While not admitting that the rates assailed were or are unreasonable, defendants propose to establish rates on refined oils for the future to destinations in western Nebraska and eastern Wyoming on the Chicago, Burlington & Quincy and Union Pacific, beyond the destinations dealt with in the A. B. A. case, graded at the rate of 1 cent for each additional 15 miles beyond Oshkosh for which a rate of 50 cents was prescribed for application from Group 3, and the prescribed basis of 80 per cent of the rates on refined products for low-grade oils. Examples of the reductions which would result therefrom to many destinations are from 63.5 to 51 cents, from 67.5 to 52 cents, and from 75.5 to 57 cents. For distances of 400 miles to 800 miles under the southwestern scale and under the lower scale prescribed for application in eastern Nebraska the gradation of rates 32.5 per cent of first-class rates and also 30 per cent of the southwestern first-class rates, would be 5 or 6 cents per 100 miles. In view of the fact that rates to Nebraska destinations nearer the Missouri River and the Southwest are upon a relatively low level reflecting an equitable relationship with rates to Missouri River crossings and within the Southwest the proposed gradation does not appear excessive. In International Oil Co. v. Abilene & S. Ry. Co., 179 I. C. C. 435, among other things, we prescribed rates as high as 29.5 per cent of the southwestern first-class rates for application on refined petroleum from Group 3 to destinations in North Dakota in territory for which the same level of class rates was prescribed as for western Nebraska. We believe that in such territory rates of that level are not unreasonable in the absence of the necessity of observing equitable relationships with lower rates to contiguous destinations.

On August 17, 1923, informal complaint No. 95812 was filed by the Nebraska Gas & Electric Company against the Atchison, Topeka & Santa Fe Railway Company et al. This informal complaint was incorporated as a part of No. 23093 (Sub-No. 19) which names the Iowa-Nebraska Light & Power Company as the successor of the Nebraska Gas & Electric Company. In this complaint it is alleged that the rates charged on eight carloads of gas and fuel oil from certain named points in Oklahoma to Newman's Grove, Nebr., were unreasonable. The informal complaint was held in abeyance pending the disposition of the A. B. A. case. Complainants contend that the rates charged to Newman's Grove should not have exceeded the rates prescribed in the A. B. A. case to North Platte. In that case we found that from Oklahoma Group 3 to North Platte the rates charged on gas oil were unreasonable to the extent they exceeded 47.5 cents prior to July 1, 1922, and 44 cents from July 1, 1922, to July 19, 1927, inclusive. The rates charged on complainants' ship

ments which moved prior to July 1, 1922, were as follows: From Bristow, Okla., 61 cents; from Tulsa and Okmulgee, 59.5 cents; and from Ponca City, 53.5 cents. On the shipments which moved after July 1, 1922, charges were collected at the rate of 48 cents from Sapulpa, 57 cents from Drumright, and 48 cents from Ponca City. The distances are shown to be greater to North Platte from the respective points of origin than to Newman's Grove. It is not shown, however, that the assailed rates were excessive as compared with the level of concurrent rates maintained generally to destinations throughout the territory concerned.

The complaint in No. 21656 was filed informally on May 14, 1923, and formally October 22, 1928. It is alleged that the rates charged on 12 carload shipments of gas and fuel oil shipped from points in Oklahoma Group 3 to McCook, Nebr., during the period May 20, 1921, to October 4, 1922, were unreasonable. On the shipments which moved prior to July 1, 1922, a rate of 60 cents was charged and after that date a rate of 54 cents was charged. The informal complaint was held in abeyance pending the disposition of the A. B. A. case. Subsequently, defendants declined to adjust the complaint informally and complainants were so advised on July 13, 1928. Complainants contend that the rate should not have exceeded 46.5 cents on the shipments which moved prior to July 1, 1922, and 43 cents on the shipments which moved after that date. From the respective points of origin, distances to McCook are shorter than to North Platte. When the shipments moved, the same rates were in effect to McCook as to North Platte, whereas under the adjustment established pursuant to the findings in the A. B. A. case and PorterForsythe case the rates to North Platte are greater than to McCook. Prior to July 1, 1922, the rate on refined oil to McCook was 69.5 cents and after that date 62.5 cents. Complainant does not show that the rates to McCook exceeded the level of concurrent rates generally maintained to destinations throughout the territory concerned. In connection with the allegations in subcomplaint No. 22 no sufficient reason is shown for the maintenance of rates to Hoskins that do not exceed the rates to Norfolk. The average distances are shown to be greater to Hoskins than to Norfolk.

On brief defendants argue that the rates from the midcontinent fields to the destination territory concerned should be subjected to a general investigation. We believe that any general investigation that may be warranted should be preceded by an adjustment in substantial harmony with rates prescribed in the A. B. A. case and Porter-Forsythe case and that this should be accomplished by the gradation of rates on refined oils at the rate of 1 cent for each additional 15 miles, over the prescribed rate to the intermediate destina

tion nearest to the destinations concerned, and the application of the established 80 per cent basis on low-grade oils, subject to such conditions as may be imposed in the administration of the provisions of section 4 of the act. Such an adjustment is in harmony with the proposal here made by defendants and therefore no order for the future will be entered unless the rates are not established within 60 days of the service of this report.

