# Transcript of Record — El Dorado Oil Works v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386450_0084%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1946 - **Citation:** 328 U.S. 12 ## 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 ‘ ee *” | 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) oO 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 > t- LOT 208 220 OR 228 . oon 226 236 242 Onh OO 309 329 Print 11 a He ; oe Koes .** : ° ‘* . 7 tis S ° / n ° t Reconsideration was denied hy ‘order sof the (oon Histon e “ . orabout July 3f, 1W944.- ¢ Vi if 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. a 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 9 & vhs ie 5 ® ‘ & é Po 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. eo . . . 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 , x ‘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. ‘ I 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 oJ "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. 6 ‘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 a . : 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 - a c 10 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: 2 (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- . . . . ‘ . ~ . - \ , ° i. 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. oe “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 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, 9s _--? 16 . 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 A 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 so 1s ° . [fol S82] ‘ . " 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. / Ee 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. } - ! . o ‘it is Ordered that said motions to, intervene be wranted snd -[ fol. 96] Is Usiree Srares Distater Covi ‘ ow [ 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 2 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: 24 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 t 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. $22, if held that the action involved an administrative question subjected by the. Interstate @ommerte Set to the administrative authority of the -Conmnission, aifd that swhen it appeared in the coiirse of the ditheation that an adiin istrative problem, committed. to the Comusis Cisco, State of ¢ ‘alifornia. (Notarisl Ment). ; [File endorseinent omitted, | [fols. LO7-100] "Tx Usiren Stares Distrer Cover ” ah : ‘ » | Title OMltte | on lfol. 110] Akswan oF 1 hi Ay BAMA Grear Souriuieex Rane ROAD Company,cRar An, Incenventna’ Drvixpanis —Miled November AA, Tae ' ‘Come now The Alabama Great Souther Railroad Comy- pany, a corperation, et ab, interventne defendants last iz -}- 30) above tamed, and by leave of Court, first bad and obtained, file this, their answer to plaintiffs’ complaint: and adit, lfol. 11] es deny, and allege as follows. : I isan Said intervening defendants are common eartiers eo: waved in the transportation of property by ‘railroad | tween points in the United ‘St: ites. Each of said interven, Ing defendants is a corporation exeept such as are spe cifically destgnated as. trustees or receivers of certain co: porations. Mach such trustee or receiver is duly appointed, qualified and acting ingsuch capacity under the authori, of the United States District Court having jurisdiction is. the premises. ; a hl Said interveners admit the allegations of paracraplis and TL of the coriplaint. — : ah . “eourt. (U.S. vo GaAMin, B08 U.S. 986. 2a VS. we TIL oa Meg bag Ca, 244 U.S. 82; D.& ld. go. v: &. S$. 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 [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 44 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: ' & ‘ 4 ' ; =~ * : -— \ 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 . 4 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, , a . 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 a 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 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 ms . »° 2 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 , 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 and Ohio Chicaga Terminal Railroad. © oat The Bal- 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 © [fol 238] Central, Railroads Cormpany ; Minneapolis & St. 