tent that they exceed or may exceed, by more than 15 cents per can, rates made under the C. F. A. carload scale, hereinabove instanced, as extended for distances up to 1,000 miles in Campbell Dairy Products Co. v. Erie R. Co., 156 I. C. C. 777, and as further extended at the same rate of progression, minimum 200 40-quart cans per car. An appropriate order will be entered.

PORTER, Commissioner, concurring in part:

I concur in the report finding the rates unreasonable for the future to the extent set out in Campbell Dairy Products Co. v. Erie R. Co., 156 I. C. C. 777, 782.

The denial of reparation, however, is in my judgment purely capricious and arbitrary. There is no fact stated in the report which in any way distinguishes the future from the past. The carriers were put on notice by the Campbell case, supra, decided July 30, 1929, the Pet Milk Co. v. Boston & A. R., decided February 7, 1935, and Abbotts Dairies, Inc., v. Minneapolis, St. P. & S. S. M. Ry. Co., decided July 21, 1936, that the rates theretofore prevailing in this general territory were unreasonable and should be reduced. Under the circumstances our duty to award reparation is plain.

MAHAFFIE, Commissioner, concurring :

I concur in the findings herein solely because of the findings of the Commission in Pet Milk Co. v. Boston & A. R., 206 I. C. C. 461, and of this division in Abbotts Dairies, Inc., v. Minneapolis, St. P. & S. S. M. Ry. Co., 216 I. C. C. 661, from which I dissented.

227 I. C. C.

CONSOLIDATED SOUTHWESTERN CASES1

Decided June 27, 1938

1. Southwestern defendants' petition to modify present description of Texas differential territory, as prescribed in 139 I. C. C. 535, 578, as amended

in 144 I. C. C. 630, 632, with resulting changes in affected group rates, granted.

2. Amended maximum reasonable key-point rates to and from points in official, southern, and western trunk-line territories prescribed.

3. Other prior reports, 123 I. C. C. 203, 196 I. C. C. 507, 205 I. C. C. 601, 211 I. C. C. 575, and 218 I. C. C. 11.

F. A. Leland for southwestern lines, petitioners.

TWENTY-SIXTH SUPPLEMENTAL REPORT OF THE COMMISSION, ON PETITION FOR MODIFICATION

MILLER, Commissioner:

Southwestern defendants have petitioned us to modify prior reports and orders so as to eliminate from Texas differential-territory stations on the Estelline branch of the Fort Worth & Denver City Railway, except those west of Plainview, Tex., and on the Floydada branch of the Panhandle & Santa Fe Railway. To accomplish this they ask us to amend the description of Texas differential territory in these proceedings as now set forth in amended appendix 9, page 578, of the report on reconsideration, 139 I. C. C. 535, and as further amended on page 632 of the second supplemental report, 144 I. C. C. 630, so that section 3 thereof reads as follows:

Section No. 3, additional points in differential territory: Points on the Panhandle & Santa Fe Railway, Spearman and Crosbyton branches; points on the Quanah, Acme & Pacific Railway west of Wheatland; points on the San Antonio Southern Railway south of Kirk.

Also to modify the provisions of section 1 of appendix 2, page 531, 196 I. C. C. 507, as follows: In footnote 1, eliminate reference to points on the Fort Worth & Denver City Railway west of Estelline (except stations west of Plainview, Tex.) and points on the Floydada branch of the Panhandle & Santa Fe. In footnote 5, eliminate reference to points on the Floydada branch of the Panhandle & Santa Fe.

1 This report embraces the proceedings listed in the footnote on the first page of the original report, 123 I. C. C. 203, as far as indicated.

In footnote 9, eliminate the provision for addition of differentials from or to points on the Estelline branch of the Fort Worth & Denver City line (except stations west of Plainview) and the Floydada branch of the Panhandle & Santa Fe. In footnotes 11 and 15, eliminate reference to points on the Floydada branch of the Panhandle & Santa Fe.

Also to modify section 5 of appendix 17, as modified on page 580, volume 139, by eliminating from footnotes 2 and 6 all reference to the Floydada branch of the Santa Fe.

Stations on the Fort Worth & Denver City and Panhandle & Santa Fe lines which it is now proposed to eliminate from Texas differential territory are all located east of the boundary line of that territory as described in section 2 of appendix 9, as amended, and were included in said territory at the request of the named lines for the reason that those branches were completed and placed in operation almost simultaneously with the original decision in these cases and low earnings were anticipated in the operation of those branch lines in the newly developed territory served by them.

The necessity for the differentials has now disappeared. Defendants desire to revise the rates from and to stations on these branch lines to conform to the basis in effect from and to other stations east of differential territory, principally because of competition as between the principal stations involved, Lockney and Floydada, with points not included in differential territory, such as Plainview and Lubbock.

Upon inquiry the Railroad Commission of Texas has advised us that it not only sees no objection to the proposed changes but is of opinion that the petition should be granted. The vice chairman of the Southwestern Freight Bureau has advised us that if we approve the pending petition the carriers will then petition the Texas commission for like action with respect to the corresponding intrastate

rates.

In the circumstances the petition should be granted. The previous findings should be, and they are hereby, modified in accordance therewith. These modifications of the boundary and extent of differential territory also make necessary certain changes in the key rates prescribed in appendix C to the twenty-first supplemental report, 205 I. C. C. 601, as modified in 211 I. C. C. 575 and 218 I. C. C. 11 to and from Plainview. The key rates prescribed in those reports to and from Plainview are accordingly hereby modified as set forth in the appendix hereto. The appendix also contains certain other changes to correct errors which have been discovered or to modify certain key rates slightly downward or upward to avoid departures from the fourth section over reasonably direct routes or to

facilitate orderly grouping of points of origin and destination. Accordingly we hereby amend appendix C to the twenty-first supplemental report as heretofore amended by substituting for the rates now appearing therein for application between the named points, corrected first-class rates in cents per 100 pounds, as set forth in the appendix hereto attached, which corrected rates we find to be reasonable maxima for application from and to such points. To the rates herein prescribed may be added the Ex Parte No. 123 increases authorized on March 8, 1938, as modified March 25, 1938.

COMMISSIONER CASKIE did not participate in the disposition of these proceedings.

APPENDIX

Maximum first-class key rates, in cents per 100 pounds, for application between the named points, in lieu of those prescribed in appendix C to twentyfirst supplemental report, 205 I. C. C. 601, as amended by 211 I. C. C. 575 and 218 I. C. C. 11.

Between

Section 1: Key Points in Official Territory

Baltimore, Md., and Lafayette, La--.

Cumberland, Md., and Lafayette, La-----
Cumberland, Md., and Plaquemine, La..
Dayton, Ohio, and Pawhuska, Okla....
Frederick, Md., and Lafayette, La----
Grafton, W. Va., and Crowley, La--
Grafton, W. Va., and Eunice, La---
Grafton, W. Va., and Lafayette, La_-
Grafton, W. Va., and New Iberia, La__.
Grafton, W. Va, and Woodward, Okla---

Hagerstown, Md., and Lafayette, La--
Litchfield, Ill. and Mineral Wells, Tex-_-

Section 2: Key Points in Southern Territory

265

265

256

198

265

265

265

265

265

263

265

225

Section 3: Key Points in Western Trunk-line Territory