prescribed on such low-grade heavy-loading commodities as fertilizer, 16 per cent; scrap iron and nitrate of soda, 17.5 per cent; enameled brick, 20 per cent; junk, 22.5 per cent; and roofing material, 25 per cent.

Complainants assert that in order to sell their product it is necessary to meet intervener's prices. The average delivered price quoted by intervener at destinations in Texas to which shipments moved was approximately 22.5 cents per crate. The freight charge per crate from Benton and Camden to the majority of the destinations was and is approximately 3.2 cents per crate. Complainants' approximate cost of manufacturing the crates is 17.4 cents each, which makes the cost at destination 20.6 cents per crate, leaving a profit of 1.9 cents per crate, or $95 per carload of 5,000 crates.

The present commodity rates on folding crates from Paris to the destinations here considered bear a lower percentage relationship to the first-class scale prescribed in the southwestern revision, for like distances, than do the commodity rates from Benton and Camden, resulting in an undue advantage to Paris. The following table is illustrative.

There is no showing of unjust discrimination under section 2 of the act. We find that the rates assailed were applicable and were not and are not unreasonable or unjustly discriminatory.

We further find that the maintenance of lower intrastate rates, distance considered, from Paris to destinations in Texas than from Benton and Camden to the same destinations results and will result in undue preference of the intrastate shipper at Paris and in undue prejudice to complainants shipping in interstate commerce, which undue prejudice should be removed by the establishment from Paris

of rates bearing a percentage relationship to the first-class rates maintained from that point not lower than that reflected in the rates now in effect from Benton and Camden in relation to the present first-class rates from the latter points. No order will be entered at this time, but defendants and the Railroad Commission of Texas should take the necessary action to remove the unlawfulness herein found to exist by reason of the present intrastate rates in Texas. If this is not done within a reasonable time, the matter may again be brought to our attention. Complainants do not show that they have suffered pecuniary loss because of the undue prejudice found to exist, and reparation is accordingly denied.

157 I. C. O.

No. 20546

N. B. KEENEY & SON, INCORPORATED, v. OREGON SHORT LINE RAILROAD COMPANY ET AL.

Submitted April 20, 1929. Decided September 12, 1929

Complaint alleging that the rate charged on a carload shipment of beans from Filer, Idaho, to Atlanta, Ga., was unreasonable and inapplicable found barred. Complaint dismissed.

Thomas M. Woodward for complainant.

J. E. Flansburg and P. F. Gault for defendants.

REPORT OF THE COMMISSION

DIVISION 2, COMMISSIONERS CAMPBELL, McMANAMY, AND BRAINERD BY DIVISION 2:

This case was presented under the shortened procedure. Exceptions were filed by complainant to the report proposed by the examiner, defendants replied thereto, and oral argument was had.

Complainant, a corporation dealing in beans and peas, alleges by complaint filed December 31, 1927, that the rate sought to be applied on one carload of beans, in bags, shipped November 26, 1923, from Filer, Idaho, to Atlanta, Ga., is inapplicable, or if it be found applicable that it was unreasonable, unjustly discriminatory, unduly prejudicial, and in violation of section 15, paragraph 8 of the interstate commerce act. Since the filing of the complaint, complainant has merged with the Associated Seed Growers, Incorporated, which has its principal office at New Haven, Conn. Waiver of undercharges and a reasonable rate for the future are sought. Rates will be stated in amounts per 100 pounds.

The shipment originated at Filer destined to St. Paul, Minn. It moved over the Union Pacific, The Chicago & North Western, and the Chicago, St. Paul, Minneapolis & Omaha, hereinafter called the Omaha, to St. Paul. On January 15, 1924, the shipment was tendered to the Omaha for transportation to Atlanta, where it was delivered on January 28, 1924. Charges were collected at a rate of $1.05, plus 23 cents from St. Paul to Atlanta. On December 30, 1925, an action was begun by defendants against complainant with respect to this same transportation service for the recovery of charges based on a rate of $2.095. Subsequently the rate collected was made applicable over the route of movement. Complainant

contends here that the rate of $2.095 sought to be applied was inapplicable, and that if applicable it was unreasonable to the extent that it exceeded the rate collected.

The sole question which we are here called upon to decide is whether this complaint is barred under the limitation provisions contained in section 16 of the act. The cause of action herein accrued on January 28, 1924, the date the shipment was delivered. Informal complaint was filed with us on March 30, 1927, but on that date complainant's cause of action was barred. Complainant, however, contends that the statute of limitations was tolled by certain alleged admissions contained in correspondence concerning this claim between defendants and this commission during the years 1925 and 1927. In cases of this kind the provisions of the act above referred to requiring complaints to be filed within certain periods and not thereafter, are not mere statutes of limitation which may be waived or pleaded as a matter of defense. Compliance with the provisions of the act has been held to be jurisdictional. Louisville Cement Co. v. Int. Com. Comm., 246 U. S. 638.

We find that complainant's cause of action was barred, and the complaint will be dismissed.

157 I. C. C.

No. 21549

BOGER & CRAWFORD v. SEABOARD AIR LINE RAILWAY COMPANY ET AL.

Submitted June 17, 1929. Decided September 12, 1929

Rate on cotton yarn, in carloads, from Lincolnton, N. C., to Philadelphia, Pa., found not unreasonable, but unduly prejudicial. Nonprejudicial rate prescribed.

Harvey J. Ford for complainant.

J. H. Ketner for defendants.

REPORT OF THE COMMISSION

DIVISION 2, COMMISSIONERS CAMPBELL, MCMANAMY, AND BRAINERD BY DIVISION 2:

This case was presented under the shortened procedure. Exceptions were filed by complainant to the report proposed by the examiner. The question of transit arrangements referred to in the exceptions will not be considered as it is not within the issues raised by the complaint.

Complainant, a corporation dealing in mercerized yarn at Philadelphia, Pa., by complaint filed August 23, 1928, as amended, alleges that the rate charged on 153 carloads of cotton yarn, from Lincolnton, N. C., to Philadelphia between December 24, 1925, and December 23, 1927, inclusive, was unreasonable, unjustly discriminatory, and unduly prejudicial. Complainant seeks a reasonable rate for the future and reparation. An informal complaint was filed December 10, 1927, and closed August 13, 1928. The allegation of unjust discrimination requires no discussion, as there is no showing of discrimination between shippers in the same community. Dean Mill Co. v. M. P. R. R. Co.,,80 I. C. C. 174. Rates will be stated in cents. per 100 pounds.

The shipments moved over the Seaboard Air Line eastward to Hamlet, N. C., thence north to Portsmouth, Va., and thence over the Pennsylvania to destination, 635 miles. Charges were collected at the applicable joint fifth-class rate of 80 cents, any quantity. Complainant seeks a 66-cent commodity rate, which was contemporaneously in effect from Columbia, S. C., and certain other points in North Carolina and South Carolina to Philadelphia. Columbia is on the Seaboard Air Line south of Hamlet.

When the shipments moved and at present, the established commodity rate from Lincolnton to Philadelphia was and is 81 cents