No. 24944 REPUBLIC PORTLAND CEMENT COMPANY v. PENNSYLVANIA RAILROAD COMPANY ET AL. Submitted September 6, 1932. Decided November 18, 1932 Carload rate on iron or steel grinding balls and slugs or pebbles from Greenville, Ill., to Longhorn, Tex., found not unreasonable or unduly prejudicial. Complaint dismissed. T. C. Taylor for complainant. J. L. Aber, Harry R. Jones, H. H. Larimore, Robert Thompson, C. S. Burg, and Harvey Allen for defendants. REPORT OF THE COMMISSION DIVISION 3, COMMISSIONERS MCMANAMY, BRAINERD, AND LEE BY DIVISION 3: Exceptions were filed by the parties to the report proposed by the examiner. Complainant, a corporation manufacturing cement at Longhorn, Tex., alleges by complaint filed December 21, 1931, that the carload rate charged on iron or steel grinding balls and slugs or pebbles from Greenville, Ill., to Longhorn was and is unreasonable and unduly prejudicial. A future lawful rate and reparation on shipments moving since May 20, 1929, are sought. Rates are stated in cents per 100 pounds and do not include the present authorized emergency charges. The San Antonio Portland Cement Company, San Antonio, Tex., intervened but was not represented at the hearing. Informal complaint containing these same allegations was filed May 22, 1931, and closed July 16, 1931. These grinding balls and slugs are used in revolving cylinders to crush cement. The former are either rough forged or cast and are from 0.5 inch to 6 inches in diameter. The latter, also known as pebbles, are rough cylindrical shaped clippings of crop ends from iron or steel bars, and are 0.75 to 1 inch in diameter by 1.5 inches long. The price per ton at origin for these commodities ranges from $50 to $60. They are shipped in bulk in box cars and loss or damage claims are negligible. Prior to July 14, 1928, a rate of 84 cents, minimum 80,000 pounds, applied on grinding balls from Greenville and other Chicago, Ill., rate points to Longhorn and other Texas common points. The rate on the slugs was 51 cents, minimum 50,000 pounds, and did not apply on mixed carloads. Balls and slugs or pebbles are rated fifth class, We find that the present rates on scrap paper from Wichita to Neenah and Menasha, Wis., and to Watervliet, Plainwell, and Otsego, Mich., are and for the future will be unreasonable to the extent that they exceed or may exceed 37 cents to Watervliet, 38 cents to Plainwell and Otsego, and 39 cents to Neenah, and Menasha, but that the present rates from and to the other points covered by the complaint are not unreasonable. To the rates prescribed may be added the present authorized emergency increases. We further find that the rates charged on complainants' shipments were not unreasonable, except that the rates charged thereon from Tulsa to Federal and from Wichita, Tulsa, Enid, and Oklahoma City to Watervliet, from Wichita to Plainwell, and from Tulsa to Otsego, were unreasonable to the extent they exceeded 36 cents from Tulsa to Federal, 54 cents from Wichita to Watervliet and Plainwell, 52 cents from Tulsa to Watervliet and Otsego, and 56 cents from Enid and Oklahoma City to Watervliet. We further find that complainants made shipments as described and bore the freight charges thereon at the rates herein found unreasonable; 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 reasonable; and that they are entitled to reparation. In computing reparation the applicable minima in effect when the shipments originated should be used. Complainants should comply with Rule V of the Rules of Practice, and may include in the statements any shipments which have moved during the pendency of this proceeding. As to the latter shipments complainants should submit proof in affidavit form that they made such shipments and bore the charges. thereon. If defendants object to this matter of proof, a further hearing may be requested. An order for the future will be entered. BRAINERD, Commissioner, concurring in part: I concur herein except I am of the opinion that the present rates from Kansas and Oklahoma points should be on a comparable basis. 190 I. C. C. No. 24944 REPUBLIC PORTLAND CEMENT COMPANY v. PENNSYLVANIA RAILROAD COMPANY ET AL. Submitted September 6, 1932. Decided November 18, 1932 Carload rate on iron or steel grinding balls and slugs or pebbles from Greenville, Ill., to Longhorn, Tex., found not unreasonable or unduly prejudicial. Complaint dismissed. T. C. Taylor for complainant. J. L. Aber, Harry R. Jones, H. H. Larimore, Robert Thompson, C. S. Burg, and Harvey Allen for defendants. REPORT OF THE COMMISSION DIVISION 3, COMMISSIONERS MCMANAMY, BRAINERD, AND LEE BY DIVISION 3: Exceptions were filed by the parties to the report proposed by the examiner. Complainant, a corporation manufacturing cement at Longhorn, Tex., alleges by complaint filed December 21, 1931, that the carload rate charged on iron or steel grinding balls and slugs or pebbles from Greenville, Ill., to Longhorn was and is unreasonable and unduly prejudicial. A future lawful rate and reparation on shipments moving since May 20, 1929, are sought. Rates are stated in cents per 100 pounds and do not include the present authorized emergency charges. The San Antonio Portland Cement Company, San Antonio, Tex., intervened but was not represented at the hearing. Informal complaint containing these same allegations was filed May 22, 1931, and closed July 16, 1931. These grinding balls and slugs are used in revolving cylinders to crush cement. The former are either rough forged or cast and are from 0.5 inch to 6 inches in diameter. The latter, also known as pebbles, are rough cylindrical shaped clippings of crop ends from iron or steel bars, and are 0.75 to 1 inch in diameter by 1.5 inches long. The price per