane isco 4.

California, of Counsel.

[fol 79] > : 5% Novice oF Motiox

To: W ard FL Williamsonmand Williamson & Wallace, 210

Sanabnie Street, San Branci ‘isco 4, California, Attornues >

for Plaintitfs; Daniel W. Knowlton? Chief Counsel, bu

state Comaperce Commission, Wasliington 25, D: ©... At

forney for Interstate Commerce Commission, [ntercen

ine Defendant; Robert L. Pierce, Special Assistant to the

Atforney Genéral, Department of Justice, Washingtes.

\ i. Cl; Wendell Berge, Assistant Ar eey General, Be-

partment of Justice, W ashington, D. C.; Frank Jv Her

ess, United States Attorney, I ostoffice suiting,

Seventh and Mission Streets, San Frandiseo, California,

Attorneys for Defendant, the United States of America.

° eT 17

" Please Take Notice that the unde ‘signee will brine the

above motion on for he faring before this’ ¢ ‘stmt, in the court

roow of the Honorable Louis E. Goodmansin the United nb

States: Postofliee «Buildings Se Venth one Mission Streets,

in the ( itv and € ounty of San Francisco, State of ( alitor.

nia, on the Oth day of Noveniber, 1944, at bo ovclock in the

forenoon af that ds iV, or as soon the fedtter as coutise| Cin

he beard,

Dated at Sin Fr: ANCISCO, « ‘alifornia, Oe thee ON TOAS,

W. S. Tetfer ran, Jr, 135 South LaSalle Street, Chi

Crit “Oo TW, Hlinois: Ke tineth FL Buree ss, Doued: as Tt.

Smith, 11 South LaSalle Strevt, ( ‘hicago 3 » TLlinois:

Allan. P. Matthew, Burnham Knerson, 1500) Bal.

four Bifilding, San Fr: ancisco 4, California, Attor

* ievs for General American Tr ausportation € orpie-

ration, Applicant tor Aniervention,

“Sidley, Austin, reess & ‘Harper, 1) Souths LaSalle

Street, Chicago 3, IHineis; MeCutehen, Thomas. Matthew,

Grif & Green, 1500 Balfour Building, Stun Franciseo 4,

California, of Counsel,

[fol SO} (Here follow. Answer of General An: rican Trans--.

portation Corporation, duterrs ning Defendant Cgpiod

hereafter), :

fol, Sk] Service of- the within Wotica, Notiee of Motion

and Proposed . Answer and receipt of a POPy | ts hereby jal

‘witted this 30th day of Oct. 1944. -.

« Willard PF. Williamson, Williaimison & Walfice “AL,

forneys for Phatutitf,

Service of the within Motioti, Notice of Motion and Pre

posed Answer and receipt of 4 copy is hereby admitted tis

80th day of Oct. 1944. See _ |

) Mrank J. Hennessy, ANorney for Defendant,

2-498

Ny S

[fol S82] < Is Uyirep States Distercr Coir

, ; . e ., @

[Title omitted | Sean

> ‘ . " < , 7) as _ : ‘

Areiwavir op Service py Samixe—-FPiled October 30, 144

I Py . \ o e . db 7

ton mae ‘.

STATE oF CALIFORNTA,. .

Cityand County of*San Francisco, ssi°

Joseph BE. Scanlon, ‘Deing first- duly sworn, deposes nid

SaVs: : , , 3 : ] : e.

[fols. S384] That he i is a citizen of the’ United States, over

the ave of cightéen years, and not a party to por interested’

di the above entitled action. That his business address is

140) Balfour. Building, San F rane isco, California, ana that

he is a resident of the itv. and ( ounty of San Francisco,

State of California... 9 .

That on the 30th day of October, 144, hie served the.

foregoing Motion to Intervene asa Defondart, Notice of

Motiott, as akpresaid, and proposed Answer upon Robert L.

‘Pieree, Special Assistant to the. Attorney General, ‘aiid

Wendell Berge, Assistant Attorney Gene ral, itorneys for

defendant, the United States of Ame rhea, aud Daniel. W.

Knoviton, Chief Couns@k Titerstate ¢ “Quimerce Coma

sion, attorney for intervening «defendant, in the followiive

manner: That on the 50th day of October, 1944, he enclosed

a full, true ‘and correct copy ef said Motion ta Intervend

asa Defendant, Notice cf Motion and proposed Auswer ina

sealed envelope, with the postage thereon fully prepaid,

addressed to each of the following, te wit :

Robert I.) Pierce, Special Assistant to fhe Attornes

General, Department of Justice, Washington, D. C+

Wendell Berge, Assistant Attornay General, Depart-

ment of Justice, Washington, D. C.g-Daniel WL Knowl.

ton, Chief Counsel, Interstate, Connnerce Conimission,

a Ww ashington 25, D. e; ee

and deposited ‘said enve lopes in. the Uitted States postoffice

at San Francisco, California, That thee is a regular com.

munication by-mail between the place

place addressed, as aforesaid. ns

g Josephs KE. Seanton.

f mailing and thes °

“Now 28505. iy sid Prove@ding the RVR (orn

“Subscribed and sworn’ lo gic. me thas 30 day ‘Ot

» October, 1944. Radith Vi i, Notary +P ublie ¥, MM ete

m9 the ity and € ounty of San rite isco, Nt; ile of

7 California, (Notarial Seal. )

“TFile e ndorse Ment ouirtted, |.

©. Lfols 85-87] Is Unxirep Srates Distates Cover a

i Bitle omitted | Siento

{fol. KS Morton rez bas, To Ls repre: AS DeFeNvasis

if pie Filed October : 3 , 1944 :

. 8

Applicants, The Mabaima Great Southern: Railroad Con:

pany, a corporation, et al, move for fuave to intervene as

“defendants, In this aetion, in order to assert the dy fenses |

set forth j in their Proposed aduawer, of White ‘h a copy In’

hereto attached, upon the xrounds. that applicants were

parties in intere “1, 10 Wit, respondents, in the proceeding

before the Indurstate @ OMTierce ofuitissian referred. tor in

cthe-Congoliint herein and partic ularly In puracranhs Tf

to VEIT the read, ohtitled] Coin the Matter of the P etition. of

EL Dorade&Oj] Works and: EL Dorado Nermin: al ied for

‘Tnvestig: ation of Mile: age ATowances. by Trite es ite Carriers

for the Bse of Tank ¢ ars of Private OWnership Dave Ik et

frye ree

Commission madetits: or ler. a vopN of whieh Js vache

to the « omplaint herein as a part of Exhibit A’ and whieh

fol. SO} order the plaintitts pray by their comp ait herein

to have declared null and void, Asappears front a report

and order of the Interstate @ Gmitmheree Conitnissien iy sce

Proceeding, the inter ‘ests of applicants are involved in this

ction. -By-reason of the premises, appheants have an un,

conditionn) right to intervene herein undep the provision.

-Of Section 45a, Tithe 28 C nited States Code, and make

“notion for leave to inte TVeneas of right,

Datodat San F rancisco, Californih, October. ae, 1944,

J. Carter ort, eal soe srcut, ¢, A" Min yy

this

p— Charles -@lark, - EB. Hennessy, RF. Wedekind,

“RLS. Outlaw, ’ St ire Thomas, Attorneys for Np.

; J plieants for Inte rventions : eure

4 Sansome Stre To t San Francisco 4, ‘aliforniy, me

mea

20 ee: ee ean a ae

“Hfol. 90] - "2 Netice or Merion |

To: -

Willard FL Wiilianison and Williamson & Wallacy, o1f

Sansome Street, San Francisco 4, California, Aftor

- meys for Plaintitfs; - - ve

| Wendell Berge, Assistant Attorney Gene ral; Robert®

cL. Pierce, Special Assistant to the Attorney fen

eral, Department of Justice, Washington, D. ¢

' Frank J. Hennessy, United Siates Attorney, Postofiice

| Building, Seventhiand Mission Streets, San Fran:

_ etsco, Cal, Attorneys for defendant, the ‘United

Oa States of America: Y :

Daniél W. Knowlton, Chief Counsel, Interstate Cor

merce’ Commission, Washiteton 25, DL C., Attornes

for: Interstate Cotimerce olumission, intervening -

defendant. po 34 ee

* Pleast Take Notice-that the undersigned will bring tl:

“above motion of fot& hearing before this, Court. in the courts

roonror the Honorable Lonis f. Goodman, Postoflice Build

ine, Seventh and Mission Streets, San F rANeisco, gl ‘alifon

nin, on the sixth day of Nove mnber, 1944, at 10 oelock in

the-forenoon of that day, or as soon the ‘reatter as coupse!

ean be heard. rae ee ae ;

nae J.Carter Forty ‘Guernse wy Orentt, 7. W/Mitler,,

; {fol 91] € pe Clark, J. K. olennessve R. +

. ~ Wedekind, S. Outlaw, Starr Thomas’? Attor

neys for, iiesits for Intervention.

14 Sansome pee et, San Francisco 4, California.

[fol. 92 , Arripavir or Stryice fomk:

STATE OF C ALIFORNTA,

City and County of San Francisco, ss:

Isabetle L. Lynch, being first duly sworn, says: That

affant,, is*a citizen of the United States and a oat of

the County of Nlameda; that’affiant is over the age of

gk cen vears and i is nota party to the within and above,

entitled action: that aftiint’s business address is: 1¥4 San-

some, Street, San Francisce 4, Califarnia; that on the 31st

day of October 1944, affiant served the within Motien to

fe so Bn eet

Morvene as Defendants, Notices of Motion, and Proposed

Answercof Intervening Defendauts on the following parties

in-said action by Placing a true copy thereof in an envelope

addressed to the aitorness of record of each of them as

follows: °* a : a °

iA bd © «4? 0 - ¢@ ‘ : ‘ . , ve aee

Po plaiitivfs* attorneys: “Willard FL Williamson and.

Williatuson & Wallace; 310 Sansome Street, San Frineisee

4, California.’’ «

‘To the attorneys for the ['nited Statess** Wendel: Berge,

Assistant Mttorney General, and Robert L. Bierce, Special

Assistant to the Attorney General, 1 Jopartinent of Justice,

“Washington, D.C." and “Prank J. Hennessa. United

States Attorney, Postoflice Building, Seventh atid Mission

Streets, San’ Francisco, California.” .

+ To the atterney for the Interstate Cominiercd Comrnis

sion: ** Daniel Wo Knowlton, folifef Counsel Tnterstate

Pommere> Copauission, Washington 2&5. Do Co" and ly

ther sealing said’ envelopes and ‘lepositing the samy, with

postage fwlle prepaid, in the United States mail at San

Francisco, Caljforttia, Where is located the offers af the

[fol 98 Tattorneys for the persons by ancdk for whom Said

SErVice Was title, . aS : :

"* That there is delivery Service hy the United States ny il

sat the places so addressed or there’is. a reanlar commun

cation by mail between, the place of mailing and the aod

vo addressed, :

: . Isabelle 1.. Lvnch. /

Subscribed and sworn te before Ine.this Stet dav of

October, 1944. Mamma LL. Maeluch, Notary Pub

lie, In and for the. Citw and County of San Fvan

cisco, Stat® of Californiat My Corftinission Ex

pines Jan Tr, W948. (Seal of the Notary.) *

‘ [fol 94] (Here follows Answer of the Alabama (irent

Southern} hilroad Company, et al. Intervenine Detene

ants—copipd hereafter.) — °

J [Mile endorsement omitted. } - ! .

‘it is Ordered that said motions to, intervene be wranted snd

-[ fol. 96] Is Usiree Srares Distater Covi ‘

[ fol. 95]. Ix Usiren States Disruier Courr

F Ae Wg ~ [Title omitted |

Orper Grastixe: Motions ror LEAVE fo In tenvenk Nover

ber 6, 1944, rae a 4

This “ ‘case came on regiflarly this day for hearing. «!

motions to intervene as a defendant and motion @o set for |

trial. W. B..Mead, Esq., attorney for plaintiff, dnd Wyse

Licking, dona. Assistant U.S. Attorney; RoE. Woedeking,

Ksq., and Allan P. Matthew, Esq., attorneys for certain

intervenérs, were present, and after hearing said attornes-

that the case be set for trial for Fanuacy 16, M45:

| Title omitted |

Axswer of Gexenau American TRansrourarion Corre

rion, INTERVENING Derpxpanr—Filed Noverfiber 6, 14

. Now comes General American Transportation © ath

tion, intervening defendant, and, by leave of Court first bi:

and obt: ained, files this its answer to plaintiffs’ coniyilais

l¥ol. 97 -| and admits, denies anel thleees as follows.

1 7 :

Intervening defertd: nt General Amer ‘rican Transport; Iie!

Corporation, hereinafter sometimes referred ta as. fhe

‘Transportation ¢ ‘orporation” , is a corporation organized

and existing under and by virtue of the laws of the Sta

of New York, having its pring ipal office in Chicago, Hine:

and is the.owner of and is engaged i tin the business of tu

nishing various types of freight.cars, including fank ears.-®

for use in the transportation of property by railroad 1

inferstate commerce, — «

eh i |

The Transportation Corporation is the snecesser in in *

terest to and has acquired all of the assets and assumed all’

of the liabilities of General American Tank Car Corpora”

tion, a corporation, her einafter referred te as the “Car

9 . .

. . ude |

‘Coyporation’’; among the assets and diabilities so acquired

and assumed by the Transportation Corporation iregthe

rights. and, obligations of the Car Corpor: “tien under a°

lease agreement dated Se ptember 28, 1085, with plaintitl

El Dorade Oi Works, woich agreement is referred totin

the Goniplaint herein and it true copy whereof is attached

to the complaint as a part of ** Exhibit A‘* thereto, .

| gir

This intervener admits the allegations of Paraerdaphs | °

and TL of the complaint.

° ay :

. . .

; Angtering Paragraph TT of the: comip saint, this ittter , ‘

vener “admits that this ac tien purports to be broueht under

the provisions of the U Loge Deficiencies Net of Oetohor

22, 1) (80 Stat. 2; oN U.S.C. see. £1627 pane (2S) cei =

sees 45- mats but this intervener alleges that the orde vat the

{fol 98) Interstate Commerce Commission soneht to beg set

aside by the Sinplaint hereia is not tn order whieh may be

‘enjoined, set aside, annalled or suspended by this Court,

° V 7 ‘ 6 2

Answering Paragraph TV of the coniplaint, this intey .

Vener admits that on April 10, 144, the Enterstate Conc - *

meree Commission made a.report and order ina procemding “J

entitled ** Atewancees fox Privately-Gwned Tank © ars "Cit

copy of which te port ‘and order is attachtd to thie eeontigedsaiees

herein as ** Exhibit AY

Vil

Answering Parags raph V of the complaint, this intervenes ,

adiuits that on June 16, 1944, plaintiffs tited’ with the Coot ,

Miasion an application, dated June 7, IM, forthe Relics

ing, Reargument and Reconsideration of said order of en

Commission made on Apr) 110. D44-and that theresttert .

said application was deniled by the Comunission.

