called the New Haven, beyond, 162 miles. The applicable fifth-class rate of 25 cents, minimum 36,000 pounds, was charged. Complainants seek reparation to the basis of 17 cents, and a rate of 14 cents for the future. The granite was sold f. o. b. destination, consignee paying the freight charges and deducting them from the contract price.

The aggregate of intermediate rates on hammered granite from Concord to Hartford over the route of movement was 24.5 cents, composed of 13 cents to Springfield and 11.5 cents beyond. A rate of 22.5 cents applied on that commodity between May 2 and May 26, 1926, from Concord to Montclair, N. J., between which points Hartford is intermediate. Defendants assert that the rates on granite from Concord to Atlantic coast points in New York, New Jersey, and Pennsylvania, are depressed by water competition, and to central territory by competition with stone and granite produced in southern and central territories.

In New England territory granite generally moves under commodity rates considerably lower than fifth class. From Concord to Albany, N. Y., 192 miles, the rate on hammered granite was 12.5 cents, minimum 50,000 pounds. Effective July 16, 1928, this rate became 19 cents. On 12 shipments moving from and to those points during 1927, the average loading was 70,881 pounds, the car and car-mile earnings averaged $88.60 and 46 cents, respectively. Under the rate charged at the average loading of 49,614 pounds, the average car earning was $124.03, and the car-mile earning 76 cents.

Complainants compare the rates on hammered granite in New England with like rates in southern, southwestern, and western territories. The former are in all instances higher. The rates from New England to destinations in New York and central territory are lower, distance considered. From Concord to Cleveland, Ohio, 648 miles, the rate is 25 cents, and to Rochester, N. Y., 424 miles, it is 22.5 cents. The New Haven applies class rates on hammered granite to all points on its line with a maximum of 20 cents for distances considerably greater than from Concord to Hartford.

In Granite, Marble, and Stone in New England Territory, 156 I. C. C. 107, decided June 3, 1929, the rates on granite, marble, and stone between points in New England territory were before us. After consideration of the comprehensive record there made, it was found, among other things, that the rates on hammered granite, minimum 40,000 pounds, for the future would be unreasonable to the extent that they exceeded 90 per cent of the contemporaneous sixth-class rates. There is nothing in the instant case to warrant a different conclusion. Defendants have failed to rebut the prima facie presumption of unreasonableness arising from the fourth-sec

tion departures. Our findings herein will remove the fourth-section departures complained of.

We find that the rate assailed was unreasonable to the extent that it exceeded 90 per cent of the contemporaneous sixth-class rate from and to the same points, with a minimum of 40,000 pounds. We further find that complainants made shipments as described and bore the charges thereon at the rate herein found unreasonable; that they have been damaged in the amount of the difference between the charges collected and those which would have accrued at the rate herein found reasonable; and that they are entitled to reparation, with interest. Complainants should comply with Rule V of the Rules of Practice, and may include any shipments moving since the complaint was filed. The statement should be accompanied by affidavit that complainants paid and (or) bore the freight charges thereon at the rate herein found unreasonable. If defendants object to this manner of proof a further hearing may be sought by complainants.

As the rate found reasonable herein was prescribed in Granite, Marble, and Stone in New England Territory, supra, no order for the future is necessary.

157 I. C. C.

No. 20988

H. C. OBERMOLLER ET AL. v. ATCHISON, TOPEKA & SANTE FE RAILWAY COMPANY ET AL.

Submitted January 7, 1929. Decided September 21, 1929

1. Rates on gasoline, kerosene, and distillate, in tank-car loads, from Groups 1, 2, and 3 of the mid-continent field to Tekamah, Bancroft, and Emerson, Nebr., found not unreasonable, and as to Emerson and Wayne, Nebr., found not in violation of the long-and-short-haul clause of section 4 of the interstate commerce act.

2. Rates on the same commodities, in tank-car loads, from the same points of origin to Wayne, Nebr., found not unreasonable in the past, but unreasonable for the future. Reasonable rates prescribed.

L. C. Roberts for complainants.

P. F. Gault for defendants.

REPORT OF THE COMMISSION

DIVISION 4, COMMISSIONERS MEYER, EASTMAN, AND WOODLOCK BY DIVISION 4:

This case was presented under the shortened procedure. Exceptions were filed by complainants to the report proposed by the examiner, and defendants replied.

