in the past as a basis for an action in court for the recovery of damages. This question has recently been reviewed by the entire Commission in Bell Potato Chip Co. v. Aberdeen Truck Line, 43 M. C. C. 337, wherein it was found that the Commission has jurisdiction to make an administrative determination of the lawfulness of rates charged by motor common carriers on past shipments. As a further ground for dismissal, the defendants contend that the complaint was not filed seasonably. There is no statute of limitations in part II of the act, and no reference is made of record to any statute which limits the time within which these claims may be filed. The motion is overruled.

The shipments were received for transportation by Conklin at Tecumseh and were delivered at Minneapolis between February 28 and June 8, 1939, inclusive, by United Shipping Company. The defendants collected charges based on the fourth-class or column 50 rates of 75 cents prior to March 28, 1938, and 83 cents thereafter, minimum 20,000 pounds. The complainant contends that the applicable rates were the corresponding column 40 rates of 60 and 66 cents.

The articles shipped were rated column 40, volume minimum 24,000 pounds, in the governing classification, and by exception thereto the minimum was reduced to 20,000 pounds. When the shipments moved the applicable class-rate tariff, so far as here material, contained the following rule:

APPLICATION OF CLASS RATES

Except as otherwise provided herein, articles ordinarily entitled under applicable rating to rates lower than those provided herein between specific points, will be accepted and charges assessed on basis of the lowest class rates provided in this tariff between such specific points via the carriers handling the shipment from point of origin to final destination, provided however, that articles rated lower than fourth (4) class will be accepted and charges assessed on basis of the fourth (4) class rate provided herein. See Note.

NOTE-On shipments from or to points in the States of Connecticut, Delaware, Maine, Massachusetts, Maryland, New Hampshire, New Jersey, New York (except points taking Buffalo group), Pennsylvania, (except points taking Pittsburgh group), Rhode Island, Virginia, Vermont and West Virginia, class three (3) or 70 will be applied on less truckload shipments. On truckload shipments, minimum weight 18,000 lbs., class fifty-five (55) will apply.

As the tariff provided column 40 rates for articles so classified, complainant contends that the rule had no application except when the articles shipped were rated lower than the lowest classification for which rates were provided. The defendants contend that the words "Except as otherwise provided herein" refer to the proviso requiring the application of fourth class as a minimum and, therefore, in this instance nullified the remainder of the rule, and established fourth class as the minimum basis. Under this interpretation, fourthclass rates would be the minimum basis for all joint-line movements.

The defendants refer to the history of the rule in support of their claim that they intended to establish fourth-class rates as the minimum basis. When the tariff was established on June 25, 1937, it contained substantially the same rule as herein quoted except that it did not have the "note"; and the proviso read as follows: "provided however, that on shipments moving via two (2) or more motor carriers, articles rated lower than fourth (4th) class will be accepted and charges assessed on basis of the fouth (4th) class rate provided herein, and on truckload shipments at the authorized truckload minimum weight applicable." At that time, the fourth-class rate was the lowest rate maintained from Tecumseh to Minneapolis and was, therefore, applicable under the rule itself or the proviso.

On October 22, 1937, the tariff was supplemented by the addition of column 40 and column 45 rates between Tecumseh and Minneapolis, among other points, and the proviso was amended by omitting the reference to truckload shipments, above mentioned, and adding the following:

Except when destined to points in the states of Illinois, Indiana and Michigan (Lower Peninsula) St. Louis, Mo., and Louisville, Ky., and originating at Minneapolis or St. Paul, Minn. Class Forty (40) rates will apply.

The defendants contend that the column 40 rates were established at that time because the rule permitted the application of such rates under the exception last above quoted, and infer that the column 40 rates were applicable only in connection with the exception. The column 40 rates established, however, were published to apply "between" and not from and to these points.

Effective February 20, 1938, the rule was amended to read as above quoted in full. The defendants urge that this rule by eliminating the exceptions also eliminated the application of the column 40 and column 45 rates, although such rates were not canceled.

We are unable to agree with the contentions of the defendants. Their interpretation would require that the word "herein" in the first phrase of the rule be construed to refer only to matter within the rule itself. This would be inconsistent with the clear meaning of the word "herein" as subsequently used in the same rule to refer to the tariff as a whole. If defendants' construction were adopted, the proviso, instead of qualifying the rule to which it is attached, would become independent of the preceding subject matter. The rule provides that articles entitled by their ratings "to rates lower than those provided" in the tariff will be charged at "the lowest class rates provided in this tariff." The evident purpose of the rule was to provide a basis of rates for articles which were rated lower than the lowest classification for which rates were provided in the tariff. For example, an article

rated column 35 would take fourth-class rates. That situation did n exist in connection with those shipments as the "applicable ratin (column 40) was not lower than the "lowest class rates provided" the tariff.

