therefore, it cannot be found that the public has abandoned its need for these trains, a view that is further supported by the large number of public witnesses opposing proposed discontinuance.--Northern Pacific Ry. Co. Discontinuance of Trains, 336 I.C.C. 7 (38-40). 25. Losses from operation.-Subject trains operate at a substantial loss due to drop in mail revenues and a decline in passenger revenues. Remaining mail revenues are insufficient to support passenger operations and passenger revenues would have to double to offset losses. There is no probative evidence of downgrading of service and, accordingly, operation of subject trains is ordered discontinued.--Erie Lackawanna Ry. Co. Discontinuance of Trains, 336 I.C.C. 206 (234-5). Inasmuch as applicant is in strong financial condition, in part due to land grant holdings, and as its passenger revenues would have been more substantial in the absence of its deliberate downgrading of service, Commission cannot find applicant's undeniable losses to be an undue burden on interstate commerce.--Northern Pacific Ry. Co. Discontinuance of Trains, 336 I.C.C. 7 (40-41). Computation; out-of-pocket costs.--Applicant's estimated savings from proposed discontinuance are overstated inasmuch as applicant would still incur the costs of transporting free passengers, and the considerable amount of company mail and materials presently moving on subject trains.-Penn Central Co. Discontinuance of Trains, 336 I.C.C. 518 (525-6). Commission reaffirmed its finding in 320 ICC 440, 453, that maintenance-of-way and structures expense is not properly includable as operational savings. Also, maintenance of equipment expenses, various taxes, rents, and expenses for transportation not eliminated by this proposal are nonsavable costs.--Chicago South Shore & S. B. R. Discontinuan 336 I.C.C. 454 (463-5). To the extent that express revenue has been shifted from subject trains to applicant's freight service, applicant's ability to continue operating the subject trains has not been significantly reduced. Further, applicant's projected savings in labor costs is overstated as most of the involved employees enjoy a protected labor status and such savings would not be realized immediately.--Penn Central Trans. Co. Discontinuance, 336 I.C.C. 416 (439, 450-52). Inasmuch as subject trains ran only 180 days during the year on a reduced schedule, applicant's depreciation figure based on 1 year's service is overstated. Also, expenses have not been based on the actual number of cars essential to the operation and should be reduced.--Chicago, M., St. P. & P. R. Co. Discontinuance of Trains, 336 I.C.c. 105 (116–7). 35. Orders of the Commission.--There is no merit in plaintiffs' contention that Commission order permitting Baltimore & O. R. to discontinu two passenger trains between Chicago, Ill., and Akron, Ohio, should be reversed because the financial condition of Chesapeake & 0. Ry., which owns 94 percent of B&O's stock, was not made part of the record. Although three recent years. And since the Commission in effect found (with support in the record) the demands of public convenience and necessity to be slight, it was not required to make an extensive examination of B&O's financial condition. Order of the Commission, sustained.--Public of State of Indiana v. United States, 325 F. Supp. 1223 (1227)*. §15 (6). COMMISSION TO ESTABLISH JUST DIVISIONS OF JOINT RATES, FARES, OR CHARGES; ADJUSTMENTS Construction 7. In general.--There is no statutory or other legal requirement that Commission find, as a prerequisite to using relative costs of service as basis for prescribing new divisions of joint, interterritorial rates, that higher costs of one group of participating carriers result from inherent territorial disadvantages. Congress enacted $15 (6) with sweeping authority so as not to restrict Commission's determination for such divisions to comparisons of costs of service or other factors.--Official--Southern Divisions, 337 I.C.C. 74 (92-3)*. $17(6). REHEARING, REARGUMENT, OR RECONSIDERATION OF DECISIONS, ORDERS, AND REQUIREMENTS 10. Rehearing, reconsideration.--The usual rule on remand is that the agency involved is free to adopt whatever procedures may be necessary to correct deficiencies exposed in a prior order (see 344 US 17) and Supreme Court's decision imposed no requirements for any further hearings to receive additional evidence and record herein warrants no further hearings but only adjustments in those cost items found inadequate by the court.-Official--Southern Divisions, 337 I.C.C. 74 (80-84)*. 20. Reversal, change, or modification.--On reconsideration, the Commission adjusted three cost items involved in divisions of joint interterritorial rates which were found deficient by the Supreme Court and prescribed new, just, reasonable, and equitable decisions of such rates.