Complainants, copartners and individuals dealing in petroleum products at Tekamah, Bancroft, Emerson, and Wayne, Nebr., allege by complaint filed April 20, 1928, that the rates on gasoline, kerosene, and distillate, in tank-car loads, from Enid, Drumright, and Tulsa, Okla., and other points in Group 3 of the mid-continent oil field; Eldorado and Coffeyville, Kans., and other points in Group 2 of that field; Kansas City, Mo.-Kans., and other points in Group 1 of that field, to Tekamah, Bancroft, Emerson and Wayne, were and are unreasonable and, as to Emerson and Wayne, were and are in violation of the long-and-short-haul clause 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.

Informal complaints filed May 9 and May 11, 1927, were closed June 23 and August 11, 1927, respectively, and were not resubmitted

1 Complainants are H. C. Obermoller and Clem H. Simmon, copartners, trading under the firm name of O. S. V. Oil Company; S. A. Wassum, an individual, trading as Tekamab Oil Company; X. Y. Zuhlke, an individual, trading as Bancroft Oll Company: Zuhlke Oil & Fuel Company; and Zuhlke Oil & Seed Company, and E. H. Merchant and B. F. Strahan, copartners, trading under the firm name of Merchant & Strahan.

within six months thereafter. Therefore, the claims covering shipments which were not delivered or tendered for delivery within the statutory period prior to filing the formal complaint are barred from consideration Another informal complaint was filed March 30, 1928, and was pending when the formal complaint was filed.

Groups 1, 2, and 3 are described in Midcontinent Oil Rates, 1925, 112 I. C. C. 421, 132 I. C. C. 103, 136 I. C. C. 140, 139 I. C. C. 605, hereinafter called the Midcontinent case. Tekamah, Bancroft, and Emerson are on the main line of the Chicago, St. Paul, Minneapolis & Omaha, hereinafter called the Omaha, extending from Omaha, Nebr., to Sioux City, Iowa, 42, 72, and 94 miles, respectively, north of Omaha. Wayne, 113 miles from Omaha, is on that part of the Omaha which extends from Norfolk, Nebr., to Emerson. With the exception of four shipments, and other than those to Wayne, charges were collected at the applicable rates of 29.5 cents from Group 1 and 39.5 cents from Group 3. To Wayne, applicable rates were charged of 40.5 cents from Group 2 and 44.5 cents from Group 3. On one shipment from Covington, Okla., and one from Enid, consigned to the O. S. V. Oil Company at Emerson, rates were charged of 35.5 and 36 cents, respectively, whereas the applicable rate was 39 cents. On two shipments from Drumright, Okla., consigned to the Tekamah Oil Company at Tekamah, charges were collected at a rate of 39.5 cents, whereas the applicable rate was 36 cents, resulting in an overcharge. The overcharges and the collectible undercharges should be adjusted Two shipments are shown as destined to Craig, Nebr., but they will not be further considered as the record is otherwise silent as to this point.

In the Midcontinent case, rates were prescribed to Sioux City of 28, 33.5, and 36 cents from Groups 1, 2, and 3, respectively. These rates became effective on July 20, 1927, and the rates to Tekamah, Bancroft, and Emerson were placed on the same basis. Complainants seek these rates to Wayne and reparation to that basis on past shipments to each of the destinations.

The fourth-section allegation was based on the assumption that lower rates were in effect to Sioux City, and that shipments could move through Wayne and Emerson to Sioux City. The rates to Tekamah, Bancroft, and Emerson were and are the same as the rates to Sioux City, and by reason of certain routing restrictions the rates to Sioux City were and are inapplicable via Wayne and Emerson.

In the following table compiled from exhibits of record are shown the rates applicable prior to July 20, 1927, from Groups 1, 2, and 3 to Sioux Falls, S. Dak., Sioux City, and Omaha, also the rates prescribed in the Midcontinent case:

In Transcontinental Oil Co. v. Atchison, T. & S. F. Ry. Co., 147 I. C. C. 139, 152 I. C. C. 402, decided since this complaint was filed, a rate of 40 cents was prescribed from Group 3 to Wayne, which was established November 20, 1928. In the Midcontinent case a rate of 40 cents was prescribed from Group 3 to Sioux Falls. Differentials of 7 and 2 cents under Group 3 were prescribed for Groups 1 and 2, respectively. The same rate was prescribed to Wayne as to Sioux Falls. The instant record does not warrant a different conclusion.

We find that the rates assailed from Groups 1, 2, and 3 to Tekamah, Bancroft, and Emerson were not and are not unreasonable, and that the rates assailed to Emerson and Wayne were not and are not in violation of the long-and-short-haul clause of section 4 of the act. We further find that the rates assailed from Groups 1, 2, and 3 to Wayne were not unreasonable but that they are and for the future will be unreasonable to the extent that they exceed or may exceed 33, 38, and 40 cents, respectively.

An appropriate order will be entered.

157 I. C. C.