slow time, and the usual earnings of such a car are five dollars a day. The Commission held that the peculiar needs of this service, requiring the withdrawal of cars for a period of two months or more from other service, the special fitting up of the cars for the carriage of the freight, the high rate of speed at which the trains are run in order to make early delivery at the markets, the greater wear and deterioration to the cars, tracks and bridges by the increased rate of speed and the return of the cars empty, also at high speed, justifies a considerably higher rate than for ordinary freight. The Commission also said that a material feature in fixing the rating was the speed, which was not confined to the loaded cars, but also included the return of the empty cars, and was therefore a service in both directions.72

§ 538. Car loaded by several shippers.

It has been said that a difference in rate for a solid carload of one kind of freight, from one consignor to one consignee, and a carload quantity from the same point of shipment to the same destination, consisting of like freight or freight of like character from more than one consignor to one consignee, or from one consignor to more than one consignee, is not justified by the difference in cost of handling.73 And, indeed, the saving effected by carload transportation, for a single shipper to a single consignee, would equally be effected when a car is loaded by several shippers acting together, or by a forwarder collecting goods from several consignors and packing them together. Although the Commission has never had any hesitation about this matter, the courts had for a time doubts as to whether this practice was not unfair to the business of the railroads; but it has finally been decided quite recently by

72 See also Gardner v. So. Ry., 10 I. C. C. 342.

73 Thurber v. New York C. & H. R. R. R., 2 Int. Com. Rep. 742, 3 I. C. C. 473.

See Buckeye Buggy Co. v. Cleveland, C., C. & St. L. Ry., 9 I. C. C. Rep. 620.

the Supreme Court, that a forwarder offering a carload of goods for shipment is entitled to the same rate as any other shipper of goods in carload lots.74

§ 539. Commission rulings upon special ratings.

Since the later decisions of the Supreme Court there can no longer be any doubt as to the powers which the Commission now possesses under the Act as amended. It may determine what shall be the difference in rate between carload and less-than-carload lots; it may decide whether the difference in revenue, due to a difference in method of loading, warrants a difference in the rate on carload shipments of the same article.75 Indeed, the Commission since the recent amendments has had no question that it could order special rates for carload quantities to be established wherever carload quantities are so generally offered in the shipment of the commodity in question as to make such rates clearly enough in the public interest.76 It is generally provided under tariffs

that in order to obtain the benefit of a carload rate on actual weight of overflow beyond the capacity of the car, the shipment must have moved under one bill of lading." Charging a higher rate on coal loaded in open cars than on coal in box or stock cars was not found unreasonable by the Commission, and a difference in rates may be made when lumber is loaded in flat cars instead of being loaded in box cars.78 Less-than-carload rates are applicable to a different class of traffic from that embraced in carload and peddler-car shipments.79 Under an any-quantity rate the carrier has freedom in the use of its equipment;

74 Interstate Commerce Commission v. D., L. & W. Ry., 220 U. S. 235, 31 Sup. Ct. 392.

It was formerly held otherwise by the federal courts. Lundgrust v. Grand Trunk W. Ry., 121 Fed. 915. 75 Atchison, T. & S. F. Ry. v. U. S.,

232 U. S. 199, 34 Sup. Ct. 291.

76 Western Classification Case, 25 I. C. C. 442.

77 Scudder v. T. & P. Ry., 22 I. C. C. 60.

78 In re Advance on Lumber, 24 I. C. C. 686.

79 Rates on Packing-House Products, 28 I. C. C. 599.

and such a tariff gives the shipper no right to demand a car of a given size.80

$540. Car sizes.

Where a car was loaded according to carrier's loading restrictions, the weight then being less than minimum, it was held that the actual weight should govern.81 But where a car was loaded to full visible capacity, and transportation charges were assessed on higher minimum weight, it was held that the charges were unreasonable to the extent assessed.82 When a shipment requires a car of greater capacity than can be furnished by the carrier, two or more smaller cars should be furnished, and charges assessed upon the basis of actual weight of shipment, but not less than the minimum weight prescribed in the tariff for a carload.83 A tariff rule providing minimum weight of 50,000 pounds, subject to rule "except when marked capacity of car is less, in which event marked capacity of car will govern," was construed by a carrier to vary minimum, only when carrier was unable to furnish cars of prescribed capacity; but it was held by the Commission that this rule so construed was unfair, and should have provided that when shipper ordered car of certain capacity, and carrier for its own convenience furnished car of greater capacity, the capacity of car ordered should be applied, subject to actual weight, if in excess.84

§ 541. Special equipment not necessary.

