rate of 22.5 cents applied on rough-quarried granite. To points surrounding Rochelle Park the commodity rate on rough-quarried granite is 22.5 cents and on polished granite the commodity rate to such near-by points as Paterson and Hackensack is 28 cents.

Defendants assert that class rates applied to Rochelle Park until July 16, 1928, when a revision of all rates on granite from New England producing points to trunk-line destinations was made effective. They urge that reparation should not be awarded following a general revision and state that commodity rates were not published on polished granite from Quincy Adams and West Quincy to Rochelle Park as defendants were apprehensive that the publication of these rates would imply an acquiescence in the payment of reparation. About 90 per cent of the changes made on July 16, 1928, resulted in reductions. Defendants also assert that rates to central territory are subnormal and that rates from New England to trunk-line territory are on a group basis and for purposes of comparison distant group points should not be singled out to show that the rate thereto is lower than to a point outside the nearest edge of the group.

The classification minimum weight on rough-quarried and polished granite is 36,000 pounds and complainants seek to have it apply in connection with the rates found reasonable herein.

The scale prescribed by us in Plymouth Quarries v. N. Y., N. H. & H. R. R. Co., supra, on rough-quarried granite from East Weymouth to interstate points on the New Haven was somewhat lower than 80 per cent of the sixth-class rates. Reparation was awarded to that basis. A minimum of 48,000 pounds was prescribed.

In I. and S. No. 3168, and related cases, Granite, Marble, and Stone in New England Territory, 156 I. C. C. 107, decided June 3, 1929, we found not justified schedules that proposed both increases and reductions in rates on granite between points in New England territory. The proposed schedules were ordered canceled, without prejudice to the establishment of rates upon the following basis recommended therein:

Granite, marble, or stone, natural, other than bituminous asphalt rock, in blocks, pieces, or slabs, n. o. i. b. n., viz:

Rough quarried, or sawed on four sides or less, minimum 50,000 pounds, 70 per cent of the contemporaneous sixth-class rates from and to the same points.

Sawed on more than four sides, or chiseled, dressed, hammered, or sand rubbed, minimum 40,000 pounds, 90 per cent of the contemporaneous sixth-class rates from and to the same points.

We further said that the sixth-class rates, minimum 36,000 pounds, proposed on carved, lettered, traced, or polished granite appeared to afford a reasonable basis of rates on this traffic.

In the above case reparation was awarded on shipments of roughquarried granite to the extent that the rates assailed exceeded 80 per cent of the present sixth-class rates, minimum 50,000 pounds.

Complainants contend that the two mixed shipments containing carved granite were overcharged and that, in accordance with rule 10 of the classification, charges should have been assessed on the basis of the less-than-carload rate on the carved granite and the carload rate on the remainder. The record is not clear as to the basis used in assessing charges on these shipments. The provisions of rule 10 govern, however, and if the charges were not assessed on that basis, adjustment in line therewith should be made.

We find that the rate assailed in No. 21181 (Sub-No. 1) was unreasonable to the extent that it exceeded 80 per cent of the present sixth-class rate, minimum 50,000 pounds, and that the rates assailed in No. 21181 on granite, rough quarried, or sawed on four sides or less, were and are unreasonable to the extent that they exceeded or exceed 80 per cent of the present sixth-class rates, minimum 50,000 pounds, and on polished granite to the extent that they exceeded or exceed the present sixth-class rate, minimum 36,000 pounds.

We further find that the rates assailed in No. 21181 will be unreasonable for the future on granite, rough quarried, or sawed on four sides or less, to the extent that they may exceed 70 per cent of the present sixth-class rates, minimum 50,000 pounds; on granite sawed on more than four sides, or chiseled, dressed, hammered, or sand rubbed, to the extent that they may exceed 90 per cent of the present sixth-class rates, minimum 40,000 pounds; and on granite, carved, lettered, polished, or traced to the extent that they may exceed the present sixth-class rates, minimum 36,000 pounds.

