§ 566. A minimum rate is justifiable.

A minimum rate is an excellent illustration of another characteristic of the rate considered as a regulation establishing a unit. Such a rate may be supported, although it operates in some cases somewhat differently than it does in others; for this is the normal operation of a regulation. It may therefore be true that some applicants are paying for a little more than others upon a pro rata basis, and the objection of discrimination cannot be taken. This matter of the minimum charge was thoroughly canvassed in one of the earlier cases before the Commission, 35 where plaintiff, a shipper of chewing gum, objected to the defendants' rule providing that the minimum charge upon any single shipment of freight should be for one hundred pounds at the rate applying to the article. The Commission said squarely: "It is reasonable and proper that carriers should fix a minimum weight and charge for the transportation of less than carload shipments. This is justified by the necessary expense and trouble attending the carriage of such shipments, large or small, which, aside from the actual manual labor involved, are practically the same irrespective of the weight or bulk of the package. Therefore, the only question presented for determination is whether or not the rule in force is reasonable, and not unjustly discriminative in its application. The amount of clerical work required in the shipment, transfer to connecting carriers and delivery of a shipment, the records of the same necessary to be kept, the division of the freight charges among the carriers participating in the transportation of this traffic, is shown to be

fication of freight including weight per cubic foot, value per cubic foot, risk of breakage and volume of traffic. Yawman & Erbe Mfg. Co. v. A., T. & S. F. Ry., 15 I. C. C. 260.

35 Wrigley v. Cleveland, C., C. & St. L. Ry. et. al., 10 I. C. C. Rep. 412.

Rule that the minimum charge for a single shipment of less-thancarload freight will be 100 pounds of the class or commodity to which the article belongs has several times been approved. Western Classification Case, 25 I. C. C. 442.

considerable, and justifies a higher charge proportionally than for large shipments. Such higher charge is also justified by the limited car capacity of package freight as compared with carloads of other freight. Illustrative of the minimum revenue per carload, one witness testified to an instance of the carriage of a car of package freight aggregating 1520 pounds, for which the revenue on the 50 pounds minimum basis was only $4.36." 36

§ 567. Basis of minimum weights refund.

There may be cases, plainly enough, where the protection of the carrier may require that the shipper shall pay in the first instance upon a fixed minimum weight. In one complaint before the Interstate Commerce Commission 37 it was shown that the defendant railway had established minimum weights on cotton of 535 pounds per bale on shipments without certified weight, and that the defendant insisted upon payment of the freight charges specified in its expense bills when represented to the consignee, leaving the amount of any excess collected to be afterwards determined and refunded upon the filing by the consignee of the claim for overcharge. On that point the Commission said: "We do not think that a plan of billing cotton at a proper estimated weight per bale should be deemed unlawful when actual weights cannot be ascertained without great inconvenience to the shipper or carrier, and when charges are promptly adjusted by the carrier upon the basis of actual weights furnished by the consignee.38

36 See Kibler v. Southern Ry., 64 S. C. 242, 40 S. E. 556.

For the transportation of locomotives and tenders, charges should be assessed on a basis of a minimum total haul of 75 miles. In re Advance in Rates on Locomotives and Tenders, 21 I. C. C. 252.

Phelps & Co. v. Texas & P. Ry., 6 I. C. C. Rep. 36.

An estimated weight should bear

some close relation to the actual weight. Where the estimate is about one-third more than the actual weight, it is manifest that there is something radically wrong with the estimated weight. Crutchfield & W. v. F. E. C. Ry., 28 I. C. C. 274.

38 See Suffern, Hunt & Co. v. Indiana, D. & W. Ry., 7 I. C. C. Rep. 255.

Inaccuracies in weighing result

§ 568. Charge for excess over minimum.

