No. 21419 UNITED STATES GRAPHITE COMPANY v. CANADIAN PACIFIC RAILWAY COMPANY ET AL. Submitted May 14, 1929. Decided September 21, 1929 Carload rate charged on crude graphite, in bags, from Calabogie, Ontario, Canada, to Saginaw, Mich., found not unreasonable. Complaint dismissed. Earl W. Cox for complainant. C. A. Halpen for defendants. REPORT OF THE COMMISSION DIVISION 4, COMMISSIONERS MEYER, EASTMAN, AND WOODLOCK BY DIVISION 4: This case was presented under the shortened procedure. No exceptions were filed to the report proposed by the examiner. Complainant, a corporation manufacturing foundry facings at Saginaw, Mich., alleges by complaint filed August 18, 1928, that the rate charged on four carloads of crude graphite, in bags, shipped between March 14 and August 17, 1927, from Calabogie, Ontario, Canada, to Saginaw was unreasonable. Reparation only is sought. Rates will be stated in amounts per 100 pounds. The shipments, weighing 40,400, 40,700, 40,500, and 41,000 pounds, moved over the Canadian Pacific to Windsor, Ontario, Canada, thence Michigan Central, 547 miles. Charges were collected at the applicable fifth-class rate of 50 cents. Subsequent to the time the shipments moved, a sixth-class rate of 41.5 cents was established. Complainant seeks reparation based on a rate of 37.5 cents. The rate assailed is compared with commodity rates of 44.5, 41, and 41 cents on graphite ore, in bulk, in carloads, value not to exceed $100 per ton, from Calabogie to Chicago, Ill., and Cincinnati and Cleveland, Ohio, respectively. The average of these rates is approximately 90 per cent of the sixth-class rates from and to the same points. Therefore, complainant urges that the rate assailed on crude graphite should not have exceeded 90 per cent of the sixthclass rate of 41.5, or 37.5 cents. This contention is based on the grounds that the crude graphite shipped was nothing more than crushed or ground graphite ore and that the rates to Chicago, Cincinnati, and Cleveland, on graphite ore also apply on crude graphite when the value thereof does not exceed $100 per ton. The value of complainant's shipments was $110 per ton. It is also shown that the commodity rates on ground graphite, minimum 40,000 pounds, from Calabogie to nine destinations in central territory, such as Chicago, East St. Louis, Ill., and Indianapolis, Ind., and Milwaukee, Wis., and Delano Junction, N. Y., average 97 per cent of the fifthclass rates from and to the same points. In Obermeyer & Co. v. Ann A. R. Co., 147 I. C. C. 646, decided after the shipments in the instant case moved, division 3 found that the official classification rating of fifth class on crude graphite, in barrels, or bags, in carloads, minimum 36,000 pounds, was unreasonable to the extent that it exceeded the sixth-class rating, minimum 50,000 pounds. This rating was established in lieu of the fifth-class rating on December 20, 1928. Reparation was denied in that case, because the evidence did not warrant a finding of unreasonableness in the past. There is likewise no evidence in the instant case sufficient to warrant a finding of unreasonableness in the past and the aggregate charges on complainant's shipments under the rate assailed were, in fact, $17 less than they would be under the findings in the case cited above. We find that the rate assailed was not unreasonable. The complaint will be dismissed. 157 I. C. C. No. 21579 HERCULES GLUE COMPANY v. GREAT NORTHERN RAILWAY COMPANY ET AL. Submitted June 18, 1929. Decided September 21, 1929 Rate on insecticide spreader, in carloads, from San Francisco, Calif., to Wenatchee, Wash., found not unreasonable or otherwise unlawful. Complaint dismissed. A. Larsson for complainant. John Ambler, R. J. Hagman, J. P. Plunkett, and Fletcher Rockwood for defendants. REPORT OF THE COMMISSION DIVISION 4, COMMISSIONERS MEYER, EASTMAN, AND WOODLOCK BY DIVISION 4: This case was presented under the shortened procedure. No exceptions were filed to the report proposed by the examiner. Complainant, a corporation manufacturing insecticide spreader, alleges by complaint filed October 10, 1928, that the rate charged on two carloads of insecticide spreader shipped April 8 and May 13, 1926, from San Francisco, Calif., to Wenatchee, Wash., was unreasonable and unduly prejudicial. Informal complaint was filed February 14, 1928, but complainant was advised July 9, 1928, that the matter was not susceptible of informal adjustment. Reparation and a lawful rate for the future are sought. Rates will be stated in amounts per 