If, however, the carrier provides a special equipment not because it is required by the nature of the traffic, but for its own convenience, or to attract patronage in competition with a rival, the fact that the article is thus

80 Falls & Co. v. C., R. I. & P. Ry., 15 I. C. C. 269.

81 Oregon Lumber Co. v. O. R. R. & N. Co., 19 I. C. C. R. 582.

82 Barnard v. C., M. & St. P. Ry., 26 I. C. C. 91.

83 Riverside Mills v. St. L. & S. F. R. R., 24 I. C. C. 264.

84 Hull Co. v. M. P. Ry., 21 I. C. C. R. 486.

carried does not justify high classification. This was held in one case relating to oranges.85 It appeared that the transportation of oranges received special care and attention from the defendants. Cars and steamers were ventilated; trains were run on fast schedules which limited the number of cars and increased the consumption of coal, and extra accommodations and employees were provided at shipping, junction and terminal points. Moreover, most of the cars engaged in this traffic by the all rail lines returned empty, and the cars carrying oranges north were not loaded to their full capacity, the average load not exceeding nineteen thousand pounds. The service, therefore, was more expensive than that rendered in connection with ordinary freight. Nevertheless, the Commission found that oranges were not perishable, and that this special care was unnecessary to their preservation; and thereupon held that it would not justify a high classification.86

Topic F. Difference in Rate Between Classes

§ 542. Principles governing differences between classes. It remains to point out formally, what has been assumed throughout this chapter, that there are great differences between the rates payable for transportation for the same distances upon goods in different classes. As the Commission has pointed out, striking differences in distinct commodities ordinarily result in substantial differences in rates.87 There is no fixed percentage for differentiation even of the six classes usually established; still less is there any definite rule for the differences to be made between commodities

85 Railroad Com. of Florida v. Savannah, F. & W. R. R., 3 Int. Com. Rep. 688, 700, 5 I. C. C. Rep. 13.

86 See also Gardner v. So. Ry., 10 I. C. C. 342.

87 Anthony v. P. & R. Ry., 14 I. C. C. 581.

In fixing rates it is to be borne in mind that the carrier and the shipper may both insist upon a rate that is just and reasonable to them respectively and relatively. Rates Crushed Stone, 30 I. C. C. 22.

on

with extra class rating. But it is matter of common knowledge that there are great differences between rates payable by the different classes, the highest class usually paying for the same transportation many times what is paid by the lowest class. Thus commodities of distinctively high grade should be so rated as to bear their proportionate share of general transportation expense.88 All that can be said in general is that the principles as to rate making apply here as elsewhere, and that the burden must be thrown upon the various classes without outrageous disproportion.

§ 543. Low-grade commodities may be carried at low rates. To go to one extreme, low-grade commodities may be carried at rates relatively very low indeed. Provided that the rate is remunerative, the other classes cannot complain that the rate is disproportionately low, since unless such a rate were made the traffic would not be got and the higher classes would lose the benefit. To quote the Commission again: 89 "While some of the relatively low rates on low-class commodities, including iron and steel, are lower because of competition by water than they would otherwise be, the general comparatively low rating applied to them is largely due to the character of such commodities, the use to which they are put, the demand for them in large quantities throughout the country, their susceptibility of movement at less cost and risk to the carrier than high class and more valuable freight, and other like conditions. It is to the interest of the carriers as well as the public, that their rates be low enough, if not below a remunerative point, to permit the general movement and distribution of these commodities in general

88 Kiser Co. v. C. of G. Ry., 17 I. C. C. 430.

The Commission cannot order low rates to be put on certain traffic, on the basis that the carrier may recoup itself by the charges it is making

other shippers. Railroad Commission of Fla. v. So. Exp. Co., 28 I. C. C. 634.

89 Colorado Fuel & Iron Co. v. So. Pacific Ry., 6 I. C. C. Rep. 489.