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ants pay the same preservice charges that the Bedford stone dressers pay on dressed stone, and the bulk of complainant's traffic consists of scabbled blocks or slabs. Moreover, the preliminary cost referred to should not affect the level of the line-haul rates. The preservice charge is assessed for the movement of the stone to the point where it is stopped, unloaded, and either scabbled, sawed, or dressed, which service is separate and distinct from the line-haul service. The cost of packing dressed stone is also something separate and apart from the transportation service reflected in the level of the line-haul rates. Shippers of all forms of Bedford limestone must load and pack their carload shipments prior to the delivery of those shipments to the carrier for transportation. Therefore, any attempt to equalize the cost of packing or loading by means of changes in the level of the line-haul rates would seem to be such an equalization of commercial conditions as was expressly condemned in the case last cited.

In Cuthbert Cut Stone Co. v. St. L.-S. F. Ry. Co., 118 I. C. C. 69, the rate of Bedford limestone to Wichita was attacked as unreasonable and the charging of the same rate on rough and dressed stone was alleged to be unduly prejudicial. This complaint was dismissed.

The only case in which we have found that the maintenance of the same rate on rough and dressed Bedford limestone resulted in undue prejudice is Schall Co. v. B. & O. S. W. R. R. Co., 47 I. C. C. 254, involving the rates to Omaha, Nebr., in which case a spread of 2 cents was prescribed.

In Consolidated Cut Stone Co. v. A., T. & S. F. Ry. Co., 113 I. C. C. 480, we prescribed reasonable rates on rough and dressed Bedford limestone to Tulsa, Okla., the rates on the rough stone being 2 cents less than on the dressed.

It is stated on this record that the rates to the Twin Cities, Omaha, and Tulsa, and certain intermediate points affected thereby, are the only instances in the country where there is a difference in commodity rates on rough and dressed Bedford limestone. Particular reference is made of record to Clifford Co. v. C., R. & S. J. R. R. Co. 128 I. C. C. 182, and West Texas Chamber of Commerce v. H. & T. C. R. R. Co., 129 I. C. C. 546, in which we prescribed different levels of rates on rough and dressed marble and granite. It should be noted. however, that in both of these cases the findings made were under section 1 of the act only, and that we were dealing with adjustments under which there was an existing spread in the rates on the rough and dressed material.

Although there is some inconsistency in the conclusions on the issue of undue prejudice in the cases cited, those cases are not controlling here. The existence or nonexistence of undue prejudice is

a question of fact which must be decided upon the facts in each case. Here complainants show that they sell the dressed stone in competition with the Bedford producers on the basis of competitive bids and that a necessary element of cost to be considered in arriving at these bids is in each instance the amount of the freight from Bedford. It necessarily follows that if defendants maintain an unjustifiable relationship between the rates on rough and dressed limestone which favors shippers of the latter, complainants either suffer loss of profits by reason of the fact that they must meet bids based on a relatively lower freight rate, or else complainants suffer what is probably a greater injury through loss of business because of their inability to meet the lower bids of the Bedford producers. The fact that the actual amount of money damage suffered by complainants on any particular transaction would be difficult of ascertainment, due to the many elements of cost entering into the competitive bids other than the cost of freight from the Bedford district, offers no obstacle to a finding of undue prejudice for the future. The competitive relationship between complainants and the Bedford producers must necessarily be affected by an element of cost common to both producers, the freight rate.

In view of this competitive relationship we believe that undue prejudice to these complainants exists by reason of the maintenance of the same rates on rough and dressed limestone from the Bedford district to Baltimore and Washington. The value of dressed limestone, its susceptibility to damage in transit, and its loading, as contrasted in detail by complainants with the same transportation characteristics of rough limestone establish that the rates on the latter should not exceed 80 per cent of the rates on the former. A spread of this amount was approved by us in Bourgoin & Co. v. Chicago, B. & Q. R. Co., 151 I. C. C. 637, between the rates on rough stone and marble and those on dressed stone and marble.

We find that the rates assailed will for the future be unreasonable to the extent that they exceed 30 cents, minimum 40,000 pounds, and unduly prejudicial to the extent that they exceed 80 per cent of the rates contemporaneously maintained on stone sawed on more than four sides, but not carved, lettered, polished, or traced.

An appropriate order will be entered.

WOODLOCK, Commissioner, concurring in part:

I concur in the conclusion of the majority that the assailed rates will for the future be unreasonable to the extent they exceed 30 cents, but I can not concur in the finding that the maintenance of rates on rough stone which are more than 80 per cent of the contemporaneous rates on dressed stone will be unduly prejudicial.

As indicated in the report, this identical question, i. e., as to the relation between the rates on rough and dressed Bedford stone, has been before us a number of times, and has been ably and exhaustively presented, and carefully considered. In all the cases except one, the latest decision having been rendered in 1926, no spread was required. In the excepted case, decided in 1917, a spread of two cents was prescribed.

In view of the weight of precedent in favor of a finding that the maintenance of the same rates on the rough and dressed stone does not result in undue prejudice, a conclusion such as that here reached by the majority should be based upon only the most clear and convincing evidence. In my opinion the evidence of undue prejudice on this record falls far short of that standard.

