line of the Kansas City, Mexico and Orient Railway Company. As the complaint does not cover shipments from Oklahoma points, the latter shipment will not be further considered. All shipments were accorded transit service at Kansas City, except two which were transited at Lamar, Mo. Three of them moved to destinations in Missouri served by the St. Louis-San Francisco Railway Company,2 and the remainder to destinations on defendant's line in Missouri,3 and to Edna and Fort Scott, Kans. Charges were collected based on the through rates, plus out-of-line charges computed on the difference in distance over defendant's shortest route and the distance over the route traversed from origin to transit destination.

The rates claimed were unrestricted as to routing. Defendant's milling-in-transit tariff applicable at Kansas City and Lamar provided that no extra charge would be made for transit service at "points in direct line of shipment,” but that if transited at points not intermediate extra charges provided therein for any out-of-line service performed would be in addition to the through rate from origin to ultimate, or transit destination. The controversial provision of the transit tariff reads as follows:

(a) When transit station is intermediate between point of origin and final destination, no extra charges will be made for the transit privileges, but when transit point is not intermediate, extra charges as shown in paragraph (d) will be assessed for out-of-line-haul service, except as provided for in this item.

Paragraph (d) contained the charges for the extra service performed, and paragraph (e) of the same item provided the formula for charges covering extra service whereby the difference between the distance actually traversed and that over the shortest system route determined by the use of defendant's distance table would constitute the out-of-direct-route haul.

Complainants contend that as the tariff did not restrict the junctions through which the through rates were applicable that all reasonable available routes were open. Defendant takes the position that to secure the application of the through rates without additional charge the transit point must be intermediate between origin and final destination in direct line of movement. We have consistently pointed out that if it is the purpose to restrict the application of rates over any particular route and transit service in connection therewith to a certain point or points, it should be done by clear and unequivocal language. See Curtis Leather Co. v. Atchison, T. & S. F. Ry. Co., 151 I. C. C. 610. On August 31, 1928, out-of-line charges were specifically made applicable on traffic from defendant's

2 Cabool, Miller, and Mountain Grove, Mo.

Carthage, Crane, Springfield, and Webb City, Mo.

main-line points, Gypsum City, Kans., to Cokan Spur, Kans., transited at Kansas City, thence forwarded to destinations in Missouri. All of the considered shipments from points west of Gypsum City moved prior to that date.

There remains for determination the question as to whether the routes over which the shipments actually moved may be considered reasonable routes. Complainants show that the distances over the routes traversed ranged from 107 to 135 per cent of the short system routes and averaged about 23 per cent in circuity. In Nutrena Feed Mills v. Missouri Pac. R. Co., 169 I. C. C. 673, the identical tariff provision in controversy was before us for interpretation. In that proceeding the distance over the route of movement from Admire, Kans., through Kansas City to Nevada, Mo., was 44 per cent greater than the short-line distance. Defendant was demanding an additional charge for an excess haul of 71 miles. We there found that the extra charges computed under paragraphs (d) and (e) of the above provision applied only when the transit point was not intermediate between point of origin and final destination. A similar conclusion is warranted in the instant case. See also Blaker Milling Co. v. Missouri Pac. R. Co., 178 I. C. C. 337.

We find that the rates assailed were inapplicable; that the applicable rates were the through rates, and that no extra out-of-line charges were applicable except as hereinbefore noted; that complainants and interveners, except the Lamar Mills, Incorporated, successor to the McDaniel Milling Company, made shipments as described and paid and bore the charges thereon; that they have been damaged thereby in the amount of the difference between the charges paid and those which would have accrued at the rates herein found applicable; and that they are entitled to reparation, with interest. Complainant and the foregoing interveners should file statements in accordance with Rule V of our Rules of Practice, and, if accompanied by affidavit proof as to facts of paying and bearing of charges, the statements may include claims on similar shipments which moved pendente lite until August 1, 1931. The Lamar Mills, Incorporated, successor to the McDaniel Milling Company, should also submit Rule V statement accompanied by affidavit proof as to the fact of paying and bearing of charges, and it may also include claims on similar shipments as above described, which moved pendente lite until August 1, 1931. If defendant objects to proof in this manner, a further hearing may be requested.

190 I. C. C.

BRAINERD, Commissioner, dissenting:

The evidence shows that of the shipments receiving transit at Kansas City, 26 cars moved to Springfield, 1 each to Carthage, Webb City, Fort Scott, and Edna, all on the Missouri Pacific, and 1 car each to Miller, Mountain Grove, and Cabool on the Frisco, and that the distances over the routes of movement ranged from 89 to 118 miles in excess of the distances over the direct routes; also that the shipments receiving transit at Lamar moved to Crane and Carthage, and that the distances over the routes of movement to those points were 18 and 42 miles in excess of the distances over the direct routes. Kansas City and Lamar were, therefore, in my opinion, not intermediate points over the direct line.

