The opinion of the court was delivered by: KNOX
This is an action brought by plaintiff Quaker State Oil Refining Corporation (hereinafter Quaker State) to review and set aside orders of the Interstate Commerce Commission in Docket No. 36092, entitled Quaker State Oil Refining Corporation v. The Baltimore and Ohio Railroad Company. In this action, Quaker State filed a complaint alleging that the rates charged by the railroad company (herein B&O) on shipments of petroleum products from St. Marys West Virginia to Emlenton and Farmers Valley Pennsylvania in this district were inapplicable and that a refund of $ 93,474.70 was allegedly due the plaintiff as the result of overcharges.
The administrative law judge had originally found in favor of the complainant after submission of the case on written evidence followed by oral cross examination of the traffic manager for Quaker State.
To the initial decision B&O filed exceptions and thereafter on December 30, 1976, division 2 of the Commission issued a final report and order reversing the decision of the administrative law judge and dismissed the complaint. A petition for review was filed but rejected by the Commission. Thereafter, on May 19, 1977, Quaker State filed its complaint in this court seeking a review of the Commission's order. The B&O was permitted to intervene as a defendant in the proceeding and answers were filed following which the defendants United States and ICC moved for summary judgment. The case has been thoroughly argued and considered on the briefs filed setting forth the positions of the respective parties. Needless to say the B&O supports the position of the government in this case.
Jurisdiction to review this matter by a single district court judge is found in 28 U.S.C. § 1336(a) which provides as follows:
"Interstate Commerce Commission's orders (a) Except as otherwise provided by Act of Congress, the district courts shall have jurisdiction of any civil action to enforce, in whole or in part, any order of the Interstate Commerce Commission, and to enjoin or suspend, in whole or in part, any order of the Interstate Commerce Commission for the payment of money or the collection of fines, penalties, and forfeitures."
Notwithstanding the fact that this is not an order for payment of money or refund of overcharges, although such relief was refused by the Commission, the U.S. Supreme Court has held that review of such an order was subject to judicial review in the district court and did not require a three judge court. See U. S. v. ICC, 337 U.S. 426, 69 S. Ct. 1410, 93 L. Ed. 1451 (1949). It is still true that appeals orders in such cases granting or denying reparations or other orders of the ICC involving payment of money or collection of fines are matters to be considered by the single judge district court. While 28 U.S.C. § 2321, as amended in 1977, provides for review of the Commission's orders generally in the courts of appeals, nevertheless an order of this sort is still to be reviewed by a single judge district court. See Island Creek Coal Sales Co. v. I C C, 561 F.2d 1219 (6th Cir. 1977).
Orders other than those involving monetary matters are of course now subject to review only by the Courts of Appeals under the 1975 Amendments. See Act January 2, 1975, P.L. 93-584.
The difficulty arises in interpreting certain tariffs filed by the B&O. Tariff 49(g) provides for petroleum partially refined:
"Petroleum, partially refined, suitable for mixing, blending, compounding and/or refining into products having commercial value only as a petroleum product containing more than 51 percent petroleum base, carloads, in tank cars, estimated weight 6.6 pounds per gallon, subject to Rule 35 of Uniform Freight Classification and minimum weight provided therein for cars for not less than 20,000 gallon capacity, but, in no case less than 132,000 pounds per car . . ."
This item, in a partially refined petroleum product suitable for refining into products having commercial value, is subject to Item 290 which provides incentive rates for shipments in excess of the first 10,500 gallons on shipments of certain petroleum products. Item 290 provides as follows:
"On shipments of petroleum products as described in items 77240 (except Petroleum Naphtha and Petroleum Naphtha Distillate), 77250, 77290 and 77310 of the Uniform Freight Classification (see Item 5), tendered in tank cars having capacities from 15,000 to 22,500 gallons, subject to estimated weights or actual weight (Rule 35 of Uniform Classification), charges will be computed as follows:
(1) On the weight of the first 10,500 gallons in the tank car, apply rate as published in tariff. (For gallonage in excess of 10,500 gallons, see (2) below. (2) On the weight of the gallonage in the tank car in excess of 10,500 gallons, where the rate under (1) above is shown in Column A below, apply rate opposite thereto in Column B below. (Appendix B of initial Decision).
It is noted that in order to come within the incentive rate provided in Item 290 the commodity is limited to petroleum products described in Item 77240, 77250, 77290 and 77310 of the Uniform Freight Classification. Neither item 77240 which excepts naphtha and naphtha distillates nor items 77250 and 77310 is applicable. The parties all agree that the controversy, however, arises over 77290, which provides as follows:
"Lubricating oil, in metal cans in crates, or in bulk in barrels, in metal cans completely jacketed, in steel pails, in glass or metal cans in barrels or boxes, in kits or in Packages 488, 577, 589, 791, 1234, 1356, 1367, 1373 or 1442; also CL, in tank cars, Rule ...