Further answering Paragraph V of the compl: unt, this

intervener admits and alleges:On June 1, tes, plaintiy

Fl Dorado Términal Company, as the assignee ofa aintiit

KE! Dorado Oi. Works, brought an getion avainkt the Car

Corporation in this Court to recover certain stms alte mend ©

to be due under said lease agreement of Se ‘ptember 2s,

"1988, hereinbefore re ‘ferred to, as the balance of mileage

- . .

oe oko. en a.

the period from January 1, 1934, to May 31, 1935, inclusive;

inter alia, as follows:

e . > Py i

allowances for the use of tank ears, owned by the Car Cor

poration and leased to the El Dorado Oil Works, duri

in its defense to said action the ¢ ‘ar Corporation pleaded,

“That defendant has credited said Fl Dorado

Works and the plaintiff with all ef the mileage earnine

[fol 99] in the complaint and in the said agreement ry

ferred to in-an amount or amounts.equal to the earn

or rental reserved in said agreement; that the de fer

ant has gefused, and still refuses to credit: either t!

El Dorado Oil Ww orks or the plaintiff with any mile

age earnilgs if “excess of said car hire er rental»

served i in siitd agreeme for the reasen tha defends

was and is expressfy prohrbited and enjoined there

from by law and particulariv by the provisions of that

-eertaim statute of the United States of America enNtled

“An Act. to further regulate commerce with, forerer

- nations and among fhe states’ (32 Stat. b. S42, 54 Shut.

LL. 584: US. Code Tithe 49, See: 41), conmnonly known

ns the Elkins Aet. In this behalf defendant avers Via

the sail tank cars leased by defendant to the. SAL

Dorado Oi W orks as in said agreement prov ide d were

_used during the times specified in the coinplaint in the

transportation-of property of the said El Dorado Ox

Works over the dines of railway of common carriers .

subject to the said Elkins Act, and that such trarsypon

tation was) almost entively ino interstate or foreimn

commeree, ‘That under the terms of the tariffs of such

common carriers published and filed awith the Pts '

state Commerce ,Commission in the manner required

by law certain thileage payments were and are cee

by the carriers for the use of privately. owned «

employed’ in the transportation of property over the

lines of railway of such common: carriers, according

as their respective {nes of railwey may run. “That |

slefendant were to eredit 6r to pay over to the plaintuy

‘or to said El Dorado Oil Works any ‘part.of, the mite

[fol. 100] ‘age payments received from said) commie

‘arriers by defend: inty.as, the owner of? said) cars.’ in

excess of the car hire or rental reserved in said agree .

ment, such eredit and payment would be unlawful |

that plaintiff or said Ei Dorado Oil Works would secure

~~.

op,

Pod ]

the transportation of property at rate. Moss than the

rates named in, the mabliiied and tiled tarits of sata.

common carriers applicable to such: transportation,

‘thereby obtaining a rebate -or Concession aud an ad

Vantage or ie oaearaaroNn “in Violation of tlie provi

"sions of said Hlkins Met”

this Court rendered ‘aeacak in said action for the Car

-Corporation but said judgment wes thereafter reversed hy

“ablNness of the practig

the United States Circuit Court of Appeals for the Ninth

Cirenit; thereafter the Supreme Court of the U nifed States

eranted certiorari in said action and hy its decision ren

dered on January 2, 140, in General Amers ge Tak Car

Corporation ? EI Dorado Tormival t; Cran pred adik, ols i. iS.

$22, if held that the action involved an administrative

question subjected by the. Interstate @ommerte Set to the

administrative authority of the -Conmnission, aifd that swhen

it appeared in the coiirse of the ditheation that an adiin

istrative problem, committed. to the Comusis<ion, \ its ini

volved, the Court shoul have staved its band pending He

Comanission” s determination of the law fuliiesseanid? re sen

: thier the Teriis of the Act: the

Suprerte Court hg@ further that there stowld aot be cg

dismissal of the action buf that the cause shold. be held

pending’ the conclusion, of an appropriate webnintstrative

peoceeding; the judgment of the Cirenit Court af Apyents

Was reversed and the cause reniinded to this, Court for

further proceedings in conformity te the opinions sate

‘ause is now pending in this Court.

[fol: 16T]° Thereafter, on June 7, 1940, plaintiffs herein:

filed a petition with the Commission citane the opitien of

the Supreme Court rendered on January 2. 198, as fitere

said, ana. requesting thi it the Comunission’ de term ine the

administrative questions involved in sald Tfigatien: "a Cony,

of said petition, omitting only the nereement (refer Pa | te

the rein, jscattached to the answer of the intervening de

fendant Ingerstate Commerce. Commission herein, tinrkesdbs

“Exhibit No: 2°; by its order dated Mnlv 24, 140, the

Commission instituted a ‘proceeding of “investigation to

determine said administrative questions, naming as re

spondents a large umber ‘of common? ¢arriers by rail-

road; a eépy of the, Commission's. said order is attached

to the answer of the intervening. defendant Paterstate

Commerce Commission herein, marked ‘Exhibit No. 3";

oe. We

a hearmig in said proce eleng was held before an Exam Ie

of the ‘Commission, in December, 1940, and the plainti in

herein, by their counsel, did. thre respondent vearrters, by

their counsel, appeared and participated therein: the Trans,

portation Corporation was ¢ranted leave to.intervene, arg

did interyene, in said proceeding and participated therein:

after said hearing had been concluded the respective parties *

filed briefs and on May 14, 1941,.the Examiner's propesed

report: was issued and served, to whieh exceptions Wwe

- filed by the plaintiffs herein; on Noveniber 5, 1941, thr

proceeding was argued orally before the. Comunission. ai

‘Washington, D. CL; on April 10, 144, the Comunission

_tssyed its report as aforesaid, containing its findings,

termimations and conclusions upon the administrative nes

tons presented to it: in its report the Cominission fouiul

as fol! OWs: ae Lee :

. (1) That the rental paicor to be paid by Bl Dorado

-ffol lel] OU Works. to General Ameciean: Tank ©

Corporation under the tera of the lease aeree mons

between those parties, dated September 28, 132, .wa- ,,

the ony cost Incurred hy the former in Kevatiidc tin

tic cars in which its shipments moved. oA: just

reasonable allowances as a maximum to have been paid

by the respondénts, rail carrier Or catriers, to theo

Works for the furnishing of sneh ears would have be

an amount not to exceed such rental Such an amen!

and allowance has been paid to the OH Warks theo

eredits, made te the account of ‘the Oil Works ly:

Tank Car © erporation,

(2) That an allowance to the Oil Works by th:

spondents, rail carrier or carriers, or by the Tank’

Corporation, under the verecment, in eNCEsSsS af sata

rental would-be unjust and.unreasonable, cand woods:

unduly preter the OL Waettks asca shipper of ft.

modities tr ansported by it in the tank ears heres +.

involved. The ameéunt paid by the T ank Car Corpo

tion to the Oil Works prior to, July 1, 1984, ueeder ts

terms of the agreement, to the extent if Wis TH OXcess

the rentals dne thereunder, was unjust and wnres-:

able, and unduly preferred the Oil Works as a shipy*)

a its commodities,

3) That the (il Works is fae og to no allowan

feos the respondents, rail carrier or earriers, dire:

ae od

e . .

: . :

or through the Tank Car Corporation. forthe <social

cleaning and preparation of the tayhk ears during th

period of ‘the agree nent, January Y'1934. to Decviater

al, 1936.7"

@¢

he C ommission’s order which followe di nd avons amie

its report was as follows:

oth

[fol 103] sig app arid, Thathy order dated duly 24,

1940, the © omission, It respotse toa jou petal ions

filed by Mad Dorado Oil Works aad El Dorado Termine!

Company, instituted an investigation to determine.the

lawfulness of the practices under the fertic of a con

tract dated September 28, 19823, between the EL Dorade

OU Works and the General Nimertean Tank Car Cor

poration, and the reasonableness of the ilowance to bt

paid -by carriers by railroad for the use ef tank ears

furnished such earriers by the fl Dorado OWL Works

for the transportation of it 2% yodue:s in inter-tate

Commerce during the period. Prony Janinar | Pa ONS

to December 31, 186. _

“it further appearing, That a full tevestiqation of

the niatters and things tavelwed* has been bet ane

that the parties have been fully. heard. sod that the’

Couinission on the date hereof, has made san

report containing its findings of fact and con

thereon, whe th sad report ix hereby veferredl te aimed

* finade a part herrea’,

aes Bey ordered, Phat ‘the proceedine Lie, sgidoaito is

hereby, discon tinted.’ ‘

Said order requires Ne ither the plaintitt. hefein vor any

‘ryparty to ‘do, or to refrain from deine, a ethan Site

order merely, diseontinues salvd preceedin

Answering Paragraph VI-of the cor Hers this inter. ,

hrs VIL

Vener refers to the said report and order of ig brter

stat

e Commerce Commission dated April 1. Tat. for ful,

accurate and compléte information as to its sirrea

Vill

Answering Paragraph VIT of the eon) tai at this inter”

[fol. 104} vener denies that the said order of the Comission

t..

ae Ay “J

is without foundation i it) law or that it is based upon erpe)

of law; denies that it is mot supported. by evide Hee ©

adequate findings, or is against the *manifest weigh

evidence; denies that i ix confiscatory ore xeoeds thie rea

latory power of the Commission, or is arbitr ary or voids.

ht of

_deniesthat satd order is not an order which the Corniunissio:

is empowered to make under the provistons of the’ Tnte

state Commerces Act and alleges thattsaid order is withis

the powers conferred upon the Commission by the Net, ea

te ay as determined by the Supreme Wougt in its elec:

-of January 2, PO; he reinbefore Yeferred tos: denies ae

the. Commission Faihod toewr vant plaintiths a Parr and ac

quate heating; denies that the Commission failed to eor

sider or givetdue weight to evidence introducetl before i!

“by plaintiffs; denies that said order or the findines of 1)

Commission upon which it is Nased are without evidemes to

support them or that the Commission failed to make findins-

Upon a material issue; denies that the Comunissiow invaded

or usurped the provinee of the civil courts; denies that th:

conclusions of the Commission were, or that amy, thereat

- Was, erroneous in-law; denies each and all of the othe:

allegations in said Paragraph VIL; alleges that the finedines.

determinations and conelusions of the Commission con:

tained in its said report of April 10,0944, were and are, and”

that each of them was and is, fully supported by the evi

dence, and that the “said orde 13 ‘of the ( OMIMTISSION ts.

in all respects valid. ; . : :

Answering Paragraph VELL of the compl: Mint, this inter:

vener denies that said order of ‘the Commission will cause

_ fol 105]- irteparable or any injury or damage to prdenin

tiffs, or either of them, and denies cach of and all othe:

/ allegations in said Paragrs uh Viil. -

‘Wherefore this intervener prays that the compl int herei

be cat :

W.S. Hefferan, Jr, 125 South LaSalle St reet, Chie

cago 90, [ineis; onnett KF. Bureess, Douglas F.

femur 11 South LaSalle Street, Chieavo 3, Hlineis:

Han-P. Matthew, B urnhanr Rnersen, 1500 Balfour

igiting San Francisco 4, California; Attorneys -

for General American Fr: ansportation Corporation,

‘Intervening Det rendant. |

om)

’ vey

owe

Sidley, Austin, Burgess & Uarper, i Sonth LaSalle

Street, Chicago 3, tlinois; MeCutchen, Thomas?

sage il Griffiths & Greene, 100 Balfour Build

ine, 3 Sank rancisco 4, California:of Counsel. 2°

Fl fol. 106 | Srare of Canieonnta,

° City and County of Sa Francisco, ss:

Artan PL Marruktw, beine first dus sworn, deposes ane

: |

SUVS: ; . 8

That. his is an attorney-at-law duly welmitted to practice

i fore ali the courts of the State of Catifornia and before

the District: Cotut of the Cited States) -in and for the

Nosthern Distriet. of Californias that hie is one wof the

attorneys for the intervening defendant, Gere rill Mmeri

Transportation Corporation, in the above eutitbed action,

and as such attorney he tnakes this verification For and ow:

behalf of said interventne defendant for the recison that =f

intervening defendant is not Jlocated Within the State of

California and none of its ee ofiicers is located

Within the State of. California. Thiat.t ‘hie read the fore

vole answer of said intervening dete a mntoand knows the

contents thereo!, and that the same is true of hi ts kndwledwe,

except as to the amatters whieh are therein stated on his

information aiid, hehef, aid as te those tatters that lie

helieves it te be wtrue. ae

AUliani PP. Matthew,

Subseribed: and sworn te before ime dhis €th day

of November, 144. Fratk L. Owe by Notary Parb-

lic, in and for the: ‘ ty and © ounty of San Fran

> Cisco, State of ¢ ‘alifornia. (Notarisl Ment). ;

[File endorseinent omitted, |

[fols. LO7-100] "Tx Usiren Stares Distrer Cover ”

ah : ‘ »

| Title OMltte |

lfol. 110] Akswan oF 1 hi Ay BAMA Grear Souriuieex Rane

ROAD Company,cRar An, Incenventna’ Drvixpanis —Miled

November AA, Tae '

‘Come now The Alabama Great Souther Railroad Comy-

pany, a corperation, et ab, interventne defendants last

-}-

30)

above tamed, and by leave of Court, first bad and obtained,

file this, their answer to plaintiffs’ complaint: and adit,

lfol. 11] es deny, and allege as follows.

: I isan

Said intervening defendants are common eartiers eo:

waved in the transportation of property by ‘railroad |

tween points in the United ‘St: ites. Each of said interven,

Ing defendants is a corporation exeept such as are spe

cifically destgnated as. trustees or receivers of certain co:

porations. Mach such trustee or receiver is duly appointed,

qualified and acting ingsuch capacity under the authori,

of the United States District Court having jurisdiction is.

the premises. ; a

Said interveners admit the allegations of paracraplis

and TL of the coriplaint.

—

<a , ~ SEs, 6

Answering paragraphs TL and TV of the complaint, said

interveners admit that this action purports ‘to be brouel:

under the provisions of the Urgent ora he les Net ot

October 29, 1913, (29 Stat. 219; 28 UL Ss see, 41(27)

and (28) pee seus, 45-48) f but said inte rveners allege that

the order of the Interstate Commerce Commission sought to

» be set aside by the complaint herein is one of a nature which:

is not revie wable under the provisidus of the said Ur:

Deficiencies Aet.

‘

Said mtervening defendants admit the allegations 0!

paragraph V of the comyslaint. .

. : : vy

Answering pari agraphi V1 of the complaint, sid inter

vening defendants refer .te othe safd report and order

~ {Yoh D2] of the Interstate Commerce Comnnission dated

April 10,1944, for full, aceurate and complete information

as to its contents, rt

Said intervening defendants deny each and all of 1]

allegations in paragraph VII of the complaint.

