of the Utah Railway, Union Pacific, and Utah Idaho Central; and 44 over lines of the Utah Railway and Union Pacific. From Union 3 shipments moved over lines of the Utah Railway, Union Pacific, Bamberger Electric, and Utah Idaho Central, and 6 over lines of the Utah Railway, Union Pacific, and Utah Idaho Central. Charges were collected on the described shipments at the applicable rate of $1.75 and an emergency charge of 15 cents. The contemporaneous rate on slack coal, in carloads, from the same points to Lewiston was $1.75. No emergency charge applied in connection with the Lewis

ton rate.

The emergency charge referred to was authorized by this Commission and was established April 18, 1935. On August 17, 1935, the Public Utilities Commission of Utah denied the petition of carriers operating within that State for authority to establish corresponding emergency charges on Utah intrastate traffic, including slack coal. Thereupon defendants, with other carriers in this territory, filed a petition with this Commission under section 13 (4) of the Interstate Commerce Act. In Emergency Freight Charges Within Utah, 213 I. C. C. 249, decided December 9, 1935, the Commission found the rates or charges on Utah intrastate traffic unduly preferential and prejudicial by reason of the failure to include in such rates the emergency charges authorized on interstate traffic. Slack coal was specifically excepted from those findings. Effective April 5, 1936, defendants canceled the emergency charge on slack coal to Whitney. Complainant does not assail the reasonableness of the basic rate or the emergency charge, as such. It contends that the payment of the applicable emergency charge on the shipments to Whitney, when, contemporaneously, a like emergency charge did not apply on like intrastate traffic to Lewiston, subjected complainant to undue prejudice and resulting damages. No evidence was submitted in support of the allegation of unreasonableness and it will not be further considered.

Complainant purchases its coal at the same mines and presumably pays the same price therefor as the competing sugar mill at Lewiston. The basic rate from the mines to both destinations is the same. Hence, the delivered costs differ only to the extent of the emergency charge on the shipments to Whitney. On inbound materials used in connection with the manufacture of beet sugar Lewiston and Whitney are accorded the same rates. This is true also of outbound shipments of sugar.

The only additional testimony submitted embodies statements to the effect that both complainant and its competitor buy sugar beets in the same general territory under identical contracts; that complainant competes generally with the manufacturer at Lewiston in

the distribution of beet sugar; that in the sale of this sugar neither complainant nor its competitor is able to set the price, but must meet the delivered prices fixed by the large refiners, principally canesugar manufacturers; and that complainant absorbed the emergency charge out of its profits from the sale of sugar. This alone does not constitute the definiteness needed to prove damage under an allegation of undue prejudice. In Interstate Commerce Commission v. United States ex rel. Campbell, 289 U. S. 385, the Supreme Court said:

The rulings of the Commission are consistent to the effect that the absorption by a complainant of a discriminatory charge does not avail to establish damage, or to measure its extent, in the absence of a showing that prices were affected by the differential rate. There must be full disclosure of the conditions of the business, or of those affecting competition, including, in particular, the capacity of the preferred producers to fix the prices for the market. Only then will the ultimate fact of damage emerge from the evidentiary facts as an appropriate conclusion.

A somewhat similar situation was considered in Central West Coal Co. v. Baltimore & O. R. Co., 201 I. C. C. 271. In that proceeding division 5 found that complainant was not shown to have been damaged by emergency charges on coal from Menominee, Mich., to destinations in Wisconsin, when either no such charges, or lower charges, were assessed on like traffic for intrastate transportation from Wisconsin docks to the same destinations. This record warrants a like conclusion.

Defendants presented no evidence. At the hearing they expressed willingness to pay reparation in the event of a finding that the situation complained of was unlawful.

We are of opinion that the record here will not support an award of reparation based on any undue prejudice that may have existed when the considered shipments moved, and we so find. The complaint will be dismissed.

227 I. C. C.

FOURTH SECTION APPLICATION No. 16880

CEMENT TO CENTRAL VERMONT RAILWAY POINTS

Submitted February 17, 1938. Decided April 27, 1938

Authority to establish and maintain rates on cement, in carloads, from Hudson and Hudson Upper, N. Y., to Burlington and Alburgh, Vt., and Rouses Point, N. Y., without observing the long-and-short-haul provision of section 4 of the Interstate Commerce Act, denied.

Horace H. Powers and J. L. Dempsey for applicants.

Edwin W. Lawrence for intervener.

REPORT OF THE COMMISSION

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

By this application, as amended, the Boston and Albany Railroad (the New York Central Railroad Company, lessee) and the Central Vermont Railway, Incorporated, seek authority to establish and maintain rates on cement, in carloads, from Hudson and Hudson Upper, N. Y., to Burlington and Alburgh, Vt., and Rouses Point, N. Y., without observing the long-and-short-haul provision of section 4 of the Interstate Commerce Act. A hearing was held. Representatives of the Rutland Railroad Company appeared in opposition to the application. Rates will be stated in amounts per 100 pounds.