ton at origin for these commodities ranges from $50 to $60. They are shipped in bulk in box cars and loss or damage claims are negligible. Prior to July 14, 1928, a rate of 84 cents, minimum 80,000 pounds, applied on grinding balls from Greenville and other Chicago, Ill., rate points to Longhorn and other Texas common points. The rate on the slugs was 51 cents, minimum 50,000 pounds, and did not apply on mixed carloads. Balls and slugs or pebbles are rated fifth class, minimum 40,000 pounds, in western classification. Fifth-class rates in the Southwest and in western territory are 40 and 37.5 per cent, respectively, of first-class rates. In the southwestern revision, grinding balls together with other articles in the iron and steel list enumerated therein were given 32.5 per cent of first class, and effective July 14, 1928, in conformity therewith, the commodity rate assailed of 82 cents, minimum 40,000 pounds, was established. Contemporaneously defendants voluntarily applied this rate to the slugs in straight or mixed carloads with the balls. In the western trunk-line class-rate revision, grinding balls and pebbles were included in the list of iron. and steel articles therein shown and given 32.5 per cent of first class. Complainant compares the revenue from the rate assailed with the revenue derived from all traffic for 1930 for the entire country, for the Southwest, and for each defendant. We have heretofore commented upon the incorrectness of this method of measuring the reasonableness of a rate on a particular commodity. Cotton Linters from Southwest, 118 I. C. C. 419, 430. Comparison is also made of the rate assailed with rates on many different commodities from and to the points involved to show that the inclusion of balls and slugs in the general iron and steel list results in the application of rates that now apply on more highly manufactured articles. Rates are sought of 50 cents, minimum 50,000 pounds, on the slugs and 69 cents, minimum 60,000 pounds, on the balls in straight and mixed carloads with the slugs. This rate of 50 cents is 20 per cent of first class, the southwestern pig-iron basis, and is somewhat higher than the rates on scrap iron. The rate of 69 cents is 27.5 per cent of first class and now applies on iron or steel sash weights. At present the rates established on articles in the iron and steel list following the southwestern revision and the western trunk-line class-rate revision apply over a large part of the country, and as stated in Sinclair Crude Oil Co. v. Atchison, T. & S. F. Ry. Co., 168 I. C. C. 449, 471, the segregation of the iron and steel list would lead to similar requests from other interests and would result in a multiplicity of rates and tariff complexities. Prior to the southwestern revision Longhorn, Houston, Waco, Fort Worth, and Dallas, Tex., were grouped. Thereafter the rates on the considered commodities to Houston and Waco became 79 cents and to Fort Worth and Dallas, 73 cents. Complainant bases its allegation of undue prejudice on these differences, but it is well settled that undue prejudice is not established by a mere showing of a difference in rates. Sunderland Bros. Co. v. Chicago, B. & Q. R. Co., 148 I. C. C. 484. Defendants show that these points are less distant from Greenville than is Longhorn. We find that the rate assailed was not and is not unreasonable or unduly prejudicial. The complaint will be dismissed. No. 25135 INCREASES IN INTRASTATE FREIGHT RATES Decided November 19, 1932 Findings in previous report, 186 I. C. C. 615, of unjust discrimination against interstate commerce by reason of the relation between the intrastate lessthan-carload rates in Texas and interstate less-than-carload rates, rescinded, and proceeding reopened for further hearing. SUPPLEMENTAL REPORT OF THE COMMISSION BY THE COMMISSION: In the original report in this proceeding, 186 I. C. C. 615, we found, among other things, that respondents' intrastate rates on less-thancarload traffic in Texas to which there had not been added surcharges corresponding to those which became effective on interstate less-thancarload traffic under our findings in Fifteen Per Cent Case, 1931, 178 I. C. C. 539, 179 I. C. C. 215, resulted in unjust discrimination against interstate commerce. Following this action the Railroad Commission of Texas ordered the application of surcharges, corresponding to those effective interstate, to the rates of all rail carriers on Texas intrastate less-than-carload traffic. The rates charged by motor trucks and by so-called rail-transport companies, whose operations are described in the previous report, are not affected by the order of the Texas commission requiring the application of surcharges on intrastate less-than-carload traffic. As a result the rates and charges of the rail carriers for the transportation of less-than-carload traffic within Texas have been increased in the amounts of surcharges authorized by us in the Fifteen Per Cent Case, 1931, supra, but such surcharges have not been added to the rates and charges of the rail transport companies and the motor trucks. A petition has been filed on behalf of certain rail carriers which have not organized rail-transport companies averring that by reason of this situation their intrastate traffic is being diverted to the railtransport companies and motor-truck companies, and asking modification of our findings to afford them relief. In the light of the circumstances and conditions presented by the petition we hereby rescind, pending further inquiry, our previous finding of unjust discrimination against interstate commerce in so far as it relates to less-than-carload traffic, and reopen the proceeding for further hearing upon the petition. |