they were published to points to which it was thought the movement would justify them. The rates to the river crossings are low. For example, the rate from Bertrand to Cairo is 12 cents, only 17.6 percent of the first-class rate of 68 cents. The eastern lines say that the Missouri Pacific initiated the 20,000-pound minimum in connection with the joint rates on July 12, 1933, without their authority, and the other two Missouri orginating lines followed its action. The reason given by shippers at that time for seeking the reduction in minimum was that they desired to use refrigerator cars, and that these could not be safely loaded beyond 20,000 pounds. The evidence leads clearly to the conclusion that refrigerator cars cannot be loaded as heavily as ventilator cars or livestock cars with equal safety to the watermelons.

In Watermelons from, to, and between Southern Points, 191 I. C. C. 435, 441, the average loading of watermelons in the South, moving in 36-foot ventilator cars, was given as approximately 27,000 pounds. The minimum weight on watermelons from Florida, Georgia, Alabama, and the Carolinas to central territory is said to be 24,000 pounds or higher. Early in 1933 the southwestern lines proposed reduction of the minimum to 20,000 pounds on through movements from the Southwest to official territory, but carriers in the latter territory refused to concur.

In Southwestern Vegetable Case, 200 I. C. C. 355, the Commission prescribed rates and minimum weights as follows: Cabbage, column 30 (meaning 30 percent of the first-class rates), 24,000 pounds; onions, column 35, 24,000 pounds; beets, carrots, and turnips, without tops, column 35, 24,000 pounds; cantaloupes, column 35, 20,000 pounds; green corn, cucumbers, and eggplant, column 40, 24,000 pounds; beets, carrots, and turnips, with tops, column 40, 20,000 pounds; tomatoes and peppers, column 42.5, 20,000 pounds; and lettuce, column 45, 16,000 pounds. In Southeastern Vegetable Case, 200 I. C. C. 273, the Commission prescribed the following rates and minimum weights: Cabbage, column 35, 24,000 pounds; celery, column 42.5, 20,000 pounds; lettuce, column 45, 16,000 pounds; green corn, cucumbers, and eggplant, column 45, 24,000 pounds; beets, carrots, and turnips, with tops, tomatoes, and peppers, column 45, 20,000 pounds. It will be observed that the articles subject to a minimum of 20,000 pounds or less generally take relatively higher ratings than those subject to higher minima.

Under official classification, bananas, rated third class, and fresh grapes, fresh peaches, and fresh domestic fruits, n. o. s., rated second class, are subject to a minimum of 20,000 pounds. Of the total of 5,867 carload items in official classification, 2,303 are rated fifth

class. Of the latter, only 2 items are subject to a minimum of 18,000 pounds, only 48 to a minimum of 20,000 pounds, and the remainder are subject to minima ranging from 24,000 to 50,000 pounds.

Annual claim payments of the New York Central system lines (except the Boston and Albany Railroad) for the years 1932-35 ranged, on watermelons, from 11 to 17.6 percent of the freight revenue thereon; on cantaloupes, and melons, n. o. s., from 4.2 to 8 percent; oranges and grapefruit, 2.4 to 3.1 percent; apples, 4.7 to 10.5 percent; bananas, 0.5 to 2.1 percent; fresh grapes, 4 to 5.5 percent; fresh peaches, 6.1 to 20.2 percent; domestic fresh fruits, n. o. s., 5.1 to 11.3 percent; tomatoes, 10.4 to 13.5 percent; and vegetables, n. o. s., 6 to 7.8 percent.

Section 3 of the act provides, among other things, that it shall be unlawful to subject any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever. Ultimate destinations are not known at the time the watermelons are shipped. The perishable nature of this traffic necessitates prompt loading and shipment of melons upon maturity, and the prevailing trade practices require the finding of purchasers after the shipments are in transit. The maintenance of the two minima subjects shipments of less than 24,000 pounds to an undue disadvantage when offered for reconsignment to a destination to which the rate is subject to a minimum of 24,000 pounds.