No. 211131

DUNN MANUFACTURING COMPANY v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY ET AL.

Submitted July 27, 1929. Decided October 14, 1929

Rates on oil-well tools, in carloads, from Oxnard, Calif., to Panhandle, Tex.. and Tulsa, Okla., and from Houston, Tex., to Los Angeles, Calif., found not unreasonable or otherwise unlawful. Complaints dismissed.

W. P. Bowman for complainants.

J. E. Lyons for defendants.

REPORT OF THE COMMISSION

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

Exceptions were filed by complainants to the report proposed by the examiner.

Complainants in these cases are corporations manufacturing oil-well tools at Oxnard, Calif., and Houston, Tex. In No. 21113, filed April 24, 1928, the rates charged on 28 carloads of oil-well tools shipped from Oxnard to Panhandle, Tex., and Tulsa, Okla., between August

This report also embraces No. 21113 (Sub-No. 1), Hughes Tool Company v. Galveston, Harrisburg & San Antonio Railway Company et al., and No. 21948, Same v. Atchison, Topeka & Santa Fe Railway Company et al.

Informal complaints covering the shipments embraced in this complaint were filed on August 15 and September 20, 1927. Complainant was advised December 23, 1927, that the informal complaints were not susceptible of informal adjustment.

29, 1925, and June 22, 1927, and in No. 21113 (Sub-No. 1) filed August 27, 1928, the rates charged on 10 carloads of oil-well tools shipped from Houston, Tex., to Los Angeles, Calif., between September 4, 1926, and February 16, 1927, are assailed as unreasonable, unjustly discriminatory, and unduly prejudicial. The complaint in No. 21948, filed February 4, 1929, is similar to that in No. 21113 (Sub-No. 1) except that it names different defendants. No. 21948 was submitted on the record made in Nos. 21113 and 21113 (SubNo. 1). Reasonable rates for the future and reparation during the respective statutory periods and pendente lite are sought. Rates will be stated in amounts per 100 pounds.

Oil-well tools are included in the description of oil-well outfits and supplies rated class A, in carloads, minimum 36,000 pounds, in the governing western classification. The average aggregate value of a shipment weighing 49,054 pounds, the average weight of 38 carloads shipped from Oxnard to Tulsa over a 3-year period, is $24,623 or approximately 50 cents per pound. Certain of complainants' oilwell tools are patented. They are painted to avoid damage by the elements and may be loaded in open equipment. They are extremely heavy and easily load to the capacity of the car. Complainants have filed no loss or damage claims on this traffic. Between August 29, 1925, and July 14, 1928, complainant in No. 21113 shipped 31 carloads from Oxnard to Tulsa and 1 to Panhandle. Complainant in Nos. 21113 (Sub-No. 1) and 21948 ships approximately 80 carloads a year from Houston to Los Angeles.

A rate of $1.74, minimum 36,000 pounds, on oil-well tools, in carloads, from Oxnard to Panhandle and Tulsa and from Houston to Los Angeles has been in effect since November, 1923. On November 15, 1926, a rate of $1.46, minimum 50,000 pounds, was established on this traffic eastbound from Oxnard to Panhandle and Tulsa and on May 1, 1927, this rate and minimum was made applicable in the opposite direction from Houston to Los Angeles. These rates apply between groups covering extensive territories. Refund to the basis. of the $1.46 rate has been made on five of the shipments named in the complaint in No. 21113 which were overcharged.

Complainants rely upon comparisons of the rates assailed with rates on commodities accorded the same or higher classification ratings. The following table compiled from their exhibits compares the class and commodity rates on oil-well tools from Oxnard to Tulsa with rates on machinery and machines, n. o. i. b. n., metal automobile parts, and other commodities from and to the same points, and also shows the percentage relationship between the commodity rates and the class rates.

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Based on the applicable minima the assailed rates of $1.74 minimum 36,000 pounds, and $1.46, minimum 50,000 pounds, yield per car earnings of $626.40 and $730, respectively. Complainants compare these earnings with the per car earnings under rates for comparable hauls applicable on metal automobile parts, machinery and machines, motor-truck seat cabs and freight auto bodies, k. d., and storage batteries from Philadelphia, Pa., Detroit, Mich., Chicago, Ill., and Kansas City, Mo. The bulk of the movement of automobiles and automobile parts is from Detroit, Mich., and other points in westbound transcontinental Groups C and C-1 which embrace points in Michigan, Ohio, and Indiana. Based on the applicable minima the earnings under rates of $1.70, minima 30,000 pounds, on metal auto parts, $1.70, minimum 40,000 pounds, on machinery and machines, $1.48, minimum 40,000 pounds, on motortruck seat cabs and freight auto bodies, k. d., and $1.38, minimum 40,000 pounds on electric storage batteries from Detroit to Oxnard and other California terminal points are $510, $680, $592, and $552 per car, respectively.

Complainant points out that automobile parts, such as fenders, gas tanks, and metal running boards are more susceptible to damage in transit than oil-well tools, and that this traffic is often moved in special equipment provided for use of the automobile industry entailing long hauls of empty equipment, and further, that in many

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