over their existing routes as described in the applications, a rate not lower than 55 cents, and to maintain higher rates from, to, and between intermediate points; provided, that the present rates from, to, and between such higher-rated intermediate points shall not be increased except as may be authorized by this Commission, and shall in no instance exceed the lowest combination of rates subject to the act; and provided further, that the relief herein authorized shall expire with December 27, 1939. All other and further relief will be denied.

An appropriate order will be entered.

234 I. C..

No. 27996

M. CRELINSTEN & SONS, LIMITED, ET AL. v. ALTON RAILROAD COMPANY ET AL.

Submitted May 22, 1939. Decided July 14, 1939

Stated charges for modified refrigeration service on carload shipments of fresh fruits and vegetables from points in California, Arizona, and Mexico to Toronto, Ontario, and Montreal, Quebec, Canada, not shown to have been unreasonable or otherwise unlawful. Complaint dismissed.

R. W. Schapanski for complainants.

Elmer Westlake and H. C. Barron for defendants.

REPORT OF THE COMMISSION

DIVISION 4, COMMISSIONERS PORTER, MAHAFFIE, AND MILLER BY DIVISION 4:

After service of a proposed report and the filing of exceptions, upon petition of defendants this proceeding was reopened for further hearing before final submission. Thereafter a second proposed report was served. Defendants filed exceptions, and complainants replied thereto. Our conclusions differ from those recommended by the examiner.

Complainants1 are wholesale distributors of fruits and vegetables at Toronto, Ontario, and Montreal, Quebec, Canada. By complaint filed March 21, 1938, they allege that the stated charges for modified refrigeration service on numerous carload shipments of fresh fruits and vegetables between September 10, 1936, and January 10, 1937, inclusive, from origins in California, Arizona, and Mexico to Toronto and Montreal were unreasonable and in violation of the long-andshort-haul provision of section 4 of the Interstate Commerce Act. Complainants ask us to award reparation. Charges will be stated in amounts per car.

By agreement of the parties evidence on further hearing was submitted in the form of verified statements or affidavits.

Section 2 of the perishable-protective tariff contains special rules, and names stated refrigeration charges applicable on carload ship

1 M. Crelinsten & Sons, Limited, J. R. Clogg & Company, Limited, Eliosoff & Botner Company, Masson & Sons, Limited, W. J. McCart & Company, Limited, National Fruit Exchange, Incorporated, the Ontario Produce Company, Limited, Charles S. Simpson Company, Limited, and Wolfe Fruit Company, Limited, corporations, and Arthur, Charles, Max, and Russell Crelinsten, copartners, trading as M. Crelinsten & Sons.

ments of fruits, vegetables, and other perishable freight named therein. These rules provide for so-called modified forms of refrigeration, as distinguished from standard refrigeration. The modified services accorded the considered shipments were covered by rule 240, applying on vegetables, bunkers initially iced, not re-iced in transit; rule 242, applying on vegetables with top or body icing not exceeding 10,000 pounds; and rule 247, applying (1) on deciduous fruits initially iced by shipper, re-iced once in transit by carrier, (2) on deciduous fruits initially iced by carrier, re-iced once by carrier, and (3) on vegetables initially iced by carrier, re-iced once by carrier.

For several years prior to September 10, 1936, charges for both standard and modified refrigeration services from the considered origins to Toronto were the same as those contemporaneously maintained to Buffalo, N. Y., while those to Montreal were the same as those contemporaneously maintained to New York, N. Y. Reduced charges for both classes of service on perishable products from California and Arizona to Buffalo and New York were prescribed in Charges for Protective Service to Perishable Freight, 215 I. C. C. 684, and were established September 10, 1936. On the same date the carriers established on like traffic to Toronto and Montreal charges for standard refrigeration service the same in amounts as those prescribed to Buffalo and New York, respectively. Traffic to Canada was not within the findings in the above-cited proceeding and the carriers were under no requirement to maintain the previously existing equalization between the points above named. However, on January 11, 1937, they established the same charges for modified, refrigeration service on shipments to Toronto and Montreal as had been established to Buffalo and New York, respectively.

