On Petition for Rehearing
MOORE, Circuit Judge.Defendant-appellant has petitioned for rehearing because it believe that this Court in its opinion, filed on November 8, 1957, failed to understand the applicable rate and tariff situation and that this Court assumed that a commodity rate applied to shipments of 30,000 pounds and up and a class rate applied *573to shipments of lesser weights. The problem before this Court was whether the district court was correct in sustaining the Commission’s findings and granting judgment for reparations. The Commission had found that “the charges assailed were unreasonable to the extent that they exceeded those which would have accrued at the corresponding class-40 rates subject to the minimum of 24,-000 pounds.” In its petitions for modification and further hearing before the Commission appellant raised the same points now urged, namely, that the rate on the 638 carload shipments “must, in the absence of a finding of a dual or multiple basis of reasonable rates, be found equally reasonable with respect to the 1,710 other carload shipments”; that there was only one rate legally applicable, the commodity rate; and that there was no provision for the alternative application of class and commodity rates.
In deciding whether the rates charged on the 638 carloads were unreasonable the Commission applied as a measure for reparation the amounts which would have been payable if the class rate were in effect in contrast to the amounts payable on the commodity rate basis. This Court did not assume, as appellant states in its petition, that one rate (i. e., the commodity rate) applied to shipments of 30,000 pounds and up and another rate (i. e., the class rate) to 24,000 pounds and up. Nor did this Court decide that two rates, commodity and class, were available to New Process. The Commission, however, did find in fact that the rates were unreasonably high as to 638 carloads. As the district court pointed out, the Commission’s “decision appears to be something of an innovation; it condemned a commodity rate only as it applies to low weight shipments and not its overall application.” Its condemnation was merely incidental to its finding of unreasonableness which rested upon a belief that the commodity rate when applied to low weight shipments resulted in an unreasonably high per pound figure. Since such a holding was within the power and discretion of the Commission, its decision as to rates should not be disturbed unless unsupported by evidence.
The petition for a rehearing is denied.