INTERSTATE COMMERCE COMMISSION

REPORTS.

No. 11297.

STATE CORPORATION COMMISSION OF THE STATE OF NEW MEXICO

v.

DIRECTOR GENERAL, ABILENE & SOUTHERN RAILWAY COMPANY, ET AL.

Submitted May 31, 1921. Decided July 15, 1921.

Rate on beans from Deming, N. Mex., to interstate destinations east thereof found not unreasonable, unduly prejudicial, or otherwise unlawful. Complaint dismissed.

Hugh H. Williams and H. S. Bowman for complainant.

R. C. Fulbright for El Paso Chamber of Commerce, intervener. W. M. Peticolas for El Paso & Southwestern system and Chicago, Rock Island & Pacific Railway Company; E. C. Iden for Atchison, Topeka & Santa Fe Railway Company; W. R. Brown for Rio Grande, El Paso & Santa Fe Railroad Company; R. H. Minson for Arizona & New Mexico Railway Company; and Fred. H. Wood, C. W. Durbrow, James R. Bell, Frank B. Austin, and Elmer Westlake for other defendants.

REPORT OF THE COMMISSION.

DIVISION 2, COMMISSIONERS CLARK, DANIELS, AND ESCH. DANIELS, Commissioner:

No exceptions were filed to the report proposed by the examiner. In this complaint, filed February 6, 1920, it is alleged that all interstate class and commodity rates to and from Deming, N. Mex., are unreasonable, unjustly discriminatory, and unduly prejudicial to Deming and unduly preferential of certain other points, particularly El Paso, Tex., in violation of sections 1, 2, and 3 of the interstate commerce act and section 10 of the federal control act. Certain of the rates assailed are also alleged to be violative of section 4 of the interstate commerce act. The prayer is for the establishment of just and reasonable rates for the future. The El Paso Chamber of Commerce intervened to protect the interests of El Paso.

At the conclusion of complainant's testimony an adjustment of the commodity rates to Deming, based substantially upon our decision in Corporation Commission of New Mexico v. Ry. Co., 34 I. C. C., 292, was proposed by defendants and agreed to by complainant and the intervener.

As a result of the agreement and of subsequent negotiations between the parties, complainant's chairman advised on February 18, 1921, that all the matters in controversy had been satisfactorily adjusted by the defendants with the exception of rates and carload minimum weights on wire, nails, and iron pipe from Pittsburgh territory to Deming and the rate on beans from Deming to interstate destinations east thereof. An early adjustment of the rates and carload minimum weights on wire, nails, and iron pipe is expected to follow negotiations now pending between the parties; and this report therefore will deal only with the rate on beans. The rates hereinafter referred to are those in effect prior to the general increases of 1920.

The rate on beans in carloads from Deming to interstate destinations, in general, east thereof is 94 cents per 100 pounds. The same rate applies from Los Angeles, San Francisco, and other California points to the same destinations. Complainant contends that the rate from Deming is unreasonable and unduly prejudicial.

It is asserted that the cost of raising beans in the vicinity of Deming is greater than in California, and that with equal rates to points in the territory above described, especially Fort Worth, Tex., Kansas City, Mo., and Chicago, Ill., Deming can not successfully compete with the California points. On this point, we have repeatedly held that we have no authority under the law to equalize production costs by the adjustment of transportation charges. Complainant urges, further, that because it is nearer to the destinations in question, Deming is entitled to lower rates than are the California points.

Defendants maintain that the rate from the California points is subnormal, having in the past been depressed by water competition; and, although not contending that the rate was held to its then present level by water competition existing at the date of the hearing, assert that there was at that time some actual competition and that such competition is in process of substantial development. They also point out that thousands of carloads of beans are shipped each year from California points. Eleven carloads were produced in the vicinity of Deming in 1918 and 28 carloads in 1919. The number of carloads shipped from Deming is not shown.

There were assigned for hearing with this case portions of general fourth section applications of the El Paso & Southwestern Railroad,

the Southern Pacific, and the Atchison, Topeka & Santa Fe Railway, seeking authority to continue rates to Deming in contravention of the provisions of the fourth section. The record does not show specific departures in the rates to Deming. The carriers stated, however, that the tariffs would be amended to remove any departures that may exist.

We find that the assailed rate on beans is not unreasonable, unduly prejudicial, or otherwise unlawful, and the complaint will be dismissed.

No. 11736.

LEHIGH & WILKES-BARRE COAL COMPANY

v.

DIRECTOR GENERAL, AS AGENT.

Submitted March 7, 1921. Decided July 22, 1921.

Rates on mine props, in carloads, from points in Maryland, Virginia, and Delaware to Plymouth, Pa., found to have been unreasonable. Reparation awarded.

Charles E. Miller for complainant.

Royal T. McKenna for defendant.

REPORT OF THE COMMISSION.

