copartner, E. Barr, died and on May 9, 1932, Allen Riley was appointed administrator of his estate. By petition received May 6, 1933, Allen Riley, administrator, asks that he be substituted as party complainant for and in the place of E. Barr, Mary E. Barr, and O. F. Brown. Defendants take the position that substitution of Allen Riley, adminstrator, for the copartnership existing on and after March 7, 1932, consisting of O. F. Brown and Mary E. Barr, is neither necessary nor proper, as they do not question the rights of such copartnership as to shipments received on and after that date. Defendants urge that substitution of the administrator for the copartnership existing prior to March 7, 1932, would be prejudicial to defendant carriers. The informal complaint in behalf of the Kearney Oil Company was filed March 16, 1931, when that firm was owned and operated by E. Barr and O. F. Brown, copartners. E. Barr died during the pendency of the informal proceeding, which was closed August 19, 1932. In the formal complaint the copartners Mary E. Barr and O. F. Brown sought reparation on shipments delivered to the copartners E. Barr and O. F. Brown, stating that Mary E. Barr succeeded to all rights and interests of her deceased husband in the preexisting copartnership. No evidence was offered to show that Mary E. Barr succeeded to such rights and interests. The petition will be granted insofar as it seeks to substitute Allen Riley, administrator, for Mary E. Barr in respect of claims on the shipments delivered prior to March 7, 1932. O. F. Brown testified that he paid the charges on most of the shipments but that E. Barr paid the charges on certain shipments. The original paid freight bills covering those shipments were submitted with the rule V statements. They indicate that the charges were paid by the consignee, Kearney Oil Company, the copartnership name under which E. Barr and O. F. Brown were doing business. These facts will support an award of reparation to the representatives of the preexisting copartnership.

We further find that the shipments were made as described; that complainants, or their predecessors, and intervener paid and bore the charges thereon at rates found to have been unreasonable; that they were damaged thereby in the amount of the difference between the charges paid and those which would have accrued at the rates found to have been reasonable; and that complainants and intervener named in the order attached hereto are entitled to reparation, with interest, in the amounts indicated from the defendants named in said order.

Any outstanding overcharges which are not barred by the statute or covered by our findings herein should be refunded promptly.

No. 23424 1

E. H. MILTON & SONS ET AL. v. ALTON & SOUTHERN RAILROAD ET AL.

Submitted October 26, 1933. Decided January 19, 1934

Upon further hearing, amounts of reparation due complainants under findings in original report, 179 I.C.C. 200, on bituminous coal, in carloads, from mines in Illinois in the Belleville, Centralia, DuQuoin, southern Illinois, and Springfield groups to various destinations in Missouri determined. V. E. Smart, F. B. McElroy, Don O. Russell, and M. C. Young for complainants and interveners.

Fred H. Behring, W. H. Ogborn, H. H. Larimore, C. M. Spence, C. J. Bindner, R. R. Chavis, Guy A. Gladson, L. H. Strasser, Charles Clark, Walter McFarland, Wm. A. Northcutt, H. S. Harr, J. F. Connors, George W. Holmes, C. S. Burg, and E. A. Smith, for defendants.

REPORT OF THE COMMISSION ON FURTHER HEARING

DIVISION 5, COMMISSIONERS MCMANAMY, FARRELL, AND TATE

BY DIVISION 5:

Exceptions to the examiner's proposed report on further hearing were filed by complainants and defendants.

In the prior report herein, 179 I.C.C. 200, we found, among other things, that rates on bituminous coal, in carloads, from mines in Illinois in the Belleville, Centralia, DuQuoin, southern Illinois, and Springfield groups to various destinations in Missouri were unreasonable in the past, that certain complainants named in the report received shipments as described and paid and bore the charges thereon; that they had been damaged thereby in the amounts of the differences between the charges paid and those which would have accrued at the rates therein found reasonable; that they were entitled to reparation, with interest; and that complainants should comply with rule V of the Rules of Practice. We also found that complainants P. E. Sullivan Coal Company and Bertman Coal Com

1 This report also embraces No. 22111, New Florence Fire Brick Company et al. v. Alton & Eastern Railroad Company et al.; No. 23429, Moerschel Company et al. v. Same; No. 23429 (Sub-No. 1), Producers Grain Company et al. v. Same; No. 23429 (Sub-No. 2), G. H. Dulle Milling Company et al. v. Same; No. 23429 (Sub-No. 3), New Florence Fire Brick Company et al. v. Same; No. 23634, J. D. Reed Coal Company v. Baltimore & Ohio Railroad Company et al.; and No. 23656, State of Missouri ex rel., Stratton Shartel, Attorney General v. Baltimore & Ohio Railroad Company et al.

pany should submit with the rule V statements affidavits showing whether they paid and bore the charges on their shipments, and that if defendants objected to proof by this method a further hearing might be requested.