\ P % ®

y . . Tt. ° tet . , — a

\attiant is ucitizen ot heal ited States ane vere sitet at the

Wounty of Afhinedas that aMiant is oves the wee ef oe Tifeon

" Veiys aid is rat at puarrty to the Within ned have entitiod

is Pe A \ tI ; -

Answering paragraph VIED of the cotuplaint, said initer

vening. defendants deny that said order of the” Teherstate

4ommerce ¢ ‘ou Ssion will Citlise irrej-acable or ati ineiry

ordamage to plaintifs, or either of Hien ana deny coach sae

wil of the other allewations in said pitaeraph Vibb.

Wherefore said hterveniny defendants pray thit the

complaint here be tlisinissed.

Sod. Carter Fort, Guernsey Oreuti,e. A Miller, Chartes’

Clark. J.B. Hennessy, RLPR Woedelind BR. So Ohiurt

law, Starr Thongs, Attorneys for hitervening

z ‘ Defendants, 1i¢ Saisetie Street, Sin beian eo 5

4, California, ;

Woh TIS! Stare or CAuirornta, eee

' “City and County of Sad Prancioes,

Isapetie LL. Lyseut, bcitiee Hist-dajy sworn, saves Mat

action; that ‘afliantés business address Is: TIE Sansome

Street San Mranciseo 4, Califorain: that ou the 2th dav

of November, P44. affiant served tie Within Answer of ”

Interveniny Defendants on the followir?: parties im sail’

aciion by phere aotrue CON thereof oan edi levpais na

dressed lo Thegattorues sot recare Of esied: ofth th ils beollows :

To plaintitfs\ attorneds: “Willard FL Willietaset cand

Williamson & Wallace, 270 Sabsotite Street, San ‘Bran

Cisco 4. Califormfalt’

To the attorneys Per-thie Matted Stutess*: Wendell Deree,

Assistant ‘Attoriex Geveral, and Robert Lo Phere. Speetal

Assistant to the Attorndy General, Departinent of shasties,

Washington, DIC Lands Crank J. donnessy United States

Attorney, Postoflice Building, Seventh and Mission Streets,

San Franciseo, Californta,.. ;

To the attorney for the Interstate Commerce Conunission

“Daniel W. Knowlton. Chief Codnsel, Interstate Contnerce

Commission, Washington 25, D. A

. rhe . . 1 Me % e.6 :

and by then sealing said enveropes anil depositing the same,

With postage fully prepaid, in the Uyited States tail at

San Mranecisco, California, where is logated. the. offies of

the attorneys for the persons by and for khom said service

(fol. 114] was taade, ee | Xs

noun

”

That there is defivery “Service by the United St: es mail.

at the places so ack lressed or there is a regular cOniunun.

cation by maik between the place ot Mii ling and: the plac -

sO ahd reese dl. : ~ ;

Is: nbelle Li 1. neh

r . Ps . Pans: 5

Subscribed and sworn to before me this 2th «

of November, 144. Emina L. MacHuehs Notary

Public, In and for the City and County of Sc:

Francisce, State -of California. My Commas

Hexpires Jan. D.1948. (Seal oftthe Notary)

{| File endorsement omitted. | ; :

[fol M15] IN rire U NETED ae Distiiter: Cocat por

Norrueken Distiaer or Canimornias

Civil’ Action No. 236] 10-4 vs

Tin Dowapo Oi Wonks, a Corporation, and Ei Dorape Ti

MINAL CoMPANY, a-Corporation, Pl: ntitt. :

~it * ~

vs.

i ®

Userep Srares or America, Defendant,

aed

IN tenstare ComMeEence COMMISSION, Intervening sis feaulan'

‘ . 4

HERDER DIsMIssixG wee -Kiled Mi arch ¢ 7 r O45

Ordered: ” f ; | ,

1.-The above entitled aetion is hereby dismissed with

costs to defendant and intervenors. rs

2. Counsel for defendant niay submit F ies of Bact

ant Conclusions of law in conformity with Rule ak

FP. B.C. P.

(pinion filed.

Dated: Mareh 6th, 1945, ; ;

Curtis, D. Wilbur, United States Cirenit) Judge;

Louis BK. Goodman, United States District Jadguy

AL FL St. Sure, U ited States Distrigt dude. -

| File endorsement omitted.) -

AOR ABN

; triet Jc ee, fee \’

[fol 116) Ex rae Unerep Stares Disrricr Couvkr ror rik

NonkrHers Distiiep of Cartrounta

. . Civil Action No, 2opdy G

Ki. Donavo On, Wottks, a Corporation, and Eu Donvpo. Te

MINAL, Company, a Corporation, Plaintuts,

4 Vs.

Unxrrep States o- AMenica, Defendant, * . J

and :

INrersrare ComMeEnce ComMisston,-Intervening Defendant

W. BF. Welliamson, Williamsonc& Watlaces 2t0 Sansone

Street, San Francisco, California, Attorneys for ay

Robert LL. Pieree, Special Assistant to the Atfornes liew

eral, Washineton, D. Cle Frank JJ. Hennessy, Unit < Stat.

Attorney, San Francisco, California, Attorneys for Defoud

ant, ra rear ce

ffoh 7] Darrel W. Knowlten, Washington, Po eo: At

torney for Tntervenor Interstate Commerce Coniniesion,

W.S) Hetferan, Jrg Kenneth Fr Burgess, Dowels F

“Snuth, Uieawe, Winois; AHancP. Matthew, Burnie flee

sen, Balfonr Buildihe, San Francisco Catifornias: Attor

heys for*General American Transportation Corporatio

Inte TVenGr,

“J. Carter Kort, Guernse y Oreutt, C. A. Miller. Charles.

Clark, J. EL Hennessy, RoE. Wedekind, Rh. S. Outlaw, Starr

Thomas, 114 Sansome Street, San Francisco. California:

Attorneys for The Alabema Great Southern Railroad (oc.

panyyet al Tntervenors. — .

Before Honorable Curtis D. Wilbur, United States Circuit

Judge; Honorable A.B. St. Sure, United States Distyic:

Judge; Honorable Louis EB. Goodman, United States be!

(ion IDMAN, District Judge;

“Oris ion—F ibe ren h 7, Iho ; bl

aintitt s billeof complaint, by weil this Hires fades

court is asked to annul and vacate a decision of the Luter.

3—428

“

ey ashe

‘ af

stateC ommmerce Co smmission, Culimini ates a lon, process of

ftization. :

In 1933, plaintify, a processor of Cocoanut oil, contracted

with- General Ameé ‘rican Transportafion Corporation, owne!

of privatet tank cars, to rent a fixed number of the latte

tank cars ata stipulated monthly sum per car. . By he

aigreeme Tit, the tank car company agreed to pay over to

Paintity the excess, Ho any, of the mileage income it ere

fol: “Hs | ceived from’ railrond caryiers over and above the

stipul: Hethnonthly rental to be paid to it by plamtrif,

This agre’ment the tank car company performed uit)

thie following vert. Wher the Interstate Commerce Cor

Hiission, In 8 proceed? pending before it® involving re

frigerator cars,Nruled Havinents: of this kind, peek iy

"proper. Use of Priv: ately Owned Refrigerator Cars, 201

1. Cy 823-378.) Thereafter the tank war tities ry.

fused to make any further such ' payments to plaintrty,

Therenpon the pk ‘intit? filed an action ci assumpsit in this

court ‘o recover the sum of $18,532.78 alleged to he thy

amount of the accumulated payments due it. Judeanint in’

favor of the defendant in that case was reve rsagl by the Cir

euit, Court of Appeals (104 Fed. (2d) 903, 9th ¢ Cy.).

The Supreme Court took over the eause an certforari aid

“reversed the oe Court af Appeals {General Americas

Tanksar Corp. vw. Ei Dorado Terminal Co. 308 UL Ss.

$2) “holding that “the District Court should Have stayed: .

proceedings ‘when } appeared in the course of the litiya

tion that an administrative problems committed to the Co:

mission, was involved’? and should have stayed its eid

pending tlie Comunission’s determination of the lawtulnes-

“and reasonableness af the practices under the terms of 1

Act.” (ie. Interstate Commerce Act.) | ‘

In so holding, the Supretue Court followed a Tike pro

— cedure which. it oartier had invoked i in Mitche Ik Cloud & ¢ ‘uke

Co, y, PennasR. R. Ce. 230 U.S. 247, |. . he

Thereafter, following a petitiom filed with the Interstate

Commerce Commission by thle plaintiff, the Commission in

stituted and conducted, an investigation upor the subject

miatter of the: practice followed by plaintiff and the tank

“car company pursuant to the agreement “between “them.

- {fol 119] After hearings, int which the plaintiff, the tank.

ear company aid ‘hurierous railroad carriers participated,

effect that the car rental paid be the pl: Lintif to the Mo

-car company represented the plaintitt’ sonly cost in fur

nishing the tank « curs tn oWhiel its (plaintitt’ <P shipanents

moved, and that any “allowances, by the tank. eae company

fo the plaintii?. pursuant to the aereenent- between them in

excess thebeot, were unjust and ulreasca: ible and cousti

thted am viilawful preference or rebate fo plaiititt as stitp-

fer, contrary.to the Elkins Aeq. Ather making the finding :

and, determination aforesaid the Connfifsion discontinued

the procecding, .

— Plaintiff now pa to have: this. three judge court.

Vacate and annul the décision of thie Inte state Conuerce

Commission, urging that the same is not supported by the

evidence before the @ ‘OMMMISSLON, The ¢ Cause Was submitted

eupon a certified copy cet the proceeditus before {hie Titer

state Corie ree Cominission,

Defendant and intervenors: urge that the three jadee

“wourt lacks jurisdiction of the subjeet matters and that,

on the merigs, the record supports the firiding asad decision

of the Interstate Commerce Comission, te

We do not pass npen the merits of the enuse. inasmuch

“as we are of the opinion that this court, as eoustituted parr

sant to the Ureent Deticiencies Act’? (38 Stat. 219; 2S

UL S.C. See. 41 028); See. 45-48), lacks jurisdiction’ of -

the subject matter, : ;

‘ By the Uveent Deficiencies Act) the jurisdiction Gor

ferrel on three judge distréet courts isin ‘causes brought

to enjoin, set asideannul, oO. suspend, in whole or in part,

any order of the Iitterstafe Conimeree Corimission. By

(fol. 120] here involved, the Interstate Conimneree Comtinis

sion made no decision which requited any party toAhe pre

ceeding before it to do or not to do any specific act. ft

followed the directions of the Supreme Court (General.

American Tank Car Corp. vo Ei Dorado Terminal o,

supra) cand’ determined, under the Jnterstate Commer

Act. the lawfulness and, rensonableness of the practice

which had obtained between plaintiff! and the tank cur

compauy. Whien this was done, its job was done. «14 Wily .

not required to make any order and made none, and having

conpleted its work, stamped ‘finis™ thereon and+diseon-

tinwed the proceeding, ilenee there is ne order, in the

Selise contempl: ited tithe statute, requiring review: by this

‘its dinding and determination with respect to the practice.

“85 >: ah .

“eourt. (U.S. vo GaAMin, B08 U.S. 986. 2a VS. we TIL

oa Meg bag Ca, 244 U.S. 82; D.& ld. go. v: &. S$. 2003 U.S. °

+ el LA. Ry. 4° 9AT LS, ,)

Past se Si tions between plainti® and detenedsiate cor

estitute the sabject matter of the Ussfiiupsit action naw

peuding in the Distriet courte This is not a ease of 4

presently existing practice declared unlawful by the Con

cmnission, Consequently theresatoes not arise the . Sivht toe,

apply for the cguital le or Injuhetive relief proveled ty

the statute to profect agarist irre paral le damage.

The procedure specitied by the Supreme Caurt ia Genera!

American Tank Car Corpo vic El Dorado Yeruinal to,

supra, has been followed. The administrative practice, i

volved has been passed upon by the Tnterstate Connie

Commission. The parties may now proceed in the a

sumpsit action, Therein, in our opinion, the court rs

determing plaintiff's Cause and upon tender thereat, ary

competent defense + thereto, .

The action will be dismisseit’ with costs to defendant

{fol Wil and titervenors., Counsel for Gefendant may

submit findings of fact ri conclusions of law in conforimits

with Rule ou. BRL. PB. .

Dated: Mare h (i, ‘aes,

[File endorseme tet suiitiaa. | -

. . zs > -

lfol. 122] Arrenbix °C"? : :

. . : . . : A

« Is Ustrep Sraves Disteincr Covi r

{Titie omitted} . “Tok

Finpings OF Fac AND LON LtUsioNns oF Law Kided April

ee Ne OQ. 1045.

. s : 4 -

ge court muikes the following findings of fact :

. The El Dorady’ Oil Works is a California corporation

they in crushing copra and exfcacting gocentt. off there

from in plants at Berkeley and Oakland, Calif, and shipping

the. product in tank cars in interstate’ commerce,

2. The El Dorado Terminal Company, a wholly owned

‘, Stibsidiary of the Oil Works Coinpany, is alse a California

vorporation, and during the times diere ‘involved it pet

formed services for the Oil Works in the handling and

shipping of its commodities. B gh?

. .

NE en Reese

ee oatas "8

[fel 123], The Ginerat Amerienn Tank Car: Corpora Sa 2

then, “Thrivent the fowitisaetion= heredmatter recited: havd ;

its principal oftide at Chieawco, UN. and was the owner of

numerous railway cars, inciuding dank cars, whiel it fur

Hished to various shippers for the transportation et thitiv

commoditiows Tt was net caffiliated with any railromed .eon

pany by stock ownership or otherwise, : ny

4. O'R September 28.1953, the il Works entere edt inte a

‘ .

written agreement with the Thnk Car orporation for the

lease to the OU Works during the period beginning Jann =

ary 1, J 4. and ending December od, Le, ot my ~tundare

‘atk ears, referred to as permanent ears, gat a rental of

827.00 per month, and for such further niu ihr of tank ears ‘

as the Oi Works should’ require atia rental of 000 per +”

month, the OU Works gigreeing, ifsefar ps it could lawfulls

do so, to use the Tank Car (Corporation's curs exelusevels _* é

The agreement provided, awmone other things, that the

Tak ar Corporation should rollegt from rail carriers all

mileage enrned by the leased cars while in the, service ;

of Alte Oil Works and each month should, credit the entine :

earnings to the rental account of the Oi Works Pa

suant to this agreement the Tank Car Corporation i

setbled and de ‘live red thet tank ears to the OU Cor re a -

The Oil re orpori ation loaded the carseand delivertd Metis

to the carciers for transportation. The Tapk Carorpora. ‘

ton as the owner of tlie: cays ag collected trom the

railroads rental for the use of the Cors, based on an allow ©

(tok V4) amree per mith: for the lists anee “hor which thes as

Were used acvorditic to the tariffs filed dy thie railrestds as

required by lyw, but such taritts ligt not provide for the

paynrent of P pete to the owtier of the property teins -

ported from the plaat of the Oi Phelan Ih Yenson ef the 2

furnishene ‘of the tank cars therefor by the Thl Works o-

shipper-owner,

. During the period from January- 1 te duly bo bed

the Tank Car C orporation praiel over to the vil Works tise

ace Carnings Of S7.2154 in excess of the res tal dine fron

the O}} Works. After the latter date, assuming that <uely

‘action would be necessary te comply with the principle.

enunciated by the Interstate Commerce C vac ag in Vix. .

