sylvania, to routes via certain specified junctions. For example, at present shipments from Vincennes, Ind., to Philadelphia, Pa., may be routed over the Baltimore & Ohio to Toledo and thence over the Pennsylvania at the joint through rate, whereas, under the proposed restriction, to receive the benefit of that rate, shipments would have to be delivered to the Pennsylvania at Cincinnati. Respondents made no attempt to justify the proposed routing restriction.

Protestants contend that they are unable to secure sufficient grain originating at points on the Baltimore & Ohio to satisfy their needs, and that they must necessarily draw grain from Chicago which has originated beyond that point, as well as from various other markets. They contend that wide latitude in buying and selling markets and transit stations is essential to the milling business, and that the proposed cancellation of the transit services would result in combination rates becoming applicable to eastern consuming points which would seriously hinder the movement of their commodities thereto. We have consistently found that disputes between carriers over the divisions of their joint through rates are no justification for increasing rates. Transit Privileges on Grain, 92 I. C. C. 161.

We find that the suspended schedules have not been justified. An order will be entered requiring their cancellation, and discontinuing this proceeding.

157 I. C. C.

INVESTIGATION AND SUSPENSION DOCKET No. 3275

BRICK AND RELATED ARTICLES FROM SIOUX CITY, IOWA, TO KANSAS CITY, MO., AND OTHER LOWER MISSOURI RIVER CITIES

Submitted August 15, 1929. Decided October 8, 1929

Proposed increased rates on brick and related articles, in carloads, from Sioux City and Sargent's Bluffs, Iowa, to Kansas City, Mo., and other lower Missouri River points, found not justified. Suspended schedules ordered canceled and proceeding discontinued.

J. B. Driggs for respondents.

H. C. Wilson for protestants.

REPORT OF THE COMMISSION

DIVISION 3, COMMISSIONERS AITCHISON, TAYLOR, AND PORTER BY DIVISION 3:

No exceptions were filed to the report proposed by the examiner which was stated on the record at the close of the hearing.

By schedules filed to become effective April 15, 1929, and later dates, respondents proposed increased rates on brick and related articles, in carloads, from Sioux City and Sargent's Bluffs, Iowa, to Kansas City, Mo., and other lower Missouri River points. Upon protest of the Sioux City Traffic Bureau the operation of the proposed schedules was suspended by us until November 15, 1929, and later dates.

Respondents stated at the hearing that they were not then prepared to offer any justification for the proposed increased rates, and none was offered of record.

We find that the suspended schedules have not been justified. An order will be entered requiring their cancellation and discontinuing this proceeding.

157 I. C. C.

No. 21259

O. A. SMITH AGENCY, INCORPORATED, v. CENTRAL OF GEORGIA RAILWAY COMPANY ET AL.

Submitted May 31, 1929. Decided October 4, 1929

Rail-water-rail sixth-class rate charged on eight carloads of high-temperature bonding mortar from Gillespie, N. J., to Birmingham, Ala., found unreasonable. Reparation awarded to basis of reduced rate subsequently established over one route of movement, and same rate prescribed for future application over other route.

W. B. Daly and O. A. Smith for complainant.

L. V. Crane and F. W. Gwathmey for defendants.

REPORT OF THE COMMISSION

DIVISION 5, COMMISSIONERS LEWIS, WOODLOCK, 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. Our conclusions differ from those recommended by him.

By complaint filed July 14, 1928, as amended, on behalf of the Hill and Griffith Company, a corporation, hereinafter called complainant, it is alleged that the rate charged on eight carloads of Hytempite mortar shipped from Gillespie, N. J., to Birmingham, Ala., between October 6, 1925, and May 11, 1927, was unreasonable. Informal complaint was filed September 28, 1927, and the informal file closed on March 23, 1928. Reparation only is sought. Rates will be stated in amounts per 100 pounds.

