of which are equally as attractive as soap from the standpoint of car revenue.'

9915

§ 574. Articles shipped in glass.

A comparison of articles shipped in glass was made, "pon complaint of the proprietor of a patent medicine who desired a lower classification. The Commission said: "By this classification it takes the rates of the other kinds of property in the class. These consist largely of articles in glass packed like the bitters in boxes for transportation. Among them are: acids, apple or fruit butter, bromine, cider, coffee condensed, drugs and medicines, honey, ink, liquors or liquids, milk food, oils, paints, pickles, prunes, syrup, and a variety of others. There is no apparent injustice in classifying the bitters with such articles. And a rate that is reasonable for the class is reasonable for an article properly included in the class. The petitioners suffer no injustice, therefore, peculiar to themselves, from the classification of their goods. If the classification of their bitters should be changed the same reasons would compel a like change of a large number of similar articles." 16

575. Forest products.

Forest products not entirely manufactured have been compared and placed in the same class. Thus lumber and railroad ties should have the same classification;17 so box shooks should be classified with lumber, laths and shingles; 18 and hub blocks should be classed with lumber instead of with wagon materials. 19

15 Proctor & Gamble Co. v. Cincinnati H. & D. Ry., 9 I. C. C. Rep. 440 (1903), per Knapp, chairman. See Thurber v. N. Y. C. & H. R. R. R., 2 Int. Com. Rep. 742, 3 I. C. C. Rep. 473 (1890).

16 Myers v. Pennsylvania Co., 2 Int. Com. Rep. 403, 2 I. C. C. Rep. 573 (1889).

17 Reynolds v. Western N. Y. & P. Ry., 1 Int. Com. Rep. 688, 1 I. C. C. Rep. 393 (1888).

18 Michigan Box Co. v. Flint & P. M. R. R., 6 I. C. C. Rep. 335 (1897). 19 Hurlbut v. Lake Shore & M. S. Ry., 2 Int. Com. Rep. 81, 2 I. C. C. Rep. 122 (1888).

Shingles were compared with other lumber products, and it was held that they should be in the same class. "Generally speaking the demand for and use of shingles as building material are quite as important and general as for any other lumber product, and the necessity is equally as great that such product shall be charged only a reasonable and equitable rate for its transportation. Shingles being put up in bundles for shipment the work of handling is facilitated so that no more, and perhaps even less, labor is required than for the handling of many other lumber products classed with and charged the same transportation rate as lumber, such as laths, shooks, sawdust, box and moulding material and other stuff of the regular dimensions. The weight of shingles that can be loaded in a car will also compare favorably with the above named and many other lumber products taking the lumber rate. No testimony has been submitted as to the relative values of these various products, but it may be assumed safely, that shingles are worth as much per carload as the average of articles taking the lumber rate. No claim has been made that there is any greater risk in shipping shingles than any other article included in the lumber classification." 20

§ 576. Dry goods.

Window shades and various articles of dry goods were thus compared: "In the elements of bulk, weight and value, several of the dry-goods articles described in the table set out in the sixth finding as taking third class rates have greater similarity to a 23-dozen case of finished shades than exists between such a case of shades and the first-class articles mentioned in that table. There is, however, little analogy in uses or character between window shades and the dry-goods articles referred to. With the exception of lace curtains, these articles are drygoods in the piece; and lace curtains are in the category of ornamental house furnishings, while the window shade is regarded as

20 Yeomans, Com. in Duluth Shingle Co. v. Duluth, South Shore & Atlantic Ry., 10 I. C. C. Rep. 489, 504 (1905).

a household necessity. But the fact that both shades and lace curtains are in the first class, the latter many times more valuable, is an element to be noted, though against this it must be considered that many incongruities are unavoidable when the carriers undertake, as they do by the Official Classification, to divide the great mass of freight articles into practically six classes; and the desirability of simplicity in the classification. is a feature which should not be overlooked. The items of similar bulk and weight, less value and risk of carriage, and important volume of traffic, are all in the direction of giving to window shades a classification as low as that which is provided for window hollands."21

8577. Comparison of unlike things.

Unlike things may be compared to determine the correctness of the classification of one of them. With so few classes into which all commodities must be placed, it is obvious that not all articles in a single class will be similar in their nature; and unlike things may after comparison be held to belong in the same class. More commonly, because of the unlikeness, they will be held properly to be placed in different classes.