It is proposed to establish over applicants' indirect route, composed of the Boston & Albany to Palmer, Mass., and the Central Vermont beyond, rates the same as apply over the direct route of the Boston & Albany to Chatham, N. Y., and the Rutland beyond, from and to the same points. The proposed rates are 15.5 cents to Burlington, 16.5 cents to Alburgh, and 16 cents to Rouses Point. These rates are on the basis prescribed in New England Cement Rates, 155 I. C. C. 601, for the distances over the direct route, as increased pursuant to General Commodity Rate Increases, 1937, 223 I. C. C. 657.

The purpose of the relief is to enable the Central Vermont to participate in this traffic. Between 1935 and 1937, inclusive, 7,084,072 pounds of cement moved from Hudson and Hudson Upper to Burlington, 51,000 pounds to Rouses Point, and 663,806 pounds to Alburgh, over the Boston & Albany and its connections. The record does not disclose that any of this traffic moved in connection with the Central Vermont.

In Cement to New England Territory, 209 I. C. C. 682, carriers parties thereto were authorized to establish and maintain over all routes from and to the points there described, including the points embraced herein, the lowest rates that may be constructed on the basis set forth therein, and to maintain higher rates at intermediate points, cubject to the condition, among others, that the relief should not apply over routes exceeding certain circuity limitations there prescribed.1 The circuity of the proposed route exceeds that authorized in Cement to New England Territory, supra. For example, from Hudson to Burlington and Alburgh, respectively, the distances over the shortest working route of the New York Central to Troy, N. Y., Boston and Maine Railroad to White Creek, N. Y., and Rutland beyond, are 186 and 223 miles, compared with the distances over applicants' route of 331 and 367 miles respectively, or 78 and 65 percent circuitous. To Rouses Point, over the New York Central to Troy, and the Delaware and Hudson Railroad lines, the distance is 218 miles, and over applicants' route it is 371 miles, or 70 percent circuitous. From Hudson Upper to Burlington and Alburgh the distances over the Boston & Albany to Chatham, and the Rutland are 198 and 235 miles, respectively, and over applicants' route, 330 and 366 miles, or 67 and 56 percent circuitous; to Rouses Point, over the Boston & Albany to Albany, N. Y., and Delaware & Hudson the distance is 230 miles, and over applicants' route the distance is 370 miles or 61 percent circuitous. Over applicants' route the proposed rates to the more distant points would yield revenues ranging from 8.6 to 9.4 mills per ton-mile and, based on an average loading of 50,000 pounds, from 21.6 to 23.5 cents per car-mile.

Departures would occur at intermediate destinations. For example, to Randolph and Riverton, Vt., intermediate to Alburgh, and to Braintree and St. Albans, Vt., intermediate to Rouses Point, 262, 287, 268, and 347 miles, respectively, from Hudson, rates of 16.5 cents would apply to St. Albans and of 17 cents to the other points named.

No study has been made to determine the cost of transporting this traffic, but applicant estimated that the out-of-pocket cost of this traffic does not exceed 5.23 mills, determined by taking 50 percent of the average ton-mile revenue of 10.45 mills earned by the New York Central, including the Boston & Albany and Central Vermont, in 1936.

(1) Where the distance over the short line or route is 150 miles or less and the longer line or route is more than 70 percent circuitous, and (2) where the distance over the short line or route exceeds 150 miles and the longer line or route is more than 50 percent circuitous; provided, that where the distance over the short line or route exceeds 150 miles and the distance over the longer line or route does not exceed 255 miles, relief will apply to such longer line or route even though it is more than 50 percent circuitous.

Applicants urge that the use of their route will not result in wasteful transportation and that the proposed rates are reasonably compensatory. They point out that this route has been maintained for more than 35 years; that through trains are operated between Hudson and Rouses Point and ample facilities are maintained for handling the traffic; that, in 1937, 10,154 carloads of traffic were interchanged between the Boston & Albany and the Central Vermont at Palmer; that the preponderance of the traffic is southbound; and that there is a demand on the part of the receivers and shippers of cement for the continuance of this route. Prior to December 2, 1935, rates on cement the same as over the direct routes were maintained by them from and to the considered points, and higher rates were applied to intermediate points under the relief temporarily granted by fourthsection order No. 10272. On that date the rates to the more distant points were canceled because the circuity of their route exceeded that authorized in Cement to New England Territory, supra. The present rates are on the sixth-class basis. From Hudson to Alburgh and Rouses Point the sixth-class rates are 23 and 21 cents respectively, and from Hudson Upper to Burlington 23 cents.

The Rutland serves Burlington, Alburgh, and Rouses Point. It forms a part of the direct route between Hudson and Hudson Upper and these destinations. Its position is that any of the traffic secured by the Central Vermont would necessarily be taken from the Rutland, resulting in revenue losses to the latter, and it accordingly asks that the relief be denied.

In authorizing relief to circuitous routes we have generally imposed some form of limitation upon the maximum circuity of those routes. The purpose of these limitations is to restrict the relief to routes over which rates will be reasonably compensatory for the service performed and the use of which will not result in wasteful transportation. The limitations in Cement to New England Territory, supra, were prescribed for application over all lines or routes after full consideration of the conditions prevailing in that territory. Upon this record we find that additional relief has not been justified.

An appropriate order denying the application will be entered.

COMMISSIONER CASKIE dissents.

227 I. C. C.