reforwarding point and that the subsequent movement was intrastate commerce. In those cases the port or reforwarding point was used by the broker or dealer as a distributing or storage station and the final destinations were determined at those places by orders on hand or received from time to time. The question whether commerce is interstate or intrastate must be determined by the essential character of the commerce, and not by mere billing or forms of contract, although that may be one of a group of circumstances tending to indicate such character. Atl. C. L. R. R. v. Standard Oil Co., supra. The movement from Weehawken to East Orange was part of a transportation service which began in Germany. It was subject to the provisions of the interstate commerce act, and is within our jurisdiction.

The shipments moved 12.3 miles entirely over defendant's line. The route was through defendant's yard at Croxton, N. J. Complainant's yard at East Orange is below the level of the street and no incline is encountered in placing cars on the private trestle track to which cars were switched by defendant. No specific commodity rates were in effect and the rates of $1.51 on the coal and $1.39 on the coke, charged on complainant's shipments, were the local distance commodity rates maintained by defendant for distances of 11 to 20 miles. The coal loaded to an average of 39.6 gross tons and the coke to about 30 net tons per car. The revenue on the coal averaged $59.86 per car, $4.89 per car-mile, and 12.3 cents per gross-ton mile, and on the coke the corresponding return was $41.83, $3.40, and 11.3 cents. No coal is mined in New Jersey and the movement of that commodity by defendant between points within that State is infrequent. The instant shipments were the only large movement of coal and coke between Weehawken and East Orange.

Prior to June 25, 1918, the rates on coal and coke from Weehawken to East Orange, which applied for hauls of 11 to 20 miles, were respectively 80 and 70 cents. Under the order of the Director General of Railroads the coal rate was to be increased 20 cents and the coke rate 25 cents. However, the respective rates became $1.20 and $1.10, increases of 50 per cent in the one instance and 57 per cent in the other. The rates under attack are those rates as changed by the general increase of 1920 and the reduction of 1922.

Complainant is of opinion that coal and coke rates are fairly comparable, since coal loads more heavily than coke and the rates per long ton on coal are frequently the same as those per net ton on coke. Complainant has received some shipments of coke at East Orange from Seaboard, N. J., 12.6 miles over defendant's line by way of the Croxton yard, and it estimates that about 100 carloads have moved from that origin to Orange and East Orange, N. J., in the past three

years. Prior to October 10, 1927, defendant maintained a distance scale of rates on coke from Seaboard to New Jersey destinations under which the rate to East Orange was 84 cents, while to various points between 13 and 35 miles from Seaboard the rate was $1. Effective on that date the rate to East Orange became 80 cents, in conformity with a decision of the New Jersey Board of Public Utility Commissioners which found the scale of rates from Seaboard unreasonable for single-line hauls to the extent it exceeded 80 cents for 11 to 20 miles, 90 cents for 21 to 30 miles, and $1 for 31 to 40 miles. From Seaboard to Phillipsburg, N. J., 77 miles, there is a large movement of coke at a rate of $1.39. Defendant asserts that low rates were established from Seaboard to foster a coke plant at that point which provided and provides a steady movement.

The following table sets out the rates assailed and some of the comparisons offered by complainant:

The points in Pennsylvania named in the above table are within the anthracite region of that State.

As indicating the high level of the rates assailed complainant refers to rates applying on coal in New England, as follows: Boston, Mass., switching district rate of $15 per car applying in some instances for more than 12 miles, and the following rates per long ton: Beverly, Mass., to Topsfield, Mass., 12.6 miles, 88 cents; New Bedford, Mass., to Watuppa, Mass., 13 miles, 70 cents; South Providence, R. I., to Riverside, R. I., 14 miles, 76 cents; and Wareham, Mass., to Middleboro, Mass., 15 miles, 76 cents.

Defendant's evidence consists of a statement of the complicated operating conditions through Croxton yard and the difficulties connected with supplying cars for the unloading of vessels, and a comparison of the rates assailed with the contemporaneous sixth-class rates on lumber and wool pulp. Empty cars for complainant's shipments were switched from the westbound to the eastbound yard at Croxton by the yard crew, then moved by the haul crew to the

receiving yard at Weehawken, weighed, and switched to the pier. When loaded they were reweighed and moved to the westbound Croxton yard, then transferred to the eastbound yard and Greenwood Lake division and moved over a 1.4 per cent grade to East Orange. The unit cost of transportation over the Greenwood Lake division is said to be higher than that over any other line of the defendant. The shipments moved through a heavy-traffic zone in which freight movements from Weehawken were restricted to three and one-half hours a day. Night service is not maintained because the majority of the industrial plants are then closed and residents along the tracks complain of the noise.

Defendant contends that as the rates charged on the coal diverted by complainant are not under attack they may be properly used as comparisons. These rates are a part of the same distance scale as the rates assailed. As illustrative, the rate from Weehawken to Allendale, N. J., 25 miles, was $1.89 and the revenue per car-mile was $3.

