but the tariff naming this rate provided for the alternative application of the class rate, if lower. Therefore, the class rate of 80 cents was applicable. The present applicable class rate is 70 cents.

From certain points in North Carolina and South Carolina to Philadelphia there were, when the shipments moved, and are now commodity rates on cotton yarn, ranging from 66 to 74 cents. These points are in class-rate groups taking rates equal to, or lower or higher than, the rate from Lincolnton. The following table showing rates from representative points to Philadelphia illustrates the situation:

The tariffs naming the above commodity rates provide for alternative application of class rates if lower. The rate of 80 cents assailed yielded 25.5 mills per ton-mile, and the rate from Columbia 20.3 mills.

The record does not show the value of the cotton yarn shipped. Cotton yarn, any quantity, is rated R-25 in official and first class in western classification, as compared with the fifth-class rating in southern classification applied on the shipments. From the facts presented it does not appear that the rate assailed was or is unreasonable.

During the past 10 years shipments of cotton yarn have moved from Columbia to Philadelphia over the Seaboard Air Line and Pennsylvania. As heretofore stated, the rate from and to those points is, and has been since December 24, 1925, 66 cents. The rate on this commodity from Lincolnton should not exceed the rate contemporaneously maintained by defendants from Columbia. Shippers at these points compete for this traffic. There is no proof of damage due to any undue prejudice which may have existed in the past.

We find that the rate assailed was not and is not unreasonable, but that it is, and for the future will be, unduly prejudicial to the extend that it exceeds or may exceed the rate contemporaneously maintained by defendants on like traffic from Columbia to Philadelphia. An order prescribing nonprejudicial rates for the future will be entered.

No. 21818

F. C. PENNINGTON PRODUCE COMPANY v. TEXAS & PACIFIC RAILWAY COMPANY ET AL.

Submitted June 24, 1929. Decided September 4, 1929

Rate charged on shipments of live poultry, in carloads, from various points in Texas to New Orleans, La., found not unreasonable. Complaint dismissed.

J. M. Smith for complainant.

H. B. Gammer for Louisiana Railway & Navigation Company, 2. E. Milling, B. F. Batts, Robert Thompson, and C. M. Spence for all defendants.

REPORT OF THE COMMISSION

DIVISION 3, COMMISSIONERS AITCHISON, TAYLOR, AND PORTER BY DIVISION 3:

Exceptions were filed by complainant to the report proposed by the

examiner.

Complainant is a corporation with its principal place of business at Sulphur Springs, Tex. By complaint filed December 10, 1928, it alleges that an unreasonable rate was charged on various shipments of live poultry, in carloads, which moved, on and between November 7, 1926, and February 11, 1928, from several points in Texas to New Orleans. We are asked to award reparation. The claim as to one shipment which moved November 7, 1926, is barred by the statute. Rates will be stated in amounts per 100 pounds.

The record shows a movement of 20 shipments, of which 1 moved from Dallas, 13 from Greenville, and 6 from Sulphur Springs.1 The applicable second-class Texas common-point group rate of $1.75, minimum 18,000 pounds, was charged. In Butter, Eggs, Dairy Products, and Poultry, 96 I. C. C. 19, a distance scale of rates was approved for application on this commodity from points in the Southwest to the Ohio and Mississippi River gateways and to a number of points in eastern defined territories and in trunk-line territory. Subsequently that case was reopened and further considered in the so-called south

1 According to complainant's testimony at the hearing the origin points are restricted to the three points named, except that certain of the shipments were stopped to complete loading at Mount Pleasant, Tex., intermediate over the route of movement between Sulphur Springs and New Orleans.

western revision. In that proceeding bases of rates were prescribed for application within southwestern territory and from that territory to eastern destinations, the basis prescribed to eastern destinations being somewhat lower than the basis previously prescribed in the case cited. Complainant relies principally upon those proceedings and asks that reparation be awarded to the basis of the new southwestern rates, namely, $1.25 from Dallas and $1.11 from Greenville and Sulphur Springs.

The short-line distances shown by complainant from Dallas, Greenville, and Sulphur Springs to New Orleans are 493, 461, and 441 miles, respectively. The shipments moved over somewhat longer routes, but based on the distances shown the rates charged yielded ton-mile earnings of 70.9, 75.9, and 79.3 mills, respectively. Complainant contrasts these earnings with the ton-mile earnings under the rates on the same commodity contemporaneously maintained to New Orleans from Muskogee and McAlester, Okla., and Fort Smith and Little Rock, Ark. The distances from those points are shown as ranging from 438 to 626 miles and the earnings from 38.1 to 44.9 mills, but no testimony is offered as to whether these rates were class or commodity rates or whether they were group rates, specific pointto-point rates, or strict mileage rates. Nor is there any showing as to the volume of movement under such rates. Except for an exhibit showing that the traffic density in Texas was substantially the same as in Oklahoma and Arkansas, there is nothing to establish that the transportation conditions affecting those rates and the rate assailed were substantially similar.

