minimum weights on a higher level from Sloan than from competitive shipping points. We find that the rates and minimum weights assailed are not unreasonable, but that they are and for the future will be unduly prejudicial to complainant and unduly preferential of shippers of lime and lime products in Arizona and California, to the extent that they exceed or may exceed the rates from Puntenney and the minimum weights from any lime and lime-products shipping point in those States contemporaneously maintained by defendants on like traffic to all destinations on their lines in California. An appropriate order will be entered. 157 I. C. C. No. 209781 CHARLES DENNERY, INCORPORATED, v. HOUSTON & TEXAS CENTRAL RAILROAD COMPANY ET AL. Submitted March 5, 1929. Decided September 4, 1929 1. Rate charged on imported prepared desiccated coconut, in carloads, from Galveston, Tex., to Dallas, Tex., found not unreasonable. 2. Rate charged on a like kind of traffic from New Orleans, La., to Dallas, Tex.. found unreasonable. Reparation awarded. G. H. McHenry for complainants. F. L. Gordon, J. R. Bell, G. H. Muckley, J. L. Stewart, and C. W. Waterman for defendants. REPORT OF THE COMMISSION DIVISION 3, COMMISSIONERS AITCHISON, TAYLOR, AND PORTER BY DIVISION 3: These proceedings are related, were heard together, and will be disposed of in one report. Exceptions were filed by complainants to the report proposed by the examiner to which defendants replied. Our conclusions differ from those recommended by him. Complainants are corporations and Abe Fink, David Fink, and Maurice Fink, copartners, trading under the firm name of the Fink Company, importers and jobbers of food products and bakers' and confectioners' supplies at Dallas, Tex. By complaints filed April 30, 1928, as amended, they allege that the rates charged since May 1, 1926, on prepared desiccated coconut, in carloads, from Galveston, Tex., and New Orleans, La., to Dallas, imported from Ceylon, India, and the Philippine Islands, were unreasonable. Reparation only is sought. Rates will be stated in amounts per 100 pounds. The shipments from Galveston to Dallas, which were purchased f. o. b. Galveston, originated at either Ceylon, India, or the Philippine Islands, and moved beyond the port of entry wholly within the State of Texas. As to these shipments a jurisdictional question is presented for our determination. The coconut was received by complainants in the original packages, packed in lead foil, in wooden boxes strapped with iron or steel bands, of an average weight of about 1 This report also embraces No. 20978 (Sub-No. 1), Charles Dennery, Incorporated, et al v. Houston & Texas Central Railroad Company et al. 130 pounds. The facts indicate that complainants contracted with various brokers located at New York, N. Y., and elsewhere, and subsequently placed their orders with these brokers before the expiration of the then existing contract. They also purchased through the American Finance Corporation coconut which was shipped from the Philippine Islands. These agreements with the brokers did not specify any particular date of shipment, but complainants received notice as soon as shipments were made from India or the Philippine Islands, and the shipments were thereafter traced and transported from Galveston to Dallas over routes designated by complainants. The period of delay in transit at the port generally did not exceed four days. With the exception of one shipment which moved through Galveston on April 28, 1928, in bond, shipped to the order of the United States Customs Office, notify the title complainant at Dallas, the import duties on the shipments from Ceylon were paid by the shippers or vendors. Defendants offered no evidence in rebuttal of the above facts. In determining whether commerce is interstate or intrastate, regard must be had to its essential character. Mere billing, or the place at which title passes, is not determinative. Penna. R. R. v. Clark Coal Co., 238 U. S. 456. The temporary storage at the port, which was permitted by tariff authority, did not divest the traffic from India of its foreign character acquired at the time it began its journey from the foreign port, or prevent its being considered through traffic. The movement to Galveston was a step in its transportation to Dallas. Alexander Grocery Co. v. B., S. L. & W. Ry. Co., 104 I. C. C. 155. Since it was the original and continuing intention of the parties that the shipments from India should be transported to Dallas, it is clear that we have jurisdiction over that portion of the haul from Galveston to Dallas. As to the shipments from the Philippine Islands, section 1 of the interstate commerce act covers traffic from a territory such as the Philippine Islands to destinations in a State. Although our jurisdiction thereunder does not in the absence of an arrangement for a continuous through movement extend to transportation over a water carrier from the Philippine Islands to Galveston, it does extend to traffic from the Philippine Islands to Dallas in so far as the transportation takes place within the State of Texas. It follows, that under the circumstances here present, we have jurisdiction over such transportation. Prepared