-Official--Southern Divisions, 337 I.C.C. 74 (85–96)*. $20 (11). LIABILITY OF INITIAL AND DELIVERING CARRIER FOR LOSS; LIMITATION 6. State laws superseded.--General character of the Carmack Amendment clearly shows that Congress intended to take control of the subject of a carrier's liability under a bill of lading which it must issue, and to supersede all state regulation with reference thereto; and when Congress acted in such a way as to manifest a purpose to exercise its conceded authority, the regulating power of the State ceased to exist, [226 US 491.] Thus, in shipper's suit against railroads (filed in State court and removed to U. S. court) alleging liability for loss of cotton shipment, destroyed by fire, in two counts-the first a common law count and the second a statutory count under the Carmack Amendment-the federal law had preempted common law suits of the nature stated in the first count. Accordingly, since both counts in plaintiff's suit state a cause of action for damages for violation of railroads' contract for interstate carriage of goods, the lower court should have dismissed the common law count as to both railroads.-W. D. Lawson & Co. v. Penn Central Co., 456 F. 2d 419 (421−4). Actions 115. In general; time for.--On appeal from district court judgment against the two defendants in shipper's suit against initial and delivering railroads, originally brought in Tennessee court, alleging liability for loss of cotton shipment (destroyed by a fire in Ohio) in two counts--the first a common law count and the second a statutory count under the Carmack Amendment-service of process upon both defendants was valid under Tennessee statute providing for service on foreign corporations and associations which have offices and agents within the state. Although neither corporate defendant operates a line of railroad in Tennessee, both have offices and agents available for service in Memphis, as does corporate shipper; and under the state law, shipper could validly sue nonresident defendant railroads in Tennessee court for damages to considered shipment which occurred outside the state boundaries.--W. D. Lawson & Co. v. Penn Central Co., 456 F. 2d 419 (420-1). As the Supreme Court held in 226 US 491, however, the Carmack Amendment preempted the field of law relating to carriers' bill of lading liability for interstate shipments. Thus, since the common law count in shipper's original state court complaint is a suit for damages for violation of railroads' contract for interstate carriage of goods--there being no apparent distinction between nature of that count, or relief sought thereunder, and that stated or sought under the federal statute-the Carmack Amendment preempted the common law action; and the district court erred in not dismissing the common law count as to both defendants. Accordingly, since the court properly dismissed the statutory count against delivering railroad on ground that a receiving carrier could not be sued under $20 (11) in a state where it did not operate a line of railroad, the complaint should be dismissed as to that carrier.--Id., pp. 421-4. District court had jurisdiction, however, in shipper's action under $20 (11) against initial railroad who issued its bill of lading for the interstate shipment; and in view of the practical identity of the two counts, it error in submitting the common law count to the jury was harmless Furthermore, contrary to railroads' argument, maintenance of the suit in Tennessee did not impose an unreasonable burden on interstate commerce; all the parties had offices in the state and county where suit was filed and, under the Carmack Amendment, suit could have been brought in many jurisdictions where convenience of the parties would be no better served than they were in Tennessee. Lower court's judgment vacated as to delivering carrier and affirmed as to defendant initial railroad.--Id., p. 424. 116. Venue. While neither of nonresident defendants operates a line of railroad in Tennessee, both have offices and agents in Memphis, as does plaintiff shipper; and under Tennessee law providing for service of process on foreign corporations and associations which have offices in the State, shipper could bring a valid action in state court against initial and delivering railroads ro recover damages for loss of cotton shipment that was destroyed by fire outside that State. Therefore, defendants having removed the case to federal court in Tennessee, while reserving their objections to venue, shipper's Carmack Amendment could be maintained there against initial carrier who issued the bill of lading; however, the district court properly dismissed the statutory count against delivering railroad on the ground that, under specific language of the Carmack Amendment, a receiving carrier could not be sued in a state where it did not operate a line of railroad.