tariff routes through Amarillo over which the proposed rate of 59 cents would apply. Respondents offer no justification for the proposed increased basis over the Dodge City route other than a suggestion that protestant might transfer its Dodge City operations to another of its mills.

It is evident that piecemeal readjustments of rates, such as those here under consideration, if made in material numbers will delay disposition of the Grain Case, because such proposals will in many cases cause requests to be made for additional time to present evidence in the light of the changed conditions. But the rates here in question have been lawfully published under section 6. We are required by law to pass upon the lawfulness of the proposed rates within seven months or respondents have the right to make them effective. The request of the protestants to have decision in this proceeding held for disposition with the General Grain Case is not practicable. The proposed rates on wheat and flour are higher than those found reasonable from Amarillo in the Grain Case. On coarse grains they are 2 cents lower, but on the whole we can not find that the rates are so low as to cast a burden on other traffic in violation of section 1. Neither is the evidence of prejudice to protestants and preference for producers and millers in the Panhandle sufficiently clear to warrant a finding that such prejudice and preference will be undue.

Upon all the facts we conclude that except for the proposed cancellation of through rates over the route through Dodge City, the suspended schedules have been justified. The route through Dodge City is circuitous, and the rates from Dodge City are higher than those which will become effective from such points as Boise City. While there is no sound ground for requiring the application of the reduced rates over the route through Dodge City, respondents should continue the present Group H rates for application over that route, if the protestants who have been using that route desire such rates, as no justification was offered for increasing the rates over this route.

This is without prejudice to further consideration of this adjustment on the broader record in the reopened Grain and Grain Products case. An order will be entered vacating the order of suspension and discontinuing the proceeding, subject to the understanding that respondents will promptly restore Group H rates over the route through Dodge City, if desired by interested shippers.

LEE, Commissioner, concurring:

As the result of the decision in Atchison, T. & S. F. Ry. Co. v. United States, 284 U. S. 248, an action prosecuted by respondents and other carriers to restrain the enforcement of our order in the

Grain case, that proceeding was reopened for further hearing and is now pending. Respondents now, however, propose to enlarge the territory embraced in Group J by including not only Amarillo, which we placed in that group in the Grain case, but also important grainproducing territory north thereof, and to establish from this enlarged Group J rates 2 cents lower on coarse grain than those prescribed in the Grain case from the more limited Group J and rates somewhat lower on wheat and flour than those prescribed in that case from Group H in which we included the territory north of Amarillo. The report points out that the proposed rates are not so low as to constitute a burden on other traffic, and that the evidence of prejudice and preference which will undoubtedly result is not sufficiently clear to warrant a finding that such prejudice and preference will be undue. The voluntary establishment of reduced rates on grain, which are within the bounds of reasonableness, meets with my approval. Nevertheless, I believe that prompt consideration should be given to the rates from competing producing districts referred to by protestants with a view to establishing the proper relationship between rates from those districts and the enlarged Group J. If piecemeal readjustments of the grain rates in the western district are to be made prior to our decision in the reopened general case, they should be of such character as to maintain a proper relationship between competing producing districts.

I am authorized to state that COMMISSIONER LEWIS joins in this expression.

190 I. C. C.

No. 24417

SAMPSON ELECTRIC COMPANY v. READING COMPANY ET AL.

Submitted September 1, 1932. Decided December 13, 1932

Upon rehearing finding in the former report, 181 I. C. C. 492, affirmed. Complaint dismissed.

T. P. Scanlan for complainant.

A. S. Knowlton and Roland J. Lehman for defendants.

REPORT OF THE COMMISSION ON REHEARING

BY THE COMMISSION:

Exceptions to the report proposed by the examiner were filed by defendants. Our conclusions differ somewhat from those recommended by him.

