N. H. & H. R. R. Co., 109 I. C. C. 497; Smith Co. v. N. Y., N. H. & H. R. R. Co., 120 I. C. C. 43, and Portland Co. v. New York, N. H. & H. R. Co., 147 I. C C. 615. The essential difference between core sand and molding sand is that the former has and requires no bond, which must be present in the latter so that it will stand up when the pattern is withdrawn. The only distinction between a core and a mold is that the core goes on the inside of the case and the mold on the outside.

This sand moved in box cars in order to protect it from the weather and impurities. It cost $1 per net ton, f. o. b. cars, at Provincetown. The shipments moved over the New York, New Haven & Hartford to Framingham, Mass., the Boston & Albany to Albany, N. Y., and the New York Central beyond, a distance of 536 miles. The cars were loaded to an average of 71,363 pounds, 7.5 per cent in excess of their marked capacity, and the average earnings were $203.33 per car, 37.9 cents per car-mile, and 10.63 mills per ton-mile.

Contemporaneously defendants maintained a rate of 19 cents on molding sand, in carloads, from Provincetown to Athol Springs, N. Y., a station on the New York Central west of Buffalo, N. Y., which was applicable through Rochester and published subject to rule 77 of our Tariff Circular 18-A as to intermediate points. Complainant contends that the sand in question at least comes within the description of core sand, that there is no real distinction from a transportation standpoint between molding sand and core sand, and that it should get the benefit of rule 77 in connection with these shipments. In any event it contends that the rate charged was unreasonable and unduly prejudicial to the extent it exceeded 19 cents. Defendants concede their inability to distinguish between molding sand and core sand and offered an exhibit containing an excerpt from Bulletin 266 of the Bureau of Mines, U. S. Department of Commerce, 1927, which classifies and describes a molding sand produced near Utica, Ill., and other points, and states that it may be separated into two general classes, that with and that without bond. It further states that sands without natural bond are often spoken of as silica sand or natural molding sand, as they are generally high in silica content and more refractory than the natural bonded sands, and that in consequence they are used for steel molding, where high refractoriness is necessary. Defendants' witness admitted that the sand there described was identical with that shipped from Province

Defendants also submitted an analysis of the sand from Provincetown as compared with the molding sand produced at Utica, which contains 94.31 per cent silica. They admit their inability to determine whether complainant's commodity may be considered a molding sand and leave the question for our determination.

Effective September 12, 1927, defendants established a commodity rate of 19 cents on this sand from Provincetown to Rochester at the request of the shippers at Provincetown, to meet competition, from other points.

Complainant further contends that it is unreasonable to apply the sixth-class rates on sand, a commodity which we have said is one of the lowest-grade commodities known to commerce. We have prescribed rates between points in New England territory, including movement from Provincetown, which approximate 55 per cent of the contemporaneous sixth-class rates, and hence in complainant's view if this is a proper relationship within New England it should be a proper relationship from points in New England to points in trunk-line territory. In the Richmond Radiator Co. case, supra, we found a commodity rate of 13.5 cents applicable on this sand, in carloads, from Provincetown to Norwich, Conn., a haul of 171 miles, which was approximately two-thirds of the sixth-class rate authorized in Proposed Increases in New England, 49 I. C. C. 421, unreasonable to the extent it exceeded 11 cents, and awarded reparation to that basis on shipments moving after January 1, 1923. In the Smith Co. case, supra, we found commodity rates of 15 cents prior to February 17, 1924, and 14.5 cents subsequent thereto, applicable on the same sand from Provincetown to Westfield, Mass., over an interstate route, unreasonable to the extent that they exceeded 12.5 cents, and awarded reparation to that basis. The sixth-class rate was 22.5 cents. The distance over the route used was 294 miles but the shortline distance is 243 miles. In the Portland Co. case, supra, we found the sixth-class rate of 23 cents applicable on core sand, in carloads, from Provincetown, Mass., and 20 cents on the same commodity from Harbor Junction Wharf, R. I., to Portland, Me., shipped April 11, 1927, and November 14, 1925, respectively, unreasonable to the extent that they exceeded 12.5 cents and 11 cents, respectively 55.4 and 55 per cent of sixth-class rates, and awarded reparation to that basis. The respective hauls were 256 and 173 miles. In Manufacturers Foundry Co. v. N. Y., N. H. & H. R. R. Co., 139 I. C. C. 35, we found commodity rates of 13 cents applicable on sea sand from Onset and Wareham, Mass., to Waterbury, Conn., hauls of 166 and 164 miles, respectively, unreasonable to the extent that they exceeded 11 cents, and rates of 11 and 11.5 cents, respectively, from Pontiac and Bellefonte, R. I., to Waterbury, hauls of 108 and 114 miles, respectively, unreasonable to the extent they exceeded 9.5 cents; and awarded reparation on the same basis. The rates there assailed approximated 65 per cent, and the rates prescribed 55 and 55.9 per cent, of the sixth-class rates. In that case we said that the character, value, use, and transportation characteristics of the commodity under

