by applying to the shortest distance between such points either the single-line or the joint-line scale according as to whether such shortest distance is made over a single-line or a joint-line route. In other words, if the shortest distance between points A and B is made over a joint-line route the defendants construe the formula as authorizing them to publish between such points over any route a rate no lower than that obtained by the application of the jointline scale for such shortest distance even though a lower rate would be obtained by the application of the single-line scale to the distance over an existing single-line route between such points. The construction placed by the defendants would result in a rate over the single-line route which would be higher than the single-line scale rate authorized for such distances. The single-line scale was intended to be used for computing maximum rates over single-line routes and the joint scale for computing maximum rates over routes composed of two or more lines not under common ownership and control. We here find that, in determining the maximum rates prescribed in these cases, the following formula shall be used:

In computing distances for the application of the scales herein prescribed, the shortest single-line routes over which carload traffic can be moved without transfer of lading shall be used in connection with the single-line scale, and the shortest joint route over which carload traffic can be moved without transfer of lading shall be used in connection with the joint-line scale.

An order will be entered in accordance with the above finding.

157 I. C. C.

No. 21441

BABCOCK, BOOMER & BABCOCK COMPANY v. NORTHERN PACIFIC RAILWAY COMPANY

Submitted July 20, 1929. Decided September 26, 1929

Combination class A rate charged for the transportation of a gasoline-power shovel from Milwaukee, Wis., to Ironton, Minn., upon which shipment complainant claims benefit of a contemporaneous commodity rate applicable to "machinery, hoisting," as one factor of the combination, not shown to have been inapplicable. Complaint dismissed.

Maugridge S. Robb and Victor J. Hermel for complainant. D. F. Lyons, M. L. Countryman, jr., and Conrad Olson 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 complainant to the report proposed by the examiner.

Complainant, a contractor at Ironton, Minn., alleges, by complaint filed August 22, 1928, that the rate charged on "one carload of hoisting machinery" shipped August 4, 1927, from Milwaukee, Wis., to Ironton was inapplicable. Reparation is sought. Rates will be stated in amounts per 100 pounds.

The shipment, described in the bill of lading as a gasoline-power shovel, moved over the Chicago & North Western to Wyeville, Wis., the Chicago, St. Paul, Minneapolis & Omaha to Minnesota Transfer, Minn., and the Northern Pacific to Ironton. Power shovels, when not moved on their own wheels, were rated class A, minimum 30,000 pounds, in the western classification. The shipment weighed 85,000 pounds, and charges were collected at a combination rate of 63 cents, composed of the class A rates of 42 cents to Duluth, Minn., and 21 cents beyond. There was contemporaneously in effect a commodity rate of 30.5 cents on machinery, hoisting, minimum 30,000 pounds, from Milwaukee to Duluth, and complainant contends that this rate should have been applied as the factor to Duluth.

Complainant contends that a power shovel is recognized in the engineering profession as a kind of hoisting machine, citing as authority the Mechanical Engineer's Handbook, by Marks, in which

power shovels are listed as a type of hoisting machine, among numerous others.

Defendant has submitted no evidence but argues that a "power shovel " is designed and used principally for excavating, and that such hoisting as it may do is merely incidental to its principal function. It cites Macneal v. C., St. P., M. & O. Ry. Co., 139 I. C. C. 295, in which division 4, dealing with a similar question respecting a "drag line machine" and parts, said:

There is no evidence showing the ordinary uses and construction of hoisting machinery. Hoisting machinery, generally speaking, is constructed and used for only one purpose, namely, hoisting. The machine under consideration, as indicated above, is used for many purposes. In the absence of other evidence as to the construction and uses of hoisting machinery and of this machine, the fact that the machine here considered may be used, among other things, for hoisting does not justify a finding that it is hoisting machinery within the meaning of the commodity description.

Marks's Handbook, above cited, and upon which complainant relies as an authority supporting its contention, deals with power shovels in a chapter or section devoted to various types of hoisting machinery, but it describes them as used for excavating on dry land such materials as sand, earth, ore, blasted rock, etc., and placing the materials in cars or wagons so that they may be moved to dumping points. This description seems to us to support defendant's, rather than complainant's, contention. It seems to indicate distinctly that in its dominant purpose and function a power shovel is an excavating machine, and that such hoisting of the excavated material as it does is a supplemental operation. The machine thus described is illustrated by one of complainant's own exhibits, which pictures a large power shovel of a familiar type, to be seen in almost every city and commonly used for excavating cellars and the like, mounted upon a caterpillar tractor, with its excavating bucket filled with excavated material and upraised above a power truck for deposit of the material in the truck. The particular use complainant may make of the power shovel in this case can not control the question here presented.