We find that the minimum weight assailed and the rates and charges based thereon are not unreasonable, but that the maintenance of a minimum of 20,000 pounds on watermelons to some central-territory destinations from points in Missouri in groups 1 to 5, inclusive, as published in Missouri Pacific Railroad Company tariff I. C. C. no. A-8659, to central-territory destinations from points in Missouri in groups 1 to 6, inclusive, as published in St. Louis-San Francisco Railway Company tariff I. C. C. no. 10033, and to centralterritory destinations from points in Missouri as published in St. Louis Southwestern Railway Company tariff I. C. C. no. 4850, while maintaining a minimum of 24,000 pounds from the same origins to other destinations in central territory and to Ashland and Lexington, Ky., and Cumberland, Md., is and for the future will be unduly prejudicial. An order requiring the removal of the undue prejudice and preference will be entered.

There is no such proof of damage under section 3 of the act as is required to support an award of reparation.

No. 27091 (Sub-No. 1).-The two cars from Bertrand covered by this complaint were shipped August 20, 1934, over the Missouri Pacific to Dupo. On August 21 they were reconsigned to Des Moines, Iowa, with routing specified via St. Louis, Mo., and the line of the Wabash Railway Company. Complainant on August 26 reconsigned

them to Tolerton & Warfield Company at Sioux City, over rails of the Chicago, Burlington & Quincy Railroad Company. The iatter reconsigning instructions requested protection of the through rate from Bertrand. On the same day complainant was advised by the Wabash that there was no through commodity rate over the route requested and that class C rate of 52 cents would apply, and he thereupon authorized forwarding at the class rate. Charges have been collected at the 52-cent rate, minimum 24,000 pounds.

There was in effect at the time a commodity rate of 43.5 cents, minimum 20,000 pounds, applicable over 11 routes, including Missouri Pacific to St. Louis, Kansas City, Mo., or Omaha, Nebr., thence Chicago, Burlington & Quincy; Missouri Pacific to South Omaha or Omaha, Nebr., thence Chicago & North Western Railway; Missouri Pacific, South Omaha, thence Chicago, Milwaukee, St. Paul & Pacific Railroad; and Missouri Pacific, Omaha, thence Chicago, St. Paul, Minneapolis & Omaha Railway. The rate did not apply to destinations on the Chicago, Burlington & Quincy over any routes involving use of an intermediate carrier. Defendants contend that there was and is no necessity for additional routes.

Reasons given by the defendants for establishment of the 20,000pound minimum in the West in connection with commodity rates are to encourage movement to smaller communities where the population is insufficient to consume 24,000 pounds, to invite movements by rail rather than by trucks, and to encourage movement in refrigerator cars. While it is possible to load 24,000 pounds in refrigerator cars, the origin lines believed reduction in the minimum would reduce damage claims.

The distance over route of movement was 832 miles. The rate of 52 cents at minimum of 24,000 pounds, and the rate sought of 43.5 cents, minimum 20,000 pounds, respectively, produce revenues of $124.80 and $87 per car, 15 and 10.5 cents per car-mile, and 12.5 and 10.4 mills per ton-mile. Over the Missouri Pacific and Chicago, Burlington & Quincy, with interchange at St. Louis, Kansas City, and Omaha, the respective distances are 755, 767, and 791 miles, and the respective revenues at the 43.5-cent rate, minimum 20,000 pounds, which produces $87 per car, are 11.5, 11.4, and 11 cents per car-mile and 11.5, 11.3, and 10.9 mills per ton-mile.

The line of the Missouri Pacific extends to Omaha. To require the establishment of a joint rate by way of St. Louis and the Wabash would short haul the Missouri Pacific. The route giving that company its long haul is shorter than the route over which complainant's shipments moved.