A widespread adjustment of rates to more than 150 destinations is required of a character that does not warrant application thereof or a higher level retroactively to June 16, 1931, when a limited number of prescribed rates to destinations in Nebraska became effective, nor is the application prior to June 16, 1931, of a lower basis than that then generally maintained warranted.

We find that assailed rates not within the findings in the A. B. A. case and Porter-Forsythe case will be unreasonable for the future but were not unreasonable in the past. Any existing undue prejudice will be removed by the establishment of rates in response to our findings herein. Complainants are not shown to have been damaged by any undue prejudice that may have existed.

Complainants at the points of destination dealt with in the A. B. A. case and Porter-Forsythe case seek an award of reparation based on the findings made in those cases. In Phillips v. Grand Trunk Ry., 236 U. S. 662, the Supreme Court held that a finding of unreasonableness in the past inures to the benefit of every person who has been obliged to pay the unjust rate and who initiates his claim within the statutory period. A further hearing will be held to afford those complainants an opportunity to prove that they paid or bore charges at rates found unreasonable in the two cases referred to, unless defendants are agreeable to proof by affidavit in connection with procedure under Rule V of the Rules of Practice.

BRAINERD, Commissioner, dissenting:

The rates assailed are found unreasonable for the future presumably to the extent, although not stated, that they exceed the rates proposed by the defendants, which rates are not set forth in the report. No reason is assigned for finding the rates not unreasonable in the past, which finding is wholly inconsistent with our findings in the A. B. A. and other cases. Under the circumstances I feel obliged to note a dissent.

190 I. C. C.

No. 25336

VACUUM OIL COMPANY, INCORPORATED v. ERIE RAILROAD COMPANY ET AL.

Submitted November 6, 1932. Decided December 17, 1932

Rates on tin cans, including caps and seals, in carloads, from Rochester, N. Y., to Paulsboro, N. J., found not unreasonable. Complaint dismissed.

J. D. Stirling for complainant.

M. B. Pierce for defendants.

REPORT OF THE COMMISSION

DIVISION 3, COMMISSIONERS MCMANAMY, BRAINERD, AND LEE BY DIVISION 3:

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

Complainant alleges that the rate charged on 99 carloads of tin cans, including caps and seals, shipped between May 27, 1927, and January 25, 1928, both inclusive, from Rochester, N. Y., to Paulsboro, N. J., was unreasonable.

The shipments averaged 16,630 pounds and moved over defendants' lines, 416 miles. The short-line distance is 366 miles. The applicable fourth-class rate of 39 cents per 100 pounds, minimum 14,000 pounds, was charged. Reparation is sought based on a commodity rate of 34 cents, minimum 14,000 pounds, established February 27, 1928.

The rate assailed was based on a differential of 5 cents over the rate from Rochester to Philadelphia, Pa. A fourth-class rate of 34 cents applied to points within the lighterage limits of Philadelphia which at one point extends to within about 3 miles of Paulsboro. A rail movement from Rochester to Philadelphia and a lighterage movement at that port is more costly than an all-rail movement between the considered points. Complainant states that as a result of the eastern class-rate revision the difference of 5 cents between the fourth-class rates from Rochester to Paulsboro and from Rochester to Philadelphia was reduced to 1 cent. The fourth-class rates prescribed in that revision for 416 and 366 miles were 51 and 48 cents, respectively.

The rate sought is 87.2 per cent of the fourth-class rate assailed. Complainant instances numerous commodity rates on the same com

modity contemporaneously applicable between points in trunk-line territory which average 77.3 per cent of the corresponding fourthclass rates. Based on a weight of 16,630 pounds, the rates assailed and sought over the route of movement yield 15.6 and 13.6 cents, and over the short route, 17.7 and 15.4 cents, per car-mile, respectively. A fourth-class rate of 34 cents was contemporaneously applicable on the considered commodity from Rochester to points in Delaware, Maryland, New Jersey, and Pennsylvania, 353 to 366 miles, which yields from 15.9 to 15.5 cents per car-mile, and a commodity rate of 28.5 cents was contemporaneously applicable from Buchanan, Va., to Ashville and Columbus, Ohio, 314 and 336 miles, respectively, which yields 15.1 and 14.1 cents per car-mile, respectively, based on an average loading of 16,630 pounds.

In Metal Package Corp. v. B. & O. R. R. Co., 129 I. C. C. 301, decided July 9, 1927, reparation was awarded on tin cans, in carloads, from Baltimore, Md., to Bushwick station, Brooklyn, N. Y., 195 miles, based on a rate of 28 cents, minimum 18,000 pounds, yielding 25.9 cents per car-mile. The fourth-class rate of 35.5 cents assailed on tin cans from Cleveland, Ohio, to Black Rock, N. Y., 192 miles, in Pratt & Lambert v. P. R. R. Co., 140 I. C. C. 381, was found not unreasonable.

We find that the rate assailed was not unreasonable. The complaint will be dismissed.

190 I. C. C.