to specify on the shipping order the weight of the material used, as required by the following rule in the governing classification:

and also provided that shipper must specify on shipping order the weight of the material used, otherwise no allowance will be made.

Defendants contend that the operating expense in transporting a shipment loaded on a series of two or more cars is much greater than the operating expense in transporting an equal weight loaded in separate carloads on the same number of cars. The rules above mentioned, however, as hereinbefore explained, instead of establishing higher minima in the case of shipments resting on a series of cars, are preferential of such shipments, particularly the rule effective August 15, 1926. These rules are now in effect.

It is also argued by defendants that the charges collected, based as they were on a weight of 116,760 pounds, which constituted an average of about 39,000 pounds for each of the three cars, were not unreasonable inasmuch as the average weight of carload shipments of castings, machinery, and boilers transported by Class I steam railways in the eastern district of the United States in 1927 was about 41,300 pounds. Those commodities generally move under fifth-class rates. No definite relationship is shown to exist between the average carload weight of this group of commodities and that of cranes. The actual weight of the shipment here considered not only exceeded the sum of the minima on the three cars used, as hereinbefore shown, but substantially exceeded the minimum which would have resulted from an application of either of the rules hereinbefore described which pertained to shipments loaded on series of two or more cars. As herein before stated, one of these rules applied on commodities not subject to rule 34 at the time this shipment moved, and the other rule became effective August 15, 1926, on commodities subject to rule 34.

We find that the charges collected were unreasonable to the extent that they exceeded those which would have accrued on a weight of 90,600 pounds; that complainant made the shipment as described and paid and bore the charges thereon; that it has been damaged. thereby in the amount of the difference between the charges paid and those herein found reasonable; and that it is entitled to reparation in the sum of $147.80, with interest.

An appropriate order will be entered.

157 I. C. C.

No. 21339

KENDRICK OIL COMPANY v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY ET AL.

Submitted April 13, 1929. Decided August 8, 1929

Rates charged, and those applicable, on petroleum gas oil, in tank-car loads, from Burkburnett and Borger, Tex., to Paducah, Ky., found unreasonable. Reparation awarded.

E. N. Adams for complainant.

C. S. Burg, R. S. Outlaw, E. A. Smith, H. H. Larrimore, and R. C. Trovillion for defendants.

REPORT OF THE COMMISSION

DIVISION 2, COMMISSIONERS CAMPBELL, MCMANnamy, and BRAINERD BY DIVISION 2:

This case was presented under the shortened procedure. Exceptions were filed by complainant and defendants to the report proposed by the examiner.

Complainant is a corporation marketing petroleum products, with headquarters at Tulsa, Okla. By complaint filed August 6, 1928, it alleges that the rates charged on 21 tank-car loads of petroleum gas oil, hereinafter called gas oil, shipped from Burkburnett and Isom (now called, and hereinafter referred to as, Borger), Tex., to Paducah, Ky., between February 25, 1927, and January 12, 1928, were and that the present rates are unreasonable. Reasonable rates for the future and reparation are sought. Rates will be stated in cents per 100 pounds.

Borger and Burkburnett are oil-refining points located in what is called the north Texas group. The first of the origins named is on the Atchison, Topeka & Santa Fe, called the Santa Fe, and the latter on the Missouri-Kansas-Texas lines, called the M-K-T. Paducah is on the line of the Illinois Central, called the Central, just south of the Ohio River. The 12 cars shipped from Burkburnett moved over the M-K-T to St. Louis, Mo., thence over the Central to destination, 979 miles. The nine cars from Borger moved over the Santa Fe to Kansas City, Mo., Missouri Pacific through St. Louis to Gale, Ill., thence over the Central, 1,008 miles. The average weight of the shipments was 74,522 pounds. Charges were collected at a rate of 42 cents on all of the shipments except one car from Borger April 17, 1927, on which a rate of 48 cents was assessed. There is no tariff

authority for this latter rate and the shipment, which weighed 75,073 pounds, was overcharged 6 cents per 100 pounds. There were no through rates on gas oil to Paducah and the applicable rate from Borger was 42 cents, composed of 23 cents to St. Louis, as published in Leland's tariff I. C. C. 1741 and Johanson's tariff I. C. C. 1983, and 19 cents beyond, as published in Central tariffs I. C. C. A-10048 and A-10306. The applicable rate on the shipments fronì Burkburnett was 36 cents, composed of 23 cents to Cairo and 13 cents beyond. Under the provisions of item 35 of the Leland tariff the Cairo combination, which made the lowest through rate, was applicable over the route of movement. Defendants express willingness to pay reparation upon those shipments on that basis, in addition to refunding the overcharge on the shipment from Borger.

