made for the purpose of eliminating fourth-section violations resulting from the maintenance of through rates to destinations in central territory that were higher from points in the southern part of northwest territory than from more distant points on the northern border of trans-Mississippi River territory. From both origin territories the through rates on grain to central territory are combinations of proportional or reshipping rates to and beyond intermediate ratebreak points, chiefly Minneapolis, Missouri River cities, and Chicago, Ill. The proportional rates beyond Chicago and other gateways taking Chicago rates are higher on grain from northwest territory than on grain from trans-Mississippi River territory. The combination through rates have been equalized by offsetting in the eastern factors the differences favoring northwestern grain in the components to Chicago rate points prescribed in Grain and Grain Products, 205 I. C. C. 301. The situation is fully described in Southwestern Millers' League v. Atchison, T. & S. F. Ry. Co., 225 I. C. C. 195, and 227 I. C. C. 795, wherein the Commission prescribed proportional rates east of Chicago and related gateways on grain from each of the origin territories.

The grounds relied upon by complainants to support their claims for reparation are of three classes, which may best be illustrated in connection with a statement of the rates charged and sought on representative shipments.

1. On a shipment from Kennebec, S. Dak., to Detroit, Mich., charges were collected at rates of 30.5 cents to Minneapolis, 13 cents Minneapolis to Milwaukee, Wis., and 15.5 cents beyond. Reparation is claimed based on the factors charged to Milwaukee plus the 11.5cent proportional rate then applicable beyond that gateway on traffic originating in trans-Mississippi River territory. When the shipment moved, Kennebec was listed in the tariffs as a point of origin in northwest territory and the 15.5-cent factor beyond Milwaukee was applicable thereon. Kennebec is on the line of the Chicago, Milwaukee, St. Paul and Pacific Railroad Company between Rapid City and Mitchell, S. Dak., both of which were and are listed as points in trans-Mississippi River territory. Shortly after the shipment originated, Kennebec was listed as in northwest territory. The through rate charged did not violate the fourth section; the rate contemporaneously maintained from Rapid City to Minneapolis of 36 cents exceeded the Kennebec-Minneapolis factor by more than the difference between the proportionals east of Milwaukee. Complainants take the position that Kennebec should have been in trans-Mississippi River territory at the time of the movement, and that it was unreasonable and unduly prejudicial to charge on a shipment from Kennebec a higher factor covering the haul beyond Milwaukee than

was concurrently applicable for the same haul on a shipment from Rapid City moved through Kennebec and Mitchell.

2. On a shipment from Litchfield, Minn., in northwest territory, to Cleveland, Ohio, the combination rate charged was 41.5 cents, being the sum of 9.5 cents to Minneapolis, 13 cents Minneapolis to Chicago, and 19 cents beyond. When the shipment moved, the through rate from Garretson, S. Dak., in trans-Mississippi River territory, applicable through Litchfield, Minneapolis, and Chicago to Cleveland, was 39.5 cents, composed of 26.5 cents to Chicago and 13 cents beyond. Complainants rely upon the presumption of unreasonableness growing out of the fourth-section violation disclosed and ask reparation based on the rate from Garretson.

3. A shipment from Wasta, S. Dak., then in northwest territory, to Cleveland was charged a through rate of 68 cents, which included the 19-cent proportional rate beyond Chicago. The contemporaneous rate from Underwood, S. Dak., immediately west of Wasta in transMississippi River territory, applicable through Wasta, Minneapolis, and Chicago, was 65 cents, the factor east of Chicago being 16 cents. Wasta and other points on the line of the Chicago and North Western Railway Company between Rapid City and the Missouri River now are listed in the tariffs as points in trans-Mississippi River territory. In this instance a violation of the fourth section existed when the shipment moved, and the point of origin subsequently was included in trans-Mississippi River territory. Complainants ask reparation based on the through rate from Underwood.

All of the factors of the through rates assailed were prescribed or approved by the Commission in the proceedings cited. Complainants do not attack any of the proportional rates as such. They concede that there were and are no fourth-section violations in the rates up to Chicago or Chicago rate points and urge that the unlawfulness alleged is due entirely to the application on their shipments of proportional rates east of Chicago rate points higher than those applicable beyond the same gateways on shipments originating in trans-Mississippi territory. In Southwestern Millers' League v. Atchison, T. & S. F. Ry. Co., supra, the Commission considered that situation and required the continuance of separate proportional rates east of Chicago rate points in prescribing bases of reasonable and nonprejudicial rates from Minneapolis and Mississippi River cities to central territory.

In Fraser-Smith Co. v. Grand Trunk W. Ry., 185 I. C. C. 57, the proportional rates charged from Milwaukee to Detroit on carload shipments of barley originating at Minneapolis were assailed in one complaint as being inapplicable, unreasonable, and unduly prejudicial. In two other complaints disposed of in that proceeding,

through combination rates on wheat from points in northwest territory to Michigan and Ohio destinations were alleged to be unreasonable and unduly prejudicial to the extent that the factors thereof applicable east of Chicago rate points exceeded the proportional rates applicable east of the same gateways on wheat originating in trans-Mississippi River territory. The evidence disclosed, at points on the southern border of northwest territory, fourth-section departures similar to those shown in the instant proceeding, and it was suggested that existing violations should be removed promptly. Division 2 there stated that the proportional rates on wheat from Missouri River points and from Minneapolis to destinations in central territory were then before the Commission in Southwestern Millers' League v. Atchison, T. & S. F. Ry. Co., supra; that it could not require changes in the factors of the through rates assailed, when the obvious effect of such action would be to create undue preference of complainants through the corresponding changes in the combinations of which the factors assailed were a part; and that defendants had rebutted the presumption of unreasonableness arising from the existence of the fourth-section departures. The division found the rates assailed applicable and not unreasonable or unduly prejudicial, and dismissed the complaints. Similar conclusions are warranted upon the record herein.

