April 21, 1925, the carriers proposed, among other things, to increase the rate of 35 cents on glass bottles and fruit jars, in effect from Oklahoma points and Fort Smith to Memphis, to 52.5 cents from the Oklahoma points and 50.5 cents from Fort Smith. We suspended the proposed rates and in our report said, page 89:

There is nothing of record to show that the rates prescribed by us in Memphis-Southwestern Investigation, supra, are in excess of reasonable maxima for this territory. The proposed rates are the same as or lower than those rates and therefore not in excess of reasonable maxima for local application from and to the points concerned. It follows that, if it were not for certain unlawful features now to be discussed, our order of suspension should be vacated

The suspended schedules were found not justified, principally because numerous new fourth-section departures would be created. We did not find that the 35-cent rate was a reasonable maximum. The suspended schedules were ordered canceled, without prejudice to the establishment of rates which would be in conformity with the fourth section and otherwise lawful.

Defendants point out that, following our decision in the Glassware case, carriers filed tariffs, effective August 21, 1925, in a further effort to readjust the rates from Oklahoma producing points and Fort Smith to interstate destinations, including Memphis, to conform to our views expressed in that case, but the tariffs were again suspended. After this suspension the carriers and interested shippers agreed upon rates which were published to apply from Arkansas, Louisiana, and Texas producing points to the interstate destinations. Following our order of October 11, 1926, discontinuing the proceeding, a 40.5-cent rate was published from Oklahoma producing points and Fort Smith to Memphis, effective October 15, 1926, and, as above stated, from Shreveport to Memphis on April 15, and May 3, 1927.

Complainant, in support of its allegation of undue prejudice, states that in order to secure the business it had to decrease its profits to the extent of the difference between the rate from Shreveport and the rates from Fort Smith and the Oklahoma points. The rates from Arkansas and Oklahoma points, and Three Rivers, were considerably lower than the rate assailed, but they were to an equal degree below the reasonable maxima prescribed in the 9702 scale. We find that the rate assailed was not unreasonable or unduly prejudicial. The complaint will be dismissed.

157 I. C. C.

No. 21236

MOORE & MUNGER v. ATLANTA & WEST POINT RAILROAD COMPANY ET AL.

Submitted May 8, 1929. Decided September 24, 1929

Rate charged on four carloads of paraffin wax from Casper, Wyo., to Oakland City, Ga., found not inapplicable. Complaint dismissed.

B. A. Thompson for complainant.

P. F. Gault and J. E. Flansbury 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 defendants to the report proposed by the examiner. Our conclusions differ from those recommended by him.

Complainants are Henry C. Munger and Jessie Munger, copartners, dealing in petroleum products at New York, N. Y., under the firm name of Moore & Munger. By complaint filed July 13, 1928, they allege that the rate charged on four carloads of paraffin, shipped, between April 2 and August 6, 1927, from Casper Wyo., to Oakland City, Ga., was inapplicable and unreasonable. Reparation is sought. No evidence was offered in support of the allegation of unreasonableness, which will not be considered. Rates will be stated in amounts per 100 pounds.

The shipments, aggregating 200,993 pounds, moved over defendants' lines. No joint rate was in effect, and charges were collected at a combination rate of 95.5 cents, composed of commodity rates of 45 cents to East St. Louis, Ill., and 50.5 cents beyond. Defendants later made a refund of 5.5 cents per 100 pounds on two shipments aggregating 100,800 pounds.

The tariffs publishing the separate factors of the rate charged did not contain or make reference to any rule for constructing combination rates, but the tariff naming the factor to East St. Louis stated on its title-page that it was governed by the rules, regulations, and exceptions to the western classification published in Agent Boyd's circular I. C. C. No. A-1305, supplements thereto and reissues thereof. Boyd's circular I. C. C. No. A-1637, in effect when the shipments moved is a reissue of I. C. C. A-1305. Item 840 thereof carries

a scale of rates for application in lieu of fifth-class rates on petroleum and its products between points in Mountain-Pacific territory and points east thereof. This item also contains a combination rule providing that when no through rates are in effect from point of origin to destination, a combination rate may be constructed by deducting 5.5 cents from each separately established rate to and from junction points and adding 5.5 cents to the sum of the factors thus obtained. By an exception this provision is made inapplicable in connection with specific proportional rates. Complainants contend that the factors of the rate charged should have been treated under this combination rule, which would have produced a through rate of 90 cents.

