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The evidence shows that the trucks have advantages over the railroads in the way of faster service, lower minima, and less expense to the shipper in loading and unloading. For these reasons I think that minimum truck rates should be on the basis of 1 cent over the rail rates above shown. The foregoing rates would also, in my opinion, result in a proper rate relation among the points involved. I believe also that rates approximately on the level of those above shown are necessary in order to conform with the provisions of the law hereinabove set forth and that such rates give due weight to cost of service, value of service, and all other elements that should enter into the disposition of these proceedings.

I am authorized to state that COMMISSIONER CASKIE joins in this dissent.

COMMISSIONER ROGERS dissents.

235 I. C. C.

No. 27624

COLUMBUS FREIGHT BUREAU v. ATLANTA, BIRMINGHAM & COAST RAILROAD COMPANY ET AL.

Submitted September 15, 1939. Decided January 10, 1940

Rates on gasoline and kerosene, in carloads, from Mobile, Ala., and New Orleans, La., to Columbus, Ga., not shown to be unduly prejudicial. Complaint dismissed.

J. Ralston Cargill for complainant.

L. L. Oliver and Charles P. Reynolds for defendants.

William F. Black for Alabama Public Service Commission, intervener.

REPORT OF THE COMMISSION

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

Exceptions were filed by complainant to the report proposed by the examiner.

Complainant, organized to promote the transportation interests of Columbus, Ga., alleges that the rates on gasoline and kerosene, in carloads, from Mobile, Ala., and New Orleans, La., and points taking the same rates, to Columbus are, as compared with lower rates on like traffic from the same origins to certain destinations in Alabama, unduly prejudicial to Columbus and unduly preferential of the Alabama points. Complainant asks us to prescribe lawful rates for the future. The Alabama Public Service Commission intervened at the hearing but introduced no evidence. Several producers, refiners, and shippers of petroleum and petroleum products also intervened. but were not represented at the hearing. Rates will be stated in cents per 100 pounds.

From September 1938 to April 1939, inclusive, the movement by rail of petroleum products, mostly gasoline, to Columbus, as shown by defendants, amounted to 390 cars, of which 9 moved from Mobile and 377 from Panama City, Fla. None is shown to have moved from New Orleans or other points taking the same rate.

The present rate from the New Orleans-Baton Rouge group to Columbus is 45 cents. This rate became effective March 28, 1938, and represents the authorized general increase of 10 percent. Prior

to that date the rate was 41 cents and was prescribed as a key-point rate in Petroleum and Its Products, 171 I. C. C. 286. On March 15, 1932, the carriers established a rate of 37 cents on petroleum and its products from Mobile to Columbus, in purported compliance with the findings in that proceeding. The present rate, which became effective April 5, 1939, is 29 cents and was established voluntarily by defendants to meet water and truck competition.

Complainant concedes that the assailed rates are not in excess of reasonable maxima. It contends that defendants maintain on like traffic from the same origins to points in Alabama rates substantially below the basis prescribed to those points in the above-entitled proceeding, and give to the Alabama points rate preferences which result in the alleged undue prejudice against Columbus.

In the following table, compiled from exhibits of record, are shown the rates prescribed in Petroleum and Its Products, supra, and the present rate to Columbus and the alleged preferred points, together with the short-line distances from New Orleans and Mobile.

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Columbus is in west central Georgia, near the Alabama State line. Opelika is about 29 miles northwest of Columbus. The other Alabama destinations are much farther west or north of Columbus.

As proof of the alleged undue prejudice, complainant relies entirely upon the rate differences against Columbus and in favor of the Alabama points, shown in the above table. It is well settled that undue prejudice is not proven by a mere showing of differences in rates for similar distances. It is not shown to what extent, if at all, dealers in these commodities at Columbus compete with dealers at the alleged preferred points. Nor was any evidence presented to indicate that the lower rates to the Alabama points have any adverse effect upon shipments to Columbus. Ordinarily, the evidence must establish that the alleged prejudice and preference constitute a source of undue disadvantage to one party and of undue advantage to another. The evidence in this proceeding does not meet these requirements.

