the same manner. The reasonableness of the rates to New Orleans is not before us in this proceeding. Interveners operating rice mills at Crowley, Mermentau, Iota, Rayne, Gueydan, Kaplan, and New Iberia, La., points on the Southern Pacific between Lake Charles and New Orleans, say that the rates on rice from those points to the Port of Lake Charles for export or coastwise movement might reasonably be less than the basis under the present distance scale, but they oppose any disruption of the group rate of 23 cents from those points to New Orleans. As shown by the above table, the application of the intrastate distance scale from points not in excess of 85 miles from Lake Charles, plus 3.5 cents for port charges, produces rates which are less than the rates from the same points to New Orleans and the Texas ports.

Complainant points out that from the origins considered to Lake Charles, for distances ranging from 9 to 93.2 miles, the rates assailed average 31 per cent of the first-class rates prescribed in the southwestern revision for the same distances, whereas the present rates from the same points to New Orleans, for distances ranging from 125.6 to 212.8 miles, average 22 per cent of the first-class rates prescribed for those distances in that case. It contends that the percentage relationship to Lake Charles should not exceed that to New Orleans. In Grand Island Chamber of Commerce v. C., B. & Q. R. R. Co., 140 I. C. C. 197, 200, we recognize that from a transportation standpoint clean rice and sugar are analogous commodities. Defendants refer to the southwestern revision wherein we prescribed 30 per cent of first class as the proper basis for commodity rates on sugar. They urge that under the Louisiana intrastate scale the rate on clean rice for the average distance of 63 miles would be 16 cents, and that 3.5 cents must be added thereto to construct the rate to ship side at the Port of Lake Charles, whereas under the southwestern revision the domestic commodity rate on sugar for the same distance would be 20 cents. In the western classification clean rice, in carloads, is rated fifth class, minimum 40,000 pounds. The fifthclass rate prescribed in the southwestern revision is 40 per cent of the first-class rate therein prescribed. It is obvious, therefore, that the rates assailed do not reflect more than maximum reasonableness. Under the present adjustment the Port of New Orleans competes with the Port of Lake Charles in such instances where the steamship service from the former is superior or where the steamship lines operating therefrom have shrunk their rates so as in effect to absorb the amount of the differences in the rail rates. A carrier can not be charged with undue prejudice because of conditions not within its control. Transit Privileges on Grain, 113 I. C. C. 374, 377. It

appears that where conditions are equal with respect to outbound movements from the ports, the differences in rail rates prohibit competitive movements through New Orleans. The evidence does not indicate that the Texas ports are unduly preferred under the present adjustment.

We find that the rates and charges assailed were not and are not unreasonable or unduly prejudicial. The complaint will be dismissed.

No. 20903

SOUTHWESTERN BROOM MANUFACTURING COMPANY v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY ET AL.

Submitted March 16, 1929. Decided October 10, 1929

1. Rates on broomcorn, in carloads, from certain points in Oklahoma and Kansas to Evansville, Ind., found to have been unreasonable. Repara tion awarded.

2. Rates on like traffic from certain points in Colorado to Evansville found unreasonable. Reasonable rates prescribed and reparation awarded.

W. A. Knight for complainant.

W. L. Grubbs and Toll R. Ware for defendants.

REPORT OF THE COMMISSION

DIVISION 3, COMMISSIONERS AITCHISON, TAYLOR, AND PORTER

BY DIVISION 3:

Exceptions were filed by complainant to the report proposed by the examiner. Our conclusions differ from those recommended by him.

Complainant, a corporation manufacturing brooms at Evansville, Ind., alleges by complaint filed April 7, 1928, as amended, that the rates charged on 70 carloads of broomcorn to Evansville from certain points in Oklahoma and Kansas were unreasonable, and from certain points in Colorado 1 were and are unreasonable. Reasonable rates for the future from the Colorado points and repara

1

1 Shown in Atchison, Topeka & Santa Fe tariff I. C. C. No. 10309.

tion on shipments from all points delivered between July 1, 1926, and June 2, 1928, are sought. Rates will be stated in cents per 100 pounds.

Broomcorn is produced in large quantities in western Oklahoma, southwestern Kansas, and eastern Colorado. It is rated third class in western and official classification and fifth class in southern classification, minimum 18,000 pounds, subject to rule 34. It generally moves on commodity rates, which are materially lower than the class rates. Complainant has never filed any loss or damage claims. The shipments averaged 25,300 pounds per car. Nine of them originated at points in Colorado, 15 at points in Kansas, and 46 at points in Oklahoma. All of them moved through St. Louis, Mo., except nine from Chickasha and Marlow, Okla., which moved through Memphis, Tenn., and certain shipments from points on the Atchison, Topeka & Santa Fe, which moved through Nemo, Ill. On the shipments that moved through St. Louis the applicable combination rates were charged, composed of various commodity rates to St. Louis plus a proportional commodity rate of 34 cents beyond. On the shipments moving by way of Memphis, the applicable joint rates were collected. The basis of the rates charged on the shipments which moved through Nemo is not shown. However, the through rates appear to be the same through all three points. Most of the shipments were stored in transit at Wichita, Kans., or Oklahoma City, Okla. This resulted in out-of-line hauls in some instances, but the charges therefor are not in issue.

