Minnesota, west of the line of the Omaha. In the following table the rates, distances, and earnings on scrap iron from Sioux Falls to Duluth are compared with those from Sioux City, Fort Dodge, and Omaha to the same destination and with the class D rates under the Fargo scale for like distances:

Particular attention is invited by complainants to the present rate from Fort Dodge to Duluth for a distance 16 miles greater than that from Sioux Falls to Duluth. Movement from Fort Dodge to Duluth involves a two-line haul, whereas only a single line participates generally in the transportation from Sioux Falls. Complainants contend that the 17.5-cent rate is the maximum that should be charged on scrap iron from Fort Dodge and that the rate from Sioux Falls should be less. In Watertown Chamber of Commerce v. C. & N. W. Ry. Co., 101 I. C. C. 441, division 2 prescribed class rates on the basis of 88 per cent of the Fargo scale in the territory lying east of the line of the Omaha. The major portion of the movement from Sioux Falls is through the higher-rated territory, whereas from Fort Dodge to the same destination the movement is entirely within the lower-rated territory. The present rate from Sioux Falls does not appear to be out of line with the Fort Dodge rate.

Scrap iron is rated class D, minimum, 40,000 pounds, in the western classification. There is a substantial movement of scrap iron at the class D rates within the States of Minnesota and Iowa. Complainants compare the percentages which the commodity rates on scrap iron from various points in South Dakota, Iowa, Nebraska, and Minnesota to Duluth, St. Louis, and Chicago bear to the class. D rates under the Fargo scale for like distances. These percentages range from 52 to 77, or an average of 59 per cent. Applying that percentage to the class D rate between Sioux Falls and Duluth results in a rate of 16.5 cents. Defendants point out that there are commodities rated class D moving between the points under consideration which take rates higher than those assailed, such as broken

glass (colored) 24.5 cents, secondhand rails 23 cents, and paving and roofing material 20.5 cents.

In the Consolidated Southwestern cases, we prescribed commodity rates on scrap iron, 17.5 per cent of first class, to, from, and within the Southwest, minimum 50,000 pounds. The rate there fixed on this commodity for the distance from Sioux Falls to Duluth was 26 cents. On brief complainants cite Waste Material Dealers Asso. v. Chicago, R. I. & P. Ry. Co., 152 I. C. C. 41, in which division 5 prescribed as an alternative 13.5 per cent of the first-class rates found reasonable in the Southwestern Cases for application ou scrap iron within the same territory, minimum 70,000 pounds. Based on that relationship, the rate on scrap iron for 344 miles would be 20 cents. Complainants suggest that we use the present first-class rate of $1.215 between Sioux Falls and Duluth and apply the basis found reasonable in the Waste Material Dealers case, supra, in determining a maximum reasonable rate. The present first-class rate between the points under consideration is not only less than that found reasonable in the Southwestern Cases, but also less than the Fargo scale for the same distance. On this record and in view of the comprehensive investigation now being conducted in Western Trunk Line Class Rates, Docket No. 17000, Part 2, we are not persuaded that the rates on scrap iron should be a fixed percentage of the present first-class rates in this territory. Defendants cite Rates on Iron and Steel Articles, 30 I. C. C. 337, wherein we approved a rate of 10 cents on scrap iron from Sioux Falls to St. Paul, a distance of 238 miles. That rate, as modified by the general changes, is now 15.5 cents. Numerous comparisons are also made with the rates from and to other points in the same territory and also with rates from the origin territory under consideration to several large consuming markets such as Chicago, St. Louis, and Peoria, Ill. These comparisons indicate that the present rate on scrap iron is substantially in accord with the general level of rates in this territory.

Complainants ask that we require the carriers to establish a sorting, milling, fabricating, and reworking privilege on scrap iron at Sioux Falls. Little evidence was adduced by complainants in support of this request other than the general statements that transit privileges are accorded lumber, agricultural products, sugar, and coffee, and that complainants are in competition with dealers in waste material at St. Paul and Minneapolis. Reference is made to Scrap Iron or Scrap Steel Stopped in Transit, 155 I. C. C. 285, wherein division 5 found justified carriers' proposal to extend these privileges to St. Paul, Minneapolis and Minnesota Transfer, Minn. It will be observed, however, that we did not there require the establishment of

such privileges, but merely approved carriers' voluntary proposal to extend such arrangements. In Montgomery Cotton Exchange v. L. & N. R. R. Co., 112 I. C. C. 325 at page 332, division 4 said:

We have power under section 1 of the act to require the establishment of transit, Central R. R. Co. v. United States, 257 U. S. 247, 257, but we have exercised that power rarely, it having been our policy generally not to require the establishment of transit arrangements unless to remove unjust discrimination or undue prejudice, Anderson Lumber Co. v. N. P. Ry. Co., 87 I. C. C. 425, 435.

On this record, we find that the failure of defendants to establish reworking and sorting-in-transit privilege on scrap iron at Sioux Falls was not and is not unreasonable or unduly prejudicial.

