No. 254111 SUNDERLAND BROTHERS COMPANY v. ALTON RAILROAD COMPANY ET AL. Submitted September 22, 1933. Decided December 12, 1933 1. Class rates found applicable on slate slabs, in carloads, from Fair Haven, Vt., Pen Argyl, Danielsville, and Wind Gap, Pa., and other points taking the same rates, to Lincoln and Omaha, Nebr., and Champaign and Urbana, Ill., and not unreasonable. Complaint dismissed. 2. Upon reconsideration in no. 23186, findings in former reports, 178 I.C.C. 445 and 195 I.C.C. 238, that the rates charged on slate slabs, rough quarried, in carloads, from Fair Haven and Poultney, Vt., and Middle Granville, N.Y., to Greensboro and Winston-Salem, N.C., were inapplicable but not otherwise unlawful, modified in part. Complaint dismissed. H. D. Bergen, Morris Prince, and Thaxton Richardson for complainants. Walter J. Larrabee, C. Frankenberger, H. T. Newcomb, Charles Clark, H. D. Boynton, and Carleton W. Meyer for defendants. BY THE COMMISSION: REPORT OF THE COMMISSION Exceptions to the examiner's proposed report were filed by complainant in the title case, defendants replied, and the case was argued. In the title case, complainant, a corporation, alleges by complaint filed July 1, 1932, that the rates charged on sand-rubbed slate slabs, in carloads, from Fair Haven, Vt., Pen Argyl, Danielsville, and Wind Gap, Pa., and other points taking the same rates, to Lincoln and Omaha, Nebr., and Champaign and Urbana, Ill., were and are inapplicable and unreasonable. Lawful rates for the future and reparation, including shipments moving pendente lite, are sought. Rates will be stated in cents per 100 pounds. Complainant instances nine representative shipments moving as follows: April 16, April 30, May 14, July 11, July 29, November 9, and December 24, 1929, and August 1 and October 15, 1930. Suit was instituted April 23, 1932, for the collection of undercharges outstanding against the shipments made April 16, May 14, July 11, and November 9, 1929. The complaint herein was filed within 90 1 This report also embraces No. 23186, McClamrock Company et al. v. Atlantic & Yadkin Railway Company et al., on reconsideration. days thereafter. The shipment of July 29, 1929, moved more than 2 years prior to the filing of the complaint and the claim as to it under section 1 is barred. Claim for overcharge on the shipment of April 30, 1929, was filed with defendants April 10, 1931, and declined by them April 29, 1932. Fair Haven is on the Rutland branch of the Delaware and Hudson Railroad Corporation, 8 miles east of Whitehall, N.Y., Pen Argyl, Wind Gap, and Danielsville are in Northampton County, in the extreme eastern part of Pennsylvania. The shipments from Fair Haven moved through Canada. Defendants contend that their liability for alleged unreasonable charges in the past would arise only from failure to publish reasonable rates for transportation within the United States. They point out that no routes wholly within the United States are shown of record, and that we have consistently held that we are without jurisdiction to prescribe rates for the future for transportation within Canada. In view of our findings hereinafter made this contention need not be considered. In the official classification, slate, under that general heading, is rated sixth class, minimum 36,000 pounds, in blocks, pieces, or slabs, n.o.i.b.n., loose or in packages. Under the heading of natural stone, in blocks, pieces, or slabs, n.o.i.b.n., granite, jasper, marble, or onyx, rough quarried or sawed on four sides or less, minimum 36,000 pounds, are rated sixth class. The respective ratings on slate and stone in the western classification are D and E. Slate and stone are said to have been dealt with as separate and distinct commodities in the official classification for at least 44 years. Since 1907 slate has been shown in the classification under a group heading entitled Slate", separate and distinct from that covering stone and marble. Since 1906, tariffs applying from origins on the Delaware & Hudson have carried separate and distinct descriptions with respect to slate, and likewise since 1908 with respect to granite, marble, and stone. Class rates from the origins considered to Omaha and Lincoln are governed by the western classification and to Urbana and Champaign by the official classification. 66 The shipments considered consisted of sand-rubbed slate slabs, of irregular dimensions, sawed and ready for use. Some of the slabs were from 1 to 2 inches thick and 1 to 6 feet wide. Their values ranged from 30 cents to about $2 a square foot, depending on the characteristics of the slabs, and from $600 to $2,600 per car, f.o.b. origin. On marble, in shipments of the same size, the price per square foot would range from about 50 or 60 cents to about $4. Slate slabs, and marble of the same thickness, weigh approximately 15 pounds per square foot. Complainant contends that its shipments of slate slabs should be accorded the commodity rates applying on building stone or natural stone, and if that contention is not sustained, that the rates charged were and are unreasonable to the extent that they exceeded or exceed the rates on building stone, including marble and granite. Of the nine representative shipments, four moved from Fair Haven to Lincoln, one each from Pen Argyl to Urbana, Champaign, and Lincoln, one from Danielsville to Omaha, and one from Wind Gap to Lincoln. On the shipments from Fair Haven charges were collected on the basis of a combination rate composed of the 34-cent stone rate to the Mississippi River crossings plus the commodity rate on stone of 22 cents or the class D rate of 23 cents beyond. Defendants contend that the applicable rate was a combination rate of 75.5 cents, composed of the sixth-class rate of 52.5 cents to the crossings and the class D rate of 23 cents beyond. The shipment from Pen Argyl to Urbana was charged the sixth-class rate of 50.5 cents. Complainant contends that the 36-cent commodity rate on stone was applicable. The shipment from Pen Argyl to Champaign was charged the 42-cent commodity rate on building stone. Complainant seeks a commodity rate of 36 cents, but defendants contend that the sixth-class rate of 50.5 cents was applicable. The shipment from Danielsville to Omaha was