Mol Private My Owned Refrigerator Cars, 2010 1 C. G. ee

decided July 2.1924, the Tank Car Corporation satus “lite

pay over .to the Gil Works any further’ excess tiibesiue

earnings, notwithstanding the iste of the lewse agres

ment. 2 ts i

6. In-June 1935, the Terminal Company, as assignee o:

its parent company, the Qil Works, sued the Tank Cn)

Corporation in the United States District for the Northern

District of California to recover unpaid excess mileae

earnings which had accrued from the use of the teased ear:

| up fo May .31, 1985.) The amount sued for, according to

evidence of record, was for’ the difference between 1).

- rentals eredited by the-Tank Car Corporation to the)!

. }

Works and the total amount of itleage earnings of the

leased cars received by the Tank Car Corporation trom ty

[ fol. 125] ci irriers, during the period from January 1, M4,

to May 31,1935, and amousits to $25,540.79. Juilement for

“the Tank Car. ( ‘orporation Was rendered by the. distri

court, but was reversed on appeal by theseirenit court 1

appeals, 104 Fed. (231) 903, 916, which beid the OF Compan

was entitled to the full amount claimed. The Supre:

Court granfted certiorari. * ;

7. Subsequently, in Ge neral American Tank Car Corp.

El Dorado Ferminal @ov., 308 U.S. 422, the Supreme Coir

held that the ‘reasonableness and le cality of the practic

of the parties was subjected by the Interstate Commerc

Act to the administrative authority of the Inteystate: Cor

. merece Commission,” and that ‘“when ‘it appeared |

course of-the litigatiori that an administrative aaa or

mitted to the Cammission was. involved, the eourt shoud

have stayed its hand pending the Commission's deter:

tion of the jawfulness and reasonableness 6f the practices.

under the te rins of the Act.””) The Judgement of the-ciren:

court of appeals’ was “aly, tie and: the cause reminded

to the district court. te. be there hek 1 ** pending the core!

sion of an or administrative wee teas hy thi

C onimission, °

-$. There is also pending in the district caurt.a second

suit by the Oil Werks fer the recovery of ality? eOXCrss

mileage earniags which-accrned between May 31, 1935, and

the oe of the contract, December 31, 1956,

. Following the decision -of the Supreme Court, the i!

‘“ orks and the Terininal Company on, June 7, 1940, join

petitioned tlie Interstate Commerce Commission to caus aun!

. [fol. 126] inv vestigation to be made ef the practices disclose:

eS TALC IEE NN

- diss : "ek _ 39

dy the action referred to and in the opinion of the United

States Supreme Court. Upon consideration of that preety

tion, by order dated July 24, 1940, the Titerstate Con .

inerce | ‘hamnission | instituted an investigation pron its own

motiomto determing ; ie :

. (1), whether the practices involved under€the te =

and operations of the lease coutract are unk awful

violation of the late restate: Commerce Act;

(2) whethe ra idanctbile charge or ittlows nee may

be paid, and, if so, the atnount the reof as avimaximouny

to be paid, | by the earimer or carriers by ov tilroaeds tor

‘the use of the tank cars furnished sich carriets by pet

toners forthe tr: suusprort: qtion of the products of per

“ tlohers in luterstate commierce from Berkel Tey ane ai

I ce Calif., in the period January 1, 1954 to Defember +

. 1956; and ;

~(3) what findings shall be inade, or what rules. rm “ay

lations, or praetices shall be preserified, or what or

ders shall be entered, to remove any tnlawtaliess that

jay be found tee Nis st.

1 After hearing. in which the plaintiff, che tank “ear

company, and numerous railroad carriers pau thetpaated,

Commission made a determination whereby it decided ia

effect that the car rentalgtaid by the plaintiff tothe tank ear

COr pany Te pre sented the’ }! Naintitt’ ~ only cost in furnishine

the tank cars in which its (plaintiff's) shipme nissmieved, aired

that any alldwances, by the tank car COMPA ty the qolain

tuf pursuant to the agreement between them in execs. °

the Die Were unjust and unreasonable and constituted+ ian

wilawful preference or rebate to plaintiff as Shipper, con

trary fo the Elkins Net. . After making tie. fimelige cine!

determination aforesaid: the Comuonission diseoutinn ae Thre

Proceed a, (208 & we ee al)

(fol. WF] oV. Plaine iff yf Jod thi Seth 1 ite ~ COMUNE, Consist

“ing of three judge Sunder the a wn Deficiencios Net of

October 2 » 19ER ’, souk it ne to have vey eeurt vacate aye any ia

the epee of the Tnte state ¢ Totnmerce Comyn lission, Wr:

ng that the sametis not supported By the evidence bots

the Commission. The cause was subinitte “dwpon a certified

Copy oof the proceedings, before the Interstate Commerce

Commission, -’

8 Terk. ’

. 40

12. Defendant and intervenors urge that the three jude«

. court lacks jurisdiction of the subject matter. and thal, on

the merits, the record supports the finding and decision

the Interstate Commerce (ommission, Ses

The Court makes the following conelision of law:

+1. The court has no jurisdiction of this suit, as the onl

jurisdiction it has is to set aside an *tarder’’ of the Lute:

state Commerce Commission, ane thei reo is no order fy

‘volved here.

”. The action: is dis hissed with’ costs: to de fe ndant ane

intervening defendants. :

Dated: Mar¢h 28th, 1945, : ine |

Curtis D. Wilbur, nited States’ Cirenit Jud

A. FE. St Sure, United States District of

Louis E. Goodman, United States District Fides

( Endorsed) Lodged March 21, 140, W. Calbreéeath,

. [File endorsement omitted. |

a : cll j : .

[fol 18]. Is rak'U strep States Distutwes Cover ror. tit

Nortoerns Disrater OF CALIFORNIA |

ee . « Pa , ‘ rg

Civil Action No. 23610-G_. Ps

Eipoxapo On Works, a Corporation, and Et, Doravbo Tres

MINAL Company, a Corporation, Plaintitfs,

7 ve.

Usrrep States or Amenicg, Defendant

| and . ;

Ivrenstare Commerce Commission, Intervening Defendant!

Fivan Deenee—-Filed April 9, 1945

This eause having come on to be heard on complaint.

answers to coraplaimt, and proofs, and having bees argue:

by counsel before the specially-constituted District Cour

convened pursuant to. the provisions of law, and there

; fran said order ane decree to the Sayperetice Cocotged oof thy

U ) ins pA te)

upon, upon consideration thereat, it wae cdeterusned. on

dered, adjudwed and decrend as tollaw~:

The relief praved for in the @engleit is hereby demied

fol, 129] and the complaint is clisminseadl at plaintitt’s easts,

for want of jurisdiction. : ‘ ;

Curtis Do Walbur, United State. Ctrenit: Pudwe

A. FL St. Sure, United States District Jndee:

louis Kh, Goodman, United States Disttie® Hides

March 28th, 1945,

(Endorsed) Podged Marehb 22. 145. (0 WoO Cutbreath.

Clerk.. “ * Kft ay

[Pile endorsement Omitted?)

‘ bd i - * °

, ; Fie as ier

ffol. 180] [Is Usirep Scares Distt: Corni )*

“(Title omitted]

‘

Petition vor ArrEaL ro Tite Serie Cor mir ant Usxares

JSrares — Filed June 1. ta -*

The ahove named plaintifs, conceiving then sely

grieved by the decree tite ianel entered conn Thre Tl dias tt

April, W45, in the above entitled cause. de her he Be

United States, for the reasons specified im the as<icuine:

of errors, Which ts filed herewit)i, and pray thet this appeal

may In allowed, and that a tr: Inseript of the rperd. yire

. {fol 13 MW} ceedings, and) papers Upron Whieds sith decries

Was made, duly authenticated, may be sent te the Suprente

Court of the U nite «dStates.

” FOWL. Wiiltarnson.

Williamson & Wallace, “Attorney. for Phitotitfs.

Oror: Anrowiw~g Apri

It Is Ordered that the appeal be allowed as pray dy this

Ast day of Junt, 1945. ‘ . °

Lonis KE. “Goodman, Judge Of the United) State . A).

trict Court.

[File endorsement omitted. }

“o

[fol 132 Is Usirep Srates District Corr

[Title omitted]

‘2?

AssIGNMENT OF Enrors oN Aprrean prom Disthier Conus

rHe ScurreMe @ounr or tHe Unirep Srares— Filed .|

1, 1945

The plaintitfs pray anmappeal from the final decree of |

court to the ‘canal Court of the U nited States, ati ne ws

sign for error ‘

Pirst." That the court erred in dismissing the compl

of plaintiffs for want of jurisdiction.

Second. That the court erred.in de nying the reltet pra

for in the ge mere of plaintiffs.

The. plarntiys mre ny that the decree de nVing the relat

praved for in the plaintiffs’ complaint and dismissing t))

ffols. 1 195-149] said complaint be reversed and that the ssid

District Court be orderedtio enter a ceeree annul-ine

setting aside the order’of the Interstate Commierce Cor

mission as prayed for in plamititfs® complaint,

W. F. W illian

Wilkamson & Wallace, Attorneys for Plainutist-.

[File endorsement omitted: |

‘{fols: 150-175] Citation in usnal form omitted in print

[fols. 1v6-1 sg | ’ Is U xizeD STATES. Disitinier Covrr

Oeper Extenpine Time cro Fice Recor wy Pi “RST ANT to te

11 of roe Reves oF rie Scrreme Cotnr——-k ited Tihs i,

1045 | . rts

; . ¢

For Good CausesShown the time t®€locket the above o

titled ease and to file'the record thereef with the Clerk o:

the Supreme Coart is. herehy extended to atid including %

29th dav of Aneust, L40. °

Dated: San Frayeisco Califor In, this 1th day of July,

945. * 4

_ Louis KE. Geodman, Judge of the U aia States Di-

trict Court.

{File veleinomen! omitted. |

. I

@ : °

| /_ #43

| [fols. 185-205 | Ix Usrrep Srares Distiter Corts

| a ; [Titte omitted] Ze ;

| Orver Exresoixa Time vo Fine Récdan Prestaxt ro Ree

11 of THE Reves or tHE Supreme Covi Filed Aucust

For Good Cause Shown the time to docket the above en

titled case and to file the record thereot with the Clerk

of ‘the Supreme Court is hereby extended to aud including

the loth day of September, 1945.

L Dated: San. Francisco, California, this 23rd das of Au

cust, 1945. ; :

Lonis B. Goodman, Mndge-of the United: States Dis.

trict d‘ourt. ae

> [File endorsement omitted. |

-_ —————~ \

a ‘

[fol 206, Clerk's Certificate to transeript committed in

printing. | : 5

[fol, 207] 3 | Peatstires’ Exiinir No, 1

[fo]. QOS] Secretary's‘ Certificate to foflowing papers

omitted in printiney.

Beroré THE INTERSTATE CoMMBECE Coarire-ttes

No, 28515

wn é . 4 : "

Tn the Matter of the Petition of Ea Dorvoo Gn Woes and

Me Dorape PerwisaCoupasy, for-Livestiqation af Vile

ave \owances by Anterstate Carriers for the Use ot Tn

j Cars of Private Ownership. :

eS sae : :

= ; ’Prerition-——June 7, 1040

The petition of El Dorado Oi} Works said EE Dorad

Tertuinal Company respectfully shows: pe .

A. That petitioner El Doradé OLL Werks is a vorporation

Greanized under the laws of the State of California, with

-of-said State, amdemploved by the said oil works in ths

its prinetpnl Hace of business ino the Citvo and Cony

| | }' aX)

‘of San Francisco, in seid State, Petittguer RE Dorade ‘bes

minal Company is a Wholly owned. subsidt: ny of Shido

works, aud is Also corporation creanized under the laws

operation of a’ wharf and terminal adjacent to the plac

of the said oil works at the foot of Adeline Street fn Us

City of Oakkand in said State. Pe itioner: KL Dorada |

minal u OM LYs throughout the | veriod © ove red hy this yy I

tion also acted in hell! of sated oil works in. the loading and

forwarding of eoconnlt oil and other eo nian

ns, ‘tured and sold ly the said oil we

That ever since the vear Isto § titioner ML Dorado

oii Works has been engaged in the business of erehineg

(fol. 200] copra at its plants in Berkeley of Oakland int)

State of ¢ ‘alifornia, and extracting therefrom coconit ©

anc selling the same for edible and ine dible purposes, std.

shipping the same to points in ¢ ‘alifornis i ane also in ites

state Comnrerce, Almost universally said petitioner’. sale

of coconut oil ti Ive been made on the basis of prices fo. bh

ears at pe titfoner’s p sant in Oakland or Berkeley. Wi hil

in some inst: ices pure hasers of petitione rs COCOMMT

have sup ntied steel tank cars: for the tr ansport: ition oF said

coconut oil from petiiioner’s plants te the point of cousin

tion, with the growth and expansion of potitioner’s bits)

ness it became, aud for upwards of ‘twenty vears has ber

necessary that petitioner should have ayatlable for ts

tranisprort: ition of its said coconnt oil, tank cars in adelition

to those fur Wished hv pare Hisers of sueli coc ovit oile peehpyp (

with heating coils aneb properly cledined and condition

for the transportation of such oik ” i

At ne time since. petitioners were incorporated and

began business have. the rajlroad carriers operating

of the San Erancisco Bay Area and upon which petitions

Was compe Hed -to-re ly for transportation service, owned.

possesse «l-controftle wlorut Hized tank cars either adequits

an number cer prope erly equipped for the purpose of tran

Porting © e ecconut oil.ni: inufpetared by petitioner or sh

lar commodities manufactured by others, nor haves said

railroads ever had i sufficient number of satd .tank cars

available. in any tanner for use by petitioner or hy other

shippers of similar commodities. Througheut said period,

{ tol. 210] and at alf dimes since I Mi, the Transcontinent:

‘

;

=~ * : -— \ ty

Freight Bureau, Mastbound Paritl? No. OG) Tem No. 404,

Section T, real Ses Follows:

*Rautes provided for, frerelit aval trukadys do net obli

wate the carriers to Turnish lank cars” :

o ‘

Puring allot said pertod iu titioner EE Dorade OH Works

has required, for the transportation of coeonut oth quan:

‘factured and sold by it, the continuous use ot tren a te

TO ears ef SUOO gallous capacily each, ail ceqaipped Avith

heating coils, in neldition to those possussed ar ownert by

purchase rs of petitions rs comonnt oil and available for use

in the transportation off their purehiarses, .