consideration, described also as fire or core sand, were substantially as set forth in Richmond Radiator Co. case, supra. In Chapman's Sons Co. v. Boston & M. R., 152 I. C. C. 316, we found the sixthclass rate of 25 cents charged on a carload of sea or core sand from Boston, Mass., to Oldtown, Me., 257 miles, unreasonable to the extent that it exceeded 14 cents, 56 per cent of sixth class. We also awarded reparation to that basis and prescribed the rate for the future in lieu of a commodity rate of 16.5 cents established subsequent to the movement. The rate of 19 cents, to the basis of which reparation is sought here, is 66.66 per cent of the sixth-class rate charged. A rate 55 per cent of sixth class would be 15.5 cents.

Although sand, n. o. i. b. n., in carloads, is rated sixth class in official classification, it generally moves on commodity rates substantially lower than the class basis wherever there is any substantial movement. Defendants contend that the fact that the sand under consideration moved 535 miles indicates that it is of a superior grade or quality, or particularly desirable, and that it can and should bear a higher rate than ordinary sand and thus be made to pay its proper share of the transportation burden. For these reasons, it is defendants' view that the sixth-class rate charged is not too high for the movement of this particular commodity from Provincetown to Rochester. They urge that the rates charged are fairly comparable with rates of 18.5 cents in effect from Provincetown to Schenectady, N. Y., 348 miles, and 19 cents from the Boston rate group to Buffalo. The distance from Boston to Buffalo is 477 miles. Defendants further rely on the fact that movement from Provincetown is over a branch line of low traffic density.

Silica sand, or so-called core sand, is also a molding sand, and where commodity rates are maintained on molding sand the description includes silica sand, core sand, or sea sand. Moreover, there is no justification for applying a higher rate on silica sand, core sand, or sea sand, from Provincetown to Rochester than contemporaneously maintained on molding sand from Provincetown to destinations on the New York Central west of Buffalo. No undue prejudice is established.

We find that the rate charged was unreasonable to the extent it exceeded 19 cents; that the shipments were made as described; that complainant paid and bore the charges thereon, and 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 it is entitled to reparation, with interest. Complainant should comply with Rule V of the Rules of Practice.

No. 20626

EL CAMPO RICE MILLING COMPANY ET AL. v. ATCHISON TOPEKA & SANTA FE RAILWAY COMPANY ET AL.

Submitted January 19, 1929. Decided August 15, 1929

Imfendants' failure to provide storage in transit at Beaumont, El Campo, Orange, and Sugar Land, Tex., on flour from points in western trunk-line and southwestern territories to destinations in Louisiana and Texas, when reforwarded in mixed carloads with grain and various grain products, found not unreasonable or unduly prejudicial. Complaint dismissed.