Complainant contends for the application to these shipments of a rate of 32.5 cents, under its interpretation of the following intermediate rule published in Johanson's tariffs I. C. C. 1839 and 1987, which tariffs name rates to points in Illinois and other central territory destinations, but not to any points in Kentucky:

To points of destination to which the rates in this tariff are not shown as applicable, but which are situated directly intermediate between two points of destination on the same railroad to which rates are shown, the rate to apply will be the higher rate shown to either of the two points between which the intermediate point is situated.

The tariffs enumerated published contemporaneously with the movements here considered rates of 32.5 cents to Metropolis and Parker, Ill., and 29.5 cents to Mounds, Ill. The two points first named are 15 miles and 48 miles, respectively, north of Paducah on the line of the Central extending from the latter point through Carbondale and Pinckneyville, Ill., to St. Louis. This is the short line of the Central between the latter point and Paducah, and the one over which shipments from Burkburnett moved. Mounds is west of Paducah and 10 miles north of Cairo, on the Central. Complainant states that inasmuch as the route of the Central from St. Louis to Paducah via Pinckneyville, Sand Ridge, Mounds, and Cairo is only 18 miles longer than the route of movement, and that over this route Paducah, in its opinion, is intermediate between Mounds, Metropolis, or Parker, under the intermediate rule the higher of the rates named to these points, 32.5 cents, was applicable to Paducah. The shipments from Borger, which moved over the Missouri Pacific from Kansas City to St. Louis, were not surrendered to the Central at the latter point but were carried to Gale and there delivered to the Central and moved through Mounds to Cairo to destinations. However, the 19-cent factor applicable, and which was applied, east of the Mississippi River was the rate published from St. Louis to Paducah for application over the Illinois Central "direct." Com

plainant argues with respect to the shipments from Borger that Paducah is intermediate to Parker and, under the intermediate rule, entitled to the rate to the latter point. A glance at the map of the Central prompts the conclusion that the interpretation of the intermediate rule contended for by complainant is a strained and unreasonable one as applied to any of the shipments here concerned. As stated, those from Burkburnett moved over the direct line of the Central from St. Louis, through Parker and Metropolis. The latter point is on the main line of the Central extending from Fulton to Louisville, Ky. On a movement from Borger through Gale and Mounds, Paducah is reached from the west and the normal traffic movement, in order to place Paducah as a point intermediate to some destination beyond, would be eastward over the main line of the Central south of the Ohio River towards Louisville. No rates are published in the tariffs referred to either to such points or to Paducah. The latter point is an important junction served by five railroads, and rates to that point are specifically provided for. To construct rates to Paducah in the manner sought by complainant, in addition to requiring an unnatural and unreasonable interpretation of the intermediate rule, would necessitate going outside of the destination territory provided for by the tariffs in controversy, which publish rates to Illinois, Indiana, and other points in central territory north of the Ohio River, whereas Paducah is located south of the Ohio River, where as a general rule the rates are on a somewhat different basis and are published by a different set of carriers, or their agents.

In support of the allegation of unreasonableness complainant instances numerous rates on gas oil contemporaneously maintained by defendants from the origin group here concerned to points in Illinois and Indiana, and to Louisville, Ky., of which the following are representative:

Based on the distances over the routes of movement, the applicable rates yielded ton-mile earnings of 8.3 mills on the shipments from Borger, and 7.35 mills on the shipments from Burkburnett, as contrasted with average earnings of approximately 7 mills under the rates and distances shown to the compared points. The rates shown in the above compilation to Illinois points, using distances computed over the routes of movement of these shipments, would produce tonmile earnings of approximately 6.5 mills.

Complainant urges that any rate in excess of 32.5 cents to Paducah is unreasonable, as this was the maximum rate in effect to adjacent points in southern Illinois when these shipments moved. However, the compared rates to Illinois points, in effect both during and subsequent to the period concerned, reflect the highly competitive basis of rates on petroleum products to Kansas City, Chicago, and St. Louis which were considered in Midcontinent Oil Rates, 1925, 112 I. C. C. 421, and supplemental decisions. While the rate applied on these shipments is out of line with rates to points in adjacent territory, the rate of 37 cents maintained by defendants from the same origin group to Louisville affords a fairer basis of comparison from the standpoint of maximum reasonable rates. Louisville is 225 miles east of Paducah over the Central and, based on the average short-line distances, is 187 miles farther than the latter point from the origins concerned. A rate of 33.5 cents, or 3.5 cents under Louisville, would be just and reasonable for the purposes of this case.

We find that the rates assailed, and those applicable, were unreasonable to the extent that they exceeded 33.5 cents; that complainant made the shipments as described and paid and bore the charges thereon; that it was damaged thereby in the amount of the difference between the charges paid and those which would have accrued at the rates herein found reasonable; and that it is entitled to reparation, with interest. Rule V statements should be submitted.

As the question of rates for the future on the commodity and between the points here considered is before us for decision in Docket 17000, Part 4, Petroleum and Petroleum Products, and No. 18458, The General Petroleum Investigation, no finding for the future is here warranted.

157 I. C. C.