It would seem obvious that where a minimum is fixed it is not also a maximum; for it seems plain the company may make a minimum charge and at the same time require payment for any excess. Prima facie the system of charging by weight is more just than any other. It is the only system whereby the charge is made proportionate to the service rendered. Still the point was raised in one proceeding before the Commission, 39 the facts being that a practice had existed on the part of certain carriers of live cattle to make a carload rate irrespective of weight, leaving the shipper to load into the car as many cattle as he pleased and was able to put into it. The carriers substituted for this practice the rule that while naming a carlot rate they prescribed a minimum weight for a carload and then charged by the hundred pounds in proportion to the carlot rate for any excess over the minimum. This change was objected to by certain shippers, but the Commission held that the new rule was more just and reasonable than the practice it supplanted. The course of its reasoning may be seen in the following extracts: "We are pointed to no such reasons in this case. The charge by the 100 pounds is not only prima facie most just, but it is in accord with the general practice of the carriers in making rate sheets for other commodities. The general rule is to charge by weight where weight can be a proper measure, and when a carlot rate is prescribed, to fix a minimum for the load to be taken as the carlot and to charge by the 100 pounds for any excess, just as is now done in respect to cattle by this carrier. The cases must be very few in which it would be deemed

in the imposition of unreasonable charges and in discrimination between shippers just as really as do differences in the freight rate itself. In re Weighing of Freight by Carriers, 28 I. C. C. 7.

39 Leonard v. Chicago & A. R. R.,

2 Int. Com. Rep. 599, 3 I. C. C. Rep. 241.

Increase in minimum weight held not to be an advance in the rate. In re Transportation of Wool, Hides, and Pelts, 23 I. C. C. R. 151.

reasonable or admissible to allow the shipper of general merchandise to load up a car at discretion, without the quantity being taken into account in determining the carrier's charges."

569. All factors enter into a particular rate.

A particular rate thus is a resultant of many factors. While there are certain economic forces which must be recognized as playing a legitimate part in the establishment of a particular rate, it is the office of the law to interfere to prevent the working out of these forces in an oppressive way. For experience has shown that the regulation of rates cannot be safely left to natural processes, but the law must often be called upon to prevent the distribution of the burden of rates in a disproportionate manner. But in a conservative handling of the rate problem, these economic conditions are taken into account and allowed some scope. Thus in one proceeding in passing upon rates upon corn, the Commission said 41 that while rates on a particular commodity should not be so low as to put a burden on other traffic it felt that there was no better rule applicable to the matter under investigation than that applied by railroads themselves, in accordance with which rates are so adjusted as to secure the largest interchange of commodities. This rule is approved by its frequent application in the movement of western grain through the voluntary action of the roads, on putting in force such a rate as to warrant its movement if such a rate is fairly remunerative. As the Commission has pointed out, classification is not an exact science, nor may the rating accorded a particular article be determined alone by the yardstick, the scales and the

40 Per Cooley, Commissioner, in Leonard v. Chicago & A. R. R., supra. The application of higher aggregate charges upon a shipment of 3,200 pounds than upon a shipment

of 4,000, held, in this case, to be unreasonable. Wright & Co. v. V. R. R., 25 I. C. C. 214.

41 Re Rates upon Food Products, 3 Int. Com. Rep. 93.

dollar. The volume and desirability of the traffic, the hazard of carriage, and the possibility or probability of misrepresentation of the article are considerations of prime importance in classification. At best it is but a grouping, and when the approximation resulting from it is not found to cause the exaction of an unreasonable or a discriminatory charge it will not be disturbed. 42

Topic B. Additional Charges for Special Service

§ 570. General principles as to additional charges.

The entire service of the carrier in connection with a single shipment being conceived of as a unit, it should follow that only one charge may be made, covering the entire unit of service. Ordinarily this is true. 43 The railroad company cannot make a variety of different charges for the facilities it uses and the servants it employs; for instance, it would be absurd for it to make a block signal charge or an engineer charge. It would seem to be the duty of the railroad to equip itself fully for the service it undertakes, and then to make a single rate to the shipper who wishes the transportation of certain goods to a certain place. This ought to hold true of all usual services which the carrier must render the shipper in the line of its duty; but as to services outside its obligation to the shipper it may render a separate bill if it pleases. More than this, there are, it must be admitted, certain extraordinary services in special kinds of shipments which are not required by shippers generally, and for which, it seems, it is more convenient, if indeed not more just, to make a separate charge. 44

42 Forest City Freight Bureau v. A. A. R. R., 18 I. C. C. 205.

43 In Interstate Commerce Comm. v. Stickney, 215 U. S. 98, 54 L. ed. 501, 30 Sup. Ct. 66, it was held a carrier may charge and receive compensation for service that it may render, or procure to be rendered,

off its own line, or outside of the mere transportation.

44 It was held in the 3191⁄2 Tons of Coal, 14 Blatch. 453, that a railroad could not justify charging a shipper for shoveling at a coal tipple more than the current rate for such service.