LEAD AND LEAD ARTICLES

Nine shipments of lead and lead articles are mentioned of record in the Fisher case and are described as having consisted of ingot lead, sheet lead in rolls, lead pipe, lead-pipe fittings, and lead solder, in mixed carloads. The average weight of the nine shipments was 46,750 pounds and the average value $4,777.44, or 10.2 cents per pound, f. o. b. Joplin. The lead-pipe fittings permitted in the mixture by the terms of the tariff were lead bends, lead ferrules, and lead traps. These three articles are rated fourth class in the western classification. The other articles included in the mixture are rated fifth class. The present fourth-class rate from Joplin to Dallas established pursuant to the southwestern revision is 84 cents, or 3 cents higher than the rate assailed. Complainant's only evidence of unreasonableness in the rate assailed consists of reference to a number of much lower rates said to have been applicable on the same traffic from Joplin and St. Louis, Mo., to certain other points in the Southeast and Southwest. These lower rates are set out in the original report. Examination of the tariffs effective at the time of the hearing, however, discloses that while the rates instanced applied on various mixtures of lead and lead articles none of them applied on the specific mixture which complainant shipped. For example, complainant refers to rates of 46 cents from Joplin to Monroe and Shreveport, La., and 47.5 cents to Alexandria, La., but the specific commodity rate to those three destinations on mixtures such as complainants shipped to Dallas was 96 cents. In Oklahoma Traffic Asso. v. St. L.-S. F. Ry. Co., 129 I. C. C. 461, the class C or column 30 rate under the southwestern revision was prescribed, as a basis for reparation and for the future, on pig lead in straight carloads from Joplin to Oklahoma City, Okla. Rates on lead-pipe fittings should reasonably be somewhat higher than on pig lead; but the commodity rates exhibited by complainant are without exception lower than the present class C rates between the same points. Commodity rates on mixtures of lead and lead goods in the Southwest have since been generally canceled, and fourth-class rates now apply on mixtures which include pipe fittings rated fourth class. The present fourthclass rates, using the three Louisiana destinations referred to above as illustrative, are 98 cents to Monroe, 89 cents to Shreveport, and $1 to Alexandria.

The 81-cent rate here assailed appears somewhat high considering the loading and value of the shipments, but the general rule governing mixed carloads is that the rate for the highest-rated article governs, and we are not advised as to separate value of the fourthclass articles included nor what proportion they constituted of the

several shipments. To condemn the rate assailed in these circumstances would be virtually to condemn the maintenance of fourthclass rates on straight carloads of the fourth-class articles included, although there is no evidence before us that fourth-class rates are in fact excessive for those articles. On further consideration of the record, therefore, our conclusion is that the rate assailed was and is not unreasonable.

ENAMELED-IRON PLUMBERS' GOODS

The complaint in the Fisher case brings in issue the rates on bathtubs, in straight carloads or in mixed carloads with lavatories, while the complaint in the Wolff case brings in issue the rates on bathtubs. in straight carloads or mixed with "other enameled-iron plumbers' goods." The "other enameled-iron plumbers' goods" are shown by the evidence to be the articles listed in the tabulation below. The tabulation also sets out the carload rating on each article under the governing classification or exceptions thereto, as well as the weight per cubic foot and value per pound, packed for shipment:

The weights and prices shown above are those agreed upon by complainant and defendants in the Wolff case as being representative of these articles generally. The average value of the bathtubs contained in the 33 carload shipments described of record in the Fisher case, as well as those in the 67 carloads described in the Wolff case, was only 7.2 cents per pound. It will be observed that either by the classification itself or by an exception thereto all of the commodities except bathtubs were accorded the fifth-class rates. The minimum for bathtubs was and is 24,000 pounds, subject to rule 34 The minimum for all of the other commodities, both under the classification and under the exceptions, was and is 30,000 pounds, without

reference to the length of the car. On bathtubs shipped in mixed carloads with any of the other articles listed above the fourth-class rates were applicable, subject to a minimum of 30,000 pounds under the usual rule governing mixtures. Although neither complaint formally places in issue the classification rating of bathtubs, both result primarily from the fact that when the complaints were filed defendants rated bathtubs higher than other similar plumbers' goods. Complainant Wolff Manufacturing Company asks specifically that the fifth-class rates be prescribed for the future on bathtubs both in straight and mixed carloads. If the minimum of 24,000 pounds on straight carloads stands in the way of a reduction to fifth class, both complainants are willing that the minimum shall be advanced to 30,000 pounds. Below are shown the fourth and fifth class rates at the time of the hearings and at present from Chicago and Monaca to the destinations specified in the complaints:

As justification for applying fourth-class rates on bathtubs defendants assert that they will not load as heavily as 30,000 pounds in 36-foot 6-inch box cars, while the other commodities to which fifth-class rates were or are given will so load. That assertion, however, is contradicted by all of the evidence bearing on the point, including that submitted by defendants themselves. The 24,000-pound minimum was established in 1910 based on an investigation made by the uniform classification committee. A number of the principal manufacturers agreed at that time that 24,000 pounds was proper. Since then bathtubs have become considerably heavier without becoming proportionately larger. At 14.94 pounds per cubic foot 30,000 pounds of bathtubs require 2,008 cubic feet of space. There are 2,448 cubic feet of space in what is sometimes termed a standard car, 36 feet 6 inches long, 8 feet high, and 8 feet 6 inches wide. Of the 33 shipments described in the Fisher case one was loaded in a 36-foot 6-inch car, 29 were in 40-foot cars, and 3 were in 41-foot

cars. Based on 30,000 pounds for standard cars and graduating that figure for longer cars in accordance with rule 34, the average minimum for the 33 cars used would be 33,627 pounds. The average actual weight of the shipments was 33,506 pounds. While this is slightly less than the proposed minimum an analysis of the individual weights bears out complainant's statement that some of the cars were not fully loaded. For instance, one overshipment, weighing 39,760 pounds, was loaded in a car 43 feet 6 inches long and containing 2,990 cubic feet of space, while another, weighing only 31,760 pounds, was loaded in a car 40 feet 6 inches long with a space capacity of 3,422 cubic feet. The evidence in the Wolff case with respect to the loading is much the same. That complainant also met the 24,000-pound minimum on its straight carloads of bathtubs without any difficulty and considerably exceeded it in a number of instances. One shipment in a 40-foot 6-inch car weighed 39,000 pounds.

Neither does there appear to be any reason from the standpoint of value or susceptibility to damage why bathtubs should be rated higher than other enameled-iron plumbers' goods. The average value of the articles to which defendants accorded the fifth-class rates at the time of the hearings, by exceptions otherwise, is 10 cents per pound and the average value of the four articles rated fifth class in the classification proper is 9.4 cents per pound as compared with 8.5 cents per pound for bathtubs.

Unfinished iron or steel castings are rated fifth class in the western classification and defendants point out that it would be anomalous to apply the same rates on enameled plumbers' goods made of cast iron as on unfinished castings. So it would be, but since the southwestern revision was effected unfinished castings have moved into and within the Southwest at rates equal to 32.5 per cent of the firstclass rates, while the fifth-class rates are 40 per cent and the fourthclass rates are 55 per cent of the first-class rates.

Another commodity referred to in defendants' testimony is enameled-iron table tops, rated fourth class, minimum 30,000 pounds. They weigh 29.5 pounds per cubic foot and are worth 10 cents per pound. The rates on this commodity in the Southwest have not been specifically passed upon in any proceeding before us, but recently on reconsideration of Barschi & Son v. Baltimore & O. R. Co., 155 I. C. C. 350, it was found that the fourth-class rate charged on a number of carloads of enameled-iron table tops from Cleveland. Ohio, to Long Island City, N. Y., was unreasonable to the extent it exceeded the fifth-class rate. The fifth-class rate from Cleveland to Long Island City, like the fifth-class rates under the southwestern revision, is 40 per cent of the first-class rate.

connection therewith for each shipment the minimum weight which was applicable under the rate charged. On this basis no reparation will be due on shipments moving since the southwestern revision became effective on July 14, 1928.

We accordingly find that the respective complainants made and received the shipments as described from Monaca and Chicago to the points in Texas hereinbefore named prior to July 14, 1928; that they paid and bore the charges thereon; that such charges were unreasonable to the extent they exceeded the fourth-class rates now effective subject to the minimum weights applicable in connection with the rates assailed; that they were thereby damaged; and that they are entitled to reparation, with interest. The parties should comply with Rule V of the Rules of Practice.

Appropriate orders will be entered requiring the establishment of the rates herein found reasonable for the future. Defendants should continue in connection with the reduced rates the provision at present incorporated in their tariffs to the effect that the rates include the equipment of spuds, strainers, strainer plugs, feet, legs, pedestals, or bracket supports for such articles as require them.

CAMPBELL, Commissioner, concurring in part:

This report has my approval except the failure to award reparation on shipments of enameled-iron bathtubs to a basis lower than the revised fourth-class rates in connection with the old minimum weights. In my opinion the fourth-class rates on these shipments were unreasonable to the extent that they exceeded fifth class, prescribed for the future. I do not find upon this record any differing transportation conditions in respect of this traffic for the future than existed during the reparation period, and since fifth class, minimum 30,000 or 36,000 pounds, depending upon the condition of the shipments, subject to rule 34, is reasonable for the future, it must also have been reasonable during the reparation period.

TAYLOR, Commissioner, dissenting in part:

The rates, to the basis of which reparation is hereby awarded, were prescribed in the Consolidated Southwestern revision which resulted in both increases and reductions. The classification rating condemned was one of long standing. The commission has frequently declined to give retroactive effect to rates prescribed under such circumstances. I therefore disagree with the conclusion that reparation should be awarded.

157 I. C. C.