ment and to order cars of appropriate size. Complainant ordered cars of 80,000 pounds capacity for most of the 229 shipments, but in some instances ordered cars of 60,000 or 50,000 pounds capacity. Cars of these sizes can be readily loaded to and in excess of their marked capacities. Numerous Seaboard Air Line cars of 100,000 pounds marked capacity were furnished at defendants' convenience, notwithstanding requests for smaller equipment, and while such cars were loaded to visible capacity thay were not loaded to marked capacity. The sides of these cars were 2 feet 11 inches high, as compared with other Seaboard Air Line cars of 80,000 pounds marked capacity having sides from 3 feet 3 inches to 4 feet high. Defendants' witness conceded that it was not expected that the 100,000-pound cars would load to marked capacity with brick dumped in the cars, which is the customary manner of loading common brick. The witness also admitted that some of the 100,000pound cars did not haul as much brick as could be loaded in 80,000-pound cars. To correct this anomalous situation the governing tariff was amended, effective November 25, 1930, by a provision that where a car is furnished that cannot be loaded to marked capacity, such car must be loaded to full visible capacity and charges assessed at the actual weight, but not less than 50,000 pounds. Had this provision been in effect when the considered shipments moved, no question would have arisen as to the proper basis of charges on those which were loaded to visible capacity but not to marked capacity.

In No. 25437 Borden Brick & Tile Co. v. Atlantic Coast Line R. Co., 198 I.C.C. 232, decided December 18, 1933, we found the rates therein assailed on common brick, in carloads, from Goldsboro, N.C., to certain Virginia destinations, unreasonable in the past and for the future to the extent that they exceeded or might exceed rates determined by application of the distance rates prescribed on common brick in the Southern Brick case, minimum carload weight marked capacity of the car used, but not less than 60,000 pounds, subject to the following provisos:

(a) If the car is loaded to full visible capacity, actual weight will apply. (b) In no case shall the weight charged for exceed 110 percent of the marked capacity of the car used, unless actual weight is greater.

(c) Where the carrier furnishes a larger car than ordered, the minimum shall be the marked capacity of the car ordered, but not less than 60,000 pounds, subject to the provisions of (a) and (b).

The issues in the instant case are similar to those in the Borden Our findings herein are in line with the findings in that proceeding.

We adhere to the findings in the original report that the assailed rates were unreasonable to the extent that they exceeded those determined by application of the distance rates prescribed on common brick in the Southern Brick case. We now find that the minimum carload weight to be used in determining reparation in this case shall be as set forth in the second preceding paragraph hereof; that charges collected on any other basis were unreasonable; and that complainant made shipments as described, bore the charges thereon, and was damaged and is entitled to reparation in the amounts set forth in the accompanying order, with interest,

BRAINERD, Commissioner, dissenting:

I dissent for the reasons stated by me in my separate expression in the original report in Grant v. Atlantic Coast Line R. Co., 186 I.C.C. 407, 412.

198 I.C.C.

No. 19571 1

COMMERCIAL CLUB OF FARGO, N.DAK., ET AL. v. AHNAPEE & WESTERN RAILWAY COMPANY ET AL.

Submitted November 20, 1933. Decided December 29, 1933

Rates on iron and steel articles, in carloads, from Chicago, Ill., Gary, Ind., Milwaukee, Wis., and certain other points in Indiana, Illinois, and Wisconsin to Fargo, N.Dak., found not unreasonable. Complaint dismissed. Karl Knox Gartner and Neal E. Williams for complainants. Conrad Olson, J. N. Davis, J. P. Plunkett, and M. L. Countryman, Jr., for defendants.

REPORT OF THE COMMISSION

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

Exceptions were filed by complainants to the proposed report, to which defendants replied, and the case was orally argued.

The complaint in no. 19571 was filed on March 29, 1927. That in no. 19571 (sub-no. 1) was filed on April 4, 1927. No. 19571 was filed by Commercial Club of Fargo, a corporation, of Fargo, N.Dak., whose corporate name has been changed to "Chamber of Commerce, Fargo, North Dakota ", since the complaint was filed; North Dakota Metal Culvert Company, a corporation manufacturing iron and steel articles at Fargo, hereinafter called the Metal Company. No. 19571 (sub-no. 1) was filed by Commercial Club of Fargo, above described, and Fargo Foundry Company, a corporation manufacturing iron and steel articles at Fargo and hereinafter called the Foundry Company. Minneapolis Traffic Association, of Minneapolis, Minn., intervened but entered no appearance at the hearing. At complainants' request the hearings of these cases were delayed pending a decision in No. 17000, Part 2, Western Trunk-Line Class Rates, 164 I.C.C. 1, hereinafter called the Class Case.

