§ 580. Shipment in small packages.

So an attempt to give a higher rating to goods commonly shipped in small packages seems not to be proper. In the case of Page v. Delaware, Lackawanna & Western Railroad, when first before the Interstate Commerce Commission, the distinction between the classification of window shades and that of uncut hollands was justified by the carriers by the fact, among others, that hollands were seldom shipped in small packages, while shades were frequently so shipped. The Commission, however, pointed out that very little additional labor was involved in handling the same weight in small and in large packages; the comparatively light 25-pound package may be easily and quickly handled, while a case weighing approximately 500 pounds is a heavy and cumbersome article. And they finally decided that, considering the rule of charging for one hundred pounds on shipments of less weight, the ease with which small packages containing non-breakable material can be handled, the fact that the carriers do not make a distinction in classification between small and larger packages, and that mathematical exactness in rating is impracticable, the single circumstance of frequent shipment in small packages should not outweigh the reasons for a change in window shade classification to third class.

§ 581. Shipment in form more convenient for handling.

Where the form of package results in a saving of expense to the carrier by reason of greater convenience of handling, a higher classification for the less convenient form of shipment will be justified. This question was considered in the case of the Trades League of Philadelphia v. Philadelphia, Wilming ton & Baltimore Railroad.5 In that case it appeared that iron pipe fittings shipped in cases from northern points to southern

46 I. C. C. Rep. 148, 172 (1894).

58 I. C. C. Rep. 368 (1899).

territory took second-class rates, but if shipped in casks, barrels or kegs a special iron rate, lower than the sixth-class rate, was applied on any quantity. The barrel package was cheaper than the case, except when the quantity was insufficient to fill a barrel; but when that happened a keg could be used for packing, with but little inconvenience or additional expense, and the lower special iron rate was thereby secured. The choice was wholly with the shipper to pay the higher rate on fittings in cases or the lower rate on fittings in kegs or barrels. Such a classification did not operate of itself to aid dishonest shippers in underbilling goods of greater value, and the opportunity for false billing would not be lessened by giving the special iron rate to pipe fittings packed in cases. No ground of distinction appeared in this respect between pipe fittings and numerous other articles included in the special iron list and taking higher rates when packed in boxes, and reclassification of all these other commodities was not warranted by the facts in this case. It was held that the defendant carriers had not exceeded the limits of their discretion in placing iron pipe fittings packed in cases in a higher class than iron pipe fittings packed in kegs or barrels, and that such action was not unreasonable or otherwise in violation of the Act to Regulate Commerce.

The Commission pointed out that "the barrel package is preferably used in the ordinary course of business because of its comparative cheapness. Even at the same or approximately equal rates boxes would not ordinarily be used, except when the quantity to be separately packed is insufficient to fill a barrel. In such a case the goods can be placed in a keg without much. inconvenience or additional expense, and it can hardly be considered burdensome to require that kind of package if shippers desire to forward small lots at the special iron rate. The carrier offers that rate to all persons and on all quantities, provided the articles are sent in packages of barrel form; otherwise a higher rate is charged. The lower rate is not allowed for some

exceptional or expensive mode of shipment, but on the package long in general use and apparently favored by shippers irrespective of rates, because of its suitability for the purpose and the low cost for which it can be procured. As the choice is wholly with the shipper it cannot be a hardship for him, under the circumstances disclosed, to pay the higher rate when he elects to pack his goods in cases."

Upon the same ground the Commission held that milk shipped in cans, by which method it could be carried more cheaply, ought, other things being equal, to have a lower rating than milk carried in bottles."

And the Court of Civil Appeals of Texas even held invalid a contract to carry hogs at the same rate in single-deck cars as in double-deck.7

§ 582. Shipment in form permitting greater car load.

