With the sole exception of rates from Cincinnati-Louisville, every rate and rate relation in the above table was either specifically prescribed or approved by us as nonprejudicial in one or more of our prior decisions enumerated herein, and, again excepting rates from Cincinnati-Louisville and possibly Evansville, they are the rates and differentials proposed by the eastern carriers and prescribed in OhioKy. Associated Industries v. Ahnapee & W. Ry. Co., supra, as subsequently increased 10 percent under authorized general increases in rates. In making their proposal in that proceeding, the eastern carriers stated that the proposed rates from Ashland-Portsmouth would be in harmony with existing brick rates in central territory, including rates prescribed in the General Brick case. It must therefore be assumed that the central carriers also felt that their proposed rates from Ashland-Portsmouth would likewise be in harmony with the then existing rates from Chicago, Danville, Evansville, and St. Louis, and that a proper relation of rates from Ashland-Portsmouth and other points in the Canton group, as subsequently increased 10 percent, would be the present differentials of 93 cents higher from AshlandPortsmouth than from Evansville to all of the destination territory and 93 and 121 cents, respectively, higher than from St. Louis to the eastern and western portions of that territory. As the rates from Cincinnati-Louisville were made the same as those from St. Louis to Chicago in the Davis case, and the distance from Cincinnati-Louisville to Chicago is practically identical with those from Evansville and St. Louis to Chicago, there appears to be no good reason why the rates from Cincinnati-Louisville should not reflect a parity of rates with St. Louis to the eastern part of the destination territory and rates 28 cents higher than from St. Louis to the western part, thereby harmonizing the rates from Cincinnati-Louisville with existing rates from Danville-Attica, Chicago, Evansville, and St. Louis.

We affirm the finding in the prior report that the rates from Cincinnati-Louisville are not shown to be unreasonable. We further find that the relationship of the rates assailed on firebrick to the destination territory covered by the complaint, hereinbefore described, for the

future will be unduly prejudicial to complainants at Cincinnati and Louisville and unduly preferential of their competitors at St. Louis, and points grouped therewith, to the extent that it is less favorable to complainants, in amounts per ton of 2,000 pounds, than would result on basis of the rates and rate relations specified in the table below:

These points are in the western portion of the destination territory. The division of the destination territory into two groups, designated as the eastern territory and the western territory, respectively, and described in footnote 3, page 582 of the prior report, will be followed in checking in the rates prescribed herein. Rates to the western territory will be 28 cents less from St. Louis than from Cincinnati-Louisville.

Defendants will be expected, concurrently with the establishment of the rates required by the foregoing findings, to adjust the rates to other points in the above destination territory in harmony with the basis prescribed to representative destinations.

An appropriate order will be entered.

COMMISSIONERS AITCHISON, PATTERSON, and JOHNSON dissent.

COMMISSIONER LEE did not participate in the disposition of this proceeding.

256 I. C. C.

FOURTH SECTION APPLICATION No. 195581

CEMENT, LIME, AND MORTAR FROM CENTRAL
TERRITORY

Submitted December 3, 1942. Decided August 9, 1943

Authority to establish and maintain a mixture rule for application on cement, lime, and dry building mortar, shipped in mixed carloads from origins in Indiana and Ohio to destinations in southern territory, without observing the long-and-short-haul provision of section 4 of the Interstate Commerce Act,

denied.

Ralph M. Buzek for applicants.

J. H. Uptegrove for intervener.

REPORT OF THE COMMISSION

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

Carriers parties to Agent B. T. Jones' tariffs I. C. C. Nos. 3504 and 3641 apply for authority to establish and maintain on cement, common, hydraulic, masonry, mortar, natural or portland, lime or dry building mortar, in mixed carloads, rates 2 from producing points in Indiana and Ohio as shown in the above tariffs, to destinations in southern territory, without observing the long-and-short-haul provision of section 4 of the Interstate Commerce Act. Relief was authorized temporarily by fourth-section order No. 14529, as amended. A hearing was held on application No. 19558. That application was supported by the Louisville Cement Company, a manufacturer of these commodities at Milltown and Speeds, Ind. There was no opposition.

The rates on cement and mortar from these origins to destinations in southern territory are based on the appendix B scale of rates, hereinafter referred to as the cement scale, prescribed by the Commission in Southern Cement Rates, 132 I. C. C. 427;3 on lime, they are based on the distance scale prescribed by division 2 in National Mortar & Supply Co. v. Pennsylvania R. Co., 216 I. C. C. 75, from certain points in Ohio to destinations in southern territory and from and to certain points in the South. Fourth-section relief in connection with the

1 This report also embraces fourth-section application No. 20129.

* Application No. 19558 concerns rates on the named commodities except masonry and mortar cement, and application No. 20129 involves rates on masonry and mortar cement in mixed carloads with the other commodities described.

