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sixth-class basis sought would have yielded $5,920.38, reflecting a difference of about $12 per car. To the destinations of those shipments rates made 40 percent of constructive first-class rates from the origins on the Seaboard Air Line would in most instances exceed the rates assailed. Of the 208 shipments handled by the Atlantic Coast Line, 150 were reconsigned and 9 were twice reconsigned. Proceeds from the sale of some of the unclaimed shipments were far less than the freight charges thereon.

The present record does not warrant a conclusion different from that reached in South Carolina Produce Assn. v. Aberdeen & R. R.

Co., supra.

We find that the rates assailed were not unreasonable or otherwise unlawful. The complaints will be dismissed.

MOMANAMY, Commissioner, dissenting:

Defendants' contention that the claims in no. 27176 are barred raises a jurisdictional question which should first be determined before consideration is given to the allegations of the complaint. Maloney Tank Mfg. Co. v. Atchison, T. & S. F. Ry. Co., 178 I. C. C. 450, citing Louisville Cement Co. v. Interstate Commerce Commission, 246 U. S. 638.

Briefly, defendants' position is that certain letters from the Commission to the parties constituted, according to their terms, a closing of the informal proceedings and, as the formal complaint was not filed within six months thereafter as required by our Rules of Practice, the claims are barred. In my opinion the terms of these letters do not justify this view, and the informal proceedings were not terminated until August 7 and August 20, 1935, when complainant was notified that the claims were not susceptible of informal adjustment. Inasmuch as the formal complaint was filed within six months thereafter, the claims are not barred.

The assailed rates were plainly unreasonable. The Commission so held under like circumstances in John S. Moon Co., Inc., v. Seaboard Air Line Ry. Co., 201 I. C. C. 61, and the findings in this division 3 report are directly in conflict therewith. We there found that commodity rates on cabbage which exceeded the sixth-class basis were unreasonable in the past to the extent that they exceeded the class rates, and awarded reparation accordingly. A like finding should be made here.

The report shows that the assailed commodity rates ranged from about 42 to 53 percent of first class. Sixth class is 40 percent of first class. In Southeastern Vegetable Case, 200 I. C. C. 273, an exhaustive inquiry into the reasonableness of rates on vegetables from the South, we prescribed on cabbage 32.5 percent of so-called constructive

first-class rates. Teveriteless form are recitals, the sievancy of which seems very donathil and the purpers of which is 100 clear to me, it seems to be concinded in the repers dat de asated rates were "depressed *

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It is indicated in the report that the bensons in Sacă Cerolina Produce Aen. Can my sonstitute a bar to aiming of reasonableness in the instans a TESTE, 2 17 CHCE. Smpletely negatived by the anion taken by the Commission in the more recent case of John S. Moon Co. Inc. v. Seaboard Ar Lim 31. O Moreover, the main grond of complain in the former use, so far as here pertinent, was the making of a charge for the transportation of calcage in bretel packages greater than 13-bustel or 3-bushel packages, which preace we ondemned The facts and circumstances were otherwise diferent from those bere considered.

So far as rates from the so-called river landings are concerned, from which no through joint class rates were in efect. I can agree that there was no violation of the aggregate-of-intermediates provision of section 4, because of the restrictions attached to the initial rate factors, but I am of the opinion that the assailed rates were unreasonable to the extent that they exceeded the lower combinations that could have been made but for the restrictions.

219 L. C. C.

No. 22907

INDUSTRIAL SAND CASES, 19301

Submitted June 12, 1936. Decided December 7, 1986

1. On further hearing, findings in prior report, 188 I. C. C. 99, amplified so as to provide for a basis for reasonable maximum rates for complainants' and interveners' shipments of sand since October 4, 1932.

2. Findings in prior report in no. 25813, 204 I. C. C. 159, with respect to the basis for reasonable maximum rates from Mapleton, Pa., to Valley Falls, R. I., modified in part.

3. Rates assailed in no. 22907 from Wedron, Ill., to Gardenville, N. Y., in no. 27096 from Ottawa, Ill., to Coldwater, Mich., in nos. 23111 and 26850 from Mapleton, Pa., and Hancock, W. Va., to Chester and Philadelphia, Pa., in no. 26938 from Provincetown, Mass., to New Britain, Conn., and on certain shipments embraced in nos. 27121, 27173 (sub-no. 1), and 27212, found not unreasonable, and rates on industrial sand on numerous other shipments in official territory prior to July 1, 1935, found unreasonable.

4. Amount of reparation due complainants and interveners under the present and prior findings as thus modified, determined.

5. Finding by division 2 in no. 26587, 209 I. C. C. 299, that the $2.90 rate charged on shipments of molding sand, in carloads, prior to July 1, 1935, from New Hamburg, South Schenectady, and Stuyvesant, N. Y., to Lancaster, Pa., was not unreasonable, affirmed.

6. Authority granted, on conditions, to maintain on so-called industrial sand and on gravel and quartz, between points in official territory, including certain origins in Illinois, Wisconsin, and Minnesota, and destinations in Wisconsin and Michigan the rates prescribed or approved in Industrial Sand Cases, 1930, 204 I. C. C. 159, without observing the longand-short-haul provision of section 4 of the Interstate Commerce Act.

