must help defray the P&PU's actual costs under the contract which costs are not absorbed by the static rental figure or other contract provisions.

While the C&NW correctly contends that the contract contains provisions for charges for ancillary services (i.e. use of roundhouse facilities, terminals, et cetera) it is abundantly clear that, as a tenant and owner, the C&NW is the recipient of numerous "hidden benefits" for which no special payment provisions are made. These benefits are admittedly elusive and it may be difficult to place a value on them (i.e. the right to the use of all of P&PU's present and future facilities thus eliminating any need for the C&NW to maintain its own costly structures, the lesser costs accruing to the C&NW in its use of certain services in other districts because of the tenant's contracts in those districts, the right to appoint a member to the board of directors, et cetera) but they undeniably exist and we must assume that their value is not static. 15 Therefore since the annual rental charges do not vary and have remained at the same figure for about 66 years, the "hidden" benefits must be absorbed by other provisions notably those attacked here.16

In this regard we note that complainant asks that we revise two portions of the contract without justifying how these provisions can be separated from the remainder of the contract without destroying its essense or rendering the resulting terms "unreasonable." Here we refer specifically to the set rental sum which appears interdependent with the remaining provisions including the two attacked here. As stated above, the contract was negotiated with each part and parcel in the overall context, and each provision must be viewed in the context of the overall contract in order to assess its reasonableness. This consideration confirms our conclusion that the pertinent provisions are not per se unreasonable and, moreover, that the circumstances do not warrant a finding that said provisions are unreasonable in the context of the whole contract.

Not only has complainant failed to show that the provisions and accompanying charges are unreasonable, but it has also failed to show that they are discriminatory and thus violative of 49 U.S.C. 10701 and 10742 [formerly section 3(4) of the act]. For the

"The C&NW argues that these lower charges are not relevant to our consideration of the matter at hand. We fail to follow this assertion as it is evident that the charges are part of the total picture we must view here.

We observe that in Chicago S. S. & S.B. R., supra (see footnote 14), the rental figure is not static and thus can absorb fluctuating costs not otherwise specifically covered. In these circumstances the other provisions can reasonably be computed on an actual wheelage basis. Such is not feasible here since the rental is permanently set.

purposes of discussing the principles of that section we will again assume that the P&PU is a "connecting carrier."

C&NW's allegations of discrimination are based on the premise that a carrier must treat all of its connections alike in regards to through routes and rates. This premise is incorrect. Equality of treatment between connecting carriers must be determined in light of similar circumstances and conditions. In other words the only practicable method of determining if a carrier is discriminating among its connecting carriers is by comparing its relations with connecting carriers sharing similar positions. In this regard it has often been held that carriers must conduct similar operations under similar circumstances before their treatment by a connecting carrier can be efectively compared. Cf. Routing, Coal From Origins on Louisville & N. R., 313 I.C.C. 752, 758 (1961) and Western Pacific R. Co. v. Camas Prairie R. Co., 316 I.C.C. 795, 808 (1962).

Here we are virtually uniformed of these pertinent facts regarding the numerous carriers utilizing the P&PU facilities and thus the C&NW has failed to justify the requested "equality" of treatment. At any rate we feel that the principle cited above must be even further refined in the circumstances of this case.

Recognizing that we can compare only those carriers occupying similar positions, we agree with the P&PU that we must only look at the C&NW's position vis-a-vis other tenants and owners. It is obvious that as an owner and tenant, the C&NW has more extensive rights and obligations than nontenants. In these circumstances it would be unsupportable to conclude that the C&NW is discriminated against merely because the involved charges are not based on actual, per se useage. Moreover, the nontenants do not even pay any charges comparable to the contract provisions which are attacked here. Simply stated, the status of the tenants and owners vis-a-vis the nontenants is too dissimilar to be compared in the manner suggested.

As to other tenants and owners, we are not convinced that the C&NW's position is any less favorable than the others. While the C&NW points to certain apparent variations in treatment they appear limited and, moreover, it is apparent that we must look at the total situation in these circumstances where we are dealing with contract and ownership rights and obligations.

Assessing the complex relationship between the C&NW and the P&PU, as well as both those carriers relationships with the remaining tenants and owners, which relationships involve a myriad of rights and obligations throughout all the districts, we fail to

perceive any discriminatory pattern. The C&NW's vague arguments are insufficient to persuade us to the contrary.

