provided carload ratings of third class and fourth class, respectively, minimum 20,000 pounds, on "Bins or shelving, iron or steel, n. o. i. b. n., set up." Charges of $184.92 were collected at the applicable official classification third-class rate of 92 cents per 100 pounds. Complainant seeks, for reparation purposes and for the future, the contemporaneous fourth-class rate of 66.5 cents.

Complainant contends that the classification entry for "bins or shelving" was originally established for unit shelving with bin dividers, a more elaborate and expensive article, than the considered commodity, and that, therefore, its commodity should not have been rated higher than sheet-iron ware, n. o. i. b. n., which is rated fourth class, minimum 20,000 pounds, in the official classification. Several articles made of sheet iron or steel are rated fourth class in the official and western classifications, such as cream-shipping cans, grain measures, galvanized baskets, coal hods, and tank-wagon cans. Some of these articles are subject to minima of 16,000 pounds and some to 20,000 pounds. These articles, complainant asserts, average 5 pounds per cubic foot and range in value from 10.4 to 20 cents per pound. The cream-shipping cans referred to, however, are of one specific size and not the average of all sizes.

Defendants state that it is not possible to separate shelving from bins in the classification because many assemblies consist in part of bins and in part of shelving. An investigation by the classification committee in 1925, indicated that iron or steel bins or shelving, n. o. i. b. n., set up, weigh from 5.6 to 13.8 pounds per cubic foot and are valued at from 11 to 17 cents per pound. Iron and steel bins include various kinds and sizes.

On December 3, 1931, in compliance with the western class-rate case, a fourth-class rate of 83 cents, 55 per cent of first class, governed by the western classification, was established from Duluth to Montpelier. On February 25, 1932, "bins or shelving, iron or steel, n. o. i. b. n., set up" were included in the classification under the caption "Furniture, Store or Office Fixtures "; the official classification carload rating was reduced to rule 26 and that of the western classification was made 55 per cent of first class, minimum 20,000 pounds subject to rule 34. In Furniture, 177 I. C. C. 5, bases of 55 per cent of first class in the official classification and 50 per cent of first class in the western classification, minimum 20,000 pounds subject to rule 34, were prescribed for certain kinds of metal household furniture whose transportation characteristics are not more favorable than those of bins. The same bases were also approved for application on certain articles of metal office furniture.

We find that the rate assailed was unreasonable to the extent that it exceeded 83 cents; that it is and for the future will be unreason

able to the extent that it exceeds or may exceed 50 per cent of the contemporaneous first-class rate, minimum 20,000 pounds, subject to rule 34, provided that the authorized emergency charges may be added; that complainant made the shipment described and paid and bore the charges thereon; and that it was damaged and is entitled to reparation in the sum of $18.09, with interest. An appropriate order will be entered.

BRAINERD, Commissioner, dissenting:

This case involves primarily a question of classification. I see no justification for awarding reparation or for reducing the rate for the future below 55 per cent of first class.

190 I. C. C.

No. 23492

BLACKMER & POST PIPE COMPANY ET AL. v. MISSOURI PACIFIC RAILROAD COMPANY ET AL.

Decided December 16, 1932

1. Upon reconsideration, rate charged on 14 carloads of vitrified clay sewer pipe from St. Louis, Mo., to Raleigh, N. C., found applicable.

2. Minor corrections made in certain particulars of the original report, 176 I. C. C. 539, and findings therein affirmed.

Appearances shown in original report.

REPORT OF THE COMMISSION ON RECONSIDERATION

DIVISION 4, COMMISSIONERS MEYER, EASTMAN, AND MAHAFFIE BY DIVISION 4:

In our original report, 176 I. C. C. 539, we found the rates on vitrified clay sewer pipe, in carloads, from St. Louis, Mo., and Cannelton, Ind., to Raleigh, N. C., not unreasonable or unduly prejudicial and said, at page 539, that:

* A rate of 46.5 cents was charged on the shipments from St. Louis, but the record does not contain the information necessary to determine the applicable rate.