We further find that the rates assailed on scrap iron in effect prior to May 1, 1928, were not unduly prejudicial but were unreasonable to the extent they exceeded 19.5 cents; that the present rates on this commodity from and to the points concerned are not unreasonable or unduly prejudicial; that complainants made the shipments as described and paid and bore the charges thereon; that they have been damaged thereby in the amount of the difference between the charges paid and those which would have accrued at the rates herein found reasonable; and that they are entitled to reparation, with interest. Complainants should comply with Rule V of the Rules of Practice.

157 I. C. C.

No. 21172

BRANNON COAL COMPANY ET AL. v. SOUTHERN RAILWAY COMPANY ET AL.

Submitted March 9, 1929. Decided October 2, 1929

Rates on coal, in carloads, from certain mines in Alabama to Meridian, Miss., found unreasonable. Reparation awarded.

D. C. Callon for complainants.

W. N. McGehee and Joseph P. Cook for defendants.

REPORT OF THE COMMISSION

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

Exceptions were filed by defendants to the report proposed by the examiner.

Complainants are the Brannon Coal Company, E. M. Pogue Coal Company, Lawrence Coal Company, Gulf States Creosoting Company, and Marks-Rothenberg Company, dealers in coal at Meridian, Miss., and the waterworks department and school trustees of the city of Meridian. By complaint filed June 25, 1928, they allege that the rates charged on numerous carloads of coal shipped between June 22, 1926, and June 23, 1928, from "the Alabama fields in Southern Railway groups 1-2-3-4-5, Frisco1 groups 1-2, and Mobile & Ohio group 2, as such groups are defined in Southern Railway, Alabama Coal Tariff 2, I. C. C. A-10125, Frisco Tariff #3150-I, I. C. C. #8878, and Mobile & Ohio Tariff, #7840, I. C. C. B-766,” to Meridian were and are unreasonable. Reasonable rates for the future and reparation are sought. The request for rates for the future was withdrawn at the hearing. Claims on shipments delivered or tendered for delivery prior to June 26, 1926, are barred from consideration herein. Rates will be stated in amounts per net ton.

The record shows details of 402 carloads which moved over defendant's lines and were received by complainants, many of which moved, and obviously were delivered, prior to June 26, 1926. Charges on all shipments were collected at the applicable rate of $2.03.

1 St. Louis-San Francisco.

Complainants contend that the rate charged was unreasonable tc the extent that it exceeded $1.85 from Southern Railway Groups 2 and 5 and Mobile & Ohio Group 2, and $1.95 from Southern Railway Groups 1, 3, and 4 and Frisco Groups 1 and 2, and in support thereof rely upon the findings in Eagle Cotton Oil Co. v. S. Ry. Co., 140 I. C. C. 131, and 146 I. C. C. 687, hereinafter called No. 17485. In that case division 2 found that the rate on coal, in carloads, to Meridian from mines in Southern Railway Groups 2 and 5, and from mines at and near Blocton, Ala., served by the Mobile & Ohio, was and for the future would be unreasonable to the extent that it exceeded $1.85 and from Southern Railway Groups 1, 3, and 4, and Frisco Groups 1 and 2, to the extent that it exceeded $1.95. The mines at and near Blocton are in Mobile & Ohio Group 1 and not in Mobile & Ohio Group 2, which latter group covers mines on the Warrior branch of the Mobile & Ohio between Tuscaloosa and Kellerman, Ala. Rates from the latter mines were not in issue in No. 17485. No evidence in support of the allegation of unreasonableness was introduced by complainant, and defendants introduced no evidence in defense of the rate assailed. Defendants herein are the same as those in No. 17485. In Phillips v. Grand Trunk Ry., 236 U. S. 662, the Supreme Court held that a finding of unreasonableness in the past inures to the benefit of every person who has paid and borne the unreasonable charges and who initiates his claim within the statutory period.

Defendants contend that we are without power to make a finding of unreasonableness in the past and an award of reparation to complainants because the rate assailed resulted from a rate approved in Coal and Coke Rates in the Southeast, 35 I. C. C. 187, decided July 22, 1915, or more than 14 years ago. No order requiring the maintenance of the approved rate for the future was entered in that case. This contention was considered in No. 17485 and decided adversely to defendants. As pointed out therein, the reports indicate that the evidence considered in the two cases was dissimilar. In the earlier case the question of differentials between the origin groups was not considered. The shipments in the present case moved after August 28, 1925, the date on which the complaint in No. 17485 assailing the rates under consideration was filed.

We find that the assailed rate from mines in Mobile & Ohio Group 2 is not shown to have been unreasonable, but that the assailed rate from the remaining points of origin was unreasonable to the extent that it exceeded $1.85 from mines in Southern Railway Groups 2 and 5 and $1.95 from mines in Southern Railway Groups 1, 3, and 4, and Frisco Groups 1 and 2; that complainants made shipments under the rate herein found unreasonable and bore the