In the original report, 181 I. C. C. 492, decided January 14, 1932, division 3 found the charges collected on radio loud speakers in cabinets, in carloads, from Philadelphia, Pa., to Chicago, Ill., not unreasonable and dismissed the complaint. Upon complainant's petition the case was reheard under the shortened procedure.

Complainant seeks a reduction in the applicable minimum of 16,000 pounds, subject to rule 34, to a minimum of 12,000 pounds subject to rule 34, relying on the findings in Noll v. Chicago, R. I. & P. Ry. Co., 153 I. C. C. 35. The facts set forth in the former report will not be repeated here. In dismissing the complaint division 3 said:

The burden rests upon complainant to prove that the commodity here considered is substantially the same as that considered in the case on which the complainant relies.

Complainant's evidence on rehearing, in addition to photographs of the considered cabinet and what is said to be the "closest type " cabinet of the same make as that shipped according to descriptions furnished complainant of the article considered in the Noll case, consists of statements to the effect that all of the cars were loaded as full as possible, one 36-foot car containing 198 cabinets, one 40-foot car containing 238 cabinets, and the other four, all 40-foot cars, containing 266 each. It is contended that it would not be possible to load these cabinets so as to bring the weight to 16,000 pounds in 36-foot cars and to 17,900 pounds in 40-foot cars.

Such self-serving statements are of little value. Complainant did not show by competent evidence that the article shipped was sub

stantially the same as that considered in the case relied upon. The record does not show how the considered articles were packed for shipment, the cubical content thereof as shipped, the weight per cubic foot, the weight of the loud speaker, the value of the cabinet with and without the speaker attached, the number of packages that could be safely loaded in a standard 36-foot car, and the number of tiers that could be loaded in such a car.

Defendants' reply memorandum on rehearing does not separately state the facts relied upon from the argument as required by rule X-A (f) of the rules of practice. Neither have the facts therein stated been sworn to as required by paragraph (j) of the same rule. It has therefore not been considered.

The finding of division 3 is hereby affirmed. The complaint will be dismissed.

190 I. C. C.

No. 24821

HUGO MANUFACTURING COMPANY v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY ET AL.

Submitted October 14, 1932. Decided December 15, 1932

Carload rate on sheet-iron nail bins from Duluth, Minn., to Montpelier, Ohio, found unreasonable. Reasonable rate prescribed for the future and reparation awarded.

J. F. Doolittle for complainant.

W. S. Flint and A. S. Knowlton for defendants.

REPORT OF THE COMMISSION

DIVISION 3, COMMISSIONERS MCMANAMY, BRAINERD, AND LEE

BY DIVISION 3:

The shortened procedure was followed herein. Defendants filed exceptions to the examiner's proposed report.

Complainant corporation alleges by complaint filed October 30, 1931, that the rate on a carload of sheet-iron nail bins, weighing 20,100 pounds, shipped July 23, 1930, from Duluth, Minn., to Montpelier, Ohio, was and is unreasonable. Reparation and a reasonable rate are sought.

Each bin measured 32 by 8.25 by 9.25 inches, and was constructed of one piece of 20-gage plain galvanized sheet iron cut and stamped into shape by means of a specially constructed cast-iron die, with corners electrically welded. The top was open with rolled edge, not coated, painted, or further finished, and noncollapsible. Toward the center of each bin, two pieces of band iron were riveted, serving as braces and handles. The front end tilted slightly outward and was approximately 4.5 inches lower than the back, being thus shaped to allow dumping of the contents by merely raising the back end. These bins were primarily for the purpose of handling nails, bolts, and similar articles. They were not crated, boxed, or wrapped, and were stowed in the car one tier upon another and braced at the doorways. Each bin weighed 12.6 pounds or 8.9 pounds per cubic foot, and was valued at 7.5 and 8.3 per pound at origin and destination, respectively. When the shipment moved the class rates from Duluth to Montpelier were governed by the official classification, but on December 3, 1931, pursuant to the western class-rate case, they became subject to the western classification. These classifications