Accordingly, and to tnect it= said re quire nent4 petitioner

has ever since T9TS leased or hired: steel ia curs of thd

particular type required from the General American Tanll

Car Corporation, and has paid therefor a tined rienithiby

rental, In pursuance of this ih Gage anel in agiticipation

of the approaching expiration of. t siinilar-coutract, etd

tioner Bb Dorado Oil Works ente apt Into am agreement

with the General American Tank Car Ce apteieee on the

{sth diay of September, 133, under which the fcaid tank

car corporation leased to) tire petitioner ge petitioner

hifred au coiled tank éars owned by sald tank car corpora.

tion, eagh with an appr Oeinenes: enpiieity of S000) gallons,

—

for an agreed monthly rental of S2e.00) por enr pravaitile

monthly dn advance. yA copy of said agreement is attached

hereto as Exhibit ON and is made a part of this petition,

Inand by said agreement petitioner aise diundertook to rent

ifol. 241 | and hire from the said tank eareorperation and

the said -tank ear corporation agreed té furnish all sach

additions), ears as petitioner's seas tiheass vec rivedk digi a

period of thaee vearts conmiiue nein Januaty Po Ped, at oan

avreed car rental. It was further agreed in said ear desase

that the cars so leased by petslioner should bear the ree

porting marks of the caank car corporation or any other

reporting marks which said tank car corporation might

elect, and the said oil works also agreed to useeall tank

ears so furnished by the said tant Ar COrPOrs Hietr e celine

sively for the transportation by the olf work- of its.produets,

and not to ship the Said ears he von rhe leat noeartes of the

United States, C'anada, o - Mexico, Without the written con

weut-of the tank ear pacha ae also to protect and save

the tank car COrpors ation hayrtiless Prom any joss ordanitee

to persons’ or property afising from the use of said) tank

46 | Bee x :

ears and to pay to said tank car corporation the cost ot

repairing damage or replacing such car or cars if amy, os

might be Uimaged or destroved while on any private):

ownePtracks, and alse to re plae eany removable tank parts,

domie Jids, outlet caps, “hfe tv valves, ete, i lost or broker

In consideration of the Kaid leasing by petitioner af “i

cars, wid the payinent of the said monthly rental theres:

the said tank car corporation in and by ‘said lease agreed

to collect all mileagy earned by the éars covered by sid

‘igreement of lease, and to Keep all records appertaining. |

their movements, and to credit and pay to the petitioner all

Snileaze cared by’ said cars while in the service of pet!

folk BIZ] subject to all rules of the tariffs of 4he railroad

curred. Said agreement also provided that no lettering o:

smarking offany kind should be placed gpon said cars, so

any of ther by the saiaNeh Dorado Oil Works.” No titer

state fallroad er other carrier was party to, or uipanms tar

ner interested ta, the making or performance of the ~did

car lease aereement, and petitioners are Informed and be:

lieve, and therefore aver, that no sach carriér was coenizin!

of the making “i — said avreement-or of the ternis or con

ditions thereof, or was inany manner affiliated or connec

with either of the parties to saad agreement, ,

. The tank cars so lensed were delivered into the ae

session of petitioner I] Dorado Oi} Works on or about th

first day of January, 1234, and were thereafter in the sole

possession of fhe said oil works, and used exclusively by

it in the manner and for the purpos@s provided in the said

agréement in the transportation of coconut oil manufactured

(fol. 213) by said petitioner until on or about the first day of

Uccober, 1a, on which date, with the written consent of.

said tank car corporation the said agreenrent was assistie d

‘tioner, the, sajd EE Dorado Oil Works. accosdine nae

Petitioner, I Dor: ade Gil Works also agreed in sd den

~Flo lise thu sit ears that the tiles we under lond 4 bievanhd § hier

equal to their mileage empty on cach railroad, over which:

they moved, and that should the enigty mileage on ans

cailroad exceed the loaded mileage over said road pet

tioner Would tiiuediately upon.the expiration or tertiins

* fion of said agrecmeut of lease pay to said tamk ear co

_ poration for such excess, as so much additional rental os

service charge, at the rate established by the tarif of &

railroad on which sueh excess of empty mileage was 1

a ee

eVETY-. SUC

mae > on ome peas.

-by the satd EL Dorado Oil Works to its wholly owned sube

sidiary, petitioner Et Dorado Permdral (eonypany, and

thereat fer and until the exparation date of said: contract,

to-wit, December 31, 1986, the saido tank cars were poss

sessed and used by the said petitioner ial Dorado Permanal

Company, solely and exclusiveiy in the se rv tee of said) Fb

Dorado Oil Works, and in the traisportation of its coconut

dilas prov ided in said agreement of Levtse,

. Throughout the period coveréd by the said contract

allot tlie railroad carriers over-Whiose lines the said tank

cats moyed, had on file with the Interstate Conmunerce Corti

mission: and there were duly published as reqdired by daw,

fixed freight tar its for the movement of sald tank Cars con-

taining petitioner’s eo@ount oil from petitions res plants in

Oakland. nd Berkele Vv, to the points of de stn: Mion, ‘and on

af moyement t Gf said cars throughout the entire

period covered by the said contract, the th Mh tre herhit, so fined

and provided to be paid in the said tariffs, was so poidhs

the respective pnrehasérs pursuant to the sales nereements

letween the olf works and. said purchasers. Te titioners

dso aver that noue of the sack purchasers was a I itt to or

Many Mauner inferested in, or hhacany knowledwe of, the.

said leas e neree Ine it of said cars or the mileage allowances

paid or payable | 1’ “the re spective carriers for thie use of said

cars orany thereof, and neither the said tatik car Corpora

fol 214] tien ner anyone other than petitioners had any

authority Wi hatsoe Ver i?) the routing oft snid Ciil sLanidicen

eraily petitioners eansed said exrs to be ronted by the most:

direct : and aceeptod route from the provaet offen}! tpsnie nt‘to the

points of de sting: ition,

ve Throughout the period covered by said contract and

for many vears prior thereto the ifiterstate railroad éar-

jers had on file with the Inte rstate Conmibroe Commission

is required by pertinent Stattites and rules of the Com

tission, and there was published in the Milence TéHriffs of

the Ameriean Railway Association Pariti Bureaus rules

voverning the payment of mileage for the de of tank cars of

private ownership as follows:

- **Payment of Mileage

(a) Mileage for’ the use at curs Of private owner.

ship will be paid to the ea rowner or to the party wlio

> has acquired the car or cargnts se by the perma

i mt

‘ Fs %

ee % .

hen reporting marks (see Ngte) for loaded and ants

movement, provided ears ar@ properly equipped a

marked with the name of the owner or lessee and prop r

reportiyg marks or initials and car number,

th) Mileage will be paid.to the car owner by othe

than the lessee on‘ears leased to or rented outright “cs i

raftroad company until the cars hi ave been rem: irked

with the name and the proper reporting marks of the

lessee 1 ailroad company,

‘+ Note.- -Acquirement or ownership will be idgeret gies!

by the permanent reporting marks painted or stenciled

on the body of the éar. When reporting mHeage allow

ances, the carding, placardiig er boarding of tars wil!

not: be recognized as evidencing their neqinrement <a

ownership. To avoid contusion incidental to similarity

of initials, car owners should obtaifi assigned reporting

tiarks from the Transportation Division of the Arugry

oe) we

[tol. 215} can Railway Association. ‘

Etfe etive e as at April 1, 1935, said filed and published rules

for payment of mileage were changed to read as follows:

Sade Pay ment of Mileage

(a) Mileage for the nse of cars of private ownér-

pe will be paid for loaded and. empty movements only

‘to the car owner—nct to a lessee—provided cars are

prope rly equipped and marked with the assigned re-

porting marks and car nuniber and provided, further,

that the ‘marked capjcities and: assigned reporting

marks are properly published in the Official Railway.

. Kgnipment Register TC. C.--R. E. RY No. 241, issued

‘hy G.P. Conard, Agent, and the’ vallonage ¢ capacities in

Freight Tariff 300; 1 CC. No. A258, issued by LF.

Kipp, Agént, supplements thereto or reissues thereot,

“except that the galionage, capacities of cas, designed

and used exclusively for handling of conim aditles Oni

Which weights and charges are arrived at by. weight and

not by vallonage capacity of ears, need not be published

in Freight Tariff 300, 1. C.C. No. A-2518, issued by L. E-

Kipp, Ageni, supplements thereto or reissues there of.

‘{h) teporting marks will be assigned to. ear own-

ors, only, by the Seeretary, Transportation Division.’

Association of 4 metican Railroads, upon written ap-

rs Sy

-plieat! on. Suehtuearks may-be used, also on cars oper-

ated but not owned by the party to Whom the muirks ave

assigned,saml, when so used, such cars and the nate

aml fddress of Hheowner, to Whom the mileaee will be

paid, must be shown by the assignee in his retristration

inthe Gficial Railway Equipanent Register, Loc, ©.

ORL Ra No, 241, issued by G.2. Conard, Jwent, suppl

‘nents thereto or reissues theree!, BS

oe) Asdiened reportinggmarks mus sto be painted or

stenciled.on the’ body of the car. When reporting niite

ave allowanwes, the cardiny plac arcing or boarding of

‘are Will not be. recownize ad’

Pursuant to the provisions. of said rules for payinent

[fol 216} of mileage allowiiees’ cach of the several wail

carriers over Whose lines the saie tank cars, so weit ra “al boy

petitioners from said Geieral Atnerican Pant Car Corpora

ction, and furnished by potitionérs to said yi uae nioved

inh the tratisports ition of petitioners’ com ‘onutoilpaid-to ssid

tank car corporation for the period fromedanygery b, 1454 to

May 31, 1955, the total sui of S51)405.98. Said sti was '

so paid by said carriers to the-tank car corporation as the

owner of said tank cars according to and as shown by the

a reporting inarks on sald cars, and Was received and col

lected by tlhe tank CU CONpOore ‘Mien pursusnt to the tertis of,

said agreement with petitieners, ane at the ex: net orate per

mile so stated itt the published rules for the payment of

tiileave allowanees. Of the sums so receiyed bay it the tank

eur corporatton paid to petitioners FILZSTOSO, being the

exact amount paid by, or chargeable to, petitioners as rental

for said cars for thie’ period covered by said payments. but

retained to its own re aid ever since the month of Mas,

130. has refused fe pay to petitioner SIS SITS, being the

balance af mileage pavinents received ly the li ank car cor

poration, notwithstanding the facet ‘that under the terms of

sald car fental agreement af September 28, 1958, the tank

ear corporation was Shligated to collect’ and Jay te pretie’

toner «thew hole of said stan of F1S,0 215.

8. On June WW, 185, petitions rs brought suit ugaitist the,

tank car egpporation to-recover the said sum of STS,o° mis

The-tank car corporation admitted the conttact, the eor

“recthess. of the ayiount as claimed, and the receipl aun

4-428 — Sap yh he ;

noe «! . .

(fol 217] retention thereof, but) denied liability on’ thi

- — eround that the payment of said*sum Voepetitioners as pro

; vided in Said contraét was expressly oprohibited Liv the pro

‘Visions of theekikins Avt, and that such payinent by tle

tank ear corporation would be unlawtul in-that petitioners |

‘would there! by ohtaina rebate or concession in Violation o

the provisions of. the Eikins Aét. Therehtter, following «

trial ithe United States District Court for the Northern,

District of california, Southern-Division, and appe n! ty thie

Cifenit Court of Appeals for the Ninth Circuit, the: ease

Was heard by the Supfenie Court of the United Stutes on ——

writ of certiorari In-an opiniog delivered on Jniuary =

MMO) and which is reparted in 34 LL. Mel 266, the Supren’

Court bead that the Distriet Court: should not have pre

cooded ta adjudicate the rights and i: abilities of the parties

| Hiission With Pespect to the v “alidity of the prise tice involved

in the Jight of the provisions of the Interstate Comunéeres

J Net. Inter alia, thé court also hele that for many years

ea companies owned sqecial tépeoor Treig Hit cares, and

inno tanner affiliated wih carciers, have been in the busi

Hess of leasine vars to Hippo rs. OF this practice the Cour

scald: : . te Brg

aes “The sepetive has Den well known “and well under

stood, Ttis entirely lawful, ahd the Commission bas <o

held. But the por: netice cannot trodify the requirement.

of paragraph (12) of Seetion 1, Which governs the

pastient of-allowances for private cars, aged invests tly

(onmmajssion with anithority to fine ane deelare pha

allow: nhices are reasonab ao. s

} fol, a1s], Further referrifig.te the Anumne subjeet, the (‘ourt

leo Said: - : ‘\

The Commission is compelled to ascertain in tl

light of past and present experience, a fain and res

: sonable compensation do cover sual costs and pre sera!

toueiform rate whieh will refleet: suede experience I

is inevitable that-some shippers may be able te furni

facilities at less than the public allowanee, while others

tuay find their costs in excess of it. This faet, how.

ever, does not militate igainst the fixing of a nuifery

rate tpplicable to shippers qeroperty Cyprified by ti

Coninission :

; e : e

, . : , |

Brietly, sti ited, the cone ‘lusions of the Court Were that the

earriers Were bonne boy their rules: tor puary the teitbesgucees

lowance to the tank ear corporation tts the owner shetn

ie the Permanent reporting marks; that the oil works bid

actual furntshed the tank cars in question te the earrriers

for the. tram&portation ar petitions rs coconut off amd was

-entitled under the terms of Section. (14) 15 ofthe Ceotes

iieree Aet to be paiel by the carrier a.jast atid reisensals e

allowanee for prow ding the facility’: and that ne rele ot

gtenlation of the carriers may propyrly provide for the

payment of Stich allowance to anvene ather thant the sup

plier of the cars the present petitioners ; bat that the

a (Mite the lawfulness of the practice i one peculiarly

within the competences of the Conmmuission: and fin: ally that’

the cause “should be held in the Distriet Comet pending the

conclusion of an appropriate administrative proceeding’

“Ast result of the said: decision of the Supreme Court the

District Court and the Cirenuit Court af Appeals of the

— Ninth Cirevit are barred froin further aetion in the eivil

_ suit referred to, although, as deelared diy. the Suprenic

[ol 219] Court, the Distryet Court luas jurisdietion of thw

subject matter and of the parties, ubtil aetion bins bes wl

taken hw the -Duterstate Corime roe Contitiisston vineder

its adlinini¢trative authority. . . .