The present rates from Oklahoma and Kansas were established on July 14 and August 11, 1928, respectively, in compliance with or as the result of the decision in the recent southwestern revision and are satisfactory to complainant. These rates are 40 per cent of the first-class distance rates prescribed thereby. Rates from Colorado points were not considered in that proceeding. Complainant does not state what basis of rates it seeks for the future from the Colorado points nor to what basis of rates reparation is sought, but apparently it seeks rates for the future from Colorado points and reparation on shipments from all points here considered to the basis of the rates from such points to Paris, Ill., a point approximately 110 miles north of Evansville and practically the same distance from St. Louis as Evansville is.

Complainant compares the rates assailed with numerous rates on broomcorn from the considered points to Chicago and Paris, Ill., Paducah, Ky., and Duluth, Minn. These comparisons show that the rates to the latter points are relatively lower than the rates to Evansville, distances considered. The following table compiled

from exhibits of record is illustrative and also shows the rates from certain points established in compliance with or as a result of the southwestern revision:

1 Rates resulting from application of the scales prescribed in southwestern revision.

The rates shown to Paris are combination rates, composed of various commodity rates to St. Louis plus a proportional rate of 15.5 cents beyond. This 15.5-cent rate is the third-class differential Chicago over St. Louis and it was made applicable to Paris because that point is intermediate to Chicago. The distances to Chicago are substantially the same as those shown to Paris. These two points are in Illinois Freight Association territory and Evansville is in central territory. The normal basis of rates to these territories from Oklahoma and Kansas points were, and from Colorado points were and are, composed of commodity rates to St. Louis plus the full third-class rates beyond. However, in some instances proportional rates from St. Louis were and are maintained, particularly to points in the former territory. The record indicates that Evansville is the only point in the latter territory that is accorded a proportional rate on the traffic here considered.

Defendants point out that the rates from Oklahoma and Kansas to St. Louis and Evansville prior to the southwestern revision ranged from 34.5 to 41.3 per cent of the first-class rates from and to the same points, and that under that revision the rates are now 40 per cent of the first-class rates. They urge that the proportional rate of 34 cents from St. Louis to Evansville is not unreasonable when compared with the third-class rate of 44.5 cents, and with the applicable third-class rates on broomcorn from St. Louis to other destinations in the same territory. It is their position that the maintenance of the 34-cent rate to Evansville accorded that point preferential treatment, as the rates to all other points in central territory

were and are higher. Defendants also show that the rates assailed from Colorado points to Evansville were and are about 37 per cent of the first-class rates. These figures indicate that the relationship of the rates assailed to the contemporaneous first-class rates was substantially the same as the relationship prescribed between the commodity rates on broomcorn and the first-class rates in the southwestern revision.

As previously stated, Evansville is approximately the same distance from these origins as is Paris. One of complainant's strongest competitors is located at the latter point, to which there is considerable movement of broomcorn. That the rates to Paris were not depressed is evidenced by the fact that they were in many instances higher than the rates to Evansville resulting from the southwestern revision. The rates assailed from points in Kansas and Oklahoma appear excessive when compared with the rates contemporaneously in effect to Paris, particularly in those instances where the latter were higher than the rates subsequently established to Evansville as a result of the southwestern revision.

The Colorado origins are on the Atchison, Topeka & Santa Fe, immediately west of the Kansas-Colorado State line and in the same general territory as the western Kansas origins. Transportation conditions and circumstances attending movements from Colorado and from Kansas to Evansville are practically identical, and different bases of rates are not warranted.

Complainant states that many of the shipments were delivered to defendants unrouted, and contends that if these shipments had been delivered to the Illinois Central at St. Louis instead of to other lines, the rates thereon would have been less than those collected. This contention is based on the ground that lower combination rates based on Paducah, Ky., could have been secured under the authority of rule 77 of Tariff Circular 18-A. There are no joint through rates via St. Louis from the considered origins to Paducah, but that point is between Kevil and Krebs, Ky., points on the Illinois Central, a few miles west and southwest of Paducah, respectively, to which the joint rates via St. Louis are the same as those to Memphis, Tenn., from stations on the Chicago, Rock Island & Pacific, Rumsey, Nebr., to Volland, Kans. Complainant contends that the rates to Kevil and Krebs were subject to rule 77, which was a holding out by the carriers to establish the same rates to Paducah, an intermediate point. It states that on this basis the rate from Chickasha to Evansville would be 93.5 cents, composed of 73 to Paducah plus 20.5 cents beyond instead of 108.5 cents charged. This contention is without merit. It is not shown that a single shipment moved from a point from which the joint rates applied