We find that $1.37 was the applicable rate and has not been shown to have been or to be unreasonable or otherwise unlawful. We further find that none of the shipments was misrouted. The complaint will be dismissed.

No. 20612

KOKOMO STEEL & WIRE COMPANY v. MICHIGAN CENTRAL RAILROAD COMPANY ET AL.

Submitted November 23, 1928. Decided September 18, 1929

Rate charged on certain carload shipments of wire nails, fencing, steel fence posts, and fasteners from Kokomo, Ind., to Chicago, Ill., and from Chicago Heights, Ill., to Kokomo found inapplicable. Applicable rate determined and reparation awarded.

J. W. Goodman and Robert M. Furniss for complainant.
E. J. Halberg for defendants.

REPORT OF THE COMMISSION

DIVISION 5, COMMISSIONERS LEWIS, BRAINERD, AND FARRELL BY DIVISION 5:

Defendants replied to the exceptions filed by complainant to the report proposed by the examiner, and the case was orally argued. Our conclusions differ from those recommended by the examiner.

Complainant, a corporation, manufactures iron and steel articles at Kokomo, Ind. By complaint filed January 30, 1928, it alleges that the rate charged on nine carloads of wire nails, fencing, steel fence posts, and fasteners, three of which were shipped from Kokomo to Chicago, Ill., and six from Chicago Heights, Ill., to Kokomo between January 5 and September 13, 1924, was illegal. Reparation is sought. Informal complaints were filed December 17, 1926, and closed December 2, 1927. Rates will be stated in amounts per 100 pounds.

Except for switching by the Chicago, Burlington & Quincy at destination, the movement from Kokomo to Chicago was entirely over the New York, Chicago & St. Louis, hereinafter called the Nickel Plate. From Chicago Heights to Kokomo the movement was over the Michigan Central to Michigan City, Ind., and thence over the Nickel Plate. A fifth-class rate of 21.5 cents was charged. The shipments weighed 505,413 pounds, and the charges collected

amounted to $1,086.65. Complainant contends that a contemporaneous commodity rate of 13 cents from Hoopeston, in eastern Illinois, to Chicago and from Chicago Heights to Hoopeston, published in another tariff, Agent Boyd's I. C. C. No. A-1437, should have been charged under an intermediate-application rule.

The tariff in which the rate sought was published was a general tariff of Illinois lines, the title page stating that it covered local, joint, and proportional rates on certain commodities between Chicago, De Kalb, Rockford, Sterling, and Waukegan, Ill., and Madison, Milwaukee, and Watertown, Wis., and stations taking same rates as shown on pages 8 to 34 inclusive, and Bloomington, Champaign, Danville, Dwight, Gilman, Hoopeston, La Salle, Mendota, Peoria, Pontiac, and Streater, Ill., and stations taking same rates as shown on pages 8 to 34, inclusive; also, between the above stations and points taking same rates.

In the list of stations on pages 8 to 34, inclusive, many stations are named in Illinois and Wisconsin, but none in Indiana except a few like Gary, in the Chicago district, and some others near the Illinois-Indiana border on the north-and-south lines of the Chicago & Eastern Illinois and New York Central, south of and intermediate to Chicago. The intermediate-application rule reads as follows:

Except as otherwise specifically provided in tariff, as amended, the rate from or to any point not indexed (or if indexed, but with no rate shown) in this tariff or effective supplements thereto, which point is directly intermediate to a point or between two points from or to which rates are published in tariffs, as amended, will be the same as the rates named in tariff, or effective supplements thereto, from or to such point or two points, unless the rates from or to such two points are not the same, in which case the rate from or to the intermediate points will be that applicable to or from the point to or from which the higher rate is published in the tariff, as amended.

This rule was restricted October 25, 1924, so that it did not apply over the routes these shipments moved. The change in the tariff was indicated by a symbol indicating that increased rates resulted, although witness for defendants stated his belief that the carriers. had no such intention. The tariff prior to this change provided routing between Hoopeston and Chicago and Chicago Heights, over the routes of movement, making Kokomo, in north-central Indiana, an intermediate point.