Finally, we note that the C&NW alleges that the P&PU is operating under trackage rights agreements with certain carriers, which agreements require, but have not received, Commission. approval. We are unable to determine from the record whether these allegations have any merit. We do caution the P&PU, however, that if they are invovled in unauthorized trackage rights agreements for which there is no statutory exemption they must seek the necessary authority in order to avoid violations of the act.

In all the above circumstances we find that the involved charges have not been shown to be unjust, unreasonable, or discriminatory. The complaint should be dismissed. This is not a major Federal action significantly affecting the quality of the human environment. It is ordered:

(1) The motion to strike filed by the Peoria and Pekin Union Railway Company is granted.

(2) The complaint filed by the Chicago and North Western Transportation Company is dismissed.

360 1.C.C.

FINANCE DOCKET No. 26764

ILLINOIS CENTRAL GULF RAILROAD COMPANY ABANDONMENT BETWEEN DWIGHT LIVINGSTON COUNTY, AND WASHINGTON, TAZEWELL COUNTY, ILLINOIS

Decided June 19, 1979

1. On further consideration, findings in prior decision and order, decided April 7, 1977 (not printed), affirmed. No sufficient reasons found for changing the prior decision and order, which permits abandonment of the Dwight branch line, subject to conditions.

2. Employee protective conditions prescribed in Oregon Short Line R. Co.-Abandonment-Goshen, 360 I.C.C. 91 (1979) found not applicable.

John H. Doeringer for Illinois Central Gulf Railroad Company. William J. Scott, Hercules F. Bolos, and Mary C. Ubatuba for· Illinois Commerce Commission and People of the State of Illinois. Kenneth L. Black for the city of Washington. Gordon P. Mac Dougall for John W. McGuinness.

BY THE COMMISSION:

DECISION

By application filed August 12, 1971, the Illinois Central Gulf Railroad Company (ICG) seeks a certificate of public convenience and necessity permitting abandonment of a branch line of railroad known as the Dwight branch, about 79.6 miles in length, beginning at milepost 75.424 near Dwight, Livingston County, IL, and extending in a westerly direction through Livingston, La Salle, and Marshall Counties, to milepost 128.31 at Lacon in Marshall County, and from milepost 118 at Varna in Marshall County, in a southerly direction through Woodford County to milepost 143.837 in Washington, Tazewell County, all in Illinois.

HISTORY OF THE PROCEEDING

After a hearing before an Administrative Law Judge and the issuance of an initial decision dated October 18, 1972, the

application was denied by Review Board Number 5, by decision and order of March 26, 1973. The application was denied, however, without prejudice to ICG filing a petition to reopen the proceeding at a later time. By petition filed April 30, 1974, ICG requested reopening of the proceeding. By order of February 4, 1975, the proceeding was reopened.

After a second hearing, an Administrative Law Judge issued an initial decision on December 10, 1976. This decision recommended that ICG be permitted to abandon the Dwight branch line. By decision and order of April 7, 1977, division 3 affirmed the initial decision, subject to a condition regarding purchase of the right-ofway.

The State of Illinois and other parties filed petitions for review of the Commission's decision in the United States Court of Appeals for the Seventh Circuit in People of the State of Illinois, et al. v. United States of America and Interstate Commerce Commission, et al., Nos. 77-1624 and 77-1766.

By order of August 25, 1977, Appellate Division 3, reopened the proceeding for further consideration in light of the Commission's decision in Oregon Short Line R. Co.-Abandonment-Goshen, 354 I.C.C. 76 (1977) (Oregon 1). The Commission ordered the parties to submit memoranda addressing the effect of the Oregon I decision upon this proceeding and presenting their views on any other issues which they believed warranted further consideration. By notice of September 12, 1977, the Commission notified the parties that it would withhold issuance of the certificate of abandonment until 14 days after any further Commission order disposing of all pertinent issues on further consideration.

In the meantime, by order dated September 9, 1977, the Court of Appeals denied the Commission's motion to remand the proceeding to the Commission, and ordered the Commission to submit a brief by September 20, 1977.

By order of February 16, 1978, the Court of Appeals held that the Commission's findings permitting abandonment of the Dwight branch line were supported by substantial evidence. The petition to review and set aside the Commission's decision and order of April 7, 1977, was denied. In addition, the petition to review and set aside Commission orders of May 26, July 5, and August 1, 1977, was dismissed as moot. The court, however, remanded the matter to the Commission for further proceedings consistent with the order of August 25, 1977 and notice of September 12, 1977. The