We further find that complainants made the shipments as described and paid and bore the charges thereon; that they have been damaged thereby in the amount of the difference between the charges paid and those which would have accrued at the rates herein found reasonable, and that they are entitled to reparation, with interest. Complainants should comply with Rule V of the Rules of Practice. An order for the future will be entered.

TAYLOR, Commissioner, dissenting in part:

I concur in the views expressed by the majority as to the rates for the future. The conclusion that reparation should here be awarded is based largely upon the fact that reparation was awarded in Granite, Marble, and Stone in New England Territory, 156 I. C. C. 107, which was a general readjustment of rates on the commodities here considered throughout New England. With that conclusion I disagreed. Reparation should not, therefore, be awarded in these proceedings.

No. 20989

CITY OF CRAWFORDSVILLE v. CLEVELAND, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY

Submitted May 18, 1929. Decided August 15, 1929

Rate on bituminous coal, in carloads, from Oakwood, Ill., to Crawfordsville, Ind., found unreasonable. Reasonable rate prescribed and reparation awarded.

Isaac Born and Ferdinand Born for complainant.

L. P. Day for defendant.

REPORT OF THE COMMISSION

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

Exceptions were filed by defendant to the report proposed by the examiner and the parties were heard on oral argument.

Complainant, an incorporated city in Indiana, alleges by complaint filed April 30, 1928, that the rate on bituminous coal, in carloads, from Oakwood, Ill., to Crawfordsville, Ind., was and is unreasonable and unduly prejudicial. We are asked to prescribe a lawful rate for the future and to award reparation on shipments made on and after March 26, 1926. At the hearing complainant stated that no shipments have been made to it from Oakwood since June 30, 1928. Claims on any shipments which may have been delivered prior to May 1, 1926, are barred, and will not be considered. Rates will be stated in amounts per ton of 2,000 pounds.

Prior to July 1, 1928, more than 250 carloads of coal, described as “14 inch screenings were shipped to complainant. The shipments, which averaged about 50 tons, originated at Electric Mine No. 1, a mine in the Danville, Ill., coal district near Mission Mine, Ill. As Mission Mine is a prepay station the shipments were billed from Oakwood, a point on the Peoria & Eastern division of the Cleveland, Cincinnati, Chicago & St. Louis Railway, hereinafter called the Big Four, 2.5 miles west of Mission Mine and 49.4 miles west of Crawfordsville. The conditions attending switching at Electric Mine No. 1 are very favorable. The shipments moved from Electric Mine No. 1 over the Big Four to destination, 46 miles. The average distance from mines in the Danville district on the Big Four to destination is 48.1 miles. Charges were collected at the

applicable rate of $1.01, which applies also to other Indiana points on the Big Four for average distances of 15.4 to 49.9 miles from points within the Danville group. Complainant seeks a rate of 80 cents both for the future and as a basis of reparation. The ton-mile earnings for 46 miles are 21.9 mills under the rate assailed and 17.4 mills under the rate proposed. The respective rates would yield revenue of $50.50 and $40 per carload of 50 tons. Since December 10, 1910, the rate assailed has been changed only to the extent authorized by general increases and reductions.

Complainant instances intrastate rates between points in Indiana of 80 cents for 40.8 miles to 48 miles and 95 cents for 82 miles to 132 miles, and between points in Illinois of 70 cents for 39.6 miles to 53.6 miles, 80 cents for 47 miles to 87 miles, and 85 cents for 76.6 miles to 78.6 miles. Between many of these points short-line distances were not used, but these rates indicate substantially the bases of rates on coal prescribed by the State commissions of those States. Defendant instances intrastate rates between points on its line in Illinois and Indiana which are as high or higher than the rate assailed. Defendant also instances rates from the Danville group to Indiana points on the Big Four of $1.13 for 54.1 to 91.9 miles; on the Chicago & Eastern Illinois of $1.13 for 37.3 to 73.7 miles, and $1.07 for 25.1 to 33.1 miles; and on the Wabash of $1.07 for 29.4 to 48.2 miles, and $1.01 for 34 to 41.6 miles. It does not appear that any of the above rates instanced by defendant were approved or prescribed by us.