“Wherefore, petitioners pray that tha Commission exuse

an investigation to be mune of the practices «liselosed by

the said aetion, ane in the Said opintonwtol the Unite 4) States

Supreme Court, and after such jusvestigation. and sueh

hesar ince us the Commission miaey desire, the Comrnission

etter its onder hole Hine that payment by the General Ameri”

~o collected by said tank car corporation as mileage allow.

unees for theuse of the tank enrs leased ee titiestiers ated

furnished by them ote the reflrosad carrigrs may be mide as

provide in and for the entire period covered hy the sures

trent of the puirties date dl Ne pile ber oot | POEs Withvoiit

the violation of any provisiors vf the KF thins Net, ame that

the payMENtS se ninde are reasonable ane will mot seed.

phish ih rebate, Conce sssion oor an advantace or elise rinneipest

tion in faver of either of the Petitioners or in viedation

of the provisions @f the Kikins Net, and that: such other

anal further ‘order or arcders bees rpnsteles aus Phe Conitniission

iMty consider proper in the premises. ;

° eos

; KK] Dorado Oil Works, By S. M. Haslett, Seev.: FE!

i: Dorado Terminal Company, By S. M. Haslett,

e secv., f etitiomers, O11 Californigy Street, San Fran:

-cisceo, Calif... - mimi

RN, A illinfrsone Williamson & “Wallace, Prise fore

‘Petitioners, Suite 1114,-310 Sansome Street, San Brancisco,

Cait. ‘ :

F 4 = ‘ ‘ e

* R . é

{fol 220 | Eexuipir **A’* ro. Pengrion

4 - This vereementunade and etitered into this Jsth day ot

a8 ptember, 1933, by and between General American Task

‘ar Corporation, a West Virginia corporation, First Party,

a Kl Dorado Oil W orks, af ‘alifornia corporation, Secord

Party:

Witnesseth

. .Pirst: First Party does hereby lease and let unto Second,

Piirty, and Second Party aves hereby rent and hire from

Kirst Party, tifty (50) tank ears (hereinafter sometinies

calked **Permanent Cars**), all oft avhich Perm: nent Cars

shall be coiled tank cars of ai approximate capacity of

: eight) thousand (S000) eallous each, Said Permanent

Cars shall béar the reporting marks of the First Party or

any other reporting marks whieh the First Party may elect:

Said Permanent Cars are now in the service of the, Second

‘ Party- under an agreement with the First Nx rrty Which es

pires December 31, 1983, and possession of said cars under

said agreement expiring December SL, 1933 shad) dre and

it ts hereby agreed to be delivery to the Second Party hy

the First: Party of said Peruianent Cars:

Seéond: All tank e:trs without compartinents and non-

insulated, of six thousand) (6,000) eallon, eleht thous:

(S000) gallon and ten thousand: (10,000) gallon capacity,

without coils, or with coils up to six (Or) Lines, are dieresn

after referred tu as ‘¢standard tank cars’). First Party

tloes hereby lease and let to the Second Party, and Second

: . Party does hereby: renf and hire from the First) Party.

Second Party’s entire requirements of standard tank cars

over and above said P ermanent Cars. Suelo cars stiall

[fol 221] bear the reporting marks of the:First Party or

any other reporting marks Wheel the Birst Party may elect.

387 BER

e .

‘ : i ‘ .

/ - — J , % he ‘

Soak ars sliall be de livered te ‘the Second Party at pou nts .

Oui Seen I" rHNCISCO Bay, “de Sperm teal Ins the Secon Party,

within a reasonable time after resuest therefor, subject to

all delays due to fires, styikes., ace dents, railrand em

bargoes and cougestions, and all other dnd like causes be

hereunder, over and above said Pernighent Cars shall net

bear the namecof thie Second. Party. : .

Second Parfy covenants and agrees, in so far as if may’

dJawfully do so. that it will use the tank cars of the First,

Party exclusively, att: all times bering the term of this

agreement, for the Second Party's entire require tents of

ostandard tank ears, including all such creqqiiretivents cof

Second Party ‘s subsidiaries dnd other corporations as

hereinafter specified, anc that it will wot use any standard

tank cars of others during said) tern, provided iret

Party’s standard trrik fears are available for Tocdins at

the tine, upon ressonable 1 hotice Wand if droteso available,

Second-Party shaif have the right to nse Me standard tank

Cars of others fer the period during which the First Parts

tank -« cars are not so available, The fermi: ontipe re

quirements of standard tank cars’? wherever Heed iit thas

wzreement is intended to mean, aad slid! be construed as

meaning the number of standard ‘tank cites: needed hy the

Second Party during, the term of this acqeenrent, over and

above said ee ‘Trhanent Cars, for the: bransportation af the

products of the Second P arty, it being undenstocd thirt the

Second Party does and may, in its discretion, vse, ments of

fol222) transportation of the products of the Second”

Party, other than by -rail, one that no eae ~ oof

_ transport: tien shall be used-oor emploved bythe Second

Party to the complete « Rere of trinsporti tien bw rail

is standard tank ears. Ao particular tank ear. furnished

inst Party to the Second Party hereunder, over ane

Tole ssid Permanent Cars, shall be considered as deased

to the Second Party when made available by Binet Party

¥? Second Party upon reasonable motice, at points an San

Francisco Bay, gdesignated by Second Party, and shall con

finue to remain in the service of the Secontl Party until

returned to the MirstParty at Berke lew, California. or Oak.-

lames ( ‘alifornra, as Second Party slu all determine. ;

The term: “Secon Party’? as used herein shall include

the EL Dorado’ Oi Works and all existing and future sub

sidiary COMPU Les of Ic] Doracde ();| Works snd corpora.

MICRO CARD

ae MARR

Works. ee A

Third: Second Party agrees to use all the t: sink cars tut

misled he ieniios eX ‘lusive lv. in its service for the trans" *-

portation of its products, which. produets will not injury oe

affect the. fanks, and agrees that said efrs Shall. not be

shipped bevond thre boundaries of- the. United States, Ci?

ada or Mexico, without the written consent of the Firs

Party. Second Party further aerees to pay to the Firs:

Party for the use of the. Permanent (irs the sumo!

Twenty: seven and 50/100 Dollars (827.50) per ear pes

month, and for the use of Phe tank ears furnished here

under, over cand above said Permanent Cars, at) the rate:

of Thirty Dollars (S80) per car peér month, for the thor

ffol 223] such cars are in the service of, the Second Pan

Said payments shall be snade to the First Party at its. ,

office 940 Continental’ Hlineis Bank Diarhding, Chics,

Llinois, Payinent of the rental on suid Pe rmnanent oo

shall be made on the first day of each month in dvi nh

without deduction, except as set forth in paragr: tply Sixth

hereinafter. :

(OK General Anier. Tank Car Corpn.. RW. TP. Musser

Payment of the rental on thie tank ears ec.

the First Party to the Second Party “hereunder, over ai

above said Permanent Cars, shall be mace on the fifth (9)

day of each month, immediately following any month,diur > F

ing which any of said ears have been in the service of the

Second Party. : ; :

_ Fourth! This agreément is to remain in full force a

effect for a period of three (3) years beginning January 1.

134 and ending December 31, 1986. Second Party sin *%

have the right te extend the term of this agreement for

an additional period of two (2) veers, that is to say. ui "

December 31, 1988, provided that it shall give to the Fir!

Party notice ipwriting of its election sotoextend this acre:

ment on or before December 1. 136. Second Party series

upon the expifation hereof, to cause all of the cars covercd

hereby to be returned to the First Party at Berkeley, Calitor

nia, or Oakland, California, and from time to tine to caus

a'lof the cars over and above the Porm: Cars, to ber

turne } to the First Parte at Berkeley, California, or Os

land, California, as hereinbefore prov ided, all-of said ears

% .

ha : por oe. a

: at i‘ ¥ c :

to be returned in the same condition én which they were

[fol 224 furnished, excoptinetor, ordinary wear and tear,

Fifth: First Party @erees: to maintain allears covered

hy this agreement in eood comlition and re pat aecord: We

to present requirementsof railroad conipanies and existing

American Raitway Association Mechanical Rules, No re.

pairs shall be made by the Second Partyefor the gecoaunt of |

the First ‘Party without the written consent of “the Etrst

Party. If any of dnid cars be held in railroad or car

shops for repairs for a period fonger than five (4) days

from the date when the damage to or weeek of such car

is reported to the First Party, then and in that event,

rental or service charges covering such ear shall cease trom

sand after such period of five gays until such carirs released

from the shop or untid such ear hak been replaced by first

’

Party by another car. The First Party shall have. the.

right to substitute for any tar leased hereunder, wpother

ear of the same type and capacity. The First Party shall

not be liable for any damawe tecor loss of the whale ar any

part of atv shipment made in any of the cars covered: by

this agreement, nor for any loss or damage arising through

injuries or fatalities to pe rsons, nor for destruction of or

damage to said cars or any other property, which may te

caused. hy any explosion ol - freaking oft said ears, “Oy A

parts the ‘reot, of the nse of s atPours, ane st nid Second P arty

agrees to protect and save harness std First Party freon

‘any such loss or cl; curhhe we ‘ta persons or Blonorty. Ve ae

of said cars are damaged or destroveds wlitle om any per

vately owned tracks; the Second Party shall pay unto thre

}

- {fol 224) First Party the cost of Seating such dangace

or replacing such destroyed car or @: The NSecotied

Party shall replace any removable tank nies (dome Tid,

outlet Caps, safety valve sete}. if dost or broken.

Sith: The First Party shall collect all inileagve earned

by te ears covered by this agrement and ke bi all records

aipfve rtainine to their movements. Second arty shall

sist First Party in following the movements ew, suid) cays

Ls furnishing to the First ‘Party comple Te re port wat the

niovements of carsy giving date, routing, and de eGhatton:

ofeach movement. The First) Party sfiall each menth

credit to the reutal ar serviee account of the Secoudh Parts

“dt mileage earned) by said cars while in the service’ ef

-d : e

Ms , as

»°

Second Party “according to and slit to all rules of th

tariffs of the r: tilroadse Said) mileage ercdit shall be re

potted to the Spyeond Party on er about the twenty fifth

(25th) day of Mie month sneceeding the month during Whirl

such mileage is earned. The Second.Party agrees so to

ase said cars that their mileage under load shall be equal

to thejr mileage empty en each railroad “over whieh they

ive. Should the enypty mileage on any railroad exceed

the loaded milenge, the Seednd Party shall rmmedigntets

upon the expiration or termination of this. agreement, pay

to the First Party for sueh excess, as so much addition:

rental or service ‘charge at the rate established by the,

tariff of the railroad on which snely excess of empty mile

age is incurred, *. | ee aay

~ Seventh: It is mutually agreed that time of payment of

rental or service charges is of the yea Pe at.this contract,

and that if the Second Party shall make defaulp in. the

[fol 226] payment of the rental or-service charges for sail

cars at the’ time when the same hecome due and payable,

and such detault shallcontinne for §ve (5) days, or shall

make default in the performance of any of the other agree’

ments herein contained to-be Dy if performed, aud: such

default, other than th® non-payment of the rental’

service, charges shall continue for a ye vi of thirty (30)

days after writtey notice thercot, thea and in any of said

events the First Party may terminate this agrecmetit. at

its eleetion, au he same shall become and.be terminated.

or may, atffs-election, take said cars out of the service

of the Sefond Party and furnish the same or auy thereat

to others, for such rental or service charges and upon suel:

termis as it may see fit, and if a sufficient sufn shall net be

thus realized after paying all expenses of retaking sii

jae and collecting the earnings thereof to satisty the ren

tal or service charges herein reserved, the Second Part

agrees to satis. and pay any and ail such deficienes

promptiv upo demand from dime te time.

Highth: ‘Tis agreement shall be binding upon the parties

hereto, their respective successors, represent: itives, admin’

strators,fand executors, but shall not be tramaferrable by

operation of law, or assignable by the Second Murty, ner

shall any rights hereunder with respeet to Said ears he

tre insferred or assigned by the Precond Party Withont the

;

a eared

co | ey

Fr . . : ay

_ written consent of the First Party. Should a petition tf

baukruptey’ or ao petition for a receiver he tiled hy er

guainst the Second Party, or should it aidkerriin assteninent

(fol. 227] for creditors, then this agreement vy ey. al the

optioy of the Kirst Party, he ane? become tert irate ad. No

title or tease heid or property interest of any tand rn said

ears,-or any of them Shall’vest.in the Seconck Barty or its

sHecessars or assigns under the terms and previstons of

this service contract, or by reason of the delivers of posses

sion of ears to the Second Party or its use theneot here

under. No lettering of matking ef any kind stall’ be.

gic upen said cars or any of them by the Second, Party,

lin Witness Whereot, the partie < he reto have cansed this

Mstrument to be executed by their respective duly auther

ined officers, and attested by their Seeretars . stad ear

porate seals te he here HUNT Oe : siflined the day atid veaurt t-te

above written. dT oe .

General American Tank Car Corporation, Dy Leroy

Kramer, View President. —

Atwst:. Wo. oS. Hefferan, Jr. Seeretarys: ee

}! Dorado Oil Works, By Wo. Bers. President,

Attest: S. Me Haslett, Secretary, 2 00, or]

lfol. 78) Berore-‘IN restate Comarenck Cox

. A

eo ;

Now BSOD

ALLowaNces. For Privareny Owner Prusw

Oven July M10

It appe wrina. That the EA Dorado Ol eWors

El Dorado: Terminal Company, its whol ow sied sus

hereinafter referred too as petitioners, have ed woth dhe

Interstate Commerce Conmiisston a youn tition bequest

ing the Comunission, (1) to dustitute aid dmvestioai ton cet

the practices of carriers by riitroad subject te the biter

state Commerce Net Withcresfect to the Jiaxinent of mittee

allowances to the General Amertean Bank (ae @orpooratien

efor the use of tank ears owned by sneh C@rporation, desed

to petitioners nuder allease contract dated Reprourer 2s,

153, and Yurnisheet hy petitioners to air earritr? hie reyel

road for the {fa sportation Of ceocomrnt ao 4p ctritert~tiatey

comtnerce from the plants of petitioner sot Peerkeles at |

. e = .

° .

, 4

oe ae

os "ea

\ F

Oakland,. Calif.; (2) to find. that the amountstegileeted |

sue Wvorporation from the carriers by railroad’ as-inides:

allowances for the use of such ears in the period covered by

the lease contract are reasonable, gud to enter an order ti4:

such corporation. may, lawfully pay: sue A amounts to. peti

tioners; and (3) to cuter such ether orders as the Commis

sion nay consider proper, "aye i

Uy HOM bans sideration of the said pe tition, and good ents

appearing therefor;

[fis ordered, That the Commission upon its own ret 3

enter upon an investigation of theimatters set forth mere

(1) tordetermine whether the practices tivelved under

terms and operatian of the lease contract are unl: fal \

violation of the Interstate Commerce Act; (2) tode tern

whether a reasonable charge or allowance: ‘may be, sai

aud if so, the amount thereaf asa maximum: te be paid,

by the carrier or carriers by raifroad for the use of the

tank cars furnished suth carriers by: petitioners: fort)

transport: ition of the products of petitioners in ute rstiits

coummeree from® Be i lev amd Oakland, Calif, ino tls

periag January 1, 4934, to Decembers31,- 19365 and. (ty

tevdetermine what findings shall be-made, or what rules,

regulations or practices shall be preseribed,.or what orders

shall be entered, te rémove any unlawfulness that Hay

found to exist. ale ‘

It is further ordered, That all common carriers by ray

road) partic ‘ip ithe , in Trans-Continental Freight Fur: iy)

Tarttf No. 3-N. No, 1452, Jn, and they hereby are,

made respondents ies proceeding,

Its further ordered, That a copy, of ages he serv:

upon petitioners and-upon each of said respondents aud

that notice of this proceeding be given to the public, ts

“pasting a copy of this erder in the offiee of the Seere!

of the Cammisston in Washieten, DOC. 5 .

Aid it is further ordered, That this proceeding be seg tor,

hearing at-such time and phice as + the Commission miay he

“after direet: -

By the Conumission. c

V-P. Bartel. Secretary, (Seal)

ove] : .

