less, respectively, than the foregoing average distance. However, as hereinbefore stated, the rates prescribed in no. 15879 were not fixed on an exact distance basis from or to the key points as centers of groups but rather as points from which the rates should be blanketed back over intermediate points until the next key point is reached. Moreover, the key-point basis adopted was not primarily a grouping of segregated industrial communities, but was designed to blanket all points under particular key rates.

As further evidence of improper grouping of Lancaster with respect of class rates, complainant instances rates on iron and steel articles prescribed in Iron and Steel Articles, 155 I.C.C. 517, from Lancaster, York, and other origins to 104 key points in central territory. The evidence shows that as compared with the first-class rates which are somewhat higher from Columbia, Lancaster, Mount Joy, and Reading than from Harrisburg and York the averages of the rates on iron and steel articles to the points mentioned are the same from all points, except that from Reading and Harrisburg the average rates are 1 cent more from Reading and the same amount less from Harrisburg than the average rates from points in the Lancaster area. However, in that case rates on iron and steel articles were established in conformity with a distance scale of rates, reasonable origin groupings, and the grouping of destination points located in a single switching district or in the industrial community surrounding such switching district. Moreover, only basing-point rates limited as defined on page 575 of the report therein were permitted. It is apparent that this method of rate making bears no relation to the key-point plan prescribed in no. 15879.

Lancaster is on the short line of the Pennsylvania Railroad Company between Harrisburg and Philadelphia. Consequently, defendants point out that that carrier might properly have placed Lancaster in the Philadelphia group. They state that due to the designation of Reading as a key point and in consideration of the average relative distances from communities located on the lines of the Reading Company and the Pennsylvania between Philadelphia and Harrisburg, Reading rates were established from and to Lancaster. Defendants strongly insist that more favorable treatment has been accorded Lancaster than a strict construction of our findings in no. 15879 require.

Class-rate traffic from York and Lancaster, estimated at approximately 60 percent, moves to and from eastern points. On such traffic Lancaster has an advantage of 5 and 6 cents on first-class rates under the corresponding rates from York to New York and Philadelphia respectively. Lancaster also enjoys first-class rates approxi

mately 3 cents on an average under York to New England points. Furthermore, the short-line route of the Reading Company from Lancaster to Harrisburg extends through Lebanon and Hershey, Pa., which points take the Reading rates. Over this route fourth-section departures would result if the York rate basis were established from Lancaster without corresponding reductions being made from and to intermediate points.

We find that the rates assailed are not unreasonable or unduly prejudicial. The complaint will be dismissed.

198 I.C.C.

No. 23416

CRANE ENAMELWARE COMPANY v. BALTIMORE & OHIO RAILROAD COMPANY ET AL.

Decided December 20, 1933

Upon reconsideration, findings in 178 I.C.C. 386 that the rates charged on molding sand, in carloads, from certain points in New York to Chattanooga, Tenn., were inapplicable in part, modified. Finding that certain applicable rates were unreasonable affirmed. Finding for the future affirmed. Reparation awarded.

Appearances same as in former report.

REPORT OF THE COMMISSION ON RECONSIDERATION

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

In 178 I.C.C. 386, we found that the applicable rate on molding sand, in carloads, from Aqueduct, Saratoga Springs, and Schuylerville, N.Y., to Chattanooga, Tenn., was and is $5.40 per ton of 2,000 pounds; that prior to November 25, 1928, the rate of $5.40 was applicable from Elnora, Mechanicville, Schenectady, and Ushers, N.Y., to Chattanooga; that on and after that date the applicable rate from the last four named origin points was $6.15; and that the applicable rate of $5.40 was not and is not unreasonable, but that the applicable rate of $6.15 was and is unreasonable to the extent it exceeded, exceeds, or may exceed $5.85. Some of the shipments were found overcharged and others undercharged. Reparation was awarded. Complainant filed a petition for reconsideration and the case was reopened for reconsideration on the record as made.

The former reports sets forth the facts and evidence of record at that time and will not be repeated here, except to the extent necessary to a clear understanding of this report. After the case was reopened the parties furnished data covering each shipment and the exact routes of movement over the Louisville & Nashville Railroad and the delivering line, the Nashville, Chattanooga & St. Louis Railway.

The former report was based on the ground that all of the shipments moved as routed by the shipper over defendants' lines via Cincinnati, Ohio. This was in accordance with complainant's testimony and it expressly denied that any of them were misrouted. It

has since developed that some of the shipments apparently did not move via Cincinnati and, assuming that complainant's testimony is correct, such shipments were apparently misrouted.