190 I. C. C.

No. 22562

CHAMBER OF COMMERCE OF GRAND JUNCTION, COLO., INCORPORATED, ET AL. v. ABERDEEN & ROCKFISH RAILROAD COMPANY ET AL.

Submitted June 3, 1931. Decided December 12, 1932

1. Rates on apples, peaches, and pears, in carloads, from Grand Junction, Colo., and the western-slope district of Colorado, on the Denver & Rio Grande Western Railroad to various points in the United States, found unreasonable and unduly prejudicial to the extent indicated in the report. Reasonable and nonprejudicial rates prescribed.

2. Rates on like traffic from the same origins to other points in the United States, except Colorado, and to points in Canada, found not unreasonable or otherwise unlawful.

Edw. P. Byars, Edw. W. Bailey, Joe A. Keith, Carl B. Callaway, and Albert L. Reed for complainants.

H. W. Prickett, J. S. Early, H. M. Rickards, H. M. Hancock, J. P. Wilkinson, F. L. Partridge, A. M. Corp, and C. F. Real for certain interveners.

J. W. Scott and I. C. Peterson for Public Service Commission of State of Kansas; Clyde S. Bailey, E. F. Norman, Herman L. Bode, and D. L. Kelley for Board of Railroad Commissioners of South Dakota; and F. Chatterton, C. H. McWhinnie, and B. B. Morton for Public Service Commission of State of Wyoming, interveners.

B. F. Batts, J. R. Bell, John Q. Dier, G. E. Duffy, T. D. Gresham, A. B. Enoch, H. A. Jones, H. H. Larimore, J. E. Lyons, Walter McFarland, R. S. Outlaw, W. T. Pierson, J. M. Souby, L. H. Strasser, James Stillwell, J. E. Buckingham, Thomas R. Woodrow, and J. A. Gallaher for defendants.

REPORT OF THE COMMISSION

BY THE COMMISSION:

Exceptions were filed by complainants and certain interveners to the report proposed by the examiner, defendants replied and the case was orally argued. Our conclusions differ from those recommended by him.

Complainants are corporations, partnerships, and individuals engaged in the production, jobbing, and retailing of apples, peaches, and pears. The principal complainants are producers and producers' organizations located in the territory usually known as the western

slope district of Colorado, hereinafter called the western slope, composed of the four counties of Garfield, Mesa, Delta, and Montrose. By complaint filed June 29, 1929, complainants allege that the rates on apples, peaches, and pears, in straight or mixed carloads, from points in the western slope to all points in the United States, except points in the State of Colorado, and to points in Canada in so far as our jurisdiction extends, are unreasonable, unjustly discriminatory, and unduly prejudicial to complainants, and unduly preferential of shippers and dealers located in the States of California, Oregon, Washington, Idaho, Utah, and Nevada, and unduly preferential of various other classes of freight traffic, and cast an undue burden on apples, peaches, and pears, in violation of sections 1 and 3 of the interstate commerce act. They further allege that there is a depression in the apple, peach, and pear industry and that the rates assailed are clearly in excess of the lowest possible lawful rates compatible with the maintenance of adequate transportation service, in violation of the letter and spirit of the HochSmith resolution of January 30, 1925. The allegations with reference to the Hoch-Smith resolution will be considered in the light of the recent decision of the Supreme Court in Ann Arbor R. Co. v. United States, 281 U. S. 658.

Intervening petitions were filed by Utah Shippers' Traffic Association; Hutchison, Kans., Chamber of Commerce; Grovier-Starr Produce Company, Hutchinson Produce Company, Hutchinson Wholesale Grocery Company, Marble Produce Company, and W. J. Shellenberger Company, of Hutchinson, Kans.; Salina, Kans., Chamber of Commerce; Grant-Billingsley Fruit Company, Merchants Produce Company, and Dotson Produce Company, of Wichita, Kans.; Wichita, Kans., Chamber of Commerce; Kansas Public Service Commission; Topeka, Kans., Chamber of Commerce; Board of Railroad Commissioners of South Dakota; and the Public Service Commission of the State of Wyoming. Rates will be stated in amounts per 100 pounds and do not include the authorized emergency charges.

The shipping points from which complainants make carload shipments of apples, peaches, and pears extend along the main line of the Denver and Rio Grande Western Railroad Company, herein called the Rio Grande, from Glenwood Springs to Loma, Colo., and include points on branch lines of this railroad, extending from Grand Junction, Colo., southeast to Delta, Montrose, Somerset, and Ridgway, Colo.

There are many uncertain factors in the raising and marketing of fruit. The greatest hazard is that of freezing weather in the spring. Various insect pests must be exterminated. Fruit in west