JAC. White, W. C. Balston, and H. C. Eargle for complainants. H. C. Moran for El Campo Rice Milling Company; C. I. Moors fr Orange Rice Milling Company; and II. G. Thompson for Sugar Lari Industries.

W. E. Davis, J. R. Bell, G. H. Muckley, J. L. Stewart, Walter Val, W. L. Cook, Harry R. Jones, and W. J. Schill for defend

E E. Dullahan for Chamber of Commerce of Houston, Tex., Pari of Commissioners of Harris County, and Houston Ship ChanNavigation District; W. S. Cornell for Shreveport Chamber of

re and Alexandria Chamber of Commerce; and A. A. Nelson

- Lake Charles Association of Commerce.

11. P. Byars, S. J. Cole, and Frank A. Leffigwell for Amarillo Iar of City Development; American Maid Flour Mills; Fort With Freight Bureau; Fort Worth Grain & Cotton Exchange; I-12 Wheat Growers' Association; Wichita Mill & Elevator Comjay: and other interveners.

REPORT OF THE COMMISSION

IIVISION 3, COMMISSIONERS AITCHISON, TAYLOR, and Porter ET IVISION 3:

pla.rants replied to the exceptions filed by defendants and terveners to the report proposed by the examiner and the case was arried. Our conclusions differ somewhat from those recomd by him.

(a.nants deal in grain and grain products at various points. Pre plant originally received January 13, 1928, they allege that art failure to provide storage in transit at Beaumont, El Carp, Orange, and Sugar Land, Tex., on flour from points in ArEinar, Colorado, Illinois, Iowa, Kansas, Missouri, Nebraska, Okla

ICC

homa, and Texas to destinations in Louisiana and Texas, when reforwarded from the four above-named points in mixed carloads with grain and various grain products, is unreasonable and unduly prejudicial. The points alleged to be unduly preferred are Marshall, Tex-, Texarkana, Ark.-Tex., and Shreveport and Lake Charles, La., which were stated as being representative of various other points in Arkansas, Louisiana, and Texas not specifically named. The establishment of reasonable and nonprejudicial storage-in-transit arrangements on flour is sought. There are numerous interveners both for and against the complaint.

Particularly during the warm weather from June to October, grain and grain products kept in storage for a considerable length of time in the Southwest are liable to spoliation by vermin before being disposed of, unless suitable storage facilities are provided, which many dealers do not have. To meet the situation complainants seek transit arrangements whereby they may bring flour, in carloads, from points in western trunk-line and southwestern territories to Beaumont, El Campo, Orange, and Sugar Land, store it, and ship it out later in mixed carloads with grain and various grain products at the through rate from point of origin to final destination. The local carload rates are now charged on the outbound flour and complainants frequently find it impracticable to do business on that basis. Some of them are not now selling flour but desire to do so. There is no difficulty about the commodities other than flour contained in the mixed shipments. Milling or mixing arrangements are maintained which incidentally permit the holding of those commodities at the transit points for long periods and provide for the application of the through rates thereon from points of origin to final destination. Where the rate to the final destination is the same as to the transit point, there is no charge for the movement beyond on the commodities other than flour. Storage-in-transit arrangements of the kind sought are in force at Marshall, Texarkana, Shreveport, and Lake Charles; also at Alexandria, La., and Ponca City, Okla., and certain other southwestern points. Alexandria and Ponca City were not named in the complaint as points unduly preferred, and defendants objected and excepted to complainants bringing them into the case at the hearing to support a finding of undue prejudice. To consider evidence as to Alexandria and Ponca City would unduly broaden the issues, and the objection is sustained. The arrangement at Marshall is the result of Marshall Mill & Elevator Co. v. K. C. S. Ry. Co., 101 I. C. C. 270, wherein it was found that the granting of storage in transit on flour at Shreveport and Texarkana, while denying a similar arrangement at Marshall, was unduly prejudicial. No other points in Texas have the arrangement sought,