From October 7, 1936, to January 20, 1937, complainants received 231 carloads of fruits and vegetables from the considered origins on which they seek reparation in the amounts of the differences between the charges paid and those subsequently established. The situation is illustrated in the following table, compiled from complainants' exhibits, the charges shown to Buffalo and New York being those subsequently established to Toronto and Montreal, respectively:

On 7 of the shipments charges assessed were those under rule 247, and on the remaining 224 those under rules 240 or 242. Distances over direct routes, as computed by complainants, are approximately 24 miles less to Toronto than to Buffalo and 58 miles less to Montreal than to New York.

There is no contention and no evidence here that the assailed charges were unreasonable per se. Complainants rely entirely upon the facts that prior to September 10, 1936, the charges to Toronto and Montreal were the same as the respective charges to Buffalo and New York; that between that date and January 10, 1937, the charges to the former were higher than to the latter points; and that on January 11, 1937, the former parity was restored by the establishment to Toronto and Montreal of the lower charges to Buffalo and New York established in compliance with the above-cited decision. Complainants' showing that charges lower than those to the considered destinations were contemporaneously in effect to Buffalo and New York is insufficient to support a finding that the assailed charges were unreasonable. Nor does the subsequent reduction of the charges in itself warrant a finding of unreasonableness.

Defendants contend that the Commission is without power to award reparation on the considered shipments because there were in effect proportional charges from and to all points in the United States, established in conformity with the decision in Charges for Protective Service to Perishable Freight, supra, and that it is without power to award reparation on the shipments moving under rule 240 because of the provisions of section 208 (a) of the Transportation Act, 1920. In view of our conclusions, however, it is unnecessary to consider those contentions. For the same reason we will not discuss defendants' figures covering refrigeration-service costs, submitted on further hearing.

The allegation of a violation of the long-and-short-haul provision is based on the maintenance, during the period when the considered shipments moved, of refrigeration charges to Toronto and Montreal higher than those contemporaneously maintained to Buffalo and New York, respectively. Perishable traffic from the considered origins may move to Buffalo and New York over routes through Toronto and Montreal. However, the provisions of the fourth section have no application in instances where the points of origin and destination are within the United States and the intermediate point is in Canada. Botner v. Gulf Coast Lines, 192 I. C. C. 503.

We find that the assailed charges are not shown to have been unreasonable or otherwise unlawful. The complaint will be dismissed.

No. 163001

ARMSTRONG PACKING COMPANY v. ABILENE &
SOUTHERN RAILWAY COMPANY ET AL.

Submitted June 15, 1939. Decided July 17, 1939

Upon further hearing, amounts of reparation due complainants under findings in prior reports, 201 I. C. C. 393, 206 I. C. C. 325, and 208 I. C. C. 483, on shipments of cottonseed oil, in carloads, from origins in Texas to destinations in Colorado and Mountain-Pacific territory, determined and ordered paid.

Albert L. Reed and Frank C. Brooks for complainants.

John P. Bullington, H. C. Barron, C. S. Burg, James G. Blaine, M. G. Roberts, H. J. Stadin, M. V. Duncan, A. B. Enoch, Toll R. Ware, Robert Thompson, J. R. Bell, G. H. Muckley, R. E. Wedekind, J. H. Tallichet, and W. H. Watts for defendants.

REPORT OF THE COMMISSION ON FURTHER HEARING

DIVISION 4, COMMISSIONERS PORTER, MAHAFFIE, AND MILLER

BY DIVISION 4:

Exceptions to the proposed report were filed by a complainant and defendants. Complainants replied to defendants' exceptions. The issues were orally argued.

In the prior reports in these six and other related proceedings consolidated therewith, Armour & Co. v. Atchison, T. & S. F. Ry. Co., 201 I. C. C. 393, 206 I. C. C. 325, and 208 I. C. C. 483, rates on cottonseed oil, its products, and related articles between numerous points in the United States, including rates on transited shipments, were found by the Commission to have been unreasonable to the extent that they exceeded rates upon certain bases, subject to the limitation that where higher rates had been prescribed or approved in other proceedings prior to the movement of the shipments such higher rates would apply. A further hearing has been held to determine the amounts of reparation that may be due complainants, Armstrong Packing Company and Trinity Cotton Oil Company. Their shipments consisted of cottonseed oil, in tank-car loads, from points in Texas to Colorado common points and points in Mountain-Pacific

1 The report embraces also proceedings of the same number, subnumbered 1 to 5, inclusive, Armstrong Packing Company et al. v. Abilene & Southern Railway Company et al.