Ninety carloads moved between March 31, 1928, and November 27, 1930. They averaged about 100,645 pounds per car. Eighteen of them were delivered to the L. & N., at Maysville, Ky., and moved over lines of that carrier through Paris, Lexington, and Louisville, Ky., to Nashville, Tenn. One was delivered to the L. & N., at Maysville and moved over lines of that carrier through Paris, Ky., and Knoxville, Tenn., to Cartersville, Ga. Seventy were delivered to the L. & N., at Cincinnati and moved over lines of that carrier through Walton, Anchorage, and Louisville, Ky., to Nashville. One was delivered to the L. & N., at Louisville and moved over lines of that carrier to Nashville. All of the shipments moved from Nashville and Cartersville over lines of the N.C. & St.L. to destination. The average distance over routes of movement is approximately 1,268 miles.

There was and is no joint rate in effect via Maysville. On the shipments that moved through that point a combination rate of $5.85, composed of $3.90 from origin points to Cincinnati, and $2.25 beyond, both factors subject to the combination rule, was charged. Both factors applied on molding sand. Over the routes of movement there was and is a combination rate of $5.40 composed of $3.90 on molding sand to Maysville, subject to the combination rule, and $1.80 on sand beyond, not subject to the combination rule. Defendants contend that the combination rule has no application because the $3.90 factor alone was subject to that rule. This position is untenable. Sligo Iron Store Co. v. W.M. Ry. Co., 62 I.C.C. 643, 73 I.C.C. 551. The applicable rate on these shipments was $5.40 and they were overcharged. Complainant in all instances seeks reparation based on a rate of $5.40 and the prescription of a rate of $4.42 for the future. If the shipments via Maysville were misrouted no damage to complainant resulted therefrom, as there was no lower rate in effect via Cincinnati.

Complainant's petition for reconsideration was based on two grounds, namely, (1) that the $5.85 rate prescribed exceeded the aggregate of intermediates on Maysville and (2) that we prescribed two rates, $5.85 and $5.40, from the same origin group. Both of these contentions are without merit. On November 25, 1928, a joint rate of $6.15 was established from Elnora, Mechanicville, Schenectady, and Ushers to Chattanooga and it was restricted to apply via Cincinnati only. This action insofar as those origin points are concerned removed the application of the combination rate via Cin

cinnati hereinbefore referred to. In the former report we found the $6.15 rate unreasonable to the extent that it exceeded $5.85. In compliance with our order therein, the carriers established the $5.85 rate from those particular origins on December 21, 1931, and restricted it to apply via Cincinnati only. Since the joint rate does not apply via Maysville there is no violation of the aggregate-ofintermediates provision of section 4 of the act. It is true that the rate of $5.85 prescribed is in excess of the combination rate of $5.40 via Cincinnati determined by using the rate of $3.90 to Maysville, which applied and applies in connection with the L. & N., from Cincinnati, and $1.80 beyond, both factors reduced under the combination rule, and by the use of rule 55 (c), formerly rule 5 (b), of Tariff Circular 20. Maysville is on a branch line extending northeast from Paris. Under rule 55 (c) the shipments would not have to be moved from Paris to Maysville and return in order to make the Maysville combination rate applicable thereon in the absence of a joint rate. A rate determined in this manner is not an aggregateof-intermediates rate within the meaning of section 4 of the act. In Carey-Reed Co. v. Pennsylvania R. Co., 151 I.C.C. 509, it was said. that the aggregate-of-intermediate rates within the meaning of section 4 of the act is the sum of the separate rates, untreated by the combination rule, which would be $5.70 in the instant case. That rate is lower than the rate prescribed, but to use either the $5.40 or $5.70 rate as complainant is apparently trying to use them to sustain its position requires the use of rule 55 (c) and it was said in Federal Compress & Warehouse Co. v. Illinois Central R. Co., 183 I.C.C. 173, that rates made by the use of rule 55 (c) do not result in a violation of the aggregate-of-intermediates provision of section 4 of the act. It, however, raises an inference that the joint rate was unreasonable, which may be rebutted. Davis v. Missouri Pac. R. Co., 174 I.C.C. 27. As stated in the former report that inference has been overcome by other evidence. With respect to complainant's second contention, we did not prescribe two rates from the same origin group. We prescribed a rate of $5.85 from certain points and found the rate of $5.40 not unreasonable from certain other points. The latter finding was equivalent to saying that based on the evidence we deem the $5.40 rate to be less than a reasonable maximum rate.

There was and is no joint rate from Aqueduct, Saratoga Springs, and Schuylerville, and from Elnora, Mechanicville, Schenectady, and Ushers prior to November 25, 1928, on the shipments that moved via Cincinnati. A rate of $5.85, composed of the factors shown above to and from Cincinnati, was charged on these shipments. All of