When the shipments moved, the first-class rate, Bertrand to Sioux City was $1.73, and on August 20, 1935, it was increased to $1.77,

both rates having been prescribed in the western trunk-line class-rate investigation. The present class C rate, 30 percent of first class, is 53 cents. The 43.5-cent rate was 25.1 percent of the former firstclass rate, and is 24.6 percent of the present first-class rate.

Complainant also alleged an overcharge on these shipments by reason of failure to make a dunnage allowance of 500 pounds per shipment. The commodity tariff does provide for such an allowance, but there is no tariff provision for a dunnage allowance in connection with the applicable class rate.

Upon exceptions complainant asserts that the instant proceeding is identical with A. Jacob & Co. v. New York Central R. Co., 211 I. C. C. 278. That proceeding involved, inter alia, the rate on a carload of peaches from Model City, N. Y., consigned to St. Louis, routed over lines of the New York Central Railroad Company to Toledo, Ohio, and Wabash Railway Company beyond. While on tracks of the latter at Toledo the car was reconsigned to Detroit, Mich. The applicable rate was a combination of 80 cents based on Toledo. There were eight available routes from Model City to Detroit at a joint rate of 49 cents, 60 percent of the first-class rate, three of which are south of Lake Erie. Complainant sought an additional one over the route of movement. The distance over the latter route is 391 miles, and the direct route is 379.5 miles. The logical route between these points is through Canada, north of Lake Erie. Division 2 found that allegation of undue prejudice was not sustained and that, as other routes were available, no finding for the future was necessary, but it found the assailed rate unreasonable to the extent that it exceeded 49 cents, and awarded reparation. Complainants there relied upon State of New York v. New York Central R. Co., 178 I. C. C. 351, in which division 3 found that rates on fresh peaches from points in New York to destinations throughout official territory (exclusive of Wisconsin) should not exceed 60 percent of first-class rates. The charges on the shipments herein were based on the normal joint through class rate, 30 percent of first class, and not a combination. No lower basis has been prescribed.

We find that the rate, charges, and minimum weight assailed have not been shown to be unreasonable or unduly projudicial.

An order dismissing the complaint will be entered.

MCMANAMY, Commissioner, dissenting in part:

The essence of the complaint here is that the minimum of 24,000 pounds maintained to some destinations could not be loaded in refrigerator cars, which on occasion were and are the only cars available for this traffic. This practice in my opinion was not only unduly prejudicial but also unreasonable, and palpably so. Like

practices were condemned by us as long ago as 1907 when in Wiemer & Rich v. Chicago & N. W. Ry. Co., 12 I. C. C. 462, the Commission said:

It is not reasonable that carriers unable to supply shippers with sufficient cars of large or average capacity should make such minimum loading requirements as can not be practically complied with as to the smaller cars, in order that they may obtain as much earnings from shipments therein as from those in the larger and superior cars. Absolute equality in every particular is impracticable in many cases, but there can and should be reasonable approximation to substantial or relative equality in all matters.

See also R. W. Davis Co. v. Minneapolis, St. P. & S. S. M. Ry Co., 194 I. C. C. 355, and Folly Town Co. v. Erie R. Co., 120 I. C. C. 157, therein cited.

It is plain that the injury suffered by complainant is a particularly aggravated one because under the practices of the trade the shipper does not know at the time the shipments are loaded whether the final destination will be a point to which the higher or the lower minimum will apply. It would seem that merely in the interest of good management and aside from any legalistic standpoint defendants should at once set about correcting such a situation.

The finding in the report permits reducing the minimum uniformly to 20,000 pounds or increasing it uniformly to 24,000 pounds. If the latter alternative is followed, then manifestly the injury suffered by complainant will be further aggravated because he will then be under the necessity of paying to all destinations on a minimum impossible to load whereas he now pays on such a minimum only to some of the destinations.

In my opinion the assailed minimum should be found unreasonable and unduly prejudicial to the extent that it exceeded or may exceed 20,000 pounds, and reparation should be awarded accordingly.

219 I. C. C.