with justness and reasonableness under section 1(5) and not undue preference and prejudice under section 3(1).

The district court, in concluding that the denial of reparations was an error of law, did not find the decision in Great Northern Railway Co. v. Sullivan, 294 U.S. 458 (1935) (Great Northern), to be an obstacle to Sterling's claim on shipments moving beyond Chicago. The court reviewed the conflicting Commission precedent in Beaumont and Auburn Mills v. Chicago & A. R. Co., 222 I.C.C. 495 (1937) (Auburn), both decisions construing the applicability of the Great Northern holding. The district court ultimately found the prior report was premised upon "too simplistic an interpretation of Great Northern" in denying reparations upon Sterling's failure to produce any evidence about the through rates to points beyond Chicago. Instead, the court interpreted Great Northern as "recognition of the general principle of law that damages are not recoverable without injury." The court concluded that, on the basis of the record, Sterling sustained economic injury on all its shipments to the east without regard to destinations because Sterling was denied the benefit of its geographic location. According to the court, the Great Northern decision did not limit Sterling's ability to recover damages under the facts presented to the Commission. The court directed that the case be returned to the Commission for reconsideration of Sterling's claim in the light of the court's opinion. Defendants interpret the district court decision as adopting the presumption of unreasonableness set forth in Auburn; that is, if a shipper proves one factor in a combination rate unreasonable, the burden shifts to defendant carriers to demonstrate the total combination rate is reasonable. They argue that section 1 requires complainant "to establish that the entire charges paid are unreasonable," citing Louisville & Nashville R.R. Co. v. United States, 238 U.S. 1, 11 (1915). The carriers argue that the prior report was correct in citing Beaumont because of the factual similarity with this case. In their opinion, the distinguishing factor of Auburn is that the shippers therein had paid only the factor they contested, whereas Sterling paid the entire transportation charge. The carriers argue that since the Auburn shippers were entitled to reparations only for those factors on which they bore the charges, the shippers would never realize the offsetting benefit if other factors were too low. Defendants conclude that the record does not contain evidence of the unreasonableness of the combination through rate and that this defect precludes Sterling from receiving reparations as a matter of law.

We concur in the district court's reading of Great Northern and believe that the Commission's prior reliance on Beaumont was misplaced. Although we express some doubt as to the wisdom, from an administrative or policy standpoint, of the rationale adopted in the prior report finding reparations due on Sterling's traffic terminating at Chicago-the doctrine of relative reasonableness-that doubt does not extend to the propriety of the result reached. Moreover, that portion of the original order was not subject to judicial review. In these circumstances we do not believe that this case is the proper vehicle to reconsider or to clarify that doctrine for application in future cases. Rather, we accept for the purposes of this report the prior report's conclusion that the rate into Chicago, the western factor, resulted from an unreasonable practice, and proceed to analyze a complaining shipper's burden of proof where one factor of a combination rate is demonstrated to be unlawful.

In the earliest decided case, Great Northern, supra, the Supreme Court held that an award of reparation, based on a Commission finding that a proportional rate for transportation from the international border to destination was unjust and unreasonable, could not be sustained in the absence of a claim or finding that the through rate was unreasonable. Noting that proportionals are but part of a through rate and cannot be distinguished from divisions of a joint rate, the court reasoned that the shipper's only interest is that the charge shall be reasonable as a whole. Only the domestic proportional rate from the international border was there assailed. The complainant did not attack the combination, nor the Canadian Pacific proportional applying up to the border as part of the through charge. The court held that, there being no claim or finding to the contrary, the through charges collected on the shipments must be deemed to have been just and reasonable, and that where the through rate is just and reasonable there is no damage to the shipper as a result of a participating carrier's receiving an undue proportion of the charges.

Two years after Great Northern, the Commission was confronted in Auburn, supra, with a similar challenge to reasonableness of combination rates constructed of proportionals. Here, shippers had attacked the through charge as excessive, although they had paid only the local factor from certain river crossing points to destination. Evidence was directed to prove only the paid factors

'The Supreme Court pointed out that the dissenting Commissioners, without opposition on the part of others, stated that the (total) charges are affirmatively shown to be reasonable.

were unduly high. The Commission discussed Great Northern and its requirement that there be a "claim or finding" that the entire combination rate be unjust and unreasonable to sustain an award of reparation. In Great Northern there had been no claim or evidence indicating that the combination through rate was unjust or unreasonable but rather the suggestion of the dissenting Commissioners that the combination through rate was reasonable. By contrast, in Auburn there was a specific allegation, a claim, that the entire combination through rate was unjust and unreasonable to the extent of the assailed factor. The Commission noted this distinction between the cases, and used in the claim of unreasonableness of the combination rates in Auburn to establish the presumption that the combination is unreasonable to the same extent as the factor. The Commission stated:

As previously stated, the through charges are here alleged to have been excessive, but complainants' attack is centered principally on the factors beyond the river crossings. When a complainant attacks a through rate which is made up of separately established factors published to be used for that purpose, and it is proved that one of the factors is unreasonable, a presumption arises that the combination is unreasonable to the same extent as the factor. Rates established voluntarily can fairly be taken as a measure of what carriers consider reasonable. Sheridan Chamber of Commerce v. Chicago, B. & Q. R. Co., 28 I.C.C. 250. There is no presumption that a rate voluntarily initiated is unreasonably low. Chicago, M., St. P. & P. R. Co. v. United States, 8 Fed. Supp. 970. There is the presumption that it is in fact reasonable. Same case, 294 U.S. 499. Also Interstate Commerce Commission v. Chicago G. W. Ry. Co., 209 U.S. 108, 119. The presumption of reasonableness which ataches to a voluntary rate can be rebutted by other facts and circumstances. Evens & Howard Fire Brick Co. v. St. Louis, I. M. & S. Ry. Co., 25 I.C.C. 141. Thus, if the factors beyond the river crossings be excessive, as complainants contend, the obligation rests on defendants to rebut the presumption of reasonableness in the factors up to the river crossings by showing that they are too low and therefore do not result in excessive through charges. We have recognized that an excessive reshipping rate might produce a reasonable through charge in connection with an unduly low inbound rate, and vice versa. See Cairo Board of Trade v. Cleveland, C., C. & St. L. Ry. Co., 46 I.C.C. 343. Also, that there is no substantial difference between a "reshipping" rate and what is known as a "proportional" rate. Baltimore Chamber of Commerce v. Baltimore & O. R. Co., 22 I.C.C. 596. Generally speaking, in the other decisions cited by defendants we have applied the principle that in determining the reasonableness in the past of rates made up of separately established components the total through charges must be considered. The conclusions we hereinafter reach are not in conflict with those principles.

Twenty years after Auburn the Commission decided Beaumont, supra, wherein the issue was the maximum reasonableness of the combination through rate consisting of two factors. The shipper had

paid both factors. The Commission found that one of the factors was unreasonable to the extent it exceeded the class rate. The parties had agreed by stipulation that the other factor was reasonable. However, the Commission departed from the principle announced in Auburn that where it is proved that one factor of a through rate is unreasonable, a presumption arises that the combination is unreasonable to the same extent as the factor. Instead, the Commission reinterpreted Great Northern as stating "that a finding by the Commission that a factor of a combination through rate was unreasonble could not be sustained in the absence of a claim and finding that the through rate was unreasonable" (Emphasis added), Beaumont, 301 I.C.C. 231, 234. Based on this interpretation of Great Northern, the Commission proceeded to find that the complaining shipper had still failed to prove the through rate was unreasonble to the extent of the unreasonable factor.

We conclude that the decision in Beaumont is not required by Great Northern. The proper rule is stated in Auburn which correctly interprets the Great Northern requirement of a claim or a finding that the combination through rate is unreasonable. The misstatement in Beaumont may be either an inadvertent oversight or a misunderstanding of the Great Northern principle. In any event, the Commission in Beaumont applied a more stringent evidentiary standard than was set forth in Great Northern and subsequently applied in Auburn. Beaumont required more than a claim that the combination through rate was unreasonable before reparations could be awarded; it erroneously construed Great Northern as requiring complainant to affirmatively show the combination through rate exceeded a maximum reasonable level without regard to the basis upon which reparations are claimed.

We believe the proper rule to be as follows: where a total rate or charge is challenged and is shown to embrace an unlawful factor, the total rate or charge is to be presumed unlawful to the extent such factor is demonstrated to be unlawful. Should a presumption of unlawfulness arise, defendants may of course present rebuttal evidence, or the Commission may further inquire as to actual impact of the unlawful factor in light of the pertinent transportation conditions.

In reviewing the prior decision of the Commission, the district court did not choose between the conflicting precedent in Auburn and Beaumont. Rather, the court turned to the underlying Great Northern decision to determine whether the Commission application of the Beaumont holding was appropriate in light of the

record presented in docket No. 35021. The court concluded, and we believe appropriately so, that the prior report did not give proper attention to the gravamen of Sterling's complaint on shipments moving beyond Chicago. We believe the prior report failed to properly evaluate or distinguish between the Auburn and Beaumont decision. On further reconsideration of the record in this proceeding we believe that the principles set forth in Auburn should give rise to a presumption of unlawfulness on the combination rates applicable to destinations east of Chicago.

Defendant railroads have not pointed to evidence that would sustain a finding that the entire through rate was reasonable but instead attack the application of the Auburn rationale. They request that the evidentiary record be reopened so that defendants will not be denied "elementary due process by a retroactive application of a new evidentiary standard." We deny defendants' request at this time, recognizing, however, that further hearing will in all likelihood be called for after conclusion of judicial proceedings to determine the extent of damages.

Pursuant to section 17(9)(g) of the act, we reopened this proceeding to review the findings and conclusions in the prior report. We noted our perception of material error in the prior report following the district court's decision. The present report set forth the basis for our decision to reopen at this stage and identifies the material error in the prior disposition of complainant's claim. We believe, on the basis of the prior conclusion as to unlawfulness of the western factor, that the record in this proceeding is adequate to sustain a finding that the charges assessed and paid by complainant for traffic moving beyond Chicago were unlawful.

Having gone that far, however, we decline to go further at this time in deference to the court of appeals' jurisdiction over the action to review division 2's prior decision. In order to avoid any collision with the judicial power, we will neither vacate division 2's order nor enter a new order at this time disposing of the proceeding in its present posture. Instead, we will defer any further action in this proceeding until the conclusion of the pending judicial review proceedings. At that time we will ask the parties to submit their views concerning what further action, if any, should be taken by the Commission.

This decision is not a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969.