suspended until August 8, 1930, and later dates, and thereafter their operation was voluntarily postponed by respondents until December 20, 1930. In Bagging, Etc. in Southern and Southwestern Territories, 169 I.C.C. 253, hereinafter referred to as no. 3407, the proposed rates, based 22.5 percent of first class on mill-run cotton-bale covering, in straight carloads or in mixed carloads with old cotton-baling ties and buckles, and 27.5 percent of first class on new, rewoven, and reconditioned cotton-bale covering, in straight carloads or in mixed carloads with new or repaired cotton-baling ties or buckles were found justified. These rates became effective December 15, 1930. In the same proceeding proposed increased sixth-class rates on mill-run cotton-bale covering in less than carloads were also found justified, which finding was affirmed on further hearing in Bagging, Etc., in Southern and Southwestern Territories, 183 I.C.C. 588. As a consequence many reductions as well as some increases occurred in the carload rates, the less-than-carload rates being uniformly increased. The increases in the rates on carload traffic were confined principally to rates applicable on new, reconditioned, or rewoven bagging to points in Alabama, Mississippi Valley territory, and a few points in Georgia. The carload rates. found justified on cotton-bale covering not suitable for baling purposes until reprocessed or further manufactured generally resulted in reductions.

The shipments on which complainants seek reparation are those weighing near the minima established under no. 3407. Defendants contend that it would be unfair to permit complainants to select shipments on which the rates were reduced when as a matter of fact, they also have received the benefit of a lower basis of rates on less-than-carload shipments upon which much higher charges would have accrued had the sixth-class rates been in effect during the same period. Defendants refer to three shipments of used bagging made by complainants from Eatonton, Ga., to Henderson on which reparation is claimed only on one shipment weighing 24,989 pounds. Reparation is not sought on the less-than-carload shipments, which weighed 9,688 and 17,246 pounds. The charge collected at the class A rate of 45 cents on the three shipments amounted to $233.66. If the charges had been determined on the carload rates established under no. 3407 on the basis of 22.5 percent of first class, minimum 24,000 pounds, which is the basis shown by them most favorable to complainants, the total charges would have been $248.16, or $14.50 in excess of those which were applicable. It is well settled that when a carrier, instead of providing a carload and less-than-carload rate, provides only an any-quantity rate for both kinds of traffic, the presumption is that the any-quantity rate is higher than a

carload rate should be and lower than a less-than-carload rate would be if both rates were on the proper basis. See Container Service, 173 I.C.C. 377, 446. Although exceptions are quite numerous, the usual spread between carload and less-than-carload ratings is two classes. Classification of Canned Goods, 98 I.C.C. 166. Aside from the fact that the less-than-carload rates are not here in issue and class A rates were maintained generally for application on carload quantities, defendants' contention is of little moment due to the fact that they have since established reduced bases of seventh class on new bale covering and ninth class on old or mill-run bale covering when shipped in less-than-carload quantities.

The class A basis here assailed was of long standing. Defendants urge, therefore, that, presumptively, it was reasonable, and that although the rates assailed exceeded those subsequently approved in no. 3407, the rates on mill-run bale covering to Henderson were not contemporaneously out of alignment with those from the same origins to Charlotte, N.C., and Charleston, S.C., and that rates on new or reconditioned cotton-bale covering from Henderson and Augusta were generally, distance considered, comparable to those from Savannah, Ga., and Charleston to destinations in the Southeast. They also argue that, as the rates found justified in no. 3407 constituted a general readjustment resulting in both increases and reductions, following established practice under such circumstances reparation should not be awarded. The fact that rates are subjected to considerable reduction is in itself not sufficient ground for an award of reparation on past shipments where such rates are a part of a general readjustment involving increases as well as reductions. However, when, as here, a level of rates lower than previously in effect has been approved and practically all of the rate changes result in reductions, the situation presented is not in the nature of a general readjustment such as those in respect to which we have consistently denied reparation.

The original report at page 794 refers to defendants' showing that the per car and car-mile earnings on mill-run bagging were somewhat less than those on agricultural implements, cotton piece goods, lumber, phosphate rock, slag, and cement for similar hauls between points within the South, and that a like showing was made with respect to earnings on new cotton-bale covering as compared with earnings yielded by the rates on sugar, rice, phosphate rock, cotton piece goods, lumber, and cement. In this connection it was there concluded that: "However, no attempt was made to show similarity of transportation conditions, or that the characteristics of the commodities are comparable."

