reasonableness, and it will be observed that, for the average haul of 760 miles mentioned in the report, it returns to the carrier carmile earnings of something more than 50 cents, which is four or five times as much as the car-mile earnings prescribed as minima in Pacific Coast Fourth Section Applications, 190 I.C.C. 273, and other cases therein mentioned. COMMISSIONER SPLAWN did not participate in the disposition of this case. 198 I.C.C. No. 22946 1 KANSAS FLOUR MILLS CORPORATION v. ABILENE & SOUTHERN RAILWAY COMPANY ET AL. Decided February 6, 1934 1. Upon reconsideration, finding in former report, 195 I.C.C. 277, as to applicability of rates charged on grain, in carloads, from points in Texas and Oklahoma, milled in transit at certain points in Oklahoma and at Anthony, Kans., and forwarded therefrom as grain products, in carloads, to destinations in Texas, modified. Applicable rates found not unreasonable. 2. Finding in former report that transit rules maintained at points in Oklahoma in connection with the above traffic were and are unduly prejudicial affirmed. Undue prejudice ordered removed in no. 23901, and complaint in no. 22946 dismissed. Appearances shown in original report. REPORT OF THE COMMISSION ON RECONSIDERATION BY THE COMMISSION: In the original report herein, 195 I.C.C. 277, division 2 found that the applicable rates on grain, in carloads, from origins in Oklahoma and on the Santa Fe 2 and the Panhandle in northern Texas, milled in transit at Alva and Cherokee, Okla., Anthony, Kans., and points on the Santa Fe in Oklahoma, and forwarded there from as grain products, in carloads, to destinations in Texas, were those under the distance scale of rates prescribed in Oklahoma Corporation Commission v. A. & S. Ry. Co., 101 I.C.C. 116, hereinafter called the Oklahoma case, for the actual distances over the routes of movement. Division 2 further found that the applicable rates were not unreasonable, but that the transit rules and practices maintained at the transit stations in Oklahoma and at Anthony result in undue prejudice to the complaining millers and their traffic, and undue preference 1 This report also embraces No. 23901, Oklahoma Millers' Association v. Atchison, Topeka & Santa Fe Railway Company et al. The Atchison, Topeka & Santa Fe Railway Company, the Panhandle & Santa Fe Railway Company, and the Gulf, Colorado & Santa Fe Railway Company constitute parts of the same railway system but are referred to in this report as the Santa Fe, the Panhandle, and the Gulf, respectively. The Missouri-Kansas-Texas Railroad Company and the Missouri-Kansas-Texas Railroad Company of Texas are referred to as the Missouri-Kansas-Texas and Missouri-Kansas-Texas of Texas, respectively. Exception. Where provision is made in tariff naming the rate for the application of the short line or short route rate via the transit point over longer lines or routes on direct shipments the rate on shipments given transit privileges shall be that shown in the mileage scale for the total short line or short route distance via the transit point from point of origin to final destination. Effective April 20, 1929, the exception was changed to read as set forth below: * * Where the tariff naming the applicable rate authorizes the short-line or short-route rate on non-transit shipments routed via longer lines or routes, the rate on transit shipments via such longer lines or routes shall be that shown for the total short-line or short-route distance via the transit point from origin to destination. The establishment of the above-quoted provision effective April 20, 1929, removed all doubt as to the application of the distance rates on shipments accorded transit at direct-line points. We find that the applicable rates were those under the distance rates for the total distance over the shortest route through the transit points embracing the lines or parts of lines of not more than three carriers by way of existing connections. It does not appear that defendants have collected charges in excess of those herein found applicable. In the former report, it was found that the rates assailed were in no instance higher than the rates prescribed as reasonable in the Oklahoma case for the distances over the routes of movement, and for that reason they were not higher than reasonable maximum rates. We concur in that view, and affirm the previous finding that the rates assailed were not unreasonable. As future rates will be determined in Grain and Grain Products, 164 I.C.C. 619, 173 I.C.C. 511, now pending upon further hearing, no finding will be made herein as to the reasonableness of the rates for the future. The facts and contentions of the parties with respect to the allegation of undue prejudice and preference are set forth in the former report and need not be repeated here. The complaint in no. 23901 did not assail the transit rules at Anthony and no finding should have been made as to the lawfulness of those rules under section 3 of the act. In all other respects, we affirm the findings of division 2, that the maintenance and application by defendants of their present transit rules and practices on shipments of grain, in carloads, from origins on their lines in Oklahoma and Texas, milled in transit at points in Oklahoma on the Santa Fe, and forwarded therefrom as grain products to destinations in Texas, which transit rules and practices are less favorable and result in higher through charges on that traffic than are contemporaneously applied by defendants on similar shipments from and to the same origins and destinations applies when transit point is in a direct line, * *. In applying mileage rate, use that for distance via route traversed by shipment, except when short line rate is authorized in tariff covering shipment. Complainants, however, overlook the second provision of the item, which states that in applying distance rates the distance over the route traversed by the shipment should be used, except when the short-line rate is authorized in the tariff covering the shipment. The item does not state what rate shall be applied when the short-line rate is authorized, but item 95-A, in effect from April 26, 1926, to August 4, 1926, did. The latter item reads as follows: * Application of Mileage Rates on Transit Shipments.