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 . C6 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 =) 4 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 renewing their contracts as each one © xpired, making a new 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 © [fol 247[ rental for a period of three years, as [ remember 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 _ titled and the, © ommission ‘made an order “that servad to 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 ‘ ° 71 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 Wo 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 allowing one and one-half cent per.mile for these cars. That was published and has been effective -ever since, so that could not have Men done had the Commission either objected to the pric tice, which it naturally would apne done in view of tists order in the priv ate car matter in FO1S, er if it objected ® to the amount. it ‘had’ ample mac rests under the law to" either, by proceeding upon complaint or proceeding 0 its own initiative, go into those questiofis,” so that, we start, with the assumption that the one and achalf cent milease allowance has-been approved and recognized as a perfeetiy ‘alid and legal allowance over this initerve ning period al fourteen vears, and we do not know whether you, as Exazn- iner, are going to go into that question or not, but we are, as 1 say, proceeding upon the ayrumption that what the Commission has allowed. fo stan srithout questton over these years represents what the Commission considers a just and reasonable allowance for the furnishing of tank [fol. 200] cars . @e — Mn We pleaded the precise terms of the, contract. ne y - J a 8 R { ae | ie Now, then, in the absence of any ‘cantention ‘or « Tiina th: if the agreement between the General Ansefican Tdik Car Corporation and ite El Dorado Oil Works retleeted a sweret, or private arr weTne nt of any type or char: aetor to vet around: the provisions or the prolibitions of the. a Wwe assume that thy re In nd such ie as that prrerss ited anid, therefore, we ean only cask as’ to the past that this Cone mission sHall in some form determine ining with the deci sion of the Supreme Court of pa United States that ‘fhe -avre@nent -between the ‘Tank’ Car Fesputation cand the e El Dorado Oil Works was not an nilawtnl aereement, and that there was no legal or moral ebstacle in the was of its performance by both parti¢s. * _ As to the future question. it is different. «The Commis-, sion cannot by anything that it can do todaa unde the faet that the tariffs and the rules and reenlations finve been published and have-extsted and heen performed thor ail these \ years , bat PT haveeno doubt thiat the Comuntsston has entire and: conmlete auth@ritv to investigate the matter and make such rules or orders as it desires as to the future of these contracts, and, perhaps, the evidence that we shall offer to the Examiner today wand here after will cond nce “to ~ [that] a proper aletermination of that question. Laer Contogry * Mr. Matthew: If the. Ex: mnilge fF please, >| hi ave ne desire to reply in extenso to coutsel’S statement, but ! would rot -[fol 256] have it assumed that T agree entirely with his characterization of the. proceedings and particularly with the decision of the Supreme Court. Tassie that the deci- sion of the court will speak for itself. ~ T do, howe ‘Mgr Wish to cominent briefly Upon ¢ one elem nt of his ope Hines state. - ment. “Mr. Williamson. said that the Car Corporation had pleaded the contract intits answer to the sun brouweht by the El Dorado C ees the ‘reby Atte ‘sting the validity of the contract. The facts are these: The El, Dorado Cojupany bron: wht suit upon. the contract but did not set fowtit the contract in haee verbis. It merely ‘aiidertook io charadeterize the contract in-its complaint. We thought that the character. / ization of the contract in the complaint was somewhat in- exact and certaigly incomplete. Thereforey in our answer = A. (No response.) P The Examiner: Mark. that No. 3 for {de ntific: ition. (Exhibits3, Witness Gilmore, marked for identifieation.) The Witness: You have in your dirty tank cars iron in the form of iron rust, of which this ‘is a sample that was ‘cocoanut oil, especially with the higher acid cocoanut oil, to form a definite chemical compound, or oe ot _ whic ‘h that is a sample. | Kxam.,Sharp: Mark the first as ‘No. 4, an the seconal as , No.d. . : * (Exhibits 4 and 5, Witness Gilmore, marked for identiti 7 ration.) 