DIVISION 2, COMMISSIONERS CLARK, MCCHORD, and Daniels. MCCHORD, Commissioner:

No exceptions were filed to the report proposed by the examiner. Complainant, a corporation engaged in the mining and selling of anthracite coal with its principal office at Wilkes-Barre, Pa., alleges that the rates charged by defendants for the transportation of numerous carload shipments of mine props which moved between June 25, 1918, and December 27, 1918, from points in Virginia, Delaware, and Maryland, to Plymouth, Pa., were unreasonable, unjustly discriminatory, and unduly prejudicial in violation of sections 1, 2, and 3 of the act to regulate commerce. Rates are stated herein in cents per 100 pounds, and do not include the general increases authorized on July 29, 1920.

The shipments moved over defendant's lines from various points of origin in so-called eastern shore territory, and were delivered by the Delaware, Lackawanna & Western Railroad at Plymouth, which is located in the anthracite coal regions of Pennsylvania. The rate

At the conclusion of complainant's testimony an adjustment of the commodity rates to Deming, based substantially upon our decision in Corporation Commission of New Mexico v. Ry. Co., 34 I. C. C., 292, was proposed by defendants and agreed to by complainant and the intervener.

As a result of the agreement and of subsequent negotiations between the parties, complainant's chairman advised on February 18, 1921, that all the matters in controversy had been satisfactorily adjusted by the defendants with the exception of rates and carload minimum weights on wire, nails, and iron pipe from Pittsburgh territory to Deming and the rate on beans from Deming to interstate destinations east thereof. An early adjustment of the rates and carload minimum weights on wire, nails, and iron pipe is expected to follow negotiations now pending between the parties; and this report therefore will deal only with the rate on beans. The rates hereinafter referred to are those in effect prior to the general increases of 1920.

The rate on beans in carloads from Deming to interstate destinations, in general, east thereof is 94 cents per 100 pounds. The same rate applies from Los Angeles, San Francisco, and other California points to the same destinations. Complainant contends that the rate from Deming is unreasonable and unduly prejudicial.

It is asserted that the cost of raising beans in the vicinity of Deming is greater than in California, and that with equal rates to points in the territory above described, especially Fort Worth, Tex., Kansas City, Mo., and Chicago, Ill., Deming can not successfully compete with the California points. On this point, we have repeatedly held that we have no authority under the law to equalize production costs by the adjustment of transportation charges. Complainant urges, further, that because it is nearer to the destinations in question, Deming is entitled to lower rates than are the California points.

Defendants maintain that the rate from the California points is subnormal, having in the past been depressed by water competition; and, although not contending that the rate was held to its then present level by water competition existing at the date of the hearing, assert that there was at that time some actual competition and that such competition is in process of substantial development. They also point out that thousands of carloads of beans are shipped each year from California points. Eleven carloads were produced in the vicinity of Deming in 1918 and 28 carloads in 1919. The number of carloads shipped from Deming is not shown.

There were assigned for hearing with this case portions of general fourth section applications of the El Paso & Southwestern Railroad,

the Southern Pacific, and the Atchison, Topeka & Santa Fe Railway, seeking authority to continue rates to Deming in contravention of the provisions of the fourth section. The record does not show specific departures in the rates to Deming. The carriers stated, however, that the tariffs would be amended to remove any departures that may exist.

We find that the assailed rate on beans is not unreasonable, unduly prejudicial, or otherwise unlawful, and the complaint will be dismissed.

No. 11736.

LEHIGH & WILKES-BARRE COAL COMPANY

v.

DIRECTOR GENERAL, AS AGENT.

Submitted March 7, 1921. Decided July 22, 1921.

Rates on mine props, in carloads, from points in Maryland, Virginia, and Delaware to Plymouth, Pa., found to have been unreasonable. Reparation awarded.

Charles E. Miller for complainant.

Royal T. McKenna for defendant.

REPORT OF THE COMMISSION.

DIVISION 2, COMMISSIONERS CLARK, MCCHORD, and Daniels. MCCHORD, Commissioner:

No exceptions were filed to the report proposed by the examiner. Complainant, a corporation engaged in the mining and selling of anthracite coal with its principal office at Wilkes-Barre, Pa., alleges that the rates charged by defendants for the transportation of numerous carload shipments of mine props which moved between June 25, 1918, and December 27, 1918, from points in Virginia, Delaware, and Maryland, to Plymouth, Pa., were unreasonable, unjustly discriminatory, and unduly prejudicial in violation of sections 1, 2, and 3 of the act to regulate commerce. Rates are stated herein in cents per 100 pounds, and do not include the general increases authorized on July 29, 1920.

The shipments moved over defendant's lines from various points of origin in so-called eastern shore territory, and were delivered by the Delaware, Lackawanna & Western Railroad at Plymouth, which is located in the anthracite coal regions of Pennsylvania. The rate