tory were charged the applicable sixth-class rates and those to destinations in western territory were charged combination rates based on Chicago, Ill., or the Mississippi River, the factors of which were the proportional sixth-class rates. However, the rates are assailed as unreasonable only in so far as they are governed by the rating in the official classification, where rates 80 per cent of sixth class are sought. The commodity is packed for shipment in barrels or kegs and occasionally in sacks. The average loading of 36 of complainant's shipments handled by the Grand Trunk was 49,386 pounds. Complainant states that its product competes with foundry facings made of ground coal and with foundry facings made of graphite. In Obermayer Co. v. P. Co., 43 I. C. C. 745, and American Foundry Co. v. P. R. R. Co., 132 I. C. C. 345, the sixth-class carload rates on ground coal prepared for use as foundry facings from Rillton, Pa., to Chicago, Ill., and Charleroi, Pa., to Indianapolis, Ind., were found not unreasonable. In Foundry Supply Mfrs. A880. v. A. A. R. R. Co., 43 I. C. C 734, the sixth-class rating and rates were found reasonable for application to foundry facings generally, in carloads, between points in central territory. Complainant's foundry facings range in value from $40 to $130 per ton. The average value of all foundry facings is said to be approximately $65 per ton. We find that the rates assailed in No. 21572 were not and are not unreasonable. The complaint will be dismissed. NO. 20700 The report in Obermayer & Co. v. Ann A. R. Co., 147 I. C. C. 646, embraced No. 20700, wherein rates 90 per cent of sixth-class are sought. We there found the fifth-class rating on crude graphite, in barrels or bags, carloads, minimum 36,000 pounds, in official classification territory, unreasonable, prescribed sixth class, minimum 50,000 pounds for the future, and denied reparation. Complainant in No. 20700 petitioned for a rehearing, which was granted, and a further hearing has been held. As no evidence of undue prejudice was introduced, that allegation will not be considered. In its petition complainant objects to the minimum authorized by us. It makes no contention that it can not load to that minimum. To the contrary complainant states that it is now shipping about 50,000 pounds of graphite to the car. Heretofore its shipments were usually mixed carloads of graphite and foundry facings averaging 36,000 pounds to 40,000 pounds. Apparently the desire of complainant to continue this practice has provoked its objection to the miniIt was shown in the original report that the normal shipment of graphite weighed about 60,000 pounds. mum. Complainant states that the graphite which it ships from Saginaw is worth from $40 to $130 per net ton; in the original case the average value of graphite was shown to be about $90 per net ton. Graphite is a fairly high-grade commodity in comparison with other commodities for which sixth class has been prescribed and it would not be entitled to so low a basis of rates except in conjunction with a rather high minimum weight. In United States Graphite Co. v. Michigan C. R. Co., 153 I. C. C. 739, we found the rates on imported crude graphite, in bags and barrels, carloads, from New York, N. Y., to Saginaw not unreasonable. The rates there assailed were the then applicable fifth-class rates, but reparation only was sought. This was denied following our original report herein, wherein at page 648, we said: The record indicates that the rating of fifth class on graphite has been in effect in the official classification for many years. The evidence does not warrant a finding that the fifth-class rates were unreasonable in the past and reparation will be denied. The record made as a result of the further hearing contains nothing which would warrant a different conclusion from that reached in the original report herein, and accordingly our previous findings are affirmed. 157 I. C. C. No. 21637 PERRINE-ARMSTRONG COMPANY v. PENNSYLVANIA RAILROAD COMPANY ET AL. Submitted August 1, 1929. Decided October 9, 1929 Rates on logs, in carloads, from Gambier and Hunt, Ohio, to Fort Wayne, Ind.. found not unreasonable or otherwise unlawful. Complaint dismissed. Earl W. Cox for complainant. J. L. Aber for defendants. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONER LEWIS, BRAINERD, AND FARRELL BY DIVISION 5: No exceptions were filed to the report proposed by the examiner. Complainant is a corporation in the sawmill and lumber business at Fort Wayne, Ind. By complaint filed October 12, 1928, it alleges that the rates charged on 11 carloads of logs shipped from Gambier and Hunt, Ohio, to Fort Wayne during January, 1927, were unreasonable and violative of the long-and-short-haul provision of section 4 of the interstate commerce act. Reparation only is sought. Rates will be stated in cents per 100 pounds. Gambier is on the Pennsylvania 5.7 miles northeast of Mount Vernon, Ohio, and Hunt on the Baltimore & Ohio 5.4 miles northwest of Mount Vernon, which is a junction point of these two carriers. Ten of the shipments were made from Gambier and moved over the Pennsylvania direct, via Orrville, Ohio, 254 miles. The shipment from Hunt moved over the Baltimore & Ohio to Avilla, Ind., thence the Pennsylvania, 223 miles. The rate charged from Gambier was 13.5 cents, and that from Hunt, 13 cents. These rates are 65 per cent of sixth class, which is the basis on logs throughout central territory. Complainant seeks reparation to the basis of a rate of 12 cents contemporaneously applicable to Fort Wayne from Mount Vernon and Columbus, Ohio, from which points the origins here considered are intermediate over certain routes. The fourth-section departures are protected by an appropriate order. In Perrine-Armstrong Co. v. Pennsylvania R. Co., 151 I. C. C. 285, the assailed rate of 13.5 cents on logs, in carloads, from Gambier and Smithville, Ohio, to Fort Wayne, was found applicable and not unreasonable or otherwise unlawful. The complaint was dismissed. The allegations there made were under sections 1, 4, and 6 of the act, and the situation disclosed was the same as that here presented. Furthermore, the parties in that case were the same as those in the present proceeding, with the exception of the Baltimore & Ohio. In view of the case cited it was incumbent upon complainant to here develop some new facts, or to show that conditions have materially changed, or that we previously proceeded on a misconception or misapprehension. Beich Co. v. A. C. L. R. R. Co., 139 I. C. C. 291. This it has not even attempted to do, the evidence presented herein being but a repetition of that adduced in the decided case. On this record and following Perrine-Armstrong Co. v. Pennsyl vania R. Co., supra, we find that the rates assailed were not unreasonable or otherwise unlawful. The complaint will be dismissed. 157 I. C. C. No. 21920 SOUTHERN AGRICULTURE SERVICE, INCORPORATED, v. LOUISIANA & ARKANSAS RAILWAY COMPANY ET AL. Submitted August 23, 1929. Decided October 14, 1929 Rate charged on four carloads of cottonseed from Matagorda, Miss., to Alexandria, La., found applicable. Complaint dismissed. C. N. Nesom for complainant. E. A. Smith, A. L. Burford, and B. E. Carter for defendants. REPORT OF THE COMMISSION DIVISION 3, COMMISSIONERS AITCHISON, TAYLOR, AND PORTER BY DIVISION 3: This case was presented under the shortened procedure. Exceptions were filed by complainant to the report proposed by the examiner. Complainant, a corporation dealing in field and garden seeds at Alexandria, La., by complaint filed December 29, 1928, alleges that the rate charged on four carloads of cottonseed shipped March 29 and April 13, 1928, from Matagorda, Miss., to Alexandria, was inapplicable. Refund of the alleged overcharges is sought. An informal complaint was filed October 6, 1928, and the informal file was closed December 15, 1928. Rates will be stated in amounts per 100 pounds. Matagorda is a local point on a branch of the Yazoo & Mississippi Valley which extends from Helena, Ark., to Jonestown, Miss. This branch intersects the main line at Lula, Miss., about 56 miles south of Memphis, Tenn. The shipments moved over the Yazoo & Mississippi Valley to Natchez, Miss., and the Louisiana & Arkansas beyond. There was no joint rate published from Matagorda and a combination rate of 37.5 cents, composed of 8 cents to Lula and 29.5 cents beyond, was charged. Complainant contends that the rate of 29.5 cents, which is the rate applying from the Memphis, Tenn., group to Alexandria, should have been charged on its shipments. There was no joint rate published from Lula to Alexandria but there was a joint commodity rate of 29.5 cents from Tunica, Miss., to Alexandria. The tariff publishing this rate provides that the |
