Applicants will be authorized to establish and maintain, on the traffic described and from and to the points named herein, rates the same as those contemporaneously in effect over the direct routes but not lower than the present rates in effect over the direct routes from and to the same points, and to maintain higher rates to intermediate points; provided, that the present rates to such higher-rated intermediate points shall not be increased except as may be authorized by this Commission, and shall in no instance exceed the lowest combination of rates subject to the Interstate Commerce Act. An appropriate order will be entered. APPENDIX The Baltimore and Ohio Railroad Company. The Cleveland, Cincinnati, Chicago and St. Louis Railway Company (The New York Central Railroad Company, lessee). Detroit, Toledo and Ironton Railroad Company. Erie Railroad Company (lines Buffalo, Salamanca, N. Y., and west) (C. E. Denney and John A. Hadden, trustees). Grand Trunk Railway System (lines west of Detroit and St. Clair Rivers) comprising the following carriers: Grand Trunk Western Railroad Company, Cincinnati, Saginaw and Mackinaw Rail Road Company (Grand Trunk Western Railroad Company, lessee). The Michigan Central Railroad Company (The New York Central Railroad Company, lessee). The New York Central Railroad Company (lines Buffalo, N. Y., Clearfield, Pa., and west and Ohio Central Lines). The New York, Chicago and St. Louis Railroad Company. The Pennsylvania Railroad Company. Pere Marquette Railway Company. Wabash Railway Company (Norman B. Pitcairn and Frank C. Nicodemus, Jr., receivers). 235 I. C. C. No. 28197 NORTH AMERICAN CEMENT CORPORATION v. WESTERN MARYLAND RAILWAY COMPANY Submitted July 12, 1939. Decided October 31, 1939 Rates charged on crushed stone, in carloads, from Security, Md., to Gettysburg and Guldens, Pa., found unreasonable. Reparation awarded. R. V. Cearfoss for complainant. E. L. McCaulley and Wm. C. Purnell for defendant. REPORT OF THE COMMISSION 1 SPLAWN, Commissioner: The shortened procedure was followed. No exceptions were filed to the examiner's report. Complainant corporation alleges, by complaint filed February 4, 1939, that the rates charged on 119 carloads of crushed stone shipped between April 1 and 19, 1938, inclusive, from Security, Md., to Gettysburg and Guldens, Pa., were unreasonable. The rates stated herein are in amounts per ton of 2,000 pounds. The shipments, aggregating 6,743 tons and averaging 56.6 tons per car, moved over defendant's line 37 miles to Gettysburg and 42 miles to Guldens. The rates charged were 85 cents to Gettysburg and 95 cents to Guldens, applicable from April 1 to April 14, 1938, and 88 cents to Gettysburg and 99 cents to Guldens, applicable from April 15 to April 19, 1938. Those rates are alleged to be unreasonable to the extent they exceeded 70 cents prior to April 15 and 77 cents on and after that date. During the latter part of 1937, complainant obtained a contract to supply crushed stone for use in the construction of a concrete highway in the vicinity of Gettysburg and Guldens. At that time the applicable rates were 80 cents to Gettysburg and 95 cents to Guldens. In bidding upon the contract complainant had to compete with others who were able to obtain cheaper transportation by motortruck from nearby quarries. Defendant decided to establish a rate of 70 cents to the destinations to meet such truck competition and to compete with the cost of trucking from Security. That rate was made effective Under the authority of section 17 (6) of the Interstate Commerce Act, the aboveentitled matter was referred by the Commission to Commissioner Splawn for consideration and disposition. January 16, 1938, and was scheduled to expire March 31, 1938. Because of delay in the construction of the highway, occasioned by the weather during the winter months, complainant had not completed the movement of the stone by March 31, 1938. It was the intention of the defendant to maintain the 70-cent rate until the completion of the work. Through oversight, it was permitted to expire as scheduled, and on April 1, 1938, rates of 85 cents to Gettysburg and 95 cents to Guldens became effective. These rates include the general commodity rate increases of 1937. As a result of the general percentage increase of 1938, the rates became 88 and 99 cents to Gettysburg and Guldens, respectively. By special permission, defendant was authorized to reestablish the 70-cent rate, plus the general percentage increase of 1938, of 7 cents, which made the rate 77 cents. This rate was published to Gettysburg and Guldens on 1 day's notice, and it became effective April 20, 1938. The 6,743 tons shipped between April 1 and 19, 1938, were part of a total movement of 33,400 tons shipped over defendant's line from Security to the destinations. Complainant compares the rates assailed with the present rate of 77 cents on crushed stone, in carloads, to Baltimore from Bittinger and York, Pa., and from Security, 55, 58, and 81 miles, respectively. From Martinsburg, W. Va., to Baltimore, 96 miles, the present rate is 94 cents. Defendant concedes that under the circumstances in this proceeding, complainant should receive reparation in the amount claimed but denies that the rates of 70 cents and 77 cents, which were established because of motortruck competition, are reasonable under what it calls normal conditions. The rate of 70 cents is somewhat less than the maximum reasonable rate prescribed or approved for comparable distances in this territory. In the instant proceeding the volume of movement for the period of the claim was substantial, 