Jesse F. Atwater, H. L. Beaudry, D. L. Bennett, Raphael Blank, Samuel H. Blank, L. V. Brandt, H. W. Browne, A. J. Christiansen, Earl W. Cox, Geo. M. Cummins, C. E. Elerick, N. W. Ford, Samuel Goldstein, John J. Hickey, T. Bernard Jones, J. H. Kane, William F. Kavanah, Frank J. Kranz, W. W. Larkin, William Martin, William H. Neely, Abner Pollack, Ernest R. Raumaker, R. E. Riley,

1Under the above generic title this report embraces nos. 22907, 20554, 20733, 21133, 21136, 21383, 21396, 21849, 22053, 22098, 23111, 23226, 23340, 23446, 23912, 23936, 24309, 25587, 25813, and 25843 on further hearing (prior reports 188 I. C. C. 99, 204 I. C. C. 159); also No. 26587, Burnham Boiler Corporation v. Pennsylvania Railroad Company et al., on reconsideration, the new cases listed in the appendix, and fourthsection applications nos. 15902 and 15930, Sand from Central, New England, and Trunk Line Territories.

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1 Falled industrial sand berwHAT I UTENOS MERT unreasonable prior to Omoter & 18 to ner ended the bases set forth in appendix E dersta As the for computing distances set forth in the fxcrte?

aries rates on silica sand from the Orava I. 71. Eock. W. Va., and New Jersey districts on Nje apded melding sand from the Ohio, New York, mi New sy ismers and on so-called core sand from points in Michigan. A New England. In nos. 24309, 25813, and 25545, embraced ales meert in further hearing, 204 I. C. C. 159, we also found rates presumible prior to July 1, 1935, from Avery, Ohio, Mapleton. 23. and Newport, N. J., to the extent they exceeded the appendix H ses above referred to, except from Mapleton to Valley Falls. R. L.,

PINGEDERS to be used for reparation purposes are to be determined in the following In the case of unrouted shipments, and of shipments routed by the shipper jver mutes less than 15 percent longer than the shortest existing route over which carvai taffe eocld be moved without transfer of lading, use the distances over the shortest austing route (of which the originating carrier was the initial line) over which carload truffe could be moved without transfer of lading, and (2) in the case of shipments routed by the shipper over routes which exceeded by 15 percent or more the shortest existing goutes over which carload traffic could be moved without transfer of lading, use the dissance over the route designated by the shipper unless the distance over the route of movement was less, in which case use the latter, and unless no shorter route than that designated by the shipper was available, in which case use the distance over the shortest existing route by which carload traffic could be moved without transfer of lading.

for which a rate of $3.65 was erroneously prescribed as hereinafter indicated. In numerous subsequent proceedings, except where the rates assailed were prescribed by us within the meaning of Arizona Grocery Co. v. Atchison, T. & S. F. Ry. Co., 284 U. S. 370, we have found, where the basic facts were established by competent evidence, rates on this traffic between numerous points in official territory unreasonable prior to July 1, 1935, to the extent they exceeded the appendix H bases. Olean Glass Co., Inc., v. Pennsylvania R. Co., 203 I. C. C. 449; International Motor Co. v. Delaware & H. R. Corp., 204 I. C. C. 572; 211 I. C. C. 239; Woodruff & Edwards, Inc., v. Boston & M. R., 206 I. C. C. 75; Sessions Foundry Co. v. New York, N. H. & H. R. Co., 206 I. C. C. 482; Grasselli Chemical Co. v. Chicago, B. & Q. R. Co., 206 I. C. C. 616; Burnham Boiler Corp. v. Pennsylvania R. Co., 209 I. C. C. 299; Hartford Electric Steel Corp. v. Pennsylvania R. Co., 210 I. C. C. 571; Standard Sanitary Mfg. Co. v. Chicago & E. I. Ry. Co., 210 I. C. C. 649. Further hearings were held to determine the amount of reparation due certain of the complainants and interveners under the prior findings, 188 I. C. C. 99, on shipments moving prior to October 4, 1932, 201 I. C. C. 257, 261, 263; 203 I. C. C. 421; 204 I. C. C. 152, 789; 208 I. C. C. 86, 424, 446, 449, 674; 210 I. C. C. 459; 211 I. C. C. 191; 213 I. C. C. 63. In addition, the 33 new complaints listed in the appendix were filed assailing the rates as unreasonable and seeking reparation on numerous other shipments of industrial sand in this territory. Of these, all except nos. 26901 and 26794 were heard in September and October, 1935, and January 1936, and in addition the original complainants and interveners were given an opportunity, where they had not already done so, to prove the amount of reparation due under the findings of October 4, 1932. Where requested, hearings were held on the question of the reasonableness of the rates and the amount of reparation which should be awarded on shipments moving since that date. These matters, together with nos. 26901 and 26794, are the subject of the present report. Rates will be stated in amounts per net ton and do not include the authorized emergency charges. The details, compiled from exhibits of record, are set forth in the appendix and include the docket number, the earliest filing date of the formal or informal complaint or intervening petition, the origin district, destination, rate-making distance, rate charged, and rate prescribed in this or the prior reports. For convenience these details are arranged by origin districts in the following order: Ottawa, Michigan, Indiana, Kentucky, Ohio, Mapleton, Hancock, New Jersey, New York, and New England districts, respectively. Where reference to a prior report is given under the heading of filing date, the question presented herein is, to the extent that the prior proceeding is

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