-Where mileage rates apply use same for distance via route traversed by shipment, except where other lines' short line rate is authorized in tariff covering shipment in which case apply rate figured via the shortest rate making route through the transit point. In the former report it was found that the exception embraced in the latter part of item 95-A did not apply because the rate tariff covering the shipments did not authorize the application of the short-line rate maintained by carriers other than defendants. This interpretation of the transit and rate tariffs must be modified. The rate tariff authorized the application of distance rates for the distance over rate-making routes, regardless of whether or not the carriers hauling the traffic are parts of those rate-making routes. Unquestionably, the rate over the rate-making route would have been applicable on shipments from Belva to Henrietta which were accorded transit at Alva, Cherokee, and Anthony, if the rate-making route was composed of lines of carriers other than the Santa Fe, Gulf, and Missouri-Kansas-Texas of Texas. The fact that the Santa Fe and Missouri-Kansas-Texas of Texas form parts of both the rate-making route and the route of movement is immaterial. The applicable rates under item 95-A from Belva to Henrietta were the rates under the distance scale for the distances over the shortest rate-making routes through the transit points. The distances from Belva to Henrietta over the shortest rate-making routes through Alva, Cherokee, and Anthony are 296, 307, and 365 miles respectively. Therefore, the applicable rates were those under the distance scale for those distances or 27, 28, and 30 cents on shipments accorded transit at Alva, Cherokee, and Anthony respectively. Effective August 5, 1926, the rule respecting the application of distance rates on transit shipments was changed to read as follows: *—APPLICATION OF MILEAGE RATES ON TRANSIT SHIPMENTS. (B)-Applies at points on the A. T. & S. F. Ry. only and on both direct and out of direct line haul-Where mileage rates are used, the rate on shipments given transit privileges shall be that shown in the mileage scale for the total distance traversed by the shipment (see exception). Exception. Where provision is made in tariff naming the rate for the application of the short line or short route rate via the transit point over longer lines or routes on direct shipments the rate on shipments given transit privileges shall be that shown in the mileage scale for the total short line or short route distance via the transit point from point of origin to final destination. Effective April 20, 1929, the exception was changed to read as set forth below: * * Where the tariff naming the applicable rate authorizes the short-line or short-route rate on non-transit shipments routed via longer lines or routes, the rate on transit shipments via such longer lines or routes shall be that shown for the total short-line or short-route distance via the transit point from origin to destination. The establishment of the above-quoted provision effective April 20, 1929, removed all doubt as to the application of the distance rates on shipments accorded transit at direct-line points. We find that the applicable rates were those under the distance rates for the total distance over the shortest route through the transit points embracing the lines or parts of lines of not more than three carriers by way of existing connections. It does not appear that defendants have collected charges in excess of those herein found applicable. In the former report, it was found that the rates assailed were in no instance higher than the rates prescribed as reasonable in the Oklahoma case for the distances over the routes of movement, and for that reason they were not higher than reasonable maximum rates. We concur in that view, and affirm the previous finding that the rates assailed were not unreasonable. As future rates will be determined in Grain and Grain Products, 164 I.C.C. 619, 173 I.C.C. 511, now pending upon further hearing, no finding will be made herein as to the reasonableness of the rates for the future. The facts and contentions of the parties with respect to the allegation of undue prejudice and preference are set forth in the former report and need not be repeated here. The complaint in no. 23901 did not assail the transit rules at Anthony and no finding should have been made as to the lawfulness of those rules under section 3 of the act. In all other respects, we affirm the findings of division 2, that the maintenance and application by defendants of their present transit rules and practices on shipments of grain, in carloads, from origins on their lines in Oklahoma and Texas, milled in transit at points in Oklahoma on the Santa Fe, and forwarded therefrom as grain products to destinations in Texas, which transit rules and practices are less favorable and result in higher through charges on that traffic than are contemporaneously applied by defendants on similar shipments from and to the same origins and destinations |