\ lel . - .°

Tfol. 229] Berorre rue Isrersrvre Cowstercp Coarwisatos

. Docket Nov 2saks

Inthe Matter of the Petition of Ei. Dou. at ne Works ane

-- En Dorapo Trnatin ar COMPANY for cbuvestheation of

Mileage Allowances by Interstate Carriers, for the Use

of Tank Cars of Private Ownership

Perrion oF Genera, AMenican Piaxsrort ation Conpoins

° Thon FoR LEAVE to PNrenyvi xt

-(Presénted and Mllowed at Hearing Dee. fide}

.Comes now Vvour petitioner, Generals American, Prats’

haga ition ¢ ‘orporationg? nel ore specth i\ vn tpi ts sents Utiat at

has au interest in the os

proceeding and desires

to said proceeding, and™for grounds of. the proposed: iaiter

Verition petitioner save:

Y ° 4 :

a gs

Jae a

ite ts lnveive i bia tite Woove ( nfitled

pintervene tn and become a party

That petitioner, General American Transpostation Cor

poration, is a corporation oreanized and existing jineder aoe

hy virfue of the jaws of ‘thre State of New York and havine

its principal office in Chicaze, Hilinois? Gat petitioner ts the

owner of and ix engaged in the busines Def furnishiie vari

[fol, 230]. OS types of Freieht cars, ineludine tank enys, for

use fi the, transportation of property by railroad be inter

state commerce, inchiding cocoanut oil and. other hreastial

“commodities.

That petitioner |s the sueeessor in interest teaud: tia

acquired. alk the assets and assumed all the dinhilities of

Gengral American Tank Car Corporation, hers Inather ve

ferred-to as thet Pank Car Corporation’ & 1 bea’ cei@ene i

assets and liabilitiestso acquired and assnmtied: bs petition er

are the-rights and obligations of the Tak Car Corporation

nider-a contract dated September 28. 1953, with det Darade

Oil Works, a ¢opy of which Is attached as doxhibit S407 to)

the petition of El Dorado Oi} Works and Ei Dorado Ter

minal Company in the above entitled proceedine.

That on June 1, 15, El Dorado Terminal ¢ ‘ompahe

as Be assignee of EE. Derado Oil Work ~, brouelit iit

avr the Tank Car Corporation to recoyer certaiy titi

alleged to be due inider. said contract. as) the balance jot

thileage allowances for the yse of said tank cars .duriiig fli

“period from Jhnuary 1) 1954 to May 31, 1935, inclusive oy

that the Tank Car Corporation pleaded as its defense to,

said suit that’ it was prohibited by the lalkins Net Bron

“fel. 2 1] paying said sums to El Dorado Oil Works 6r io

El Dorado Terminal C OMPANy ; that the Supreme, € ourt of

- the United States by its decision in saith suit, re —? is

308 U.S, 422, has ordered that the cause be held: in the

= njted States Dixtriet Court for the’ Northern District ot

California, Southern Division, pending administrative

aetion-by thé Comission ; that a further suit by Eb Dorado’

Tertiinal Company to recover certain additional sums fren:

the Tank Car Corporation as mileage allowances on satel

tank ears during the pe viod from June 1, 1935 to January’

Bl, 1937, inclusive, is now pending in said Distriét Court:

that by reason of said decision of the Supreme Court of hie

United States the'determination of the Commission in the

above entitled proceeding will directly affect the decision.

- of the District Court in said suits. .

That by virtue of the provisions of See tion 2 of the Elkins.

- Act (LOS. Code, Title 49,See. 42) the Commissions author

ized to inelude as parties in the above entitled proccedin’

‘all persons interested in or affected by the rate, regul: ition

or praetice under consideration’’; that by reason of the

facts heretofore alleged your petitioner has an interest ii

and is‘affeeted bys the prac’ tices under consideration i sail

proceeding. ; ; oe. 2

—[fol. 232] W herefore. weittioin prays. leave to interve nes

and be treated as a party hereto with the right? to hays

notice of and appearat the.taking of testimony, produce amd

cross-examine Witnesses, fand be’ heard i i person and by

counsel upon brief and at the oral argument, if oral argu-

ment is granted:

Dated. at Chiesgo, Illinois, Nov ember 5 5, 1940. :

*’ General American Transportation Corpor: ation,

Petitioner, by Lester. ‘N. Selig. (Sig. ) President,

oe 135 South LaSalle Street, € ‘hicas ago, nen.

ac . ee % -! ; > , 7D |

WS. Hetferan, Je. 135 South Lasalle Street, Chilengeo

lineis; Douglas EF. Smith; VW South LaSalle’ Street, Chi

eagd, Ulinois; Milan P.>M: attlie WW, Jobe O. Moran, FLW.

Mielke, 1500 Balfour Buildin, San Prianehseo, Calitornbaa,

= —— tor Petitioner, . i,

a -

Lfole 233 os]. Duly Sor to by Lister N. Selign, Jurat

omitted in proting. » .

“Ufls. 235-296) -Berore THE INTERSTATE ComMMFRCE COM-

; : . ¢

MISS1ON :

. ae ag Docket Np, 2801 g.\«

» In the. Matter of: Allowances for Privately @wned Pank

Poe, a : “Cars ;

San Francisco, California,

eiriyk December: 4, a. 10:00 a \i.

iefore Hlroy F. Hinman, Special ‘Avent, Interstate Com.

° ,

é merce Commission, I? L. Sharp) be xandner

* a

Met pursuant to notice.

- APPEARANCES: ,

: zi W. F.. Willianson, ! 310 Sansome Sie ef, San Francisco, ,

California, appearing on behalf of 1 Dorado OiF Works

and El Dorado Terminal Company, Petitioners. .

J. Carter Fort, Transportation Building,* W: ashington,

D.C: appearing on behalf of Alten and Southern Hail

road; The Alton Railroad Company ; Atlanta, Birmingharn

and Coast: Railroad Company; Atlanta and West) Point

Rail Road Compatiy ; Atlante ars Yadkin Railway Com-

pany; Atlantic Coast Lite Railroad Cor pany; Baltimore

timore and Ohio Railroad Company; Bessemer and Lake

» Eric Railroad Company ; Boston and.Maine Railroad; Bur-

lingtow: Lines (Chicago, Burlington & Quincey Railroad

Company ; The Colorado, and Southern Railway Company ;

[fols237] Fort Worth and Denver City Railway Company y

The Wichita Valley Railway Company) Canadian Na-.

tional Lities in the United States; Central: Vermont Rail-

Way Ine.; Chesapeake and Ohio HRailway Company; Phe

a*e)

Uae

NewYork, Chicago & St. Louis Railroad Company; Chi

cava & Master Wiinois, Raitrodd; Chicago & Ulinois Mid -

land. Railway Company; Chicago and North Western Rail

way System (Chicago and) Northwestern Railway Cor

pany; Chicago, St.¢Panl, Minneapolis and Omaha Railway -

Company); Chicago, Indianapolis: and Louisville. Railway”

Comprouiy (Holman S. Piettbone, Tyustee); Chicago, Mi

Wwaukew, St. Paul and Pacific Railroad Company (Henry A

Scandrett, Walter J. Cummings, George [. Haight: Tras

teés); Chicago, Rock Island and Pacitie Railway Company

(Prank O. Lowden, James. Gorman, Joseph B.Flemint,

Trustees): The Delaware and Hudson Rerilroad: The Dala

ware, Lackawanua and Western Railroad Company; The

Denver and Salt Lake Railway Co.; Detroit, Toledo and

~Tronton Railroad Company; Erie Railroad Company, the

New Jersey’ and New York Railroad Company, Chicave

and Erie Railroad Company (Robert &. Woodruff and John

H. Hadden, Trastees); Florida East Coast Railway (Wil-

liain Ry Kenan, Jr.,-and Scott M. Loftin, Receivers) : Gal

Yeston, Houston and Henderson Railroad Company; Geor.

gia Railroad; Graud Trunk Western Railroad Company ;

Gireat Northern Railway Company; Hlinois' Central Svs

e tem; [Indianapolis Union Railway -Compery; Lehigh atid

New Eneland Railroad Co., Lehigh Valley Railroad Cor

. pany, Louisville & ‘Nashville Railroad Conipany; Maine

Louis Railroad Coypany (L: C. Sprague, Receiver) : Min.

neapolis, St. Paul’& Sauls Ste. Marie Railway Company

(G. W. Webster and Joseph Chapman, Trustees); Missis- -

sippi Centril Railroad Company; Missouri and Arkans:s -

Railwa¥ Company; Missouri-Kansas-Texas Railroad Com

any ; Missouri-Kansas-Texas Railroad Compeny-of Texas;

Missouri Pacifie [ines (Missouri Pacifie Railroad Com-

pany; Gulf Coast Lines; International-Great Northern

Railroad Company) (Guy. A) Thompson, Trustee) ; Nash

ville, Chattanooga & St. Louis Railway ; New York. Ceifral

System; New York, New Haven and Hartford Railroad

Company; Norfolk and Western Railway Company; North:

ern Pacifie Railway Company ig Pennsylvania Railroad

Company; Pere Marquette Railway Company ; Piedmont

“and Northern Kailway Company and Durham and South

ern Railway Company; Reading Company, ‘and Pennsy!

vaniasReading Seashore Lines; St. Louis-San Erancisco

Railway Company and subsidiaries (J. M. Kurn and Johp °

. ‘ :

: ‘ ' D

7 oe

~™%

(fol, 240] : Proceedings

G. Londsdale, Trustees): St. Lonis Southwestern Railway ’

Lines (Berrvinai Henwood, Prusived: Seaboard Air bine

Railway (L. Ro Pow?ll, Jr. and Tene We Anderson, Re

- ceivers)3 Southern Pacitic Conipany, Pexas and New One.

lewis Railroad Company, Northwestern Pacitie Railroad

‘Company and’ San Diexo & Arizona KMastern Railroad Com-

yany; Southern Railway System’ Lines (Squthermi: Railway

Company ; Alabama Great Southern’ Railroad Company:

| ‘incinnati, New Orledns and Texas: Pacitie Railway. Cou.

any; (ieorgia Southern ‘and Mlorida Railw; auVv (* ak iv:

;, New Orleans: and Northeastern Railroad Com!pany) et ale:

ffol 2397 Tennessee ( ‘entral Railway Company: Terminal

Railroad Association of St. ‘Louis and affiliated companies

Texas and Pacific Railway Company ‘and subuidiastes

Union Pacifie.Railrohd Company ; Virginian Railway: Com

pany; Western Maryland Railway ¢ ‘onupadiy ; Weste mn

cifie Railroad Company “The Weste rh Railwe aval Adah: vita:

~W 4g: and Lake Erie Railway Company: Respondents,

L. N. Bradshaw, 878 Mills Buildings San rdineiseo, Cadi

fornia, appearing for The Western Pacitic 2: silroud (orn

pany, Respondent.

R. FE. Wede kind, 65 Market Street, Sai Mranciseo, Cali

fornit, appearing for Southern. Pacific “e ompany, Re-

- spondent.

Joseph S. Lafferty, 8 80 Kast Jackson Boulevard, Chic AO,

illinois, appearing for Atchison, Topeka & Santa Fs Rail

way Company, ges ut.

W.S. He ‘fferan, 185 South La Salle Street, Chicano, Uli

noiss Allan PL Matthew ih. W. Mielke, and Starr Thomas,

1500 Balfour Building, San Francisco, California, appear:

ing for General American Seuche Corporation,

Intervener, . ees

Kixam. Sharp: The hearing will come to order,

The Commission has set for hearing ut this time Derket

No. 28019, Allowances for Privately Qwned Tank Cars,

This’i ix a proceeding instituted by the Commission itpon

the petition.of El Dorado Oil Works and El Dorado Ter-

thinal oinpany to. determine : °

1. Whether the practices involyed: ude? the terms and

operation of a lease contract dated September 28, 1032, hy

aid between General American Tank Car-C drporation and

e .

G4 ae eee eee

El Dorado Oil Works are siiheariiad ks in iaieias of the

Interstate ¢ onune ree Act A

Whether aire: asonable charge or allowance may fe,

al and, if so, the amount thereof as a maximum to be

paid by the carrier or carriers by railroad for the use «of

the tank cars furnished such carriers by petitioners for

the transportationr of the products of petitioners in inter

state commerce from Berkeley and Oakland, California, in

the period January 1,°1934, to December 31, 1936, and

3.- What findings shall be made or what rules, regula

tions, or practices shall be preserived, or what orders stiail

be entered to remove any unlawfulness that may be found -

toe vist. . os

I will be clad to have your appearances now starting?’

with petitioners. : :

[fol. “411, Mr. Williamson: I have filed an appearance,

W. FL Williamson, for the Hl Dorado Oil Works and the

EL Dorade Terminal Company. : ;

Exam. Sharp: Other appearances for the tank car corpo

rations?

Mr. Fort: J. C. Fort. I haw filed an “appearanc e for the

respomlents generally and. filed a list of the respondents -

for Whom [I appear.

Exam. Sharp: You said ee did you not, Mr.

Fort?

Mr. Fort: Yes, sir.

Exam. Sharp: All right, go ahead,

Mr. Matthew: If the Examiner please, T should like at

thts time—— at

Mr. Fort: There are some other appearances,

Mi. Matthew: ‘Pardon-me. T understand there are to he

mere apperrances for the respondents. |

Mr. Bradshaw: On thie othe appearances for respond:

ents, Mr. Examiner, L. N. Bradshaw of: the Western Pa

cifie Railroad Company.

Mr. Wedekind: R. I. Wedekind, 65° Market’ Streets San

Franciseo, California, for the Southern Pacifie Company.

Mr. Lafferty: J. SeLafferty, 80 East Jackson Boulevard, .

Chicago, Hlinois, for the Atchison, Pope ‘ka ane Santa Fe

Railway Company.

Exam. Sharp: That appears to be all for the scineadonl,

| foi, 242] Mr. Matthew.

“V

. od ge, eed |

Mr. Matthew:AVith the Kwaminer’s permission, T should

dike at this time to offer the petitten-eof General American

Traisportation Corporation for leave to iutervence in this

proceeding. ..f am submitting now. the original veriged

wtition of General American Transportation Corporation

pe 4 p

and two copies for the Commission and - likewise have

copies for counsel,

If feave to intervene is gtanted JT should like to enter the

appearances OF WS. Hefferan of Chicago, Hlinois; Allan

P. Matthew, EF... W. Mielke, ung Starr Thomas for the

“intervener.

lexan. Sharp: Mr..Matthew, the petition of the inter-

vener does not broaden the issues in the case; bt take dt? .

Mr. Matthew: Nof at all, if Your Honor please. It is:

rather a brief formal petition for leave to intervene set-

ting forth the interest of the General American in the case

and particularly the fact, of course, that this controversy

in the first instance was between the EL Dorado Compuatiy.

~ and the General Amertean. e

Exain. Sharp: The petition will be granted,

The petitioners may proceed. — ~

Orexine Srices ENT FOR PETITIONERS . :

Mr. Williamson: Mr.-Hxaminer, T prestime that the best

course for us to pursue is to aequaint you with the history

of the facts and the transactions ont ef whieh this contro-

Versy arose and T shali therefore briefly do so on bee diga lt

[fol 243] of the petitioners,

The I | Dorado Oil W orks j ina aliferiia Coy pay ation ren +

has been engaged-for forty-five years or more in the crush:

Ing of copra to extract therefrom caconut oil, an oil that is

used for soup manufacture and also” to a certain extent

“in the edi ble field.