An examination of item 840, and of the exceptions circular as a whole, indicates clearly that the provision for constructing combination rates applies only to rate factors determined pursuant to that item, and is not a rule for general application in connection with rates published in other tariffs. When no joint rate is in effect from point of origin to destination, under item 840 the lowest combination of fifth-class rates determines the rate factors to be subjected to the combination rule published therein. This method of computation, using the fifth-class rates to and beyond East St. Louis, would have resulted in a rate from Casper to Oakland City of $1.985. The lower combination of specific commodity rates to and beyond East St. Louis, neither of which was subject to a rule for constructing through rates, was properly applied on the shipments considered.

We find that the rate assailed was applicable on complainant's shipments. The complaint will be dismissed.

COMMISSIONER MCMANAMY dissents.

157 I. C. C.

No. 21275

WESTERN BURLAP BAG COMPANY v. NEW YORK CENTRAL RAILROAD COMPANY

Submitted May 16, 1929. Decided September 20, 1929

Rate charged on secondhand burlap bags, in carloads, from Toledo, East Toledo, and Wagon Works, Ohio, to Chicago, Ill., and Gary, Ind., found unreasonable. Reparation awarded.

G. M. Stephen for complainant.

L. P. Day for defendant.

REPORT OF THE COMMISSION

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

This case was presented under the shortened procedure. Exceptions were filed by defendant to the report proposed by the examiner. Complainant, a corporation dealing in burlap bags at Chicago, Ill., alleges, by complaint filed July 23, 1928, as amended, that the rate charged on 31 carloads of secondhand burlap bags shipped between March 5, 1927, and October 4, 1928, inclusive, from Toledo, East Toledo, and Wagon Works, Ohio, to Chicago, Ill., and Gary, Ind., was and is unreasonable and in violation of section 4 of the interstate commerce act. Rates for the future and reparation are sought. Rates will be stated in amounts per 100 pounds.

The shipments consisted of used or secondhand burlap bags valued at $6.634 per 100 pounds. They aggregated about 967,180 pounds and moved over defendant's lines. In the official classification bags are rated fourth class, in carloads, minimum 30,000 pounds. The rate charged was the applicable fourth-class rate of 38 cents. Effective December 6, 1928, a commodity rate of 26.5 cents, published to expire November 30, 1929, was established. Complainant seeks a rate of 19 cents and reparation to that basis.

Complainant, to show unreasonableness of the rate charged, cites rates contemporaneously in effect from points in central territory to Chicago, as follows:

1 Class rate; commodity rates of 26.5 and 25 cents subsequently established from Toledo and Indianapolis. respectively, published to expire Nov. 30, 1929. Commodity rate.

Defendant asserts that the rates from Terre Haute and Goshen are the result of depressed rates published many years ago. This assertion is not supported by the evidence. Defendant refers to rates of 44.5 and 47.5 cents from Syracuse and New York, N. Y., respectively, to Chicago, which are 91 and 72 per cent, respectively, of the corresponding fourth-class rates. A 39-cent commodity rate on burlap bags from Buffalo, N. Y., and Cleveland, Ohio, to St. Louis, Mo., 723 and 540 miles, respectively, has been found reasonable and reparation awarded to the basis thereof. Rothman & Sons v. P. R. R. Co., 140 I. C. C. 315. Missouri Bag Co. v. N. Y., C. & St. L. R. R. Co., 144 I. C. C. 44.

Although complainant alleges violation of section 4, the evidence is directed entirely to the alleged unreasonableness of the rate.

We find that the present rate of 26.5 cents is not unreasonable, but that the rate charged was unreasonable to the extent that it exceeded 26.5 cents; that the shipments were made as described; that complainant paid and bore the charges thereon; that it has been damaged thereby in the amount of the difference between the charges paid and those which would have accrued at the rate herein found reasonable; and that it is entitled to reparation, with interest. Complainant should comply with Rule V of the Rules of Practice.

157 I. C. C.