We think that the record falls short of establishing, as the burden of proof requires for complainant's purpose, an acceptable foundation for a conclusion that the commodity rate applicable to unidentified articles generically denominated “hoisting machinery ” takes precedence over the corresponding class rate applicable to an article specifically known and classified as a "power shovel," the primary and principal function of which is something other than hoisting.

We find that the rate charged is not shown to have been inapplicable, and the complaint will be dismissed.

FARRELL, Commissioner, dissenting:

I am unable to concur in the views of the majority, because I think the gasoline-power shovel under consideration in this case is a hoisting machine, and I am unable to understand how it could be of much service as a power shovel if it were not a hoisting machine. I quote from the record as follows:

Clifford S. Babcock, being first duly sworn, deposes and says:

That he is a member of the firm of Babcock, Boomer & Babcock:

That he has been engaged in construction work for 3 years and is familiar with machines used on construction jobs, and particularly is he familiar with the mechanics and working of the machine shipped from Milwaukee, Wisconsin to Ironton, Minnesota under date of August 4th, 1927.

That said machine was constructed, and has been used for no other purpose except hoisting and lowering bulky or heavy materials.

It is stated that the subject matter of the shipment involved was described by the consignor as a "gasoline-power shovel," but I discover nothing in the record which indicates to me that there is any machine which is called only a "hoisting machine." Pertinent language used by division 4 in its report in Lawrence Construction Co. v. L. & N. R. R. Co., 115 I. C. C. 439, is:

Defendant denies that a self-propelling road roller is a machine, pointing out that they are ordinarily referred to as " steam rollers" rather than "machines." For obvious reasons most machines are generally referred to by their individual names, but that does not make them any the less machines. [Id. 440.]

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It may be that the language contained in the pertinent tariff is ambiguous, and that for this reason the meaning of the language is not entirely clear, but my attention has not been called to any evidence which appears to me to indicate that the charge exacted for the transportation of a gasoline-power shovel between certain points should be greater than the charge contemporaneously exacted for the transportation of any other hoisting machine between the same points, and, under these circumstances, it is my opinion that any doubt which exists in the premises should be resolved against the carrier which is responsible for the ambiguity.

157 I. C C.

No. 21698

SOUTH GEORGIA TRAFFIC BUREAU, FOR AND ON BEHALF OF READ PHOSPHATE COMPANY, v. ATLANTA, BIRMINGHAM & COAST RAILROAD COMPANY ET AL.

Submitted June 17, 1929. Decided September 26, 1929

Rate charged on a carload of fertilizer from Cordele, Ga., to Lee, Fla., found unreasonable. Reparation awarded.

R. L. Askea for complainant.

Roy Pope, F. W. Gwathmey, and Gus Richmond for defendants. 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 Atlanta, Birmingham & Coast to the report proposed by the examiner.

The South Georgia Traffic Bureau alleges, by complaint filed November 10, 1928, on behalf of the Read Phosphate Company, a corporation manufacturing fertilizer at Cordele, Ga., and hereinafter called complainant, that the rate charged on a carload of fertilizer forwarded March 4, 1927, from Cordele to Lee, Fla., was unreasonable, unduly prejudicial, and in violation of the long-and-short-haul clause of section 4 of the interstate commerce act. Reparation is sought. Rates will be stated in amounts per ton of 2,000 pounds. The record contains no evidence of undue prejudice, and that phase of the case will not be further considered.

Cordele, in southern Georgia, is served by the Atlanta, Birmingham & Coast, Seaboard Air Line, Georgia Southern & Florida, and Georgia Southwestern & Gulf, the first two hereinafter called the A., B. & C. and Seaboard, respectively. Lee is a local station on the Jacksonville-River Junction line of the Seaboard between Live Oak and Madison, Fla., both of which are junction points.

The shipment weighed 41,400 pounds. It was tendered to the A., B. & C. on a bill of lading specifying routing by "AB&C-SAL" and moved over the A., B. & C. to Thalmann, Ga., and Seaboard beyond, 309 miles. The short-line distance is 135 miles over the Georgia Southern & Florida to Adel, Ga., the South Georgia to Greenville, Fla., and the Seaboard beyond. This is the rate-making