Nevertheless, complainant takes the position that no proof, in addition to a showing of a disparity of rates, is necessary where, as here, reasonable rates were prescribed and established to both Columbus and the Alabama points and the disparity was brought about by the voluntary establishment by the carriers of rates lower than those prescribed to the Alabama points while they continued to maintain rates on the prescribed basis to Columbus. This argument fails to take into consideration the fact that the rates to these points were prescribed as maxima and not minima. Carriers are free to establish and maintain rates lower than those prescribed, provided the reduced rates do not result in undue preference and prejudice.

Although the complaint does not allege a violation of the long-andshort-haul provision of section 4 of the Interstate Commerce Act, complainant directs attention to the fact that over one route Columbus is intermediate to Opelika on traffic from New Orleans. That departure is authorized by fourth-section order. The reduced rates to the Alabama points were established for the purpose of enabling the rail carriers to meet competition over available water routes to river landings in Alabama and distribution by motor carrier to inland points. They were authorized in Gasoline to River Points in Alabama, 194 I. C. C. 79, and Gasoline and Kerosene to River Ports in Alabama. 216 I. C. C. 127, where the competitive influences, both water and truck, were fully described. According to defendants, rates on petroleum products were reduced only at points where competition was definitely established. It is not shown that any competition is encountered at Columbus on gasoline and kerosene from either Mobile or New Orleans.

On exceptions complainant emphasizes an agreement reached with representatives of the carriers after the complaint herein was filed, under which defendants promised voluntarily to establish reduced rates from New Orleans to Columbus. Agreements between carriers or their agents are of no legal effect in determining the lawfulness of assailed rates, and the Commission has no power to enforce the performance of such agreements.

We find that the assailed rates have not been shown to be unduly prejudicial. The complaint will be dismissed.

235 I. C. C.

INVESTIGATION AND SUSPENSION DOCKET No. 4658
JUTE YARN FROM EDGE MOOR, DEL., TO
THOMPSONVILLE, CONN.

Submitted September 29, 1939. Decided January 10, 1940

Proposed reduced rate on jute yarn, in carloads, from Edge Moor, Del., to Thompsonville, Conn., and from and to intermediate points, found justified. Order of suspension vacated, and proceeding discontinued.

John B. Prizer for respondents.

T. C. Crouch for protestant.

REPORT OF THE COMMISSION

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

By schedules filed to become effective June 26, 1939, respondents, The Pennsylvania Railroad Company and The New York, New Haven and Hartford Railroad Company, hereinafter called the Pennsylvania and the New Haven, respectively, proposed to establish a reduced rate on jute yarn, in carloads, from Edge Moor, Del., a point on the Pennsylvania, to Thompsonville, Conn., a point on the New Haven, and from and to intermediate points. Upon protest of the Middle Atlantic States Motor Carrier Conference, Incorporated, operation of the schedules was suspended until January 26, 1940. Subsequently respondents voluntarily deferred their effective date until the termination of this proceeding. Rates will be stated in cents per 100 pounds.

Jute yarn is made from jute fiber imported from India and is used primarily in the manufacture of carpets. When shipped it is wound on tubes and packed in burlapped bales. Its present market value ranges from 13 to 15 cents per pound, but the bulk of the sales are made at 13 cents. In official-classification territory jute yarn, in carloads, is rated fourth class, minimum 30,000 pounds. That rating is 50 percent of first class.

The present rate on jute yarn from Edge Moor to Thompsonville, short-line distance 268 miles, is the fourth-class rate of 46 cents, minimum 30,000 pounds. That rate does not apply from and to intermediate points. The proposed rate is a commodity rate of 32 cents, minimum 38,000 pounds, and is subject to intermediate application at points of origin and destination. That rate is 34.8 percent of first class and is the equivalent of the fifth-class rate. The motor-carrier rate for the

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