119 cars in 19 days, and this was only a portion of the total movement. Under the special circumstances disclosed on this record it seems clear that the applicable rate was unreasonable. See Booth & Olson, Inc., v. Chicago, B. & Q. R. Co., 222 I. C. C. 569, and C. A. Wagner Construction Co. v. Chicago, M., St. P. & P. R. Co., 219 I. C. C. 317. It is therefore found herein that the rates assailed were unreasonable to the extent they exceeded 70 cents prior to April 15, 1938, and 77 cents on and after that date; that complainant made the shipments as described and paid and bore the charges thereon; and that it was damaged thereby in the amount of the difference between the charges collected and those at the rates herein found reasonable, and is entitled to reparation. Complainant waived interest. It should comply with rule V of the Rules of Practice. No. 28109 JANTZEN KNITTING MILLS v. BOSTON & ALBANY RAILROAD ET AL. Submitted October 14, 1939. Decided November 1, 1939 Rate on wool tops, in carloads, from Barre Plains, Mass., to East Portland, Oreg., not shown to have been unreasonable or otherwise unlawful. Complaint dismissed. William B. Adams for complainant. Dana T. Smith, Stanfield Johnson, and F. J. Melia for defendants. REPORT OF THE COMMISSION PATTERSON, Commissioner: 1 The shortened procedure was followed. Defendants filed exceptions to the examiner's proposed report, and the proceeding was orally argued. The conclusions herein differ from those recommended by the examiner. Complainant, a corporation, alleges that the rate charged on five carloads of wool tops shipped between November 6, 1936, and February 18, 1937, inclusive, from Barre Plains, Mass., to East Portland, Oreg., was unreasonable, unjustly discriminatory, and unduly prejudicial. Reparation is sought. Rates will be stated in amounts per 100 pounds and do not include emergency charges. Wool tops are packed and shipped in rolled balls weighing 10 pounds each, in burlap bales, machine-pressed, and average 300 pounds per bale. Wool tops result from a manufacturing process a step lower than worsted yarn, and the approximate value was $1 per pound. The shipments, averaging 20,578 pounds, moved over several routes of defendants' lines. The distance shown over one route is 3,198 miles. Wool tops, in machine-pressed bales, in carloads, were rated second class in the governing western classification, minimum 16,000 pounds, subject to rule 34 thereof. The second-class carload rating on this commodity was found not unreasonable in Boston Wool Trade Assn. v. Abilene & S. Ry. Co., 64 I. C. C. 365. When the ship 1 Under authority of section 17 (6) of the Interstate Commerce Act the above-entitled proceeding was referred by the Commission to Commissioner Patterson for consideration and disposition. ments moved, there was no commodity rate published on wool tops from Atlantic seaboard territory to Pacific coast points, and the applicable second-class rate of $4.80 was charged. Based upon the average weight of the shipments and 3,198 miles, the rate charged yielded 30.9 cents per car-mile. The rate claimed is the commodity rate of $2.84, minimum 16,000 pounds, subject to rule 34, which was established on June 15, 1937. This rate would yield 18.27 cents per car-mile. Contemporaneously there applied from and to the considered points over the routes of movement a commodity rate of $2.79 prior to December 24, 1936, and $2.84 on and after that date, minimum 20,000 pounds, on yarn, in bales (not including cotton, rayon, or silk yarn, in bales), and on woolen clothing. The value per pound of worsted yarn was about $1.30 and that of woolen clothing was about $2. Yarn, n. o. i. b. n., in bales, minimum 20,000 pounds, subject to rule 34, was rated third class and clothing, n. o. i. b. n., in bales, any quantity, was rated first class. In the opposite direction, from Portland to Barre Plains and other eastern points there applied on scoured wool, in bales, a commodity rate of $3.66 prior to December 24, 1936, and $3.71 on and after that date, minimum 10,000 pounds, subject to rule 34. Wool, n. o. i. b. n., scoured, in bales, minimum 10,000 pounds, subject to rule 34, was rated second class. There also applied on woolen yarn, in bales, from Portland to Barre Plains and other eastern points an any-quantity commodity rate of $3.84 prior to December 24, 1936, and $3.95 on and after that date. Complainant contends that, considering the values of wool tops and the other woolen commodities, the fact that wool tops is a raw material from which wool yarn and woolen clothing is made, and the classification ratings thereon, the rate charged on wool tops was unreasonable. Defendants contend that the rate charged was reasonable and that the compared commodity rates and the commodity rates subsequently established on wool tops are below the level of maximum reasonable rates. They were requested in August 1934 to reduce the rates on scoured wool from the Pacific coast to eastern defined territories and were advised that unless rates were published to enable Pacific coast scouring plants to enter those territories, it would be necessary to sell the scoured wool in Boston, Mass., and ship through the Panama Canal. The canal rate at that time from the Pacific coast to Atlantic ports on scoured wool was $1.03, any quantity, when compressed to 10 pounds or more per cubic foot, and $1.70, any quantity, when not so compressed. After investigation the carload rate on scoured wool of $3.66 was established February 1, 1935. However, prior to the west-coast maritime strike in September 1936 most of the wool tops, |