Hytempite is a trade name applied to high-temperature bonding mortar composed of 90 per cent chrome ore and 10 per cent other ingredients. The value and other transportation characteristics are not shown. The cars moved as follows: Two over the Raritan River to South Amboy, N. J., Central of New Jersey to Bound Brook, N. J., Reading to Philadelphia, Pa., Philadelphia & Norfolk Steamship Company to Norfolk, Va., and Southern to Birmingham, 1.019 miles,' and six over the Raritan River to South Amboy, Central of New Jersey to New York, N. Y., Ocean Steamship Company to Savannah, Ga., and Central of Georgia beyond, 793 miles. The

1 Distance over water portion of haul is computed by using 143 constructive miles from Philadelphia to Norfolk and 338 constructive miles from New York to Savannah. See Southern Class Rate Investigation, 100 I. C. C. 513, 690, 691.

latter appears to be the shortest rail-water-rail, distance, and defendants show the shortest all-rail distance to be 964 miles. The six shipments moved in accordance with the shipper's routing instructions as shown on the bills of lading. The bills of lading covering the two shipments which moved via Bound Brook did not include the Reading in the routing instructions, which were given by the shipper. Apparently, one of these shipments was delivered by the St. Louis-San Francisco. One of the shipments moving over this route weighed 42,409 pounds. Each of the remaining shipments weighed 42,400 pounds. There was no commodity rate in effect, and the applicable sixth-class rate of 85 cents, minimum 40,000 pounds, was charged. On July 1, 1927, a commodity rate of 44.5 cents, minimum 50,000 pounds, was established for rail-water-rail movements of high-temperature bonding mortar from Gillespie to Birmingham, Atlanta, Ga., and Alabama City, Attala, Anniston, and Gadsden, Ala. At the same time a rate of 42.5 cents, same carload minimum, was made effective from New York, Philadelphia, and points taking the same rates to the same destinations. Both rates were made applicable over the longer but not the shorter of the above two routes of movement. Reparation is sought to the basis of the subsequently established 44.5-cent rate. Complainant contends that the assailed rate is unreasonable per se.

On the actual loading the rate assailed yields 35.3 cents per carmile for 1,019 miles and 45.4 cents per car-mile for 793 miles. The rate sought for these distances on the suggested minimum would yield 21.8 and 28 cents, respectively. Complainant shows all-rail distances, rates, and earnings thereunder, on chrome ore, plaster, and cement from Gillespie to southern destinations as follows:

1 Cement rates are per net ton for similar distances from Gillespie to southern points.

The weights upon which the above earnings are computed are not shown, but apparently they are based upon loadings of 50,000 pounds for chrome ore and cement and 60,000 pounds for plaster. A waterrail rate of 36.5 cents is shown on plaster from Gillespie to Birmingham and other points in Alabama. Plaster is shown to be worth $4.50 per ton, cement $2.50 per ton, and chrome ore, the principal

ingredient of Hytempite, $18 per ton. The rate sought is somewhat higher than that applicable on chrome ore, all rail, between the same points. Defendants, however, show that the average loading of chrome ore is about 60,000 pounds. Based on this loading, the rate of 38 cents for the shortest all-rail distance from Gillespie to Birmingham yields 23.6 cents per car-mile.

Defendants assert that the establishment of the 44.5-cent rate to the destinations named was the first and only departure made from the class basis on this traffic, and point out that this rate was restricted to rail-water-rail movements. They compare the 85-cent rate assailed with rates on the same commodity from Gillespie and Chester to 20 destinations in Alabama, Georgia, Tennessee, and Mississippi ranging from 76 to 94 cents, for distances ranging from 828 to 1,287 miles. They point out that the sixth-class rate which in the absence of a commodity rate would be applicable to bonding mortar from Gillespie to Birmingham is 181 per cent of the sixth-class rate from Gillespie to Chicago, and that the commodity rate on chrome ore to Birmingham is 164 per cent of the rate on chrome ore to Chicago, on which latter percentage relationship the Gillespie-Birmingham rate on bonding mortar would be 77.9 cents.

There is no evident reason why rail-water-rail rates on bonding mortar from Gillespie to Birmingham should bear any particular percentage relationship to all-rail rates on that commodity to Chicago or on chrome ore to Birmingham. The car-mile earnings under the assailed rate as applied over either route of movement were excessive for such a low-grade commodity, and those derivable from the subsequently established rate persuaded us that the latter was and is the maximum reasonable rate for the haul over either route.

While complainant seeks relief by way of reparation only, this evidently is upon its mistaken assumption that the 44.5-cent rate was established over both routes of movement. To accord the desired relief, therefore, we will prescribe that rate for the future for application over the shorter route.

We find that the rate assailed was, is, and for the future will be unreasonable to the extent that it has exceeded or may exceed 44.5 cents, subject to a carload minimum weight of 50,000 pounds; that complainant made the shipments as described and paid and bore the charges thereon; that it was 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 it is entitled to reparation in the sum of $1,103.28, with interest.

An appropriate order will be entered.