3 eet ‘ _ By Mr, Williamson: , ‘ ; ‘ (). Referring to your Exhibit 4 marked ‘iron rust from. tank cars’? will you state whether that is a substance that was taken by vou from the tank cars that come info the plant of the KE 1 Dorado Oil Works for the shipment of-oils? A; Yes. T hat was taken froma tank ea Q). And will you sfate what the effect of ‘iia iron or rust, as you call it, would be upon the El Dorado Works flake oil if it were not removed from the car before the car is loaded witly Snowflake cocoanut oil? . A. If it were not removed from the ear, then we would | 9 hhave an oil similar to tliat sample over there, * [fol. 267] Q. Which sample; No. 32 : A. The one that is contaminated, Exam. Sharp: Known as Exhibit No. 3. . ' "Phe Witness: Yes: It might be far worse than that. I : have seeh samples that run as high as 7 and-8 reds in color. scraped from a tank car, Now, that, will slowly. act: with, ~ Now, the worst part of it is that an oil contaminated with’ iron is difficult ‘to bleach and in the present production of very white soaps it would make a poorly colored soap. The a i ee”) - soap maker will take our Snowflake cocoanut oil and he may bleach it further to make a soap that is suitable tor his market but if he had an oil that would color it like that sample that is discolored he would have a very ditlieult time of bleaching it and produc ing the soup that he desires, f tae By Mr. Williamson: Tt yt Q. You have be actively connected with, the loading of the tank cars and.the shipment of them for a period of . years, have you not? ? Sys : A. .Yes. : Q. Have you ever had personal knowledge of the effect of a shipment ‘of oil where the tank cars were hot properly cleaned? he | - A, y es. oe / Ri Q. And what was the effect of that? A. The colors were, as I reeall—thére were some buyers! - ears that were shipped,. that were supposed to have been cleaned by the raitroad and were not supposed to have been cleaned by 1 ns, and the colors on arrival ranged from 4's [fol. 268] up to 71% in reds,-the contamination heing due solely to iron. - Q. The oil was accepted or rejected? oo A. Well, that problem was settled by our Sau Francisco — Office: I recall they complained on it.. Q. Now, what is your practice and has been ove r the years in regard to the loading of tank enrs at: your plants in Berkeley or, Oakland with Snowflake oil ini conneetion With the preparation of the cars for loading? A. Well, the cars are first inspected: immediate ly upon arrival and if they look as if they are too diffieult to clean, then we reject them and they are either replaced with a more suitable car or the railroad—it is taken back by the railroad and cleaned by them for further treatment bys Us, Q. Now, do you ever load any-‘cars with Snowflake” oll without previous cleaning of them by your Fr plant ? A. No; all cars are cleaned. 'Q. Now, can you safely ship your cocoanut oil without. such cleaning? ae A. No, we can’t. : (. And why? A. They will either be discolered as in this case, or it 6—428 ns oT washings with coconut oil, Snowflake coconut. oil? &2 es ro may contain rancid oil that will raise-the free fatty acid. ~ content above the standard amount. ; .Q.. All right. Now, are you familiar with ‘ue process of ‘cleaning your cars.at your plant? [fol. 269] A. Yes. Q. Will you deseribe it to thes-Examiner in detail? A. As I say, the first step is the inspection and if we see fit to clean them, then, we steam the ear out thoroughly to looser® any grease or any material that can be loosened by . steam. ¥ . 4). Interrupting you for a moment, you used the expres. , sion “if we see fit to clean them.’’ Is it optional with you. whether you clean them, or do you use that expression:‘‘ see fit to clean them”’ if the car is, in your opinion, capable of being cleaned? Is that it? a0 A. Yes, I use jt in that respect. We have rejected quite a few cars. (. All right/ After they are steamed and cooled dow! so that the caf cleaner can enter the car he washes them down with hot‘water and rinses them down véry thoroughly and then rinses them- déwn with Snowflake coconut oil. He then reinspeects the ear, goes over it very thoroughly and if no further trace of rust can be seen he then gives it . a final rinse with coconut oil and the ear is then pushed on the scale ready to be loaded. That oil that has been used in the rinsing goes to a’ séttiing tank where all the water is settl¢d out of it. It is then reprocessed and rebleached. It usually takes about, oh, between two and three thousand pounds of oil