On March 11, 1932, E. J. Garthoffner and the Farmers Elevator and Co-operative Association, complainants in no. 23429, and Eldon Transfer & Storage, complainant in no. 23429 (sub-no. 2) were authorized to submit rule V statements accompanied by affidavits showing whether they paid and bore the charges on their shipments. Subsequently all of these cases were assigned for further hearing for the purpose of determining the amounts of reparation due the parties under the previous decision. The P. E. Sullivan Coal Company, Bertman Coal Company, E. J. Garthoffner, Farmers Elevator and Co-operative Association, Eldon Transfer & Storage, and other complainants and interveners, hereinafter referred to as complainants, introduced evidence with respect to the paying and bearing of the freight charges. All of the shipments here considered were purchased f.o.b. mines. Upon delivery thereof at destination complainants paid the charges and received duly executed receipts therefor. No part of these charges was charged back to the sellers. Statements of shipments prepared in accordance with rule V of the Rules of Practice, which defendants refused to certify, accompanied by the original paid freight bills or copies thereof, were received in evidence. The State of Missouri does not permit its original paid freight bills to leave its possession, and therefore submitted copies prepared by the railroad agents at the destinations. The original paid freight bills covering a few shipments of other complainants were either destroyed or could not be located after diligent search, and copies of such bills were secured from the railroad agents at the destinations. Defendants objected to the receipt in evidence of either the original paid freight bills or copies thereof, but they submitted no evidence to rebut or contradict the prima facie showing made.

We find that complainants named in the attached reparation order made the shipments as described and paid and bore the charges thereon at the rates found to have been unreasonable; that they were damaged thereby in the amounts of the difference between the charges paid and those which would have accrued at the rates found reasonable; and that they are entitled to reparation from the defendants and in the amounts shown opposite their respective names in the aforesaid order, with interest.

198 I.C.C.

No. 25033

DOW CHEMICAL COMPANY v. MICHIGAN CENTRAL RAILROAD COMPANY ET AL.

Submitted July 2, 1932. Decided January 19, 1934

Carload rate on salt, in bags, from Midland, Mich., to Jackson, Miss., found not unreasonable or otherwise unlawful. Complaint dismissed.

H. D. Anderson, for complainant.

Clyde Brown and E. A. Smith for defendants.

REPORT OF THE COMMISSION

DIVISION 2, COMMISSIONERS AITCHISON, PORTER, AND TATE

BY DIVISION 2:

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

Complainant corporation alleges that the rate charged on two carloads of salt, in bags, shipped on January 30 and June 24, 1931, from Midland, Mich., to Jackson, Miss., was and is unreasonable, unjustly discriminatory, and in comparison with rates from Delray, Detroit, Marine City, Port Huron, St. Clair, and Wyandotte, Mich., unduly prejudicial.

These origins are in the so-called East Michigan field. The shipments, weighing 46,700 and 46,000 pounds respectively, were routed by the shipper over lines of the Michigan Central Railroad Company and the Illinois Central Railroad Company and apparently moved in connection with these lines by way of Matteson, Ill., 1,044 miles. Charges of $184.47 and $184 were collected at rates of 39.5 and 40 cents per 100 pounds respectively. The applicable rate was and is 39.5 cents, minimum 45,000 pounds, composed of a proportional commodity rate of 19 cents to Cairo, Ill., and 20.5 cents beyond. Overcharges are apparently outstanding. Complainant seeks a

rate of 33 cents and reparation to that basis.

In Jackson Traffic Bureau v. A. & V. Ry. Co., 136 I.C.C. 299, decided December 23, 1927, division 3 found rates on salt, in carloads, to Jackson unreasonable to the extent that they exceeded or might exceed 32 cents from Detroit and 33 cents from St. Clair, Port Huron, and Marine City, by way of Cairo, Metropolis, or Brookport, Ill., and 34 and 35 cents respectively by way of other river

crossings, and awarded reparation. These rates were said to be 15 percent of the first-class rates prescribed in the southern class-rate revision for application between central and southern territories. The then existing rates were 39.5 and 41.5 cents respectively, and were subject to a minimum of 40,000 pounds prior to March 23, 1925, and 45,000 pounds thereafter. Complainant shows that the distances from Port Huron and St. Clair to Jackson are 1,072 and 1,084 miles respectively, and that 15 percent of the contemporaneous first-class rates to Jackson from Midland is 33 cents. No further evidence was offered by complainant. Defendants introduced no evidence.

The Jackson case was reopened on February 13, 1928, for further hearing and was consolidated with Rate Structure Investigation, Part 13, Salt, 197 I.C.C. 115, decided December 5, 1933, but the effective date of the order of December 23, 1927, was not postponed. Upon further hearing in connection with the Salt Investigation, the rates assailed in the Jackson case were found not unreasonable and reparation was denied. The rates prescribed on package salt in the Salt Investigation, from and to the points here considered, are 20 percent of the present first-class rates, and as therein shown, based on the average short-line distance of 936 miles to Jackson from the East Michigan field will result in a rate of 42 cents. In view of the findings therein no findings for the future are necessary herein.

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

198 I.C.C.