On the same principle it would seem that if goods are so compactly shipped that more can be carried in a single car, a lower classification should be given them. This was claimed by the complainant in the case of the Planters' Compress Company v. Cleveland, Cincinnati, Chicago & St. Louis Railway. The complainant offered for carriage round bales of cotton so closely compressed and in such a form that twice as much cotton could be loaded and carried in a single car as could be loaded and carried in the ordinary form. While, as was pointed out, this did not increase the total amount of cotton carried, it certainly decreased the expense of carrying such total amount. Notwithstanding this fact, the majority of the Commission held that the complainant was not entitled to a

6 Milk Producers' Protective Assoc. v. Delaware, L. & W. R. R., 7 I. C. C. Rep. 92, 169 (1897).

7 Houston & T. C. R. R. v. Dumas (Tex. Civ. App.), 43 S. W. 609 (1897). 811 I. C. C. Rep. 382 (1905). See, however, Railroad Commission of T. v. Houston & T. C. Ry., 16 Tex. Civ. App. 129, 40 S. W. 1052 (1897).

lower classification. The most important argument in favor of the decision is that the method of compression was expensive and was not open to everyone, and that it was therefore improper to give an advantage to the comparatively few shippers who could use it. This argument is sound, and is probably sufficient to justify the decision; and it has no bearing, of course, on the point now under discussion. The arguments by which the majority of the Commission supported their further opinion that a classification based on the greater facility of shipment in round bales was not required are hardly convincing.

§ 583. Classification based on volume of business.

A difference in classification based on the amount of a shipment, or the number of shipments, where the amount does not lead to any economy of management on the part of the carrier, is not justifiable. Thus a difference of classification of surgical chairs and sewing machines, based on the fact that few surgical chairs and many sewing machines are offered for carriage, is improper. Mr. Commissioner Bragg said in such a case:

"The mere fact that one article, for example, sewing machines, is shipped in greater quantities' than surgical chairs, when each as a rule is shipped in less than carload quantities, and of no large difference in bulk, weight and value, and of no appreciable difference in expense of handling and of haul, that this alone should constitute in itself any reason why the former should enjoy lower rates or classification than the latter, merely for the reason that they are shipped in greater quantities,' is a doctrine to which we cannot give our assent. In such a case mere quantity, not measured by a by a recognized unit of quantity adapted to carriage and lessening the expense of handling and carriage, cannot be allowed to affect rates in

9 Harvard Co. v. Pennsylvania Ry., 3 Int. Com. Rep. 257, 4 I. C. C. Rep. 212 (1890).

the transportation of property. The small dealer is entitled to just and reasonable rates on his product, as much so as many and large dealers, and any discrimination between them in rates based upon the idea that the one class of persons makes many shipments while the other makes but few is unjust and unreasonable under the Act to Regulate Commerce. It is a discrimination in favor of one kind of traffic as against another in the vital matter of rates, and is unlawful.

"The same doctrine found in occasional loose judicial dicta, to the effect that a carrier under such circumstances may make 'concessions' in rates in favor of a large as against a small quantity of freight,' or of a 'party' of a given number of persons, as against a single person,' upon the idea that there is a wholesale and retail principle' involved in it, is a doctrine at war with the fundamental purpose of the Act to Regulate Commerce, which has for one of its main objects the protection of the weak as against the strong, and destroys the establishment of proportional equity and justice. These dicta, if given full effect, would undermine this fundamental purpose, and give to combinations and schemes for securing advantages over single individuals a power that would shut out all small competition and put the weak at the mercy of the strong at every turn where railway transportation became a matter of moment in business transactions."

§ 584. Large volume of traffic in a certain commodity.

But though such a difference as that just examined will not justify a difference in classification, the case is entirely different where the volume of traffic in a certain commodity is so great as to justify a certain special method of handling it. Thus the enormous traffic in grain in the west justifies a special classification for it; and so the vast traffic in lumber in Georgia should be considered in the classification of that commodity.10 So the

10 Tift v. Southern Ry., 138 Fed. 753 (1905).