per tank car to wash it; that is on an average: [ fol. 270] some cars take a great deal more; some cars take a little less. : (). “Well, then, having inspected the car and having, what I was going to say, steamed it out, you give it one or more ._ A. Yes. ; Q. And in doing so you use approximately two thousand pounds of coconut oil for each car Washed? A. Yes. Q. And that coconut oil has the effect of. cleaning the ear and giving it, what I might call a coating, a glass coating’ 7 ° so as to make possible the shipment of your Snowflake coco- . nut oil without contamination? F > A. It not only does that: but it rinses out any moisture that-may he present and makes it thoroughly clean. ae ; : . 83 Q. All right.. Now, then, that has bee mn your practice over all the years that you hav e been there? eo A. Yes. , Q. Now, have you in Mningl the expense attendant upon .those operations ? \ A. It is $27—L have the list here-—it is $27.06 1s the ayy proximate figure. Q. Now, the approximate figure for what? A. That includés--do you wish what jt includes? Q. Yes; just that. approximate figure, $27, may be over a long period, over a short period or may be one car or may [fol. 271] be many cars. - think you ought to explain. : definitely. A. That is for the cost of six cars a day, figured on the cost of six cars a day; that i is What this cost is figured for. Exam. Sharp: Is it an average cost? ’ , The Witness: Average cost per car on six cars, cle: ining six cars a day. By Mr. Williamson: Q. And do you clean six cars a day? “- ‘A. Sometimes more. Q. But over the y years six is a fair average of what you clean? ; A. Yes, ‘ , Q. Now, it might he tnledcilies is the Examiner to know how, you arrive at‘that figure and if you have the details there will you explain them? A. Well, that includes—general superintendence is $1.50, labor includes two men at 82¢ an hour which comes up to ‘$13.12, air and water we figure at approximately %¢. Q. A little more slowly. : A. Air and water we figure at a little more than 906. Steam we figure 12,006 pounds at 30e.a thousand, 33.60; _ our Snowflake coconut oil -we figure 13,440 pounds at 1¢ a pound refining cost which is $134.40; our mee thanical de- . partment*average labor, tools and supplies, $3; our ar Washing equipment investment and de ‘preciation as $1.5 and then our San Francisco office supervision is $1,32. (). Now, those figures which you have given represent {fol. 2 272] the total cost for the cleaning of six cars? A. Yes. 0 “84 Q. And, davehacs, the: per ear cost would bé arrived. at _ | dividing. by six? ' A: Yes. Q. And in doing so you arrive at the’ figure _ you have stated a few moments ago? ‘ A. Yes. : -* Exam. Sharp: Well, when I said “average cast” T was thinking you meant $97, 66 per car. ah The Witness: 3: Yes, that is per ear. ties, this iiids up to—— ' By M. t. Williamson: Q. That is wl t it is, divided by ‘at A. Yes. ee ‘ _Exam. Sharp: I didn’t understand that was your ariswer to Mr. Williamson’s recent question. The Witness: That is $159.36, the total for six ears. Exam. Sharp: All right. Then, the $27.66 per car doesn’t mean on any particular day but you conside r that to he an average throughout the year? The Witness: Yes. Exam. Sharp: Off the saree (Discussion off the record. ) | By Mr. Williamson: \. Q. Now, Mr. Gilmore, you 1 spoke’ of using tigi thousand [ fol. 273] pounds of coconut oil approximately per car or thirteen thousand. pounds for six \ears and I watt to ask yeu if the figures that you have given do not cover the value. of that coconut oil — in the process of cleaning the ears? . A. No. i Q. It only covers the cost to the EI Dorado Oil W orks of refining or restoring that coconut oil with its contamination . derived from car irre back to a: usable condition, toes it not? A. Yes. - Q. And that i is what you epedie of when you say one cent refining cost? As Yop. es 2 4 : -¥ RH, = & .F . ‘ Exam. Sharp: Just a moment, now, please, Off the record, : pies ' (Discussion off the record.) Exam. Sharp: On the record again. A moment ago we were speaking off the record and you described the last item which was per car instead of yer SIX Cars, administrative expense, I believe it was. Mr. W illiamson: The San Francisco office. The Witness: Yes. * ‘Exam. Sharp: I just want to make sure that the ee : shows that the item of $1.32 indicated as San Franeiseo: office supervision was an item per car. [fol. : 274] The Witness: Yes. Exani. Sharp: Instead of per six cars. The Witness: Yes.’ Kixam. Sharp: That will make it all right. By Mr. Ww illiamson: Q. In your: opinion, Mr. Gilmore, is all of the expense that vou have detailed necessary’ in order to properly clean the tank ears fer the transportation of Snowflake coconut oil? A. It is absolutely necessary. o. ’ Q. And do vou. apply that same method of cleaning to «ll ears in which vou ship your Snowflake coconut oil? A. We may. vary the treatment for the more difficult cars. This is more of an average for our average car. Q. Yes. Well, without interrupting you, these figures “that you have given represent the necessary expense ine dent-to the proper’ cles aning of the average car? , A. Yes, a Q. And that, at ” ast, is the expense that you lave to ines os “in connection with all ears? ; A. Yes. Q. Some cars may require more cleaning? - A. Yes. Tes | (). And. that me: ims more expense? A. Yes, _ Q. But vou have not viven that fitrure to. the. Dy Xaminer? _ [fol. 275]. A. No. Q. That isn’t an average? ‘86 ‘ A. It is very variable. a Q. Now, I want to show you—— Exam. Sharp: Just one moment. Mr. Gilmore,-do you give this same treatment, cleaning treatment, to the gars that you have, under lease as you do to a car that might be furnished upon request. of your company) to the railroads? | > The Witness: Yes, but our cars are usually in much bet- ter condition. The cars that are furnished by the railroad usually require more cleaning. As an illustration of that, when we get a rusty car that the railroad has cleaned’ and allowed to stand it is necessary to soak it with coconut oil and let it stand overnight for the coconut oil to loosen. the rust. Then, that oil has, to be washed out and washed with acid to remove the iron from it; then, it goes through Jifs norimai treatment.-: Sal ae ae Q. Now, what kind of cars, which class of ears, that 3s, the leased ears or the ordinary run ef ears is it that requires the $27.66 average cost? ¢ _~ A» This is more the average of ‘the lot. Their cars are quite variable and we couldn't say that it comes down to.one car. . — Exam. Sharp: In reply to Mr. Williamson a few moments ago you said the.#27.66 did not include the worst cags. The Witness: Well, it includes the—the worst cars-—it in {fol. 276] cludes all the cars but-it doesn’t represent whiat the worst ears cost us. Exam. Sharp: Oh, no, but it is an average, tf Tunderstand correctiy, of all the cars? , , The Witness: Yes. 8 ‘Exam. Sharp: $27.66 per car?- The Witness: Yes. Exam.. Sharp: Otherwise, the cars that are quite clear wilfnot cost anything like that amount? | The Witness: No. . . : 3 Exam. Sharp: Whereas, the real rusty. ones will cost inere? ~ : The Witness: Yes. F Exam. Sharp: That. is all right. By Mr. Williamson: . . ~*~ zs s * 3 - dl . _ Q. Now, you mentioned a moment ago the cars*from the: railroad. “You do not mean to convey to the Examiner that ” A o any cars are furnished by. the-rhilroad carriers to the EL - £ % ee A > : % Si Dorado ‘Oil Works for the transportation . oP Siféwilake coconut oil? } : A. Pardon? °. * a. en ky _Q. No ears are furnished by the railroads for the trans- og of coconut oil? 436; A. No, they aren’t. They are cleaned by the railroad; some of them are cleaned by the railroad. , Exam. Sharp: Just a moment right there 1 1OW. ., When you arg ready to ship a consignment of coconut oil fol. 27 7] whonado you ask for the,car? , A. Ww e either—that i is our own car orit is ee “ he the buyer. Mr.° Williamson: J can make that clear, I thitk, Mr. ) aes - Examiner. -By Mr. Williamson: Q. I was going to ask, all of your, oil, of this oil, is shipped in either buyers’ cars pr your cars which are tered sellers’ cars? Se } See A. _ res. : : Q: And : you get no car from any other source? + A. No; they are either lease d by us or supplied by the buyer. : : . Q. All right. Now, then, the cars that are furnished to you for loading by the buye ‘rs nre-called taal Ciins? ‘A. Yes. 5 eo . &. And they are consigned to the plant e ee rat Berkele v or the Oakland lant! ?