We directed that any outstanding overcharges should be refunded and dismissed the complaint. A petition filed by Blackmer & Post Pipe Company to reopen the case with respect to certain shipments from St. Louis was denied, but we reopened the case for reconsideration. Rates will be stated in cents per 100 pounds.

By stipulation between the parties, complainant furnished bills of lading and other transportation papers covering 14 carloads of sewer pipe that moved from St. Louis to Raleigh between September 7 and 25, 1929, and defendants submitted a statement of the rates which they contend were applicable on the shipments referred to.

The considered shipments were not completely routed by complainant. Thirteen carloads were routed "M. P. % S. A. L." and moved over the lines of the Missouri Pacific Railroad Company to Cairo, Ill., the Illinois Central Railroad to Martin, Tenn., the Nashville, Chattanooga & St. Louis Railway to Chattanooga, Tenn., the Southern Railway to Durham, N. C., and the Seaboard Air Line Railway beyond. The remaining shipment was routed

"M. P. % N. C. & St. L. % S. A. L." and moved over the lines of the Missouri Pacific to Memphis, Tenn., the Nashville, Chattanooga & St. Louis to Huntsville or Stevenson, Ala., and the Southern and Seaboard Air Line beyond. In the absence of a joint through rate, a rate of 46.5 cents was charged, composed of factors of 26.5 cents to Knoxville, Tenn., and 20 cents beyond. A lower combination rate of 44.5 cents based 34.5 cents to Greensboro, N. C., and 10 cents beyond was not applicable because the latter factor applied only on shipments delivered by the Southern and complainant's routing instructions required delivery by the Seaboard Air Line. Therefore the applicable rate was charged.

Our attention has been called to the statement at page 540, third paragraph, of the original report, that:

The present rates which are twelfth-class rates, or rates made approximately 17.5 per cent of the first-class rates, are 33 cents from St. Louis and 31 cents from Cannelton.

The words "rates which are " were inadvertently inserted and the sentence is now corrected to read: "The present twelfth-class rates, or rates made 17.5 per cent of the first-class rates, are 33 cents from St. Louis and 31 cents from Cannelton."

Again, in our original report, we said at page 542, second paragraph, that:

Since the hearing, and effective October 25, 1930, from St. Louis, and December 1, 1930, from Cannelton, the carriers voluntarily established rates on sewer pipe on the basis of 17.5 per cent of the corresponding present firstclass rates to destinations in the South generally. These rates place St. Louis and Cannelton and the alleged preferred manufacturing points on relatively the same basis. While the rates assailed were upon a higher level than some contemporaneous rates they were not upon a higher level than many others. It does not appear that the retroactive application of the adjustment made is justified.

An examination of the governing tariffs reveals that the rates from St. Louis and Cannelton to Raleigh were subject to the minimum-rate provision whereby the rates from points in official territory, on the one hand, and the gateway, on the other, applied as minima to and from points in southern territory. Accordingly, rates of 38 cents from St. Louis and 34 cents from Cannelton applied on sewer pipe to Raleigh on the basis of 90 per cent of sixth class (25 per cent of first class) prevailing in official territory on sewer pipe. The last part of the second paragraph on page 542 is now corrected to read:

Since the hearing, and effective October 25, 1930, from St. Louis, and December 1, 1930, from Cannelton, the carriers voluntarily established rates on sewer pipe to Raleigh of 38 and 34 cents, respectively. These rates

are on the basis prevailing in official territory on sewer pipe of 90 per cent of sixth class, and in accordance with the minimum-rate provision apply as minima to and from points in southern territory.

In Clay, Concrete, or Shale Products, 179 I. C. C. 39, this division approved a basis of 25 per cent of first class, or ninth-class rates on vitrified clay sewer pipe, and related articles, in carloads, interterritorially between points in official and southern territories; although it was pointed out in that case that the prevailing basis in the South, 17.5 per cent of first class, was relatively lower.

Upon reconsideration we find that the 46.5-cent rate charged on the considered 14 carloads which moved from St. Louis to Raleigh was applicable. Our former findings are affirmed. The complaint will be dismissed.

190 I. C. C.