-W. D. Lawson & Co. v. Penn Central Co., 456 F. 2d 419 (420-1, 423). $20a (2). ISSUANCE OF SECURITIES; ASSUMPTION OF OBLIGATIONS; AUTHORIZATION Assets and Expenditures Capitalizable 25. Assets capitalizable, generally.--In this §20a proceeding the traditional tests for determining capitalizable assets of operating carriers are not applicable where applicant, a nonoperating carrier, had leased all of its carrier operating properties to others and continued as a real estate investment trust whose present function was solely rent collection.-Pittsburgh & W. Va. R. Trust Certificate, 336 I.C.C. 530 (533-5). Stock 100. In general.--Proposed issuance of shares of beneficial interest approved. Applicant has leased all its properties and now operates as a real estate investment trust and the transaction herein will enhance applicant's ability to perform its duties under the lease or in the event of termination of the lease.--Pittsburgh & W. Va. Trust Certificate, 336 I.C.C. 530 (535). PART II $202 (b). STATE REGULATION OF INTRASTATE COMMERCE 20. Operation in intrastate commerce.-Where traffic originating at and destined to points in the same State is transported over routes partly in the State, and partly in another State, such routing, not being circuitous, is required to permit processing of essentially less-than-truckload traffic through a principal terminal, and such traffic represents only a small portion of the total, defendant found not to have been engaged in unlawful operation.-Pennsylvania P. U. C. v. Arrow Carrier Corp. 113 M.C.C. 213 (220). $203(b). VEHICLES EXCEPTED FROM OPERATION OF LAW 32. Transportation of school children.-Regulation (49 CFR 1047.2) adopted providing that "§203(b)(1) of the Interstate Commerce Act shall not be construed as being inapplicable to motor vehicles being used at the time of operation in the transportation of school children and teachers to or from school, even though such motor vehicles are employed at other times in transportation beyond the scope of the exemption."-Schoolbus Exemption, 113 M.C.C. 258 (288, 293). 56. Wrecked vehicles, emergency towage.--Transportation of accidentally wrecked or disabled motor vehicles in interstate commerce by towing found not to be exempt emergency transportation, as defined in $203(b) (10) of the Interstate Commerce Act, if those motor vehicles are transported from points other than the actual scene of an accident, even if the same motor carrier performs the service from the accident scene to the point from which the second movement originates.--Fairall Common Carrier Application, 113 M.C.C. 238 (245)*. Applicants in proceedings wherein authority to transport wrecked or disabled motor vehicles is sought cannot be strictly held to proving each of the elements of proof set forth in 103 MCC 555, 557, inasmuch as the sites and frequency of accidents as well as the locations to which these vehicles are thereafter brought, are not susceptible of proof with any high degree of certainty.--Little Extension, 113 M.C.C. 300 (303)*. In application proceedings wherein it must be determined whether the proposed towing of accidentally wrecked or disabled motor vehicles is within the exemption of $203 (b) (10) of the Interstate Commerce Act, inference in the evidence that the transportation would originate at points other than the actual scenes of accidents may be found sufficient to establish that the proposed operations are not within the purview of the statutory exemption.-Ford Common Carrier Application, 113 M.C.C. 193 (197)*. 60. Commercial zones. Atlanta: Petitioners sought to add an approximately 8.18 square mile area located entirely within DeKalb County, Ga., to the present Atlanta commercial zone. Review Board No. 3 found (1) that a large proportion of the proposed area is not specifically described, but is alleged to be undeveloped commercially, and (2) that the evidence does not establish that the commercia enterprises in the proposed area were economically dependent upon Atlanta. petition was denied.--Commercial Zones and Terminal Areas, 113 M.C.C. 522 (525-26)*. Cincinnati: Petitioner sought inclusion of certain specified areas in Ohio and Kentucky adjacent to the limits of the Cincinnati, Ohio, commercial zone. Review Board Number 3 found (1) that the proposed areas in Ohio were not economically and commercially a part of Cincinnati, (2) that the area surrounding the Greater Cincinnati, Airport in Boone County, Ky., and Cold Spring, Ky., are economically and commercially related to |