A bulletin issued by the United States Geological Survey, bearing the caption "Notes on the Greensand Deposits of the Eastern United States", contains the following description of greensand:

The term Greensand as here used is applied to an unconsolidated sandy deposit containing Glauconite. Under a magnifying glass the best greensand appears to be composed entirely of glauconite, less than one per cent being grains of quartz sand. More commonly it includes a larger proportion of quartz sand, amounting to one-half of the whole.

The greensand, from which Inversand is made, is composed principally of quartz and glauconite, which latter is a hydrous silicate of iron with potassium. The grains of this greensand, with the exception of a small proportion, range from one hundredth of an inch (approximately 0.25 millimeter) to one twentieth of an inch (approximately 1.25 millimeters) in diameter. Defendant's contention that this greensand is a marl and that Inversand consists of zeolites or pure glauconite is based on statements in an article written by complainant's president and published in the September 1931 issue of "Waterworks and Sewerage". It is stated therein that the greensand, from which Inversand is made, is known in the locality where it is mined as marl, and that the latter designation is often used in technical reports. It is also stated that greensand consists of glauconite grains, glauconitic clay, clay, sand, lime, and pebbles. However, the chemical analysis of greensand shown therein, which is substantially the same as that offered herein by complainant, considered in connection with other portions of the article, indicates that the greensand consists principally of quartz and glauconite. The finished product, Inversand, is referred to therein as greensand zeolites or pure glauconite. It appears therefrom that the finished product retains the appearance of sand.

In Permutit Co. v. C. R. Co. of N. J., 144 I.C.C. 83, we prescribed on a commodity, known by the trade name of Permutit and consisting of greensand mined at Birmingham, N.J., and processed for filtering and softening water, a rating of sixth class as a sand processed for filtering and softening water. Chemical analyses of the greensand here considered and that mined at Birmingham show that the two greensands contain the same elements though in slightly different proportions. We are of the opinion that the greensand from which Inversand is made is a sand, and that Inversand is a sand processed for filtering and softening water.

Prior to October 1, 1929, the commodity rate of $2.45, which complainant contends was applicable on its shipments between October 17, 1930, and August 24, 1931, applied on "Sand: Blast, Engine, Filter, Fire, Foundry, Glass, Moulding, Quartz, Silex, or Silica." A commodity rate of $2.20 applied on sand other than the kinds

just named. Effective that date the commodity descriptions in connection with both of these rates were changed to read "Sand" without any restriction other than that the $2.45 rate applied when box cars or other closed equipment were used and the $2.20 rate where open-top equipment was used. Prior to August 15, 1929, the title page of the tariff containing these rates showed that the rates in the tariff applied on "Sand not otherwise indexed by name in official classification ** as shown within, carloads." On that date the title page was changed to show that the rates in the tariff applied on "Sand as shown in tariff, carloads. Effective August 25, 1931, the description in connection with the $2.45 rate was changed to read "Sand (other than Sand processed beyond washing or screening for decolorizing, filtering or water softening), in box cars or other closed equipment." Consequently, during the period covered by the allegation of inapplicability the $2.45 rate applied on sand without restriction other than as to the type of equipment that might be used. In view of the fact that this rate was originally restricted to specified kinds of sand, the modification on October 1, 1929, removing this restriction indicated an intention on the part of the tariff framers that the rate should apply on all sands embraced in the generic term "sand."

Defendant urges that the specific rating in the classification on sand processed for filtering and water softening, and the sixth-class rate applicable in connection therewith, should take precedence over the general commodity rate of $2.45 on sand and cites Allen Mfg. Co. v. Louisville & N. R. Co., 192 I.C.C. 170, wherein, in determining the applicable rate on shipments of molding sand, it was found. that a commodity rate on "molding sand" took precedence over a contemporaneous commodity rate from and to the same points on "sand" under the principle that a specific commodity description takes precedence over a general one. However, this rule has no application where, as here, one rate is a commodity rate and the other a class rate. American Tar Products Co. v. Louisville & N. R. Co., 182 I.C.C. 481. When an article is clearly embraced within a generic commodity description attached to a commodity rate, and neither the tariff nor the governing classification discloses a contrary intention, the commodity rate is applicable even though the classification description is more specific. Grosjean Rice Milling Co. v. Director General, 89 I.C.C. 395. Sand processed for filtering and softening water is included in the generic term "sand", and there is nothing in the tariff containing the $2.45 rate or the governing classification showing a contrary intention. We are of the opinion that the $2.45 rate was applicable on complainant's shipments herein prior to August 25, 1931.

No substantial evidence was offered in support of the allegation of unreasonableness. The sixth-class rate of 17 cents per 100 pounds now applies on this commodity from and to these points. A sixthclass rating was prescribed on sand processed for filtering and softening water in the Permutit case, and the sixth-class rate of 17 cents now applicable from and to these points was prescribed in the eastern class-rate revision.