/ ° ‘ A. * ¥es, | * , , at Q. And on your sidings? . A. Yes. F : /.Q. And then at that point when they are In proper condr: tion they are loaded? - 7 ; A. Yes’ ie , : Q. Now, when you speak of the cars coming from the railroad yon mean thé cars that’are backed in or switche into your yard by the railroads? | [fol 278] A. Yes. sty Q. And they may be Procter & Gamble cars or Blanton cars or Colgate Pi ilmolive-Peet cars or Lever: Bros. ‘cars or any othey buyers” cars? ; A. Yes. : ey . *, * . . Q: And those.are the ones that you say supposedly have had some cleaning on the part of ‘the railroad. before they . come to yous ° : A. Some it toils have, yes. Exam. Sharp :- Well, now, I would like ‘to ask why either. a leased-car or a buyer’s car w oulddie subject to the expense of clegting being borne by the railroads? ay Mr. Williamson :” Subject to the expense?, Well, I think “the wittiess ean tel? vou and, Mr. Jeffrys can tell you. | think that the raikroad does give them a sort of a cleaning, , ‘washing, or something, but not the type of cleaning-thafwe | find it necessary to giv e them, in érde ‘r to prepare them to transport our oil," Now, [ think that we understand at least that the rail- roads do not in all sections of the country give their ears this superficial or primary cleaning but T understand that they do’ here generally vive. them—in the West C oast ‘vive “them some cleaning. The Witness :- It is the normal type of cleaning.® Mr. Williamson: You ask nie’ why the. carriers have to clean ch i don’t know. i [fol. 279] Exam. Sharp: I would like to get that in Evie dence. Why, if the car does not belong to the rpHroad and vou do not’ order jt from the. railroad should the railroad take ¢ any cleaning at-all? ae ee «Mr. Williamson: Well, we have made it clear, I believe, ‘that we*order no cars from fhe railroads, railroad cars forthe transportation of this Snowflake “oil. . The Witness: No. By Mr. Willimesen: ; ® e °(. All tight. Now, the oaly ears that you do load are either gour own which are called sellers” cars or those. furnished by your customers > which are Ci illed buyets’ car s! A. Yes. Q. And you. do elean all of those ‘ars? % “A, Y es, . e “ ‘ Q. In the mawner: yew have flegeribedt r A. Y CS... : “ge as . (). “Although some of those gars which are Spotted for you by the railroad and which dre buyers’ ears may have feceived some sort of cleaning at the hands of om ‘ailroad oe first? 3 , ‘ F . ; 89° e (). Now,-the Examiner has ore the ov; nittond Car hers’ do.that cleaning. Tassume that you cannot stite i any more than fean, U can't state it. , Exam. Sharp? .Let the Withess answer [fol. 280} Mr. Williamson: Yes, if he ¢ can : A. Well, I: belies rest is in the contract with the buvers’ ears'that they are to spot thy, that the railrozdtd that is to returit the ear loaded is to clean the ear, and then in some cases when we send it back to fhe railroad for cleaning it has sonie material in there that we ean’t clean out. You see, in Cleaning the cars, they ure caustic soda which is very strong and when they.was shit ont it produces rast, and unless they get the ear back to our tracks.within, say, twenty-four hours, why, it. is quitesrusty and, we have to Wash if, Dut it is. necessary to have that treatment ine use the car has been used for fish off or Chinese wood oil or some film forming oid prior, fo our receivi: ie it. exam. Sharp; Whret ae et was it vou re forred to? ‘The Witness; | believe ‘is the buyers ears. 1, don't ‘know what the contriict re ie form but Po believe that the buyer's car ahould beseleancd by the railroad prion te our Joading it, or may be cleaned, hy them... ; Exam. Sharp: if the ‘re ds such a contract it is he twee n * he. The Witness :, The railroad end, the buyer. : : Fxam. Shaft: The lessee Iuryen ¢ ho, it is between, the ear owner and the railroad COMP any Mr. Williamson: The buver. The Witness: Yes, ; ’ fol. 281]. Mr. Williamson: No: as J understand the wit ness, he says that when buyers’ cars are, delivered’ to us by: the railroads there ix afContract between the buyer furnishing the car and the railroad that the railroad will . retin it loaated his Superficial tion vou asked, clean the car, spot it at our thacks and and under that condition they do clean; vi or first cleaning of the cars which is the. qui I understand, , Kxam. Sharp:.Yes, but that vets right back to ane mee a question that Lasked., If the car does not belong to the r: att. road why should the railroad he chi urged. with the expense ‘of cleaning even if it is the buver’s car?) Why should there be-a contract between the buyer and the rqgeed for the, cleaning by the railroad of those private cars ¢ => 2 0 - _ Mr. Williamson: ‘Well; L think I can explain, help you a little bit on that. ; Exam. Sharp: I would like to ‘have you put that in by a witness in due time, if-you will. Mr. Williamson: I will; I will use Mr. Jeffrys, ‘Dart in the meantime