from Jamieson and Quincy to Coffeyville, Kans., moving on and after June 29, 1926. By complaint filed December 8, 1928, in No. 21810 it is alleged that the rates on nine carloads of fuller's earth shipped from Jamieson and Quincy to Ponca City and Okmulgee, Okla., between November 30, 1926, and August 10, 1927, were and are unreasonable. The latter claim is barred in so far as it concerns shipments delivered or tendered for delivery prior to December 9, 1926. All complainants seek reasonable rates for the future and reparation. There is no evidence of undue prejudice and this allegation will not be considered. Rates will be stated in amounts per net ton.

The Floridin Company, mining fuller's earth at Quincy and Jamieson, the Fullers Earth Company, mining fuller's earth at Midway, and the Empire Oil & Refining Company intervened in support of the complaints. The latter offered no evidence.

Fuller's earth is a variety of clay possessing bleaching properties and is used by complainants to decolorize petroleum products. It is shipped in bags in box cars. Its price varies from $8 to $18 per ton f. o. b. the producing points. Loss and damage claims on the traffic are negligible. The respective complainants use from 25 to 60 carloads per year. Shipments made by the Fullers Earth Company, in 1927, averaged 69,000 pounds, those of complainant in No. 20133 averaged 66,000 pounds, and those of complainant in No. 20133 (SubNo. 1) averaged 72,580 pounds. Some of the shipments weighed in excess of 100,000 pounds.

The points of origin, of which Quincy will be used as representative, are on the Seaboard Air Line near the northern border of Florida. The applicable rates to all of the destinations under consideration except Coffeyville are made by combination on the Mississippi River crossings. The applicable rates, those sought by complainants, and the earnings thereunder, are as follows:

1 Rate was $11.03 from Seaboard Air Line origins prior to December 7, 1926, and from Georgia, Florida & Alabama origins prior to April 15, 1927.

None suggested.

The rate of $11.63 applies to four refinery points in Kansas for an average distance of 1,030 miles; the rate of $11.65 applies to ten refinery points in Oklahoma for an average distance of 1,008 miles;

and the rate of $11.05 to five refinery points in Texas for an average distance of 892 miles. A rate of $7.95 applies to 11 refinery points in southeastern Texas for an average distance of 812 miles. The rate to the Ohio River crossings is $5.63 for an average distance of approximately 699 miles and to the Mississippi River crossings $4.95 for an average haul of approximately 613 miles. The joint rate to the Kansas group is the same as the combination to and from Cairo, Ill.

Complainants show that rates yielding the same earnings as those to the river crossings would be $7.62 to Boynton, $7.41 to Fort Worth, and $8.06 to Coffeyville. They compare the rates assailed with rates on fuller's earth from San Antonio and McDonna, Tex., to destinations in southern Louisiana which are 12.5 per cent of the first-class rates prescribed in the southwestern revision. This percentage of the first-class rate from Quincy to Fort Worth is $6.20. The proportional rate of $4.10 on fuller's earth from San Antonio to New Orleans, La., 575 miles, is compared with the factors of $6.10 from Vicksburg, Miss., to Fort Worth, 397 miles, and $6.70 from Memphis to Boynton, 383 miles. These factors also are compared with a proportional rate of $3 from New Orleans to refinery points in southeastern Texas for distances of from 320 to 445 miles.

Complainants instance rates of $3.80 on fuller's earth from Akron, Colo., to Omaha, Nebr., 426 miles, and Kansas City, Mo., 523 miles, and $8 to Chicago, Ill., 927 miles. The rate on filter clay from Ivie, Utah, to various consuming points including Kansas City, Chicago, and points in Oklahoma and Texas as well as to the Mississippi River crossings is $10 for an average distance of 1,523 miles. The clay produced at Ivie competes with the product considered. This rate as well as all other rates on fuller's earth instanced by complainants yield lower earnings than the rates sought.

Complainants compare the rates assailed with lower rates for greater distances on kaolin or china lay worth $13.50 to $20 per ton, with relatively lower rates from Texas to Louisiana on common clay worth about $2.13 per ton; with a rate of $2.70 prescribed by us from St. Louis, Mo., to Quinton, Okla., 479 miles, on fire clay worth about $2.88 per ton; and with rates from points in New Mexico of $8.70 to Alton, Ill., about 1,098 miles, and $10.20 to Wheeling, W. Va., about 1,736 miles on lepidolite ore worth $12 to $30 per ton. These rates, on commodities having transportation characteristics similar to those of fuller's earth, are relatively much lower than the rates assailed and in most instances reflect earnings lower than would accrue under the rates complainants seek.

Fuller's earth and cement are rated the same in all territories. The distance scale of rates prescribed by us on cement between Texas

and Oklahoma would produce a rate of $6.80 from Quincy to Fort Worth and $7 to Boynton. The column 16 rate established on fertilizers in the southwestern revision is $8 from Quincy to Fort Worth and Boynton and $8.40 to Coffeyville. Instanced rates on fuller's earth from Quincy to the river crossings and consuming points in southern territory average 14.8 per cent of the first-class rates. The rates sought average 15.9 per cent of the corresponding first-class rates prescribed in the southwestern revision.