With a single exception, the fourth-section departures referred to by complainants have been removed since the cited proceedings were decided. An examination of the tariffs shows that Pierre, S. Dak., is the only origin named in the complaints from which the present rates to central territory exceed those from more distant points to which it is intermediate. From Pierre to Columbus, Ohio, for example, the through rate is 52.5 cents, the factors being 23 cents to Minneapolis, 13 cents Minneapolis to Chicago, and 16.5 cents beyond. From Fort Pierre, S. Dak., the corresponding through rate and factors are 50.5, 24, 13, and 13.5 cents, respectively. Pierre, on the east bank of the Missouri River, is in northwest territory, while Fort Pierre, on the west bank of the river, is in trans-Mississippi River territory. This situation does not appear to be protected by an appropriate application or order and should be corrected promptly.

We find that the rates assailed were not and are not unreasonable or unduly prejudicial. The complaint will be dismissed.

235 I. C. C.

FOURTH SECTION APPLICATION NO. 176101

FRUIT AND VEGETABLE CONTAINERS IN SOUTH AND

SOUTHWEST

Submitted September 19, 1939. Decided November 28, 1939

Authority granted, on conditions, to establish and maintain rates on wooden fruit and vegetable shipping baskets and hampers, and on fiberboard till baskets or till boxes, or fiberboard inner box or crate material, in straight or mixed carloads, or in mixed carloads with box and crate material, as provided in the application, within and from points in southern and southwestern territories, without observing the long-and-short-haul provision of section 4 of the Interstate Commerce Act.

F.B. Clark, G. H. Braun, E. A. Rouse, W. J. Lindsay, L. A. Kienzle, J. I. Bonner, H. W. Mason, and J. G. Kerr for applicants.

REPORT OF THE COMMISSION

DIVISION 2, COMMISSIONERS AITCHISON, SPLAWN, AND CASKIE BY DIVISION 2:

These applications present related issues and will be disposed in one report.

Respondents in Fruit and Vegetable Packages in the South and Southwest, 229 I. C. C. 666, and other carriers parties to Agent E. H. Dulaney's Southern Classification I. C. C. No. 71, apply for authority to establish and maintain on wooden fruit and vegetable shipping baskets and hampers, in straight carloads, or in mixed carloads with box and crate material, without observing the long-and-short-haul provision of section 4 of the Interstate Commerce Act, rates constructed on the basis prescribed in Fruit and Vegetable Packages in the South and Southwest, supra, as follows:

In No. 17610, (a) between points in southern territory; (b) between points in southern territory and points in Illinois territory; and (c) from points in southern territory to points in southwestern, western trunk-line, and intermountain territories and points in Arizona and New Mexico.

In No. 17638, (a) between points in southwestern territory including New Mexico, and (b) between points in southwestern territory and New Mexico and points in western trunkline, intermountain, Illinois, official, and southern territories.

This report also embraces fourth-section applications No. 17638 and No. 18035.

In No. 18035, from, to, and between the points described in No. 17610, on fiberboard till baskets or till boxes or fiberboard inner box or crate packing parts, in mixed carloads with box and crate material, or in mixed carloads with baskets and hampers and box or crate material, the quantity of fiberboard till baskets, boxes, or inner packing parts not to exceed that necessary to equip the number of boxes or crates which may be assembled from the material which they accompany.

Relief was authorized temporarily by fourth-section orders No. 13313, as supplemented, and No. 13317. Applications No. 17610 and No. 17638 were heard on one record. No. 18035 was filed after the hearing. Rates will be stated in amounts per 100 pounds.

In Fruit and Vegetable Packages in the South and Southwest, supra, rates and carload minima there proposed on wooden fruit and vegetable shipping baskets and hampers, in straight carloads, or in mixed carloads with box and crate material, within the South, within the Southwest, and between the South and the Southwest, and between points in the Southwest and points in western trunkline, Illinois, and central territories, were found unduly preferential of certain shippers and unduly prejudicial to other shippers, and unreasonable to the extent that they exceed, or may exceed, rates on baskets and hampers, in straight carloads, made 25 percent over the rates on box and crate material between the same points, and charges on baskets and hampers, in mixed carloads with box and crate material, computed by applying the carload rates to the actual weights of the respective commodities, any deficiency to be charged for at the box and crate material rate, subject to minima shown in finding (1) (a) of the report.

The relief prayed herein is for the purpose of enabling the applicants to establish rates in conformity with the findings in Fruit and Vegetable Packages in the South and Southwest, supra, and to establish rates on the same basis from or to points in adjacent territories not embraced in those findings; to apply such rates over all available routes while maintaining higher rates from, to, and between intermediate points on direct and indirect routes; and, in addition, to establish on fiberboard till baskets, boxes, and inner packing parts, from, to, or between the points specified in No. 17610, rates the same as those on fruit and vegetable baskets and hampers. These articles are sold in competition with each other. In Fiberboard Products Mixed with Wooden Box Material, 219 I. C. C. 655, division 2 authorized applicants therein to maintain on fiberboard baskets, boxes, and inner packing parts, in mixed carloads with wooden box or crate material, rates the same as those contemporaneously in effect on lumber from and to the same points.