For distances of 72 to 310 miles from certain groups to Chicago and Hoopeston, Ill., complainant refers to rates of $1 to $1.95, some of which were prescribed in Illinois-Indiana Coal Cases, 128 I. C. C. 265, and Iliff-Bruff Chemical Co. v. C. & E. I. Ry. Co., 132 I. C. C. 282, and urges that, considering the relative distances, the rate assailed should not exceed 80 cents. Taking the rate of $1.35 prescribed in Illinois-Indiana Coal Cases, supra, for an average distance of 135 miles from the Danville group to Chicago, complainant, by using the formula that the rates should bear the same relationship as the square roots of the distances, obtains rates of 78.9 cents for 46 miles and 81.6 cents for 49.4 miles. However, transportation conditions and volume of movement in connection with those rates are not uniform and differ somewhat from those under the rate assailed. Other factors than distance must also be considered in determining the reasonableness of the rate.

The rate assailed is compared by complainant with the rate of $1.02 prescribed in Holmes & Hallowell Co. v. G. N. Ry. Co., 69 I. C. C. 11, for distances of 41 to 50 miles from Duluth, Minn., and other points at the head of the lakes to destinations in Minnesota, North Dakota, and South Dakota east of the Missouri River. Com

plainant points out that the average lading of shipments there considered was 35 tons as compared with the average of 50 tons on its shipments, and contends that rates in central territory should be considerably lower than in the territory where the Holmes & Hallowell scale applies. Defendants urge that the comparison of rates in central territory with the Holmes & Hallowell scale is of little value because the same carriers are not involved, the territories are different and the rates there prescribed were, in effect, proportional rates. In Iowa R. R. Commissioners v. A. & S. R. R., 128 I. C. C. 293, we said that the Holmes & Hallowell scale, which was a result of long and careful consideration, offered a proper and convenient basis of comparison if allowance be made for the differences in the traffic and transportation conditions.

In Slider v. B. & O. R. R. Co., 96 I. C. C. 65, we prescribed rates of 87.5 cents for distances of 31 to 50 miles, and $1 for 51 to 70 miles on ex-river bituminous coal from New Albany, Ind., to destinations in Indiana. For distances of 30 to 150 miles the rates prescribed in that case average about 85 per cent of the Holmes & Hallowell scale. Rates on the basis of about 85 per cent of that scale were prescribed in Iowa R. R. Commissioners v. A. & S. R. R., supra, for application from points in Illinois to points in Iowa. Rates lower than that basis were prescribed in Illinois-Indiana Coal Cases, supra, for application from the Danville, Ill., group and from the Brazil-Clinton and Linton-Sullivan groups in Indiana to points in the Chicago switching district and in Iliff-Bruff Chemical Co. v. C. & E. I. Ry. Co., supra, from certain Indiana points to Hoopeston, Ill. In Lake Dock Coal Cases, 89 I. C. C. 170, at page 184, we said that rates from southern Illinois to certain destinations in Minnesota might properly be substantially lower than the rates for corresponding distances under the Holmes & Hallowell scale.

Complainant also instances rates on common brick, and sand and gravel which for comparable distances are somewhat lower than the rates assailed.

The allegation of undue prejudice is not sustained. We find that the rate assailed was, is, and for the future will be, unreasonable to the extent it exceeded, exceeds, and may exceed 87.5 cents per short ton. We further find that shipments were made as alleged and that complainant paid and bore the charges thereon at the rate herein. found unreasonable; that it 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. Complainant should comply with Rule V of the Rules of Practice.

An order for the future will be entered.