Thus in the important case of Tift v. Southern Railway,22 the railroad attempted to institute a comparison between the classification of lumber and that of oranges, pineapples, watermelons, peaches and other fruit, rosin, turpentine, pyroligneous products, cotton seed oil, and cotton factory products. The obvious difference was, however, pointed out by the Commission. "Lumber is much less valuable per weight than most, if not all, the above articles and its volume is many times greater. The larger portion or nearly all of the above articles are what are termed perishable and, therefore, involve greater risk and greater cost in handling than lumber. The rates on lumber,

21 Veazey, Com. in Page v. Delaware, L. & W. R. R., 4 Int. Com. Rep. 525, 6 I. C. C. Rep. 148, 170 (1894).

22 10 I. C. C. Rep. 548 (1905).

therefore, should be not only not as high as, but materially less than, the rates on those articles."

Similarly, upon a comparison, it was held that there was such dissimilarity as to justify a different classification of bricks and ice,23 of soap and hay,2 of cowpeas and fertiliz25 of low grade steam coal and more costly domestic grades,26 of salt and grain,27 of patent medicines and lager beer, 28 of flour in barrels and breakfast foods in packages.29

ers,

§ 578. Differences between commodities.

When articles are plainly different in character, they are rightly put in different classes. In a case where it was attempted to compare salt and grain the Commission said: "There is no sufficient similarity between salt and grain to make a comparison in any degree instructive. Salt moves in quantities sufficient to supply the entire demand, from widely separated points of production to common intermediate points of consumption. Grain moves, as a rule, in one direction only to the general markets of the world and the demand is practically unlimited. The markets for grain will usually absorb the entire supply and the lowering of rates on grain inures largely to the producer of grain. A reduction in salt rates to the interior of Iowa and Missouri could not have such an effect. The market is necessarily limited. Disturbing rates would, as we have shown, lead to corresponding reductions as to the other

23 Fitchburg R. R. v. Gage, 12 Gray (Mass.), 393, B. & W. 354 (1859). 24 Proctor & Gamble Co. v. Cincinnati H. & D. Ry., 9 I. C. C. Rep. 440 (1903).

25 Swaffield v. Atlantic Coast Line, 10 I. C. C. Rep. 281 (1904).

26 Com. v. Louisville & N. R. R. (Ky.), 68 S. W. 1103 (1905).

27 Anthony Salt Co. v. Missouri Pacific Ry., 4 Int. Com. Rep. 1 (1892).

28 Myers v. Pennsylvania R. R., 2 Int. Com. Rep. 403, 2 I. C. C. Rep. 573 (1889).

29 Schumacher Milling Co. v. Chicago, R. I. & P., 6 I. C. C. Rep. 61 (1895).

1 Anthony Salt Co. v. Missouri Pac. Ry., 4 Int. Com. Rep. 1, 43 (1892).

competing field, so that a reduction will not give any profit or any greater market in the end to the Kansas producers. Natural causes and forces ought to have full sway. The public mind has condemned what it has believed to be the attempt of railway managers to interfere with them. Commissions and other bodies in regulating transportation should, as far as possible, avoid the same error."

But if the difference is not great, an identical classification will not be disturbed. So where a railroad placed milk and cream carried in bottles, in the same class, the Commission said: "That it makes no lower charge on milk than on cream may be open to some criticism, but its rate on milk is already reasonably low, and we do not feel inclined to disturb its schedule on that account. No order will now be entered as against that company."

TOPIC D-CONVENIENCE IN HANDLING.

579. Classification based on nature and size of package. It seems to be true as a general principle that a shipper should be left free to ship in such package as suits his convenience, and therefore that a classification based on kind or size of package is improper. So where the carriers attempted to classify eggs carried in "returnable cases," that is, cases substantially built and comparatively expensive, lower than eggs carried in cheaper cases, though as a matter of fact the cheaper cases served their purpose equally well and caused no additional trouble or expense to the carrier, the Interstate Commerce Commission held the proposed classification invalid. A shipper, the Commission said, should not be subjected to unnecessary restrictions as to the kind of case he should use.3

2 Milk Producers' Assoc. v. Delaware, L. & W. R. R., 7 I. C. C. Rep. 173 (1896).

3 Rhode Island E. & B. Co. v. Lake Shore & M. S. Ry., 4 Int. Com. Rep. 512, 6 I. C. C. Rep. 176 (1894).