We find that the rate charged on complainant's shipments prior to August 25, 1931, was inapplicable; that the applicable rate thereon was $2.45, minimum 90 percent of marked capacity of car; that the applicable rate on these shipments was not unreasonable; that the applicable rate on and after August 25, 1931, was not and is not unreasonable; that complainant made shipments prior to August 25, 1931, as described and paid and bore the charges thereon; and that it was damaged thereby and is entitled to reparation, with interest. Complainant should comply with rule V of the Rules of Practice.

LEE, Commissioner, dissenting:

The majority finds that the commodity rate on sand was applicable. In my opinion, the record does not sustain the finding, and I base my conclusion particularly on statements of the president of complainant. In publications and advertising, he represents the commodity as something entirely different from sand. In its natural state, he said, the name given it locally and in geological and other reports is "marl"; and that "untreated greensand is quite unsuitable as a water softening zeolite ", for which it is sold. In describing the treatment to which the raw product is subject before shipment and the finished product, he said:

In the chemical treatment of glauconite cognizance is taken of the fact that the raw glauconite possesses certain deficiencies that must be built up. To increase the softening capacity as great a porosity of the product as possible must be obtained. Certain undesirable elements, such as sulphides, huma, etc., must be removed by leaching or otherwise. It is not necessary to destroy the structure of the greensand grains, to obtain these ends, although the completed product is quite a different article from the untreated glauconite, even though it has much the same appearance. After treatment and screening it can be classified as greensand zeolite, weighs from 89 to 93 pounds per cubic foot, and is from four to founteen times as hard as the original glauconite.

The greensand water softening zeolites are often referred to as "natural zeolites" and a very prevalent idea exists that greensand in its natural condition, or merely washed and graded, is employed. If this were true, zeolite water softeners could be built for little more than the cost of water filters. As a matter of fact, greensand is little more than a foundation upon which a rather complex chemical treatment is erected. [Italics mine.]

This finished, chemically treated, product of greensand, is not sold as sand, but as "water softening zeolite ", as "Inversand", or as

"Basex." While ordinary sand generally is shipped in open-top equipment, for short distances, this commodity is shipped in bags, in box cars, and for long distances. Carload shipments are shown to have moved to 10 States and the Dominion of Canada, and it has moved in less-than-carload quantities as far as the Pacific coast. Common sand is of very low value, while this article is concededly worth $60 per ton, and there is evidence to the effect that it sells at from 10 to 16 cents per pound. I am forced to the conclusion that the commodity rate on sand was not applicable on this finished product.

198 I.C.C.

No. 26033

WELLMAN BROTHERS v. BALTIMORE & OHIO RAILROAD COMPANY ET AL.

Submitted October 23, 1933. Decided December 12, 1933

Rate charged on superphosphate, in carloads, from Rasin, Md., to Perry, N.Y., found not unreasonable. Complaint dismissed.

Clarke Wellman for complainant.

Charles R. Weber for defendants.

REPORT OF THE COMMISSION

DIVISION 4, COMMISSIONERS MEYER, BRAINERD, AND MAHAFFIE BY DIVISION 4:

The shortened procedure was followed. Although no exceptions were filed to the examiner's recommendations, our conclusions differ therefrom.

Complainants, Clarke and Clarence Wellman, copartners, allege by complaint filed May 26, 1933, that the rate charged on two carloads of superphosphate shipped April 17 and 25, 1930, from Rasin, Md., to Perry, N.Y., was unreasonable and unduly prejudicial. Undercharges were collected November 22, 1932. An informal complaint was filed on December 1, 1932, and closed December 21, 1932. Claims based on the allegation of undue prejudice, which was not included in the informal complaint, are barred by the statute.

The shipments, aggregating 80,000 pounds, moved as routed by the shipper, over lines of the Baltimore & Ohio Railroad Company to Willow Grove Junection, Pa., and the Buffalo, Rochester & Pittsburgh Railway Company beyond, 607 miles. The applicable sixth-class rate of 25 cents per 100 pounds was charged. Reparation is sought to the basis of a commodity rate of 16 cents established from and to these points on May 4, 1930.

Superphosphate is a fertilizer and is generally accorded the fertilizer rates. When the shipments moved, Baltimore & Ohio tariff I.C.C. 21672 did not name commodity rates on this commodity to Perry and certain other points on the Silver Lake branch of the Buffalo, Rochester & Pittsburgh, but named a commodity rate of 16 cents from Rasin to Rochester, N.Y. The sixth-class rate was the same from Rasin to Perry and Rochester. The 16-cent rate was established from Rasin to Rochester and Silver Springs, N.Y., 646