We find that the rates assailed were inapplicable, and that the c umn 40 rates, minimum 20,000 pounds, of 60 cents prior to March 2 1938, and 66 cents thereafter, were applicable. The complaint w be dismissed.

43 M. C. C

No. MC-C-3521

ELL POTATO CHIP COMPANY v. ABERDEEN TRUCK LINE ET AL.

Submitted September 30, 1943. Decided April 4, 1944

In No. MC-C-352, applicable charges on less-than-truckload shipments of potato chips from Portland, Oreg., to points in Idaho and Washington determined.

The Commission has jurisdiction under part II of the Interstate Commerce Act to make an administrative determination of the lawfulness of charges on past shipments. Procedural method to govern the filing of such complaints outlined.

. Rates assailed in No. MC-C-352 found unreasonable in the past and for the future. Reasonable rates prescribed for the future.

In Investigation and Suspension Docket No. M-2119, proposed less-thantruckload rating on potato chips between points in the Pacific Northwest found just and reasonable. Proceeding discontinued.

5. Rules providing for determination of charges on so-called light and bulky shipments based on constructive weights per cubic foot of space occupied by shipment found to violate requirement of reasonable classification and to be unjust, unreasonable, and unduly prejudicial.

William C. McCulloch, Frank S. Clay, Ralph L. Shepherd, and Evelyn N. Cooper for complainants, interveners in behalf of complainants, and protestants.

Arlus C. Morris and John M. Hickson for defendants and respondents.

REPORT OF THE COMMISSION

ALLDREDGE, Commissioner:

Exceptions were filed by the complainants, protestants, and intervener to the separate recommended orders in these proceedings, and the defendants and respondents replied. Our conclusions differ somewhat from those recommended.

By complaint filed November 9, 1942, in the title proceeding, George E. Sabin, Gladys Sabin, and Vera L. Sabin, copartners, doing business as Bell Potato Chip Company, of Portland, Oreg., hereinafter termed Bell or complainants, allege that the defendants' rates and charges on shipments of potato chips, hereinafter termed chips, in boxes, in less than truckloads, from Portland to points in Idaho and

This report also embraces Investigation and Suspension Docket No. M-2119, Potato Chips in the Pacific Northwest.

Washington, by reason of certain tariff rules and regulations relating to light and bulky articles, were and are inapplicable, unreasonable unjust, and unlawful, in violation of sections 216 and 217 of the Interstate Commerce Act. Complainants seek determination of the applicable charges and the reasonableness thereof, cancelation of the defendants' present rules respecting the freight charges on light and bulky articles, and reasonable rates for the future.

In Investigation and Suspension Docket No. M-2119, by schedules filed to become effective October 20, 1942, and later, motor common carriers parties to agency tariffs proposed to establish a classification exceptions rating of one and one-half times first class, indicated as resulting in both increases and reductions, on chips in boxes, in less than truckloads, between points in Idaho, Oregon, and Washington. and between such points, on the one hand, and certain points in Colorado, Wyoming, Montana, Utah, and British Columbia, on the other. Upon protest, the operation of the schedules was suspended until May 20, 1943, and their effective date has been postponed indefinitely. Rates will be stated in amounts per 100 pounds.

There is a substantial identity of parties in the two proceedings. The complainants in the title proceeding are protestants in the suspension proceeding. The Portland (Oreg.) Traffic Association, the Seattle (Wash.) Traffic Association, and the Office of Price Administration intervened in behalf of the complainants in the title proceeding and also opposed the proposed schedules. The defendants in the complaint proceeding are 54 motor common carriers, parties to one or more of the agency tariffs containing the suspended schedules and the rates under attack in the complaint. These carriers, as well as other motor common-carrier members of the Pacific Inland Tariff Bureau, Inc., are the respondents in the investigation and suspension proceeding. Hereinafter, the terms defendants and respondents will be used synonymously, and reference to complainants will include the interveners and the protestants.

Garrett Freight Lines, Inc., one of the defendants in the complaint, contends that the complaint should be dismissed as to it because the rules providing for the charges on light and bulky articles, by specific tariff restriction, are not applicable on shipments transported over its local routes. The rules would apply, however, on shipments moving over through routes in connection with Garrett, and it is, therefore, a proper party. Only two of the defendants have demanded charges based on the rules applying on light and bulky articles. The remaining defendants, however, participate in the tariffs containing the rules and, therefore, are proper parties.

Bell has been manufacturing chips at Portland since 1930. Exclusive of the chips distributed locally in Bell's equipment in the vicin