100 pounds. Insecticide spreader is a nonpoisonous adherent used with insecticide to prevent the latter from being washed off by dew or rain. Insecticides, agricultural, n. o. i. b. n., other than liquid, and insecticide spreader are rated class A in the governing classification. The shipments weighed 30,500 and 31,800 pounds, and moved by boat to Seattle, Wash., thence Great Northern to destination. Charges were collected at the applicable joint class A rate of 78.5 cents, minimum 36,000 pounds. There was contemporaneously in effect a combination rate on insecticides of 77.5 cents, minimum 30,000 pounds, composed of a commodity rate of 27.5 cents for the water movement, plus 3 cents for loading to cars at Seattle, and a class A rate of 47 cents from Seattle to Wenatchee. It is to the basis of this rate that reparation is sought. Complainant states that the value of the insecticide with which the spreader is used is at least double the value of the spreader and that the latter is not nearly so hazardous to transport. Insecticide is a poison, designed and prepared to destroy insects, whereas insecticide spreader does not kill or injure insects but is merely an adherent. In justification of the rate charged, defendants assert that insecticides move in greater volume than the commodity herein considered, and for that reason have been accorded the commodity rate. The combination of class A rates on spreader at the time of movement and at present was and is as follows: San Francisco to Seattle 50 cents, loading to cars at Seattle 3 cents, Seattle to Wenatchee 47 cents, totaling $1. In view of this and the fact that the rate assailed is only 1 cent more than the rate on insecticide, defendants maintain that these circumstances are not sufficient to support a finding of unreasonableness. The record indicates that the compared commodities are not alike nor is there competition between them. Transportation data such as distance over route of movement or earnings under the rates assailed and sought are not shown. Considering all the evidence, it can not fairly be said that the rate assailed is higher than a reasonable maximum rate. Furthermore, the difference between the rate assailed and the rate sought is relatively so inconsiderable that it could hardly be said to transgress the flexible limits of judgment in rate making. No evidence was introduced to sustain the allegation of undue prejudice. We find that the rate assailed was not and is not unreasonable or otherwise unlawful. The complaint will be dismissed. 157 I. C. C. No. 21675 NATIONAL BAG MANUFACTURING COMPANY v. ANN ARBOR RAILROAD COMPANY ET AL. Submitted June 7, 1929. Decided September 21, 1929 Rate charged on secondhand burlap bags, in carloads, from Toledo, Ohio, to Minneapolis, Minn., found unreasonable. Reasonable rate prescribed and reparation awarded. A. R. Morgan for complainant. H. S. Bradley for defendants. REPORT OF THE COMMISSION DIVISION 4, COMMISSIONERS MEYER, EASTMAN, AND WOODLOCK BY DIVISION 4: This case was presented under the shortened procedure. No exceptions were filed to the report proposed by the examiner. Complainant, a corporation dealing in secondhand bags at Minneapolis, Minn., alleges by formal complaint filed November 5, 1928, subsequent to the filing of an informal complaint, that the carload rate charged on four shipments of secondhand burlap bags from Toledo, Ohio, to Minneapolis, from September 16, 1926, to March 28, 1927, inclusive, was unreasonable and in violation of the longand-short-haul clause of the interstate commerce act. A reasonable rate for the future and reparation are sought. Rates will be stated in cents per 100 pounds. The shipments, aggregating 176,000 pounds, were loaded in seven cars and moved over the Ann Arbor to Menominee, Mich., the Wisconsin & Michigan to Faithorn Junction, Mich., and the Minneapolis, St. Paul & Sault Ste. Marie to destination, 727 miles. The short route is over the New York Central to Chicago, and the Chicago & North Western beyond, 660 miles. Charges were collected at the applicable commodity rate of 60 cents. Complainant seeks a rate for the future of 52.5 cents and reparation to that basis. It alleges that the applicable rate was 52.5 cents by virtue of a rule 77 provision in the tariff publishing such a rate from Syracuse, N. Y., to Minneapolis, 1,171 miles, over the New York Central to Toledo thence over the route over which these shipments moved. This rule was without effect because a specific commodity rate was published from the inter |