The question of tariff interpretation presented is the same in substance as that involved in Mid-West Box Co. v. Michigan C. R. Co., 156 I. C. C. 719, decided on August 7, 1929, wherein the rate applicable to transportation over the longer distance from Chicago to Peoria, Ill., was found to be applicable to transportation over the shorter distance from Chicago to Kokomo, under the tariff and intermediate rule above mentioned, via the line of the Nickel Plate.

Upon the record in this case, and for the reasons above set forth, we find that the rate assailed was inapplicable to the transportation of the shipments involved; that the rate applicable to such transportation was 13 cents per 100 pounds; that complainant paid and bore the charges assessed and collected by the defendants, carriers, as aforesaid, and was thereby overcharged and damaged to the extent that said charges exceeded those which would have accrued at the rate herein found applicable; and that it is entitled to reparation in the sum of $428.95, with interest.

An appropriate order will be entered.

157 I. C. C.

No. 21837

F. STRAUSS & SON, INCORPORATED, v. DENVER & SALT LAKE RAILWAY COMPANY ET AL.

Submitted August 9, 1929. Decided September 18, 1929

Rate charged on two carloads of lettuce from Granby and Yampa, Colo., to Monroe, La., found unreasonable. Present rate found not unreasonable. Reparation awarded.

H. J. Fernandez for complainant.

F. J. Toner, Elmer L. Brook, H. H. Larimore, and J. M. Souby for defendants.

REPORT OF THE COMMISSION

DIVISION 5, COMMISSIONERS LEWIS, BRAINERD, and Farrell BY DIVISION 5:

This case was presented under the shortened procedure. No exceptions were filed to the report proposed by the examiner.

Complainant, a corporation dealing in produce at Monroe, La., alleges, by complaint filed January 7, 1929, that the rate charged on two carloads of lettuce shipped August 24 and September 4, 1928, and the present rate, from Granby and Yampa, Colo., to Monroe, was and is unreasonable. We are asked to prescribe a reasonable rate for the future and to award reparation. Rates will be stated in amounts per 100 pounds.

Granby and Yampa are on the Denver & Salt Lake, 76 and 162 miles, respectively, west of Denver, Colo. The shipments, weighing 24,480 pounds each, moved under refrigeration over the Denver & Salt Lake to Denver, Union Pacific to Kansas City, Mo., thence Missouri Pacific, 1,542.3 miles and 1,628.3 miles, respectively. The short-line distances are 1,179.4 miles from Granby and 1,265.4 miles from Yampa. Charges were collected at the applicable combination rate of $1.33, composed of commodity rates of 45 cents to Denver and 88 cents beyond. On September 29, 1928, a joint commodity rate of $1.04 was established from points of origin to destination. Complainant seeks a rate of 94 cents.

Complainant compares the rates assailed with rates from and to other points as follows:

The rate charged and the earnings thereunder are much higher than the rates and earnings instanced, and the present rate is somewhat higher than the rates from Canon City. Complainant insists that the rate to Monroe should not exceed the rate to Memphis. But rates on vegetables from Colorado points to Memphis lower than those to Louisiana points is an adjustment of long standing, and this record does not warrant its alteration.

Defendants made no comparison of rates, but assailed complainant's comparisons because the destinations it uses are selected points within rate groups. To demonstrate this and to show that the present rate to Monroe prevails generally in Louisiana they state that this rate applies to 558 points in Louisiana and to 34 points in Mississippi, and likewise that the rate to Tallulah is a group rate but that in contrast to the rate to Monroe it applies to only 15 points.

The difficult operating conditions on the Denver & Salt Lake are fully described in Freeman & Boettcher v. A., T. & S. F. Ry. Co., 73 I. C. C. 178. Defendants point out that Canon City is east of the Continental Divide, but that the points of origin are west thereof. The rate charged is considerably in excess of the level of rates from Canon City, even when allowance is made for arbitraries over Colorado common points.

We find that the present rate is not unreasonable; that the rate charged was unreasonable to the extent that it exceeded $1.04; that complainant made the shipments as described and paid and bore the charges thereon; that it has been damaged to the extent that the charges paid exceeded those which would have accrued at the rate herein found reasonable; and that it is entitled to reparation in the amount of $141.98, with interest.

An order awarding reparation will be entered.

157 L. C. C.