During the first week in September, 1927, 28 carloads of lumber moved from Jersey City to various New Jersey points, the distances ranging from 3 to 14 miles, at a sixth-class rate of 9 cents per 100 pounds, which amounts to $2.01 a long ton. The average loading was 21.2 long tons and the revenue per car-mile $5.11. During six months in 1927, 33 carloads of wood pulp were shipped from Weehawken to Garfield, N. J., 9 miles, at the same rate, the average weight being 23.3 long tons, and the return $5.22 per car-mile. The carriers other than defendant which operate from the Jersey coast generally maintain commodity rates on lumber for short hauls substantially less than the sixth-class rates.

The facts in Feigenspan v. Central R. Co. of N. J., 156 I. C. C. 258, are similar to those here under consideration, except that the haul was from Jersey City, N. J., to Newark and Port Newark, N. J., approximately 7 miles. In that case reparation was awarded to the basis of 85 cents.

We find that the traffic under consideration is within our jurisdiction; that the rates assailed were unreasonable to the extent that they exceeded 85 cents per long ton on the coal and per net ton on the coke; that complainant made the shipments as described and paid and bore the charges thereon; that it has been damaged to the extent the charges paid exceeded those which would have accrued at the rate herein found reasonable, and is entitled to reparation, with interest. Complainant should comply with Rule V of the Rules of Practice

No. 21392

TEXAS CEMENT PLASTER COMPANY v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY OF TEXAS ET AL.

Submitted April 15, 1929. Decided August 20, 1929

Two mixed shipments of cement, plaster board, and plaster from Plasterco Junction, Tex., to Bogalusa, La., found overcharged. Reparation awarded. Carl Hirdler for complainant.

C. P. Kirby for defendants.

REPORT OF THE COMMISSION

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

No exceptions were filed to the report proposed by the examiner. Complainant, a corporation manufacturing cement, plaster, and plaster products at Plasterco Junction, Tex., by complaint filed August 17, 1928, alleges that the rates charged for the transportation of two mixed carloads of cement, plaster board, and plaster, shipped March 7 and 16, 1927, respectively, from Plasterco Junction to Bogalusa, La., were inapplicable, unreasonable, and in violation of the aggregate-of-intermediates provision of section 4 of the interstate commerce act. Reparation is sought. The evidence deals only with the applicability of the rate charged and the other allegations will not be considered. Rates will be stated in amounts per 100 pounds. The shipment that moved on March 7, 1927, contained 30,000 pounds of plaster, 10,323 pounds of plaster board, and 90 pounds of dunnage. The other shipment contained 30,180 pounds of plaster, 8,880 pounds of plaster board, 1,000 pounds of cement, and 75 pounds of dunnage. Both cars moved as routed over the lines of defendants through New Orleans, La. Charges of $216 were collected from complainant on each car, based on a joint commodity rate of 36 cents, minimum 60,000 pounds. Complainant contends that each shipment should have been charged a combination rate composed of 24.5 cents on the total weight to New Orleans, plus a rate of 10.5 cents, minimum 40,000 pounds, on the weight of the plaster beyond, and the fifth-class rate of 36.5 cents on the weight of the cement, plaster board, and dunnage, beyond.

The commodity rate of 36 cents charged applied on plaster of paris, stucco, or wall plaster, in straight or mixed carloads. This

rate does not apply on a mixed shipment which includes plaster board. There was no joint rate in effect that was applicable on complainant's shipments. There was a rate of 24.5 cents, minimum 40,000 pounds, applicable on all the commodities under consideration, in straight or mixed carloads, from Plasterco Junction to New Orleans. Beyond New Orleans there was no joint factor applicable on all of the commodities. There was a rate of 10.5 cents, minimum 24,000 pounds, applicable on mixed shipments of building material, including cement and plaster. A rate of 10.5 cents, minimum 40,000 pounds, applied on plaster in straight carloads. The remaining article, plaster board, was rated second class in less than carloads when shipped loose or in bundles, but the carload rate of 11.5 cents, minimum 36,000 pounds, produced lower charges than the secondclass rate applied to the actual weight and was therefore applicable. Under rule 10 of the classification each shipment should in those circumstances be treated as two separate carloads. The applicable charges on the car moving March 7, 1927, were $182.41 and on the car moving March 16, 1927, $172.55. There are outstanding overcharges in the sum of $77.04.

We find that the rates assailed were inapplicable; and that the applicable rate on the shipment that moved March 16, 1927, was 24.5 cents, minimum 40,000 pounds to New Orleans, and beyond New Orleans, 10.5 cents, minimum 24,000 pounds, on that portion of the shipment consisting of plaster, cement, and dunnage, and 11.5 cents. minimum 36,000 pounds, on that portion of the shipment consisting of plaster board; that the applicable rate on the shipment that moved March 7, 1927, was 24.5 cents, minimum 40,000 pounds, to New Orleans, and beyond New Orleans 10.5 cents, minimum, 40,000 pounds, on that portion of the shipment consisting of plaster and dunnage, and 11.5 cents, minimum 36,000 pounds, on that portion of the shipment consisting of plaster board. We further find that complainant made the shipments as described and paid the charges thereon; that it was overcharged in the amount of the difference between the charges paid and those which would have accrued at the rates herein found applicable; and that it is entitled to reparation in the sum of $77.04, with interest.

An order awarding reparation will be entered.

157 I. C. C.