to just answer the question, these large soap makers who utilize coconut oil and who send forward thei ears for loading buy talléw and fats ,of. other kinds and °° carry them in thase cars. ‘Consequently, when the car- come out to the coast for loading they have to be primar ily cleaned to remove the residual, if any, ¢f those ae commodities, the cominosities previously transported, agi, [fol. 282] as L understand it, the carriers are glad to wet the haul of the cars and, therefore, they undertake with the buyer who setids the car forward to do this cleaning: It is something. that we have nothing Whatever to,do with and - wwe only knoy it secondarily and that is what I said that | was, not able very clearly to answer your question. | Exam: Sharp: But you will undertake to.do that-by % witness? Mr. Williamson: Mr. eon knows more about it than Mr. Gilmore. . Exam. Sharp: All right: ° Mr. Fort: Mr. Examiner, I take it what has been said will not be regarded as evidence in connection with any con tract of the type réferred to because know nothing of an -contract of that kind art | would object to this ev idence which on its is hearsay or rumor or, something: af th | kind. I would object to its being accepted-as having any bearing on any question of any such contract as the one the -witness- referred to, that is, between the railroads and the buy ers: Exam. Sharp: Well, I believe the witness has not givers any information and, of course, what Mr. Williamson says is not evidence. ‘Mr. Fort: No, the witness: ue said something about it: I. don’t know just what. I object to it as evidence on that point. : Mr, Williamson: The witness has* said—— Mr. Fort: That he understands there is a contract. [fol. 283] Mr. Williamson : That he understarids the buy- ers » contracts with the railroad carriers. under which the rhilroad carriers agree to clean the cars, Now, I ad- mit the secondary or hearsay character of that téstimony. 91 I didn’t bring it-ont. PE thrmmines asked the que ation ‘and the witness answered it aecordine to his knowledge. Exam. Sharp: Yes, but the witness really doesn’t know. ° Mr: Williamson: He is there to fell vou er he knows. IL will ask him. Exam. Sharp: You keep iyterrupting the witness, Mr. Williamson, on those que uae You keep explaining the Witness’ testimony. Now, if the witness knows about the contracts, whye he cal say “ves. Tf he doesn’t know, he can say send: * : Do you know about such a contract? The Witness: Ido not know of tiny such contract, ne, Exam. Sharp: That will answer that question. | Mr. Williatuson: That is the line of fie stioning that the® Examiner opened up and Tam elad to wive youe vervthing we ean. Exam. Sharp: I thank vou. “Of Gourse, we want the wit ness to give the information. A We will take a few minutes recess. (A short recess -was taken.) ) lfol. 284] Jexam. Sharp: You may proceed, By Mr: Williamson: - Q. Returning to your figure, Mr, Gilmore, 827.66, do l si rstand, that that is the cost for cach car of cleaning That is the cost for each car. | toa t a So that each movement of the car requires a cle “anne at that expense? ' A. Yes sir. : Q. Now, have you any other wamplen of oil there?+ 1, notice you have: Wilf vou produce them? 1 will hand you that one. Will you identify that! , A. Thatis a sample of our Snawflake coconut oi! contain: ing one per cent of iron. o Exam. Sharp: H®w is it deseribed? ” The Withess: One per tent solution of iron Seap in Snow flake type coconut oil. Exam. Sharp: That is the.mark on 1 the container The Witness: Yes. . Exam, Sharp: Exhibit No. 6 marked for identification, (Exhibit Yo.,6, Ww ites: Gilmore, marked tor identifica- tion.). Mn « 92 By Mr. W illiamson: .Q. In other words, one per cent of what you call this iron soap or foreign matter in a unit of coconut oil produced that . result, that chanve in-color in the oil? [fol. 285] A. Yes. Mr. Fort: Is that one per cent iron soap or one per cent ~ iron? | The Witness: Tht is one per cent of iron. Imall these caleulations the percentage is “as iron, bee vause the iroti ios varies according, to the. yeret table oils that it is m: ide m. ixam. Sharp: Nov, I notice the skihat i is labeled **One Pér Cent Solution Tron ee in ae. Type Coc ‘onut Ou’. « hé Witness: [t is eatvalicted us iron; I should ad tha = to the label. Exam. Sharp: Is’ the word woes? a proper part of the label? * The Witness: Weil, it is in the form of iron soap. Mr. Fort: But the percentage, is calculated on the