coconut when dried is generally referred to as desiccated coconut, and when in the milk, it is called wet-pack coconut. Under the governing western classification, the carload ratings on the desiccated product are fourth class in cans or cartons, in barrels or boxes, in metal cans in crates, or in pails, minimum 30,000 pounds; and fifth class in bulk, in barrels or boxes, minimum 36,000 pounds. Prepared coconut, other than desiccated, is rated fifth class in metal cans, in boxes, minimum 36,000 pounds. The testimony of the parties. is conflicting concerning the relative values of these two kinds of prepared coconut, but according to complainants the average value of desiccated coconut is 13 cents per pound, and the value of the wetpack coconut is slightly higher. Complainants' shipments, consisting of 10 carloads of desiccated coconut, average weight 44,312 pounds, originated in India and the Philippine Islands, and were shipped in bulk, in cases. They moved over the lines of the carriers to which they were initially tendered for shipment. Those from New Orleans to Dallas moved over the Southern Pacific, 568 miles. The distance over the short-line route is 498 miles. Except as to one shipment which moved over the Gulf, Colorado & Santa Fe, 370 miles, the shipments from Galveston to Dallas moved over the Southern Pacific, 312 miles. The distance over the short-line route is 290 miles. Charges to Dallas were collected at the domestic fifth-class rate of $1.055 from New Orleans, and at the fifth-class rate of 69 cents from Galveston applicable to import traffic from all foreign countries and the Philippine Islands as well as to domestic traffic. Three of the shipments from Galveston were undercharged in that the charges were collected at an actual weight, or a minimum, which were less than the established minimum. The rate from New Orleans also applied from points grouped therewith to destinations in Texas common-point territory. The rate from Galveston was based on the single-line distance scale for 312 miles prescribed in Railroad Commission of Louisiana v. A. H. T. Ry. Co., 48 I. C. C. 312, termed the Shreveport case, which rate under the applicable tariff applied over all routes. Prepared coconut, other than desiccated, is generally included in the cannedgoods description and moves under commodity rates lower than the fifth-class rates, but desiccated coconut has never been listed among canned goods in the tariffs applicable in western territory. On July 14, 1928, in compliance with our findings in the general southwestern revision, a fifth-class rate of 77 cents was established from New Orleans, one of the southwestern gateways, to Dallas and points in southwestern territory grouped therewith. Under that revision, the Texas common-point territory was eliminated from the present rate structure. A fifth-class distance rate of 53 cents, based on the short-line distance of 290 miles, was also established under that revision from Galveston to Dallas applicable over the above routes. It is not contended by complainants that desiccated coconut was and is improperly classified, but rather that the rates charged were too high. They rely on the general revision and seek reparation to the bases of rates therein prescribed. Apparently through a misinterpretation of our findings in that revision, they refer to a rate of 70 cents from New Orleans to Dallas, which is the fifth-class rate for 498 miles. However, the fifth-class rate established from and to those points was, as above stated, 77 cents. Based on the average weight, the rates assailed, and those sought, namely those established under the southwestern adjustment for the distances indicated, would yield the earnings shown in the following table: Complainants compare the foregoing earnings based on the assailed rate from New Orleans to Dallas over the short-line route with materially lower earnings ranging from 32.5 to 33.3 mills per tonmile under commodity rates ranging from 56 to 83 cents on denatured alcohol, canned fruits and vegetables, in tin, corn oil, coconut oil, and fruit butter, in glass, also rated fifth class and grape juice, rated fourth class, under the western classification. A somewhat similar comparison is presented with respect to the rates from Galvestion to Dallas. They also compare the rates charged with an import rate of $1, applying on the same commodity from certain Pacific coast points to Dallas, and with domestic and import rates materially lower than the rates charged applying from and to the points here considered on chinaware, earthenware, and porcelainware, and on green and roasted coffee. The testimony offered shows the values of certain of these commodities to be greater than that of desiccated coconut. Defendants instance earnings under rates which with few exceptions are the class rates from and to the points here considered on numerous food products rated from third to fifth class, embracing among other commodities, cocoa, cocoa butter, chocolate coating, dried dates and figs, macaroni, in cans, olive oil, and jell or gelatine. The values of the commodities referred to ranged from 14 to 80 cents per pound. Based on the applicable cerload minima, without regard |