Complainant directs attention to the ton-mile earnings under rates resulting from the use of the scale prescribed in the case first referred to. Thus, based on the distance appearing in complainant's exhibits, those earnings under the rates to New York, N. Y., Philadelphia, Pa., and Boston, Mass., range from 26.5 to 28.7 mills. The distances shown are those over routes via such river crossings as result in the shortest mileage, but as to whether they were determined in accordance with the formula prescribed in that case is not disclosed. But it is to be observed that the difference in these ton-mile earnings and the ton-mile earnings under the rate assailed is due in part to the materially greater distance from Texas to the eastern points as compared to the distances from such points to New Orleans. It would also seem to be due in part to the fact that to eastern destinations a large part of the haul is in a lower-rated territory.

The Texas common-point rate was 84 per cent of the corresponding first-class rate. The rates shown from Oklahoma and Arkansas were only from 46 to 70 per cent of the corresponding first-class rates. The rates resulting under the scale prescribed in Butter, Eggs, Dairy

Products, and Poultry, supra, are materially less than 84 per cent of the first-class rates applicable, for distances up to 400 miles, intrastate in Arkansas, Louisiana, Oklahoma, and Texas. However, in that case rates applying wholly within the Southwest were not under consideration. Complainant states that third-class rates have applied for many years in southern territory, central territory, and western trunk-line territory, but no specific testimony is offered to support this general statement.

Defendants state that following Railroad Commission of Texas v. A., T. & S. F. Ry. Co., 20 I. C. C. 463, decided in 1911, the secondclass rate from Texas common-point territory to New Orleans was reduced and that except for general horizontal changes that rate has not been since changed; that the points in Texas common-point territory from which carload shipments of live poultry have moved are principally in the western portion of the State; and that complainant is attempting to disrupt, for purposes of reparation alone, a long-standing and extensive group adjustment by an attack on a blanket rate as applied from the nearest points in the group. Comparison is made of the per car and per car-mile earnings under the rate assailed with those under the rates on a number of other commodities such as canned goods, brass junk, soap, and peanuts. These are based on a loading of 9.49 tons of live poultry, 27.18 tons of canned goods, 20 tons of junk, 21.68 tons of soap, and 18.26 tons of peanuts, such loading in each instance, except on junk where the carload minimum is used, being the average loading on the Texas & Pacific during the year 1928. Live poultry moves in privately owned cars specially constructed for its transportation. The empty haul is substantially 100 per cent of the loaded haul. A caretaker who accompanies each shipment is accorded free transportation, including the return trip, and liberal transit privileges, including the stopping of cars a maximum of three times for completing the loading, are extended. Accordingly the earnings are predicated upon an empty haul of 25 per cent in the case of the other commodities and 100 per cent in the case of poultry and in connection with the rates on poultry a deduction is also made from the gross revenue to cover car allowance and return transportation of caretaker. The results show that the net revenue per car-mile under the rate on live poultry was materially less than the corresponding revenue under such other rates. The net revenue per car-mile shown under the rate assailed ranges from 26.7 to 32.7 cents while according to other exhibits in which the carload minimum is used in arriving at the gross revenue in which certain additional deductions from that revenue are made, the net revenue per car-mile ranges from 22.8 to 28 cents. If the transit service referred to had not been authorized in connection with the rate

assailed, the applicable charges would have been based on the combination of the rates, less than carload in part, to the beyond and stoppage points, which basis would have resulted in aggregate charges far in excess of those actually collected.

As a result of the southwestern revision the group adjustment of long standing was broken up and superseded by an entirely new adjustment and plan of making rates. In each of the proceedings referred to we discussed such inconsistencies as are described on the present record by complainant in the rate bases then observed on this commodity in various territories. But we there also stated that the readjustments there made were of a general nature, that they covered more or less extensive territories, and that they resulted in both increases and decreases in the rates including those on live poultry. We found that the rates prior to such readjustments were not unreasonable and denied reparation.

In the recent case of Patterson Produce Co. v. Gulf, C. & S. F. Ry. Co., 156 I. C. C. 258, decided June 15, 1929, we found the rate on live poultry, in carloads, from various points in Texas to New Orleans, not unreasonable. The facts in that case are practically identical with those in this one, and are determinative of the issues here.

We find that the rate assailed was not unreasonable. The complaint will be dismissed.

157 I. C. C.