The Ef Dorado Terminal Company: is a wholly owne al snb-

sidiany of the El Dorado Oil Works formed in 1933 in order

to handle the unloading and movement of shipments over

‘the wharf which they have constructed on the Oakland

harbor, f. ;

The hisfory-of our tank ear operations is along these

lines:’ When we first organized this company we organized

it as a linseed gil company but there being: very little flax-

seed at that tie ¢rown in California, after a few years

5—498- - , i ope ean 4

we had broadéned our 6perations so as to get into a Wieler

field of activity and we went into the coconut oil manufac

pape .

tthat tte tid ip to. the time of the-etthrenk-ot-the

anh American War in 180s, almost’ al of the -tine:

coaps utilized in the U ited States were made abroad sand

tnest all of the copra produced j in the P hilippine Islands to

them a. return cargo of copra in order that they might

the-extent of 9S per cent of that copra was shipped tos

Europe and was crushed at either Hamburg or Marseilles

or other points and such of the manufacturers or users of

coconut oil as required in the Unituel States s imported the

vik from abroad,

‘The Kl Dorado Oil Works in pee ire yee into that field) was

itol. 244 > -contronted by. the condition, first, that the. users

of cocoanut oil in manuf turing purposes’ had to. be as-

sured of a quality of oil that would meet their demands.

‘The soap makers could not expand their operations in

America and do away with the use of ether substances sub

stituting cocoanut oil therefor without knowing that there

would beg supply. ur first venture was to make a quality

af oil that would be suitable and we finally, after a good

deal of experimentation, developed’ a standard brand ol

quahtv ef cocoanut oil Which was white, very white in

color; low in acid, to which we gave the name Snowflake and

for which we obtained a trademark.

Our operations over .the intervening forty-five ‘year

have beén laggely in the marketing of that quality of cocoa:

nut oil, After we had developed the quality” Wwe had to as-

sure the buyers and the users who Were. going to expand

their soap factories to employ this,oil that we could furnis!

them the quantities: they desired and, therefore, we had

to finance the sailing vessels going out of San Francisco

Harbor, into all of the iMands of the Pacific and assure

make the voyage, and we did so, and over the years we

~ developed contacts in all of the Pacific islands and assured

to ourselves a regular supply of copra, so, in fact, the

ocean became a warehouse for us.

Now, when we first started ‘oushi Ip our cocoanut oil we

found that there were buyers whovhad tank cars for tle

| fot. 245] transport ation of copra oil that they pureh: a

from us, but, as I say, our operations in those days were

comparatively small. ‘As time went on and as our ¢ rushing

besame larger and shipments became heavier it was nee Us-

9 =)

sary forous to have moré and a greater means of trans

portation. Tf our business was purely local like a bie de

. partinent store we could vet delivery wagens Or tiavbe

trucks Which were hot then in use but have since come ite

use, but our shipments were almost entirely inte the Great

Mississippi Valley area which was gene aflly the consuming

pomnt im the & nited Sts Hes for Cocoanut oil, and as We hid

to move our oil in order to keep our lant operating we

had ta provide a means of moving it and th dowiead means

was fank cars, and, therefore, we were conftronted-with the

necessity of either owning the tank cars, buying them or

revting them. a =i a ¢

* bat ostttedy that- Wits trade fottowine The decision of

the Commission in Sip 7 the matter of private cars which

is ges in OO T, I think. 652, or that volume

leust, we Scene mae it Was perfectly proper agi

“s

feasible to lease tank cars for our purposes ad we, there

fore, eheagved in that line of Pee ie suit ink Wis

something else that’ made’ it advisable, if not absolutely

necessary forus, to secure tank cars of our own selection be-

cause we found that the sigh test bit of foreign matter in

the ordinary tanks Would strve to discclce our oil anid

destroy its usability for thése who wanted the standsara

white Snowtlake ‘oil, and we would have oil turned back

[fol. 246] on us, so that we found it was necessary for fs.

to clean every car that we used so that we coule [be assured

that there were no particles of rust and no foreign matter

inthe ears, . =

There were at that time petroleunt cars, and. there are

today pefroleum cars owned by the railroads, but those

Qrs Were rot usable by us because we could not clean then

akequately in view of the matter’sne hi as gasoline dnd petro

len residuals and so on in the ears,

‘We made our-first arrangement orNease with the Get.

eral American Tank ( ‘ar C arporation aid according to that

lease we paid a cash rental monthly for every car that

We leased so thatlif the cars by reason of strikes or-other

conditions were idle we still paid the rent, the. monthly

rental, Coach

The second part of our agreement provided that the Car

Corporation would eredit. to us against our rentals the

‘Mileave earned and pavable by the. interstate carriers

according to their filed and’ published tarilfs,

Os Sp cate

° ‘ i

We worked ulider that ngreement with. the General

American Tank Car Corporation continuously thereatter

one on substintially the same terms. in September, This,

‘as our contract then in effect was abotit to expires we en

tered into an agreement with the Genet al Smeriean Tank

Car Corporation for the lease of. fifty cars ata monthly

it, and-for such additional, cars as out business required

ie thectransportation ef our product... The contract was

to takeeffect as of January 1, 1934, and jt did so.

For the firs four or five months of that year the General

American Tank Car Corporation continue aba it had under

previous contracts, to account fo Us monthly for the mile:

nee collected from the czrriers and to pay to us, the El

Dorade Oil Works, the overage, if any, above the car ren-

tals. Along about, | think it was in July. of? 1954, the

General American Tank Car Corporation took a different

“position. It contended that the decision gr order as cre-

egitly released by the Commission in a-proceeding: in re.

spect to the refrigerator ears Vad determined that the

‘payment of mileage fo shippers leasing tank cars in excess

of rentals paid by them for the use of cars Was, in effect,

under the facts as disclosed in that record a rebate or

preferential treatment to which the shippers were “ Ot

limit the payments of mileage as expense to: the. rehtals

wid: other expenses in connection with the: furnishing of’

the cars, but it expressly prtvided thi athalthouwh there had

been some investigation’as to tank cats the evidence was .

insufficient to enable the Commission to make any decision

or order. in that behalf and, therefore, directed that the

order of the Cotamission should be limited. w ‘sigs cient

fol. 248] cars, and it was so limited.

We endeavored te secure from the Tank Car ‘Cavees e

tion a continuance of the payments that it had theretotore

made to us, but the Tank Car Corporation took the posi-

tion that in the light ef the decision of the Commissfen in

respect to refrigerator cars it could not continue those pay-

ments because in so déing it would lay itself open to the

‘ charge of a violation ‘of the Elkins Act, those provisions

of the Interstate Commerce Act which had been embodied

in the F.lkina Act originally.

: go

Failing to wet amy relief we filed ao snit te the eaurts

at San Francisco to reeaver frome the Generat Ameriean*

Tank Car Corporation the ameunt of money which, under

the te ris of out contenet, we were entitled to reecive as

the sun receiVeal Ds the Tank’ (ar Corporation in aia aad

of the-rentals that-we had paid.

That case was heart in the United States Distr iet “ound

at San Francisco. The defense of the Getheral Amerioan:

Tank Car Corporation was simply ‘this: It pleaded) the

contract between the two COPpOrs ations, attesting to pts com

plete legality aml so pleading i. Tt pMeaded that the pay

ment of the mileage in’ excess of the car rentats would

‘amount toa prohibitive’ dise ‘rimination or preference under.

the Elkins Aet and that the payment by the Tank Car

Corporation in accordance with its agreement would. day

[fol, 249] it open to eriminal charges, The Disthiet Court

decided that case in favor of the. Tank Car Corporation.

The El Dorado Oil Works: appealed it to the Cirguit

Court of Appeals inAhis, the Ninth ireuit, and after hear

ing dn argument the Cireuit’ Court of Ap poals rendered

an opinion reversing the lower court and sustaining in it

“entirety. the clafms of the EL Dorado Oit Works anid its |

subsidiary, the Terminal € Quipany,

Thergafter, the Tank Car Corporation filed a petition in

the Supreme Court of the United States in certiorari for

hearing of the case. The interstate: Commerce (lontini-

sion. and its counsel in. W ashington, Mr: Payne, ‘tiled a

—_ a 4. .

. brief and joinedin that petition. The hearime was granted

and in due time the case Was heard and argued in Washin®.

‘ton and a decision rendered by the Supreme Court of the

United States whieh T can briefly summiarize as follows:

Tt held that such agreements as that with which we were

concerned are usual and “1 themselves proper and nothing

unlawful about them. dy veld that under the termes Gf that

agreement the El Dorado Oil Works was tlie shipper, the

shipper was the company that furnished or supplied: the

‘tank cars to the carrier, and, therefore, was entitled under

the terms of the Interstate, Commerce. Act te have and re-

ceive that just and redsonable compensation that is pro-

vided in the Act to be paid tothe furnisher of the facility.

Tt had been urged by the Tank Car Corporation that it,

[fol. 250] and not the El Dorado Oil Works, had tyrnished

the cars, The court took tlie other. view and Held th: ut the

ral

70 e

shipper, the El Dorado“Oil Werks, had furnished the ear.

and was, therefore, antitled te the compensation, the cou

, tention having been urged ‘that the rules and regubaties,

of the carriers provided for flie payment of the mileage to:

the car owtier or supplier according to the ye fine marks

‘on the @ars, ete.:and since the Tank Car Corporation's

name was stenciled upon the cars and it was the recorded

reported owner of ihe cars the carriers had paid the mils

age over the interyening years to.the-Tank Car Corpors

_tion, and it was argued that the shipper was. not entitled,

-by reason of those provisions, those rules, to elaine: the

mileage. As to this, the Supreme Court said that the ship-

per furnished the tars and was entitled under the law. to

the mite: age-allawanee ‘out could not. collect it) by reason

of the fact that it was not: accoraing to the tarlf of the

_ recorded owner and‘had no reporting marks upon the cays

and the carriers could not diyest’or destroy the right of the

shipper to, receive that just and reasonable cofipensation

by any rule or regulation whatever. Finally the court said -

that because of the fact that the payments had been mate ”

by the carriers to the car owner and because the EL Dorado

Oil Works, as a shipper, was entitled to the conipensation

as a practical matter but was. uot entitled to collect it from

the carriers because of the limitation in the rules, the nog

(fol. 251).ter-was open for consideration by the Commis

sion as an administrative question and finally the court

then, suspended further proceedings and remanding the

case in the civil action pending an investigation by thi’

Cc onmission of the matters involved.

It was becansé of that decision and the statements the rel

‘to the effect that the, Commission should have the” appor

tunity to make an investigation that - we applied for this

liivestigation, or this hearing.

‘Now, TF don’t know. to what extent the Commission is

xoing te go into this matter. There are certain.points thet

of course, are settled by the decision of the ieiaamnnacs ‘ ‘ourt

of the United States.

I assume that you, as an Examiner, and the Commission.

is- not going to reverse the Supreme Court on those ques:

tions. IT assume also that your investigation, without some

charge of which we have no present knowledge, is not going

to: cover the question of good faith as between the wo

parties to this contract. ‘In other ‘words, there has been

no charge and no contention direct or indirect that thus

es ‘ °

agreement was made he tween the re Neral Aenetis ‘an Tank

Car ¢ lorporation and the HEl.Dorade Oi Works as ae cloak

eto cover any secrei ve ‘bate agreement of any Guiprdéper plan

whereby the provisions of the law would: be votten around.

| There has bee no such charge, and the contract as he-

jes was by them. regarded as por!

tween’ the two Compr

: teetly legal in itsg lf as\attested hy the fact that the Gen

‘made, our controversy with the Tank Car Corporation |

”

{fol 252] eral America Tank Car Corporation pleaded

the contract in the case whe re it Was’ sucd+erthe mileage

. collected and retained bi’ it.

Now, as you can see from this statement that [have

covers mileage cbllected and retained by the Pank Car Cor

poration for car amovements that hive “extended over a

period beginning ‘six years ago, and during ali the first

portion of that period, until April 1, 1955, the rules of the”

carriers provided that the mileage pesdanian cot one and

Fone-half cents per mite: toadesk and in empty: miovement

would be payablé to the owner of the car, or the party who

acquired the same, according to the reporting puililis shed,

the recorded marks. Commencing with April Ist, 195, and,

if we can indulge in assumptions, presumably because of

the decision of the tefrigerator car éase, these rules: were

changed’so that thereafter the payments were to be made

to the-ear owner but not to the lessee, and-that is sor

thing that the Supreme Court spoke of. -Now, Kokeith-

standing the fact that the cars were furnished by the Tl

Dorado O} Works as the necessity of theirg piss re-

quired after the Ueeision in the refrigerator car case just

as they had been before that time, and notwithstandiny

the fact that the Car ( ‘orporation continued to collect and

did collect the full: mileage on those cars plan titnes ‘since

and up to this day, it has, failed to pay to the apis

El Dorado Oil Works, any portion of that mileaee sa re

[fol. 253] ceived bevond the car reritals. Tn eiher words,

there has always heen a eredit te the Car adamant

hooks an-excess of mileage earnings over ear rentals.

Now, unless vou have s6me other question [ think that

generally states the facts in the case. As [ saidefore,

we have prepared a brief statement outlining the views

of the El Dorado Oil Works as regards the scope of thas

hearing. We have in-mind that the Commission, if it is

coing to go into the matters. at all, is'going to he con-

‘fronted with this situationg that throughout ‘this period

a - 8

—— @& . . : . ¢ : . 2 s.

12° ; -e ‘

there have existed rulés published with; re card to the, par

fuent of cay muileage. Those rules, ip to April ist, ! Mio,

permitted the payment to the supplier’ of the car, Whether:

he be shipper or owyer, as well as te the owner, and the!

carriers have paid the mileage provided to be paid uader

those’rules monthly to the Car Corporation.

It was suggested by counsel for the literstate Cominerce

Commission in the matter before the Supreme Court tha!

P09 raifroads had improperly paid this money to the Tank

Car @orporation and that it behooved them to wet it back.

Of course, that matter is not, before vou, 1 take it, dn

it is just a question that is worthy of some considération

The 3K] Dorado Oi| W orks, realizin that the carriers

have paid the mileaye once, of course, did) not desire to

#0 after the carriers for a further payment, and as to thie

frosty past, our position ts that in the first place the

Interstate Commerce Commission cannot Very well ten.

porarily go back ‘of the fact that as early as JO1S it coun

‘tenanced and eypressly approved, and, in fact, ordered the

praetice whicl#Was then old of paying mileage to shippers, -

as well as car owners, for the fufnishing of fawilities sueh

as tahk ears should be ednittnued. It increasAl thie, S then

mileage allowance of three-quarters of a cent orf empty

and loaded avciiaa | in cars to one cent.

‘In 1926 the carriers filed a revised rule allow

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.