Defendants show that the factors to the river crossings of the rates assailed and earnings thereunder are lower than the rates and earnings on lumber for similar distances in southern territory, the corresponding rates and earnings on rosin and turpentine, and the rates and earnings on kaolin clay from Okahumpka, Fla., to the river crossings. They produce lower earnings than the rates on special iron from Birmingham, Ala., to destinations in southern territory, and approximately the same earnings as those under the southern fertilizer scale, for similar distances. The factor from Quincy to Cairo yields 8.6 mills per ton-mile and the rate of $8.38 sought to Coffeyville would yield 8.38 mills per ton-mile. The factor from Quincy to Vicksburg yields 9.5 mills per ton-mile and the rate of $7.90 sought to Fort Worth would yield 8.61 mills per ton-mile.

Defendants show that the rates assailed are on the same relative level as the rate of $7 from Olmstead, Ill., a fuller's earth producing point, to the destinations in Oklahoma under consideration. They compare the rates assailed with column 171⁄2 rates prescribed in the southwestern revision on scrap iron and nitrate of soda, with column 20 rates prescribed on enameled brick, and with column 221⁄2 rates prescribed on junk. The rates assailed are slightly less than column 221⁄2 rates from Quincy to the same destinations.

Defendants show a movement of fuller's earth under a rate of $6.70 from Riverside, Tex., to Ponca City, 574 miles. A rate of $7.90 applies from Riverside to Coffeyville, 518 miles, and to Kansas City, Mo., 731 miles. They point out that complainants use the Florida product almost exclusively because of its superior quality and that only a few shipments have moved under the rate of $10 from Ivie, Utah, to southwestern destinations. It is urged for defendants that fuller's earth is a commodity well able to stand maximum reasonable rates as contemplated by the Hoch-Smith resolution. In this connection the nature of the commodity, its uses, and the free movement thereof under the present rates are emphasized.

Defendants are opposed to rates constructed other than by combination on the river crossings. In Choate Oil Corp. v. Director General, F6 I. C. C. 562, we found combination rates on fuller's earth, in carloads, from Midway, Quincy, and Ellenton, Fla., to

Oklahoma City, Okla., unreasonable, only to the extent that the factor beyond Memphis exceeded 37 cents per 100 pounds, which became 33.5 cents per 100 pounds, the equivalent of the present corresponding factor, under the general reduction of 1922. The rates so prescribed to Oklahoma City were established also to Boynton and Muskogee. Subsequently we have prescribed joint rates on numerous commodities between points in southwestern and southeastern territories. No good reason appears for continuing com; bination rates on fuller's earth.

Defendants also oppose any change in the composition of the present destination groups. The distances to the destinations considered in most instances are somewhat less than the average distances to the points comprising the respective groups. This fact has been given due consideration in arriving at the rates prescribed herein. Defendant's statement on brief and at the oral argument, that complainants offered to accept a 66,000-pound minimum under the rates sought, is disputed by complainants and is not supported by evidence. We are of opinion, however, that a minimum of 60,000 pounds is clearly warranted by the record.

We find that the rates assailed were, are, and for the future will be unreasonable to the extent that they exceed or may exceed $8 to Fort Worth, $8.40 to Muskogee, Boynton, and Okmulgee, and $8.60 to Coffeyville and Ponca City, subject in each instance to a minimum of 60,000 pounds, except that when cars are loaded to full visible capacity actual weights shall govern. We further find that complainants made shipments as described and paid and bore the charges thereon at the rates herein found unreasonable; that they were 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 they are entitled to reparation, with interest. Complainants should comply with Rule V of the Rules of Practice.

An order for the future will be entered.

157 I. C. C.

No. 21129

JACKSON TRAFFIC BUREAU, FOR JITNEY JUNGLE COMPANY, v. ALABAMA GREAT SOUTHERN RAILROAD COMPANY ET AL.

Submitted March 16, 1929. Decided September 18, 1929

Rate charged on wooden wall cases, or shelving, shipped loose in a mixed carload of store fixtures from Jackson, Miss., to Alexander City, Ala., found not unreasonable. Complaint dismissed.

T. P. Goodwin for complainant.

J.T. Quisenberry for 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.

This case was presented on behalf of Jitney Jungle Company, hereinafter styled complainant, a corporation operating chain grocery stores, with its principal office at Jackson, Miss. By complaint filed June 2, 1928, as amended, it is alleged that the rate charged on a carload of store fixtures shipped April 10, 1928, from Jackson, Miss., to Alexander City, Ala., was and is unreasonable. Reparation in the sum of $28.75 is sought. Defendants have established for the future basis of rates satisfactory to complainant. Rates will be stated in amounts per 100 pounds.

The shipment consisted of miscellaneous store furnishings aggregating 7,950 pounds and 4,050 pounds of wooden wall cases, or shelving, set up, with solid backs and sides. The latter article, hereinafter called shelving, was shipped in sections ready for use when placed against the wall of a storeroom. These sections were not boxed or crated, but were shipped loose, cleated, or racked in the car. Charges were collected on the various articles comprising the bulk of the shipment at the commodity rate of 85 cents applicable on furniture, and on the shelving at the same rate plus a penalty charge of 71.5 cents per 100 pounds for failure to box or crate as required by the governing classification. Only the rate and charges on the shelving are in issue.

As shipped the sections of shelving were subject to rule 5 of the consolidated classification, section 3 of which prescribes the method