It is alleged that the rates on iron and steel articles, in carloads, from Gary, Ind., Chicago, Ill., Milwaukee, Wis., and other points in Indiana, Illinois, and Wisconsin, in the Chicago group origin territory, indicated in Agent Boyd's tariff, I.C.C. no. A-1622 and Great Northern Railway Company's tariff, I.C.C. no. 6346, to Fargo

This report also embraces No. 19571 (Sub-No. 1), Commercial Club of Fargo, N.Dak., et al. v. Ahnapee & Western Railway Company et al.

were and are unreasonable. At the hearing complainants accepted for the purposes of this case the list of iron and steel articles shown in items 2605 and 2608 of Agent H. G. Toll's tariff, I.C.C. no. 1301. Most if not all of the articles in that list are included in the list dealt with in the Class Case. Reparation and rates for the future are sought. Rates will be stated in amounts per 100 pounds, and do not include emergency charges. For the purposes of this report Chicago and Milwaukee are taken as representative origins.

Shipments of the Metal Company instanced of record were 91 in number, made between February 3, 1925, and April 28, 1927. They all originated at Gary, and averaged 69,485 pounds. Those of the Foundry Company, 28 in number, were made between December 23, 1930, and December 18, 1931. They averaged 67,940 pounds, and originated at South Chicago, Ill., Gary and Indiana Harbor, Ind., which points are near Chicago. near Chicago. All of those shipments were charged at the applicable rate of 57 cents, which applied also from Chicago and was the rate from Milwaukee prior to December 3, 1931, on which date the rates prescribed in the Class Case became effective and the rate from Milwaukee became 54 cents. In that case we found that rates based on 32.5 percent of first-class would be reasonable maxima on iron and steel where such commodities moved under class rates reflecting higher percentages of first-class than that basis. The Class Case has been reopened, partly for the purpose of considering the propriety of that finding, and the issues have been broadened to include rates which have been established on the basis prescribed although not specifically required to be so established. The rates of 57 cents from Chicago and 54 cents from Milwaukee are 32.5 percent of the first-class rates established under the findings in the Class Case. A considerable part of complainants' evidence consists of comparisons of the rates to Fargo with those to Minneapolis and St. Paul, Minn., hereafter called Twin Cities. The table following shows the distances and rates from Chicago and Milwaukee to Fargo and Twin Cities, with approximate percentages said rates were or are of the first-class and fifth-class rates. Iron and steel articles generally are rated fifth class in western classification, minimum 36,000 pounds.

In Western Trunk Lines Iron and Steel, 47 I.C.C. 109, decided in 1917, we found that with some exceptions rates on the basis of 90 percent of fifth class were justified on iron and steel in western trunk-line territory. In Fargo Commercial Club v. A. & W. Ry. Co., 98 I.C.C. 691, hereinafter called the Fargo Case, the fifth-class rate of 64 cents from Chicago to Fargo shown in the table was found unreasonable and the rate of 59 cents was prescribed.

1 The record does not definitely disclose whether or not the distances shown are short line, but it appears that in one or more instances they are averages over the line or lines of a single carrier from grouped origin points.

Complainants compare the assailed rates in effect prior to and after December 3, 1931, with those on iron and steel articles from the Chicago district to Minneapolis and to other points in Minnesota and in North Dakota and South Dakota, with distances of 401 to 698 miles. The descriptions of commodities on which those rates were applicable varied. Many of the articles are included in the iron-and-steel list as dealt with in the Class Case. Apparently the rates on the articles so included were, with some exceptions, increased to the basis of 32.5 percent of first class, effective on December 3, 1931, and are about in line with the Chicago-Fargo rate.

Complainants instance a number of rates on iron and steel articles from Chicago and from St. Paul to Montana points, before and after December 3, 1931. In most instances those from Chicago were 30 or 31 percent of first class and 65 to 68 percent of fifth class prior to that date, and 30 to 34 percent of first class and 65 to 88.5 percent of fifth class thereafter. Those from St. Paul were in most instances 32 or 33 percent of first class and 64 to 73 percent of fifth class prior to that date, and 32 to 33 percent of first class and 64 to 88 percent of fifth class thereafter.

Prior to December 3, 1931, rates on various iron and steel articles, minimum 40,000 pounds, from points described by complainants as Mississippi River, Peoria, Chicago, St. Paul, Duluth, and Memphis groups to Denver, Colo., were on the basis of 32 percent of first class and 83 to 86 percent of fifth class. Lower rates, 30 percent of first class and from 78 to 81 percent of fifth class, applied in connection with higher minima, 60,000 pounds on some articles and 80,000 pounds on others.

Complainants also instance rates on iron and steel pipe from Chicago to Fargo and for similar distances to other points in