charges thereon; that they have been damaged thereby in the amount of the difference between the charges paid and those found reasonable herein; and that they are entitled to reparation in that amount, with interest. Complainants should comply with Rule V of the Rules of Practice. It does not appear affirmatively of record whether complainants other than the city of Meridian are corporations, firms, or individuals. The Rule V statements should contain only shipments delivered or tendered for delivery on and after June 26, 1926, and should be accompanied by affidavits stating whether complainants are corporations, individuals, or partnerships, and, if any are partnerships, the names of the partners should be given. If defendants object to such proof in that form complainants may petition for a further hearing.

157 I. C. C.

No. 21596

PIONEER COMPOST COMPANY v. SOUTHERN PACIFIC COMPANY ET AL.

Submitted July 25, 1929. Decided October 2, 1929

Rate from San Francisco, Calif., to Terminus, Calif., on cyanamid, in carloads, received at San Francisco by boat from an eastern port, found unreasonable. Reasonable rate prescribed and reparation awarded.

Gwyn H. Baker for complainant.

J. R. Bell, G. H. Muckley, James E. Lyons, A. L. Whittle, Frank Karr, and J. L. Fielding for defendants.

W. P. Geary and W. K. Brown for Railroad Commission of State of California.

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.

Complainant, a corporation, by complaint filed October 6, 1928, alleges that the rate charged on one carload of cyanamid shipped January 23, 1928, from San Francisco, Calif., to Terminus, Calif., which originated at Warners, N. J., and moved therefrom by boat to San Francisco and uninterruptedly thence by the defendant rail lines to Terminus, was, is, and for the future will be unreasonable, unduly prejudicial, and unduly preferential, in that it was and is substantially higher than the rate on other fertilizer material moving in interstate commerce between the same points. It is further alleged that there was an overcharge in weight. An allegation of a violation of section 13 of the interstate commerce act was withdrawn at the hearing. We are asked to prescribe a reasonable and nonprejudicial rate for the future and to award reparation. Rates will be stated in cents per 100 pounds.

The record indicates that, subsequent to the movement of the shipment under consideration and the filing of the complaint, complainant corporation, together with its assets and liabilities was taken over by and consolidated with Western Sulphur Industries, Incorporated.

The shipment moved over the main line of Southern Pacific to Exeter, Calif., thence Visalia Electric Railroad to destination, approximately 258 miles. These carriers constitute one line for ratemaking purposes. Pacific Guano & Fertilizer Co. v. S. P. Co., 91 I. C. C. 228; Lemon Cove-Woodlake Asso. v. A. T. & S. F. Ry. Co., 139 I. C. C. 239.

Cyanamid is rated fifth class and fertilizer and fertilizer compounds, manufactured, are rated class E in the governing western classification. Charges were collected on a net weight of 42,120 pounds at the applicable fifth-class rate of 53.5 cents. The class E rate, to which basis reparation is sought, was 21.5 cents. Complainant contends that the weight should not exceed 40,560 pounds. In support thereof it introduced the certificate of a sworn weighmaster at Niagara Falls, Canada, from which point the cyanamid originally moved, and a copy of the invoice of sale. These papers show that at Niagara Falls on December 14, 1927, the cyanamid weighed 40,040 pounds, or 20.02 net tons, and the 260 double bags in which it was forwarded were assumed to weigh 2 pounds each, or 520 pounds, or a total weight of 40,560 pounds. The paid freight bill dated January 28, 1928, shows the gross weight as 84,120 pounds, and the tare weight 42,000 pounds, or a net weight of 42,120 pounds. Defendants submitted a photostatic copy of their sworn weighmasters' scale record in support of the freight-bill weights. They also point out that the record of the stenciled tare weight on this car S. P. 28932 shows that on May 27, 1927, it was 42,000 pounds, and on September 25, 1928, subsequent to the movement, 42,300 pounds. The scale weight of this shipment at San Francisco was the weight upon which defendants were entitled to assess their charges. The fact that complainant paid for the cyanamid on the basis of a lower weight obtained six weeks before at a distant place and under other conditions, with a subsequent movement by rail to New York Harbor and thence 6,000 miles by water to San Francisco, does not establish the incorrectness of defendants' scale weight.

In Fertilizers Between Southern Points, 113 I. C. C. 389, 436, we described cyanamid as

a product obtained by combining the nitrogen of the air with lime and coke, and in its marketable state [it] is a grayish powder containing about 26 per cent of ammonia. It is said to be the cheapest form of organic ammonia available. Besides its value as an ammoniate, it is an excellent conditioner of fertilizer mixtures, making the latter dry and friable and easy to apply to the soil. Owing to its high lime content, however, only about 60 pounds can be used normally in a ton of commercial fertilizer.

Complainant used the cyanamid as an ingredient in commercial fertilizer compounds prepared by it. Wherever used the available

nitrogen and lime it contains are what are sought. Cyanamid, as a nitrogenous compound, must meet the competition of other nitrogen bearers. Among the nitrogenous compounds ammonium sulphate, worth about $58 per ton and bearing 20 per cent of nitrogen, is nearest to cyanamid, which is worth about $56 per ton and bears 21 per cent nitrogen. However, there are other nitrogen bearers used in the manufacture of fertilizers, such as ammonium sulphate nitrate (leunasalpeter), and nitrate of lime, with present values of about $66 and $46 per ton, respectively, with which cyanamid must compete in commercial use.

For the transportation of all these nitrogen bearers, other than cyanamid, the defendants have provided exceptions to the western classification whereby they are accorded class E rates on movements such as that in this case. As heretofore stated at the time this shipment moved the class E rate, on interstate transportation, from San Francisco to Terminus was 21.5 cents. Applied to this shipment this rate would have yielded a car-mile revenue of 35 cents, as compared with a revenue of 87 cents derived from the rate of 53.5 cents charged.

Defendants direct attention to the apparently sporadic character of this shipment as justifying the applicable fifth-class rate of 53.5 cents. Division 4 recently had occasion to point out that every shipper is entitled to a reasonable rate on his traffic, and where he attacks the reasonableness of a rate, whether class or commodity, that issue must be decided on its merits. New York Architectural Etc., Co. v. Central R. Co. of N. J., 151 I. C. C. 281. This is not a classification case; nor are intrastate rates in California involved. Cyanamid and the rates reasonable for application on it have heretofore received consideration from us. In the lists of fertilizer materials under Appendix B, in Fertilizers Between Southern Points, supra, and Appendix A, in Ohio Farm Bureau Federation v. A. & W. Ry. Co., 146 I. C. C. 419, we grouped cyanamid with sulphate of ammonia and nitrate of lime as entitled to equal rates. These defendants have voluntarily accorded equal rates, 21.5 cents, on sulphate of ammonia and nitrate of lime. No reason is advanced for the exclusion of cyanamid from similar rates, except that its movement in California is light. But complainant should not be denied its right to a reasonable rate merely because movements thereunder are infrequent.

We find that the rate assailed was, is, and for the future will be unreasonable to the extent that it exceeded, exceeds, or may exceed 21.5 cents. We further find that complainant made the shipment as described and 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 the Western Sulphur Industries, Incorporated, its successor in interest, is entitled to reparation in the sum of $134.78, with interest.

The finding herein made with respect to reasonableness of the rate assailed will remove any undue prejudice which may have existed. An appropriate order will be entered.

157 I. C. C.