charged a combination rate of 72 cents composed of the sixth-class rate of 53.5 cents to the crossings and the class D rate of 18.5 cents beyond. Complainant contends that the 57-cent commodity rate on stone was applicable. On the shipment from Pen Argyl to Lincoln a combination rate of 76.5 cents was charged, composed of the sixth-class rate of 53.5 cents to the crossings plus the class D rate of 23 cents beyond. Complainant contends that the commodity rate on stone of 60.5 cents was applicable. On the shipment from Wind Gap to Lincoln a rate of 68 cents was charged, composed of a commodity rate of 45 cents on roofing slate to the crossings plus the class D rate of 23 cents beyond. Defendants contend that the applicable rate was 76.5 cents, composed of the sixth-class rate of 53.5 cents to the crossings plus the class D rate of 23 cents beyond. Complainant contends that the commodity rate of 61.5 cents on stone was applicable. Since December 3, 1931, the respective class D rates from Fair Haven to Omaha and Lincoln have been 52 and 55 cents and from the Pennsylvania origins, 50 and 52 cents. From Pen Argyl to Urbana and Champaign the sixth-class rate has been 41 cents. The class D rates shown, which would be applied on shipments to Omaha and Lincoln, are lower than either the rates paid or those claimed as applicable. The present sixth-class rate of 41 cents from Pen Argyl to Urbana and Champaign is lower than the rates charged to those destinations. There are no commodity rates specifically applying on slate slabs from the Pennsylvania origins to the destinations named, nor from points in eastern trunk-line territory to points in central or western territories. From the Pennsylvania origins prior to October 15, 1929, commodity rates were in effect on building stone described as follows: Stone, Viz: Building, classified sixth class in official classification (other than granite, jasper, marble, or onyx). On that date the description was amended to read as follows: Stone, viz: Building Rough quarried, loose or in packages, minimum weight 36,000 pounds. Sawed, four sides or less, loose or in packages, minimum weight 36,000 pounds. The rate applicable on these descriptions were and are 38.5 cents to the Mississippi River crossings, 32.5 cents to Chicago, Ill., and 36 cents to Champaign and Urbana. Complainant urges that as slate is rated sixth class, the commodity rates shown above applicable on building stone classified sixth class in the official classification, are applicable on its shipments, as the only exclusion made is as to granite, jasper, marble, or onyx. Defendants contend that the stone rates were not applicable, as they apply specifically to stone, and that slate has never been considered to be stone within the meaning of tariffs specifically applicable on stone. They state that slate is not commercially known or referred to in the building trade as stone; that commodity descriptions in tariffs are intended to conform to the names by which particular commodities are commercially known; and that no building stone, granite, jasper, marble, or onyx originates in Northampton County. On November 15, 1927, the commodity description from Fair Haven to the Mississippi River crossings and Chicago read as follows: Granite, Marble and Stone, Natural (other than Bituminous Asphalt Rock), N.O.I.B.N., in Official Classification, Blocks, Pieces, or Slabs, viz: Rough Quarried, loose or in packages, C.L. Sawed four sides or less, loose or in packages, C.L. Curbing, Flagging, or Paving, C.L. Sawed more than four sides, loose or in packages, C.L. Chisled, Dressed, Hammered or Sand Rubbed, loose or in packages, C.L. Effective June 25, 1929, this description was changed to read as follows: Granite or Marble; Stone, Natural (other than Bituminous Asphalt Rock): In Blocks, Pieces or Slabs, N.O.I.B.N., in Official Classification, viz In straight or mixed carloads, min. wt. 36,000 lbs. Rough quarried, loose or in packages, C. L. Sawed, four sides or less, loose or in packages, C. L. Sawed more than four sides, (*) loose or in packages, C. L. (*) Words " The rates published in connection with these descriptions are 34 cents to the river crossings and 29 cents to Chicago. These are the rates complainant contends were applicable and which were applied on some shipments. These commodity descriptions are the same as those considered in Brunswick-Balke-Collender Co. v. Delaware, L. & W. R. Co., 179 I.C.C. 763, wherein sixth-class rates on slate slabs from Pen Argyl, Fair Haven, Granville, N.Y., and Portland and Monson Junction, Maine, to points in central territory were assailed as inapplicable and unreasonable. It was found therein by division 3 that the stone rates were not applicable on slate. In that case it was said: It is apparent that slate is not commercially recognized as building stone but that to the contrary it is generally considered to be an entirely separate and distinct class of material. The rates on building stone as restricted by the terms of the tariff items above described are not applicable on slate slabs. Since slate slabs are specifically named in the official classification under the general description of “ slate," obviously that commodity may not reasonably be considered as included within the terms of the above commodity descriptions. The commodity description in connection with which a 22-cent rate is applicable from St. Louis, Mo., and points taking the same rates to Lincoln reads as follows: Stone, Natural, other than Bituminous Asphalt Rock; Blocks, Pieces or Slabs; sawed more than four sides or chiseled, dressed, hammered or sand-rubbed. Minimum weight 40,000 pounds. The class D rate from St. Louis to Lincoln was 23 cents, minimum 36,000 pounds. Effective December 3, 1931, the class D rate became 32 cents. Complainant views the term "building stone" as a general classification covering a number of materials used in the construction of buildings, such as limestone, sandstone, marbles, and granites, whereas the term "natural stone" is used to distinguish that commodity from artificial stone made from cement and stone. It contends that the architectural definition of slate is the same as the geologic definition; that the architect's definition of stone includes |