Subsequent reports, 139 I. C. C. 484, 147 I. C. C. 303, 155 I. C. C. 339, 176 I. C. C. 747, 188 I. C. C. 602, and 243 I. C. C. 365.

cement and mortar rates is provided by fourth-section order No. 9674, entered in Southern Cement Rates, supra, and, in connection with the lime rates, by fourth-section order No. 12759, entered in Lime from Central Territory to the South, 222 I. C. C. 167. Shipments of these commodities, in mixed carloads, within official territory generally and from Indiana and Ohio to southern territory, usually are governed by rule 10 of the consolidated freight classification. This rule provides that charges shall be based on the straight carload rate applicable on the highest-rated article in the mixture and the highest minimum weight provided for any article in the car.

The applicants propose here to substitute, for rule 10, the rule set forth below, for application over their existing routes from the defined origins to destinations in southern territory; to provide for charges from intermediate origins by a rule as authorized by rule 27 of Tariff Circular 20; and to continue to apply the provisions of rule 10 to intermediate destinations in official territory. The rule proposed to southern territory is as follows:

Cement, common, hydraulic, masonry, mortar, natural or portland, lime or dry building mortar may be shipped in mixed carloads, subject to highest carload minimum weight (See Note 1) applicable on any commodity included in the mixed carload. The carload rate will be charged on the actual weight of each commodity and the deficit necessary to make up the required minimum weight will be charged for at the highest rate assessed on any of the commodities.

NOTE 1.-Where alternative rates and minimum weights apply on lime, the charge for the weight of lime in the mixed carload shall be obtained by use of the rate applicable thereon at the lowest minimum weight except that the charge for the lime shall not exceed that which would be assessed if taken as a straight carload.

The carload rates on cement and mortar within southern territory and from points in trunk-line territory to southern territory are likewise constructed according to the cement scale. The rates on lime within southern territory are determined by a distance scale which produces slightly lower rates than the one used from Indiana and Ohio to the South. Mixed carload shipments of these commodities within the South and from the named trunk-line points to the South are governed by rules similar to that proposed here to the South. A similar rule in effect from the named points in trunk-line territory to southern territory is observed at intermediate points in the former territory over certain routes from Riverton, Hagerstown, and Security. Rule 10 applies over other routes from Hagerstown and Security and from the other named points, except Riverton, to intermediate points in that territory, the resulting departures having been

'Riverton, Va., Engle, Martinsburg, and Millville, W. Va., and Grove, Hagerstown, and Security, Md.

562949m 44-vol. 256-12

authorized by us in Cement, Lime, and Mortar from Official Territory, 248 I. C. C. 211.

The Indiana and Ohio manufacturers compete, or desire to compete, at the southern destinations with producers in southern territory and at the named points in trunk-line territory, and the relief sought is based primarily upon this ground.

It is indicated that, based on hypothetical mixtures of these materials, in carloads, from several origins in Indiana and Ohio to several southern destinations, the proposed change in rules would result in reductions in charges ranging from $0.37 to $7.70 per car; and that, to destinations in Kentucky and Tennessee, to which the distances from these points are substantially the same as those from producing points in the South, such as Kosmosdale, Ky., Chattanooga and Jellico, Tenn., or Landmark, Ala., the resulting charges would be substantially the same as those on similar mixtures from the competing southern points. It appears, however, that the proposed change in rules to these destinations could be accomplished without creating fourth-section departures. As a matter of fact, so far as applicants were able to find, the only situation in which the change in rules would create departures would be from Mitchell, Ind., to a limited section of Virginia, represented by La Crosse as the more-distant point and Alberta as the higher-rated intermediate point, in southern and official territories, respectively, to which the distances are, respectively, 724 and 706 miles from Mitchell. On a shipment containing, for example, a mixture of 10,000 pounds of cement, 10,000 pounds of mortar, and 30,000 pounds of lime, the charges under the present rule would be $150 to both destinations; while, under the proposed arrangement, the charges to La Crosse would be $147.45, reflecting a reduction of $2.55, and those to Alberta would remain unchanged.

In the circumstances of record, it appears that it would be feasible to establish charges based on the proposed rule from the Indiana and Ohio origins to southern territory and to observe such charges as maxima to intermediate points in official territory without any serious disturbance of the present rates and charges to intermediate points in official territory. We, therefore, conclude that applicants have shown no real need for the relief prayed.

An order will be entered denying the applications.

256 I. C. C.