iron, not on the iron soap? - The Witness: Yes, | | By Mr. Williamson: © -- | cs oe (). In other words, it is iron soap only because with the other components it makes that result? A. Yes. a) Q. Have you another sample of the effect of foreign matter upon coconut oil moved in steel tanks or tanks? A. Well, this is a sample of coconut oil th at ha& been actually discolored div shipping it in an uneleaned. iron [fol. 286] dram, a drum shipped by us and was not cleaned and this is the actual resnit. It is a sample received from Grace & C ompany in Central America. Q. That is a’shipment of your oil which was ide 3 in a steel drum? ; A. Yes. - Q. For Grace & Company to ( ‘entral America avhich drum was not cleaned and the result was the discoloration shown ‘in that exhibit? ‘A. Yes. Mr. Williamson: I believe that is No. 7, is it? Exam. Sharp: It will be identified as Exhibit No. 7.‘ s . nae 3 (Exhibit Xo. r Witne ‘ss Gilmore, marked for identifiea- tion.) By Mr. Williamson : are ae “ae Q.) Now, Mr. Gilmore, the etfects that you have deser ibed as to ‘dies ‘oloration ance an ine pease of acid ane so on are ‘in Your festimony lintited to coconut oil? An other words, vour statements for flfé Examiner fhis morning have been: directed and have been limited. to coconut oil? You-have not dealt with any other brand of oil? . , | = No, The coconut+—— fe Now, is, in your opinion, coconut oil subject to a ditfere nit ol: assification with respeet to color and acids from Lfol. 287] other oils? A. Yes, it is. (). Will sou explain that? Exam. Sharp: Just a minute, Mr. Williamson. Will vou let him answer?) He started to answer the question ‘no’, I believe the way the question is put ‘no’? is nota complete answer, : Will, you read Myr. Willi: auison’s previous question? (The, question referred to Was read by the reporter as follows: * ~~ By Mr. Williamson: “Q. Now, Mr. Gilmore, the effects that vou have deseribed as to discoloration and an inerease of: ae id and so on are in your testimony limited to coconut oil? in other words, your statements for the Examiner this morning have been directed and have. beer limited to - coconut oil? -You have not dealt with any other brand of oil? ‘‘A. No. The coconut ——~’?) Exam. Sharp: That ‘is sufficient. Answer. that question, please, completely. The Witness: Welb, most othe ‘roils aré not séld with such a high color specification that we have, or such a good ‘color specific ation, Asa consequence, they may not require [fol. 288] the same treatment and, in addition, coconut oil is @mueh better solvent fer iron than many other vegetable ‘oils. Linseed oil is not nearly as affected by iren as @oco- nut oil i ; ° 4 Exam. Sharp:. That is sufficient. . Mr. Willigmson: Twas trying to develop that Classilies tion which the witness has. now developed himself, I think that is all, Mr. Examiner. ‘Exam. Sharp: Any cross ‘examination ?, ee (‘ross-examination, By Mr. Fort: Q. Mr. Gilmore, what ifvou ship aside from this Suow _ flake oil? | A. We ship’ Linseed oi! trom our Berkeley plant on special order. On special order we have shipped certain special grades of coconut oi| with different color specifica tions. Q.. Tam talking now about this period #934, "35 and “6. All my questions shall be directed to that period unless | expressly state they cover some other period. Ts youn, ‘answer directed to that period also? . A. Yes. At that period I believe we also shipped some hempseed_ oil. Q. Did you ship only coconut oil in your so-called leased cars? Mr. Williamson: Did you say **shipped ingyour so-called leased cars’??? [fol 289] Muy. Fort: Yes. A. Yes, I believe we did. By Mr. Fort: Q. You shipped no other kind of oil in your leased cars exgept coconut-oil? - : "AL I don't recall airy other types of oils. (). Is all of your coconut oil Snowflake? A. NG.’ (). What other coconut oil do you ship? A. We also ship our Super ¢ ‘ochin grade that I mentioned . before of which this is a sample. .Q. Do you ship any other except those two grades? Exam. Sharp: Now, just a moment, when he said ‘ which this a sample’’, are you going to. offer that as an vexhibit? Mr. W iliamson: 1 will: if Mr. Fort doesn’t want, to, we will. , ~ OW Exam. Sharpe: Well, if he speaks about this we. have to —-- Me , . Mr. Williamson: Yes, T noticed that. We would ask * it to go in aX Exhibit 8. Exam. Sharp: The bottle containing ofl [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386450_0084%3A01. Public record. Not legal advice.