Defendants take exception to the foregoing conclusion with respect to such evidence. They state that their purpose was to show that the rates assailed, as compared with those applicable on the designated commodities of less value than cotton-bale covering, did not result in unusual or excessive earnings. Some of the rates on the commodities referred to were prescribed by us. Defendants further show that these commodities move in large volume and, except slag, are transported in similar equipment as bale covering, required no expedited service, and that loss and damage claims are of little consequence. While value is an especially important factor to be considered it is by no means controlling or conclusive, as a number of other things also must be considered in determining the reasonableness of rates such as here in issue. Moreover, in some instances the average loading shown for the compared commodities greatly exceeded that of cotton-bale covering.

Defendants assert that an objection made by division 3 to certain evidence introduced by them is at variance with the facts contained in their exhibits. The exception taken relates to the following statement appearing in the report:

For distances of 100 to 700 miles defendants show lower per car and per car-mile revenue on both mill-run bagging and new bagging than on various other commodities. This comparison is subject to the objection that in computing such revenue, the minimum weights on bagging were used, whereas on the compared commodities average weights were used.

A further analysis of the exhibits indicates that while the minimum weights on bagging were shown therein under the heading of

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average loading", in determining the earnings in connection with the bagging rates the defendants employed weights which approximated the average loading. However, the average weights shown for the other commodities referred to substantially exceeded those of cotton-bale covering and we are not persuaded that the transportation characteristics of such commodities are comparable with those pertaining to cotton-bale covering.

Defendants also contend that the facts considered in Ware Bros. Agency v. Chicago & A. R. Co., 173 I.C.C. 251, and Ware Bros. Agency v. Atlantic Coast Line R. Co., 167 I.C.C. 87, relied upon by complainants and cited with approval in the original report are readily distinguishable from those involved in the instant proceeding in that these shipments generally moved under any-quantity rates, and in some instances at commodity rates subject to a carload minimum of 24,000 pounds. We cannot accept this view as the shipments involved moved in carloads. In Ware Bros. Agency v. Chicago & A. R. Co., supra division 3 found the rates on these commodities, in carloads, between certain points in the South, among others, unrea

sonable and awarded reparation to the basis of 22.5 percent of firstclass on mill-run bagging, minimum 30,000 pounds, and 27.5 percent of first-class on new or reconditioned bagging, minimum 30,000 pounds. In the other case cited reparation in connection with shipments of old worn-out bags having no greater value than for conversion into second-hand cotton-bale covering was also based on a minimum of 30,000 pounds. A similar basis was found reasonable by the division in the instant proceeding.

Upon oral argument and reconsideration we are of the opinion that the amendment sought by complainants should have been allowed as of October 21, 1931, and find that the assailed rate during the 2-year period prior thereto from Fries to Henderson on mill-run cottonbale covering, in carloads, was unreasonable to the extent that it exceeded 22.5 percent of the contemporaneous first-class rate, minimum 30,000 pounds; that shipments were made as described; that complainant Carolina Bagging Company paid or bore the charges thereon; that it was damaged thereby in the amount of the difference between the charges collected and those which would have accrued at the rate herein found reasonable and that it is entitled to reparation, with interest. In all other respects the findings contained in the original report are affirmed. Complainants should comply with rule V of the Rules of Practice.

MAHAFFIE, Commissioner, dissenting:

The shipments upon which reparation is awarded moved prior to December 15, 1930. Charges were collected in most instances at the applicable any-quantity rates in effect for a long period in this territory. Effective December 15, 1930, defendants voluntarily established carload and less-than-carload rates, resulting in both increases and reductions on carload traffic, and the less-than-carload rates were materially increased. These rates were approved by us in Bagging, Etc., in Southern and Southwestern Territories, 167 I.C.C. 253. Notwithstanding the fact that the rates voluntarily established were in the nature of a general readjustment resulting in increases as well as reductions, the majority awards reparation to complainants on certain carload shipments where the assailed carload rates were higher than those approved. From the evidence of record it would appear that if the reparation basis approved by the majority were applied to all of complainants' shipments, both carload and less than carload, during the period covered by the complaint, the total charges collected on such shipments would exceed the charges actually collected. In instances of this kind damages, if any, should be the difference between the aggregate charges assessed upon all

of complainants' shipments which moved during the statutory period and the aggregate charges that would have been assessed at the rates approved by us. See Bigelow-Hartford Carpet Co. v. New York, N. H. & H. R. Co., 156 I.C.C. 435, and Roanoke Gas Light Co. v. Norfolk & W. Ry. Co., 191 I.C.C. 173. Under the circumstances, I am of the opinion that the rates in the past, taken as a whole, were not unreasonable, and the complaint should be dismissed.

I am authorized to state that COMMISSIONER MILLER concurs in this expression.

CHAIRMAN LEE dissents. COMMISSIONER SPLAWN did not participate in the disposition of this case.

198 I.C.C.