Welch, a station on defendant's line approximately 284 miles from Columbus, is the center of a large coal-mining district. For a number of years complainant has made shipments of ice cream by express to the territory surrounding Welch. During the latter half of 1927, complainant shipped about 3,000 gallons a month to that point for distribution in the coal fields. The volume of this movement has declined materially since 1920. It is complainant's view that the principal causes of this decline have been inadequate transportation service and excessive transportation charges.

Carload shipments of fresh meat, vegetables, and certain other perishable traffic from Columbus to Welch are moved by defendant in freight trains on definite schedules to Eckman, W. Va., a station near Welch. At Eckman the cars containing these shipments are separated from the other cars and are then moved back to Welch by a mine shifter or local-freight engine. Similar service with respect to shipments of ice cream and other dairy products would be satisfactory to complainant.

Neither complainant nor defendant has suitable cars for the handling of ice cream in freight service. A temperature of 15° must be maintained to afford adequate protection to shipments of this commodity. This temperature can not be maintained in the type of refrigerator car now in use. Complainant intends to purchase or construct a refrigerator car and fit it to meet the peculiar needs of this traffic. Its present facilities at Welch would not be adequate for the storage of a materially greater amount of ice cream than it now ships to Welch, but complainant states that it would improve such facilities if the relief here sought should be granted. Under the plan suggested, complainant would attend to the loading, unloading, and refrigeration of the car, and delivery of the car would be made at the public team track.

The official classification does not include a rating on ice cream, but provides that the movement of this commodity shall be subject to the rates and regulations of individual carriers. The only carriers operating in central or trunk-line territory that have established a commodity rate on ice cream handled in freight service are the Reading and the Pennsylvania, which maintain a carload freight rate on this commodity of one and one-half times first class, minimum 15,000 pounds, from Camden, N. J., to Wildwood and Holly Beach, N. J. The western classification provides a rating on ice cream of third class, minimum 30,000 pounds. The present firstclass freight rate from Columbus to Welch is $1.065. The express rate applicable on shipments of ice cream from and to the same

points is the second-class express rate of $1.69. On brief complainant asks that we prescribe a third-class freight rate subject to a minimum of 30,000 pounds on carload shipments by freight of ice cream from Columbus to Welch and Keystone and that we require the return of the car and containers as a part of the service for which this rate would be charged. The opinion is expressed that should this relief be granted sufficient business would be developed to enable complainant to make shipments from Columbus to Welch at the rate of one carload a week during the summer and approximately the same quantity a month during the winter. Defendant regards ice cream and similar dairy products as essentially express traffic, and has refused to establish freight rates for their transportation as freight in complainant's

own cars.

The complaint contains only allegations under section 1. The pertinent portions of that section are paragraphs (4), (10), and (11). Paragraph (4) provides that:

It shall be the duty of every common carrier engaged in the transportation of passengers or property to provide and furnish such transpertation upon reasonable request therefor and to establish just and reasonable rates

Paragraph (10) states that:

* * *

applicable thereto.

The term car service in this Act shall include the use, control, supply, movement, distribution, exchange, interchange, and return of locomotives, cars, and other vehicles used in the transportation of property, including special types of equipment,

Paragraph (11) makes it the duty of every carrier by railroad subject to the act to furnish safe and adequate car service and to establish, observe, and enforce just and reasonable rules, regulations, and practices with respect thereto. The latter paragraph also condemns every unjust and unreasonable rule, regulation, and practice relating to car service.

Complainant is not here seeking an order that would require the defendant to provide itself with special equipment to take care of its needs. On the contrary complainant intends furnishing the car. What is here sought is an order establishing carload rates to be applied on the car which complainant intends to procure at some future time. Complainant's car is apparently not to be offered as an article of commerce, but rather as an instrument of commerce. See Pacific Engineering & Construction Co. v. C., R. I. & P. Ry. Co., 56 I. C. C. 247, and McCloud River Ry. Co. v. S. P. Co., 56 I. C. C. 287.

There is a serious technical objection to this complaint. Defendant contends that we have no power under the act to require it to

accept for transportation a shipment in complainant's private car. In the circumstances of this case, under the restricted issues and in the absence of any allegation of unjust discrimination or undue prejudice, we agree.

We find that the facts of record do not support the allegation of a violation of section 1 of the act and the complaint will accordingly be dismissed.

157 I. C. O.

INVESTIGATION AND SUSPENSION DOCKET No. 3289

CANNED VEGETABLES (PICKLES AND TOMATOES) FROM KEOKUK, IOWA, TO EVANSVILLE, IND., AND LOUISVILLE, KY.

Submitted August 24, 1929. Decided October 9, 1929

Proposed increased rates on canned pickles and tomatoes, in carloads, from Keokuk, Iowa, to Evansville, Ind., and Louisville, Ky., found justified. Order of suspension vacated and proceeding discontinued.

L. P. Day, J. C. Miller, Henry Christianson, and C. N. Richards for respondents.

W. E. Englund for protestant.

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 upon the record at the close of the hearing.

By schedules filed to become effective May 15, 1929, respondents proposed to increase the commodity rates on canned pickles and tomatoes, in carloads, from Keokuk, Iowa, to Evansville, Ind., and Louisville, Ky. Upon protest of the Traffic Bureau of the Keokuk Chamber of Commerce, operation of the proposed schedules was suspended by us until December 15, 1929.

The present rates on the two designated products from Keokuk to Evansville and Louisville are, respectively, 28.5 and 27 cents, minimum 30,000 pounds. If the suspended schedules are permitted to go into effect the fifth-class basis would apply, resulting in rates of 28.5 and 31 cents on pickles to Evansville and Louisville, respectively, and 32 and 33.5 cents on tomatoes. The classification minimum is 36,000 pounds, to which protestant offers no objection. Fifth class generally applies on these commodities throughout central territory.

Respondents desire to equalize the rates from Keokuk with contemporaneous rates on like traffic from other Mississippi River crossings in Iowa, such as Burlington, Davenport, and Muscatine, to the same destinations.

Protestant relies on Cancellation of Commodity Rates, 140 I. C. C. 227, decided March 14, 1928, wherein schedules proposing to cancel commodity rates on canned goods in the territory here considered, among other territories, and substituting the class basis therefor, were found not justified. It was there stated, on page 244:

While we do not regard fifth class, or 35 per cent of first class, as unreasonable for application on these canned goods, in carloads, under ordinary cir cumstances, in view of the present condition of the industry, the commodity rates that would remain in effect, and other facts shown by the record, we are of the opinion that the carriers have not justified the proposed increases in the carload rates on canned goods in this proceeding.

There the proposed increases averaged about 33 per cent. Protestant's interest here is exclusively in shipments of pickles, amounting in volume to about 12 consignments a year. The proposed increases in the rates on that traffic from Keokuk to Louisville would amount to not more than 2 cents per case. And we are not convinced that the schedules here considered should be condemned upon the strength of the case cited.

We find that the suspended schedules have been justified. The order of suspension will be vacated and this proceeding discontinued.

157 I. C. C.