booms, counterbalances, cables, movable and flexible chutes, etc., used in the distribution of concrete at the dams. More specifically, one shipment consisted of ordinary steel cables, cable clips, pendants, various wooden and steel blocks, turnbuckles, thimbles, clamps, and chute and sheave counterweight mulies. Another shipment consisted of buckets and frames, hoppers, booms complete with blocks, sheaves, etc., sliding frame, complete boom chute lines, and base and top Leaves. It was stated that the remaining shipment consisted of 450 feet of Lakewood chute line. However, in the informal complaint, copy of which was introduced by defendant, the shipment was described as also containing two concrete buckets and a boom. Complainants do not explain this discrepancy. Class A rates as provided in the governing western classification for contractors' outfits were applied. A contractor's outfit is defined in that classification as comprising mixed carloads of secondhand (used) implements, machinery, or tools which are an essential part of working outfits required in connection with construction work, including coal, coke, implements, machines, vehicles other than motor vehicles, pulley or tackle blocks, tools, chain, rope, ladders, scaffolds, tents and tent fixtures, knocked-down portable houses, scows, dump cars, narrow-gage locomotives, rails, or track, and other secondhand (used) construction equipment. The rates assailed were $2.04 to Lodi, Calif., and 13 cents beyond. Contemporaneously there was in effect from San Carlos to Stockton, Calif., a commodity rate of $1.12 on old secondhand machinery, machines, and parts thereof rated either class A or fifth class under the heading of machinery in western classification. This rate coupled with a class A rate of 18.5 cents beyond Stockton, made a combination of $1.305, which complainants seek. When this traffic originated western classification provided class A rating under the general heading of machinery and machines on iron or steel power-conveying, dredging, dumping, or hoisting buckets, dippers, or skips, iron or steel gravity chute conveyors and machinery and machines and parts thereof, not otherwise indexed by name. The classification also provided, but not under the heading of machinery and machines, fourth class on iron or steel concrete distributing chutes. This specific provision raises doubt as to the applicability of the broader and less specific description of iron or steel gravity chute conveyors. However that may be, and granting that some of the articles were rated under the heading of machinery in the classification, it seems reasonably clear that no shipment consisted in its entirety of articles so rated. For example, pulley and tackle blocks and sheaves, among other articles enumerated, are not classified under that heading. Manifestly these shipments consisted of a contractor's outfit. The burden is on complainants to show that they could also accurately have been described conformably with the language of the commodity-rate items sought. This they have failed to sustain. We find that the rates assailed were applicable. The complaint will be dismissed. MCMANAMY, Commissioner, dissenting: The majority finds that the class A rates charged on complainants' shipments were applicable and that the $1.12 commodity rate to Stockton which applied on all machinery or machines rated either class A or fifth class under the heading of machinery in the western classification was inapplicable because the commodity description is not broad enough to include all of the articles included in the three shipments. To me it seems inconsistent to hold that the $1.12 rate, applicable as it was on both class A and fifth-class articles, was inapplicable and that the class A rates were applicable. I think the shipments were overcharged to the extent that the charges collected exceeded the Stockton combination of $1.305, made up of the commodity rate of $1.12 to Stockton and the class A rate beyond of 18.5 cents. 190 I. C. C. No. 24244 CARROLLTON EXCELSIOR & FUEL COMPANY, LIMITED v. SOUTHERN RAILWAY COMPANY ET AL. Submitted September 23, 1932. Decided November 28, 1932 "ates on wood, in carloads, from points in Mississippi to New Orleans, La., not shown to have been unreasonable or otherwise unlawful. Complaint dismissed. L. F. Daspit for complainant. B. O. Trenting for defendants. REPORT OF THE COMMISSION DIVISION 3, COMMISSIONERS MCMANAMY, BRAINERD, AND LEE 3r DIVISION 3: Exceptions were filed by complainant to the report proposed by the examiner. Our conclusions differ slightly from those recomzended by him. Complainant, a manufacturer of wood excelsior, alleges that the rates on wood, in carloads from Enterprise, Arundel, Barnett, Beazice, Dorothy, Haney, Heidelberg, Pachuta, Sandersville, Savoy, Tossburg, and Wautubbee, Miss., to New Orleans, La., are unreashable, unjustly discriminatory, unduly prejudicial, and unduly preferential of intrastate commerce. Rates for the future are sought. Ballard & Perrin, Incorporated, intervened but introduced no evijence. The origins are on the line of the New Orleans and Northeastern Railroad Company between Meridian and Laurel, Miss., 154 to miles from New Orleans. The governing tariff contains two mmodity descriptions, "cordwood and slabs" and "resinous wood, nsisting of pine knots, roots, stumps and/or tree boughs, also Tood, fire and fuel". Rates from and to the points here considered der the first description, which rates complainant has paid in Le past, range from 8.5 to 10.5 cents per 100 pounds. The rate der the second description is 5 cents from and to the same points. mplainant states generally that it has made shipments of wood the higher rates; that other shipments have been made from and the same points at the lower rate; and that the lower basis applies from the origins to Basic, Miss., where another manufacturer of excelsior is located. The commodity shipped is not described but defendants concede that the lower rate is applicable. Two days before the hearing of this case representatives of the Southern Railway Company agreed that the rate sought by complainant was applicable and it would be applied in the future and a refund made on past shipments. In view of this development we inquired of complainant whether or not the complaint had been satisfied. It replied that a suit in court for damages had been instituted, but declined to withdraw the complaint. In its exceptions to the examiner's proposed report complainant's president disclaimed any prayer for reparation in this proceeding, saying that he had "made his choice elsewhere." He also admitted that the evidence in support of the other allegations, which is fully summarized above, is inadequate upon which to base a finding for the future. These facts leave nothing for us to do but to dismiss the complaint. Such will be the order. 190 I. C. C. No. 242831 BEST BRICK COMPANY v. SOUTHERN RAILWAY Submitted March 31, 1932. Decided November 28, 1932 Rite charged on brick, in carloads, from Albion, Ill., to St. Louis, Mo., found applicable. Complaints dismissed. B. M. Godfrey for complainants. H. L. Walker and Roland H. Wiechert for defendants. REPORT OF THE COMMISSION DIVISION 3, COMMISSIONERS MCMANAMY, BRAINERD, AND LEE BY DIVISION 3: These cases were heard on individual records and separate proposed reports were issued, but because of similarity of the issues they will be disposed of in one report. Exceptions were filed by the omplainants to the proposed report by the examiner in the title case and defendants replied thereto. No exceptions were filed in No. 24632, but our conclusions differ from those recommended by the examiner therein. Complainants allege that the rate charged on brick, in carloads, hipped between April 17, 1928, and October 26, 1929, inclusive, from Albion, Ill., to St. Louis, Mo., was inapplicable and seek reparation. The Mason City Brick and Tile Company of Mason City, Iowa, intervened at the hearing in the title case in opposition to the complaints. The shipments moved over the lines of the Southern Railway Comany and the Terminal Railroad Association of St. Louis. Charges were collected at a rate of $1.45 per net ton applicable on brick and ther articles included in the uniform brick list. Reparation is nght to the basis of a rate of $1.15 contemporaneously applicable o common brick described in the governing tariff as follows: Brick, common, not hollow, made from low-grade clay or shale, loaded to the marked capacity of the car, and when not braced, wedged, or packed for This report also embraces No. 24283 (Sub-No. 1), Atlas Brick Company v. Same, and So. 24632, Union Clay Products Company, Incorporated v. Same. |