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are based the principle and practice of classification of freight traffic, which have been exhaustively discussed in the reports of the Interstate Commerce Commission, see report of 1888, page 34. The Commission has also repeatedly urged upon the railroads the adoption of a uniform classification. See report of 1891, page 23, and report of 1894, page 34.

Commodities not classified, are given what is known as commodity rates. Thus salt requires and receives a commodity rate lower than class rates. The Commission said in 5 I. C. C. R. 299, 4 Int. Com. Rep. 33, that the carriers should only be limited as to such low rating by the rule that a commodity should not be carried at such unremunerative rates, as will impose burdens upon other articles transported to recoup losses in carrying that commodity.

§ 207. Consultation of carriers in classification not illegal combination. In the report of 1899, pp. 12 to 20, the Commission discussed the question of the advance in freight rates by the carriers using what is known as the official classification, covering the territory lying east of the Mississippi and north of the Ohio and Potomac rivers, and in that connection gives the opinion of the Attorney-General of December 30, 1899, to the effect that consultation by the representative railroad men in the committee respecting suggested changes in classification, and subsequent independent action by the respective railroad companies by the adoption of the new classification recommended, in the absence of any testimony of compulsion or combination in adopting a classification, was not in violation of the Anti-Trust law.

§ 208. Undue preference in classification.- Undue preference may be effected by discrimination in classification between commodities which are in fact competitive, where such classification is not based on a difference in the cost of service. The

English statute of 1854 was construed as imposing upon the carrier the burden of justifying such discrimination by considerations relating to the cost of carriage. Oxlade v. N. E. Ry. Co., 1 Ry. & Canal Traffic Cases, 73; Thompson v. London & N. W. Ry. Co., 2 Ry. & Canal Traffic Cases, 115. This general principle has been applied by the Commission in a variety of cases. Thus, the advance of hay and straw from the 6th to the 5th class on the official classification of January 1,

1900 (see 9 I. C. C. R. 264), was held unreasonable and unjust as resulting in unlawful discrimination and prejudice against the localities where such commodities are produced, and against producers, dealers and consumers. As to the governing principles of freight classification, see 6 I. C. C. R. 148 and 4 Int. Com. Rep. 525; 9 I. C. C. R. 78. See also 3 I. C. C. R. 473, 2 Int. Com. Rep. 742.

In 4 I. C. C. R. 212, 3 Int. Com. Rep. 257, it was said that where questions of classification and rates are involved as to one particular article of freight, it is often necessary to examine and consider the classifications and rates upon other articles in which the same calculations in respect to value, bulk and expense of handling and carriage would to a considerable extent enter. For the purpose of such comparison it is not indispensably necessary that the articles should be competitive, though if they are competitive, then this feature is held partly to be considered. The proper method of determining the justice of classification by comparison, is with classification created by the carrier for analogous articles. 5 I. C. C. R. 638, 4 Int. Com. Rep. 285. The fact that different rates and classifications are in force in different sections of the country would not of itself warrant an extention of the lower rate of classification to the higher rate and classification as applied. There must be proof of unlawful discrimination or disadvantage or unreasonably higher rates to procure an order directing different rates and classification. 6 I. C. C. R. 61.

In 6 I. C. C. R. 85, a commodity (i. e. not classified) rate published for intending settlers only, but in fact given to shippers indiscriminately, was condemned by the Commission as calculating to mislead the public and afford an opportunity for favoritism.

For illustrations of the rulings of the Commission in cases in classification, see 2 I. C. C. R. 1, 2 Int. Com. Rep. 1, where classification of dried fruit and raisins in two different classes was held unreasonable.

Hub blocks were classed with lumber, instead of with unfinished wagon materials. 2 I. C. C. R. 122, 2 Int. Com. Rep. 81.

In 1 I. C. C. R. 393, 1 Int. Com. Rep. 685, railroad ties were classed with other rough lumber.

In 2 I. C. C. R. 573, 2 Int. Com. Rep. 403, Hostetter's Stomach Bitters were held not properly classified in the first class. with other liquids similar in character. In 4 I C. C. R. 32, 3. Int. Com. Rep. 74, patent medicines were held properly classed at a higher rate than ale, beer and mineral water.

In 4 I. C. C. R. 41, 3 Int. Com. Rep. 77, toilet soap was held properly classed higher than laundry soap, the Commission holding that manufacturer's description of his production for commercial purposes warranted a classification accordingly. See also 4 I. C. C. R. 733, 3 Int. Com. Rep. 564.

5 I. C. C. R. 663, 4 Int. Com. Rep. 318, held that celery was properly classified with vegetables rather than with fruits. In 6 I. C. C. R. 148, in view of the great reduction in value of window shades, the classification as first class was held unreasonable. The United States Circuit Court, in 64 Fed. Rep. 724 declined to enforce this order on the ground that it applied to shades having a very high value as well as to the cheaper varieties, and the order was amended accordingly. 6 I. C. C. R. 548. In 7 I. C. C. R. 40, open-end envelopes were held properly classed with merchandise envelopes.

In 8 I. C. C. R. 368, iron pipe and fittings packed in cases were held properly classed higher than iron pipe and fittings packed in barrels. 6 I. C. C. R. 61, held that there were conditions compelling a low rate upon flour which did not apply in the transportation of cerial products.

In 4 I. C. C. R. 212, 3 Int. Com. Rep. 257, the principles of classification were discussed, and applied in the case of surgical chairs. In 10 I. C. C. R. 281, cow-peas were held properly classed with grain, and not with fertilizers.

§ 209. Power of the Commission in correcting classification. The Commission has in a number of cases exercised the power to order a change in the classification, as in the cases before cited; also in 1 I. C. C. R. 393, 1 Int. Com. Rep. 685; 2 I. C. C. R. 122, 2 Int. Com. Rep. 81; 4 I. C. C. R. 312, 3 Int. Com. Rep. 257; 6 I. C. C. R. 148, 4 Int. Com. Rep. 525.

Assurance made by a carrier that if one will locate in business on the line of his road his property shall be taken for transportation as belonging to as pecified class, it was ruled by the Commission in 2 I. C. C. R. 122, 2 Int. Com. Rep. 81, could not bind the carrier so as to compel a classification ac

cordingly. There can be no contract right to a special classification, as the law requires uniformity and impartiality in the dealings of the carrier with all persons.

It will be seen that the power to change classification would indirectly involve the power to determine rates. The Commission ruled in 9 I. C. C. R. 78, 1. c. 86, that as it had the power to determine the relation in the rates which should exist between localities, that the same principle should apply in the relation between two commodities. It admitted however that the authority was not clear, but as it was of opinion that there was a plain distinction between fixing a rate and determining the the relation of rates, the Commission would continue to exercise that power until it was judicially determined otherwise. In a recent case, January 1905, the United States Circuit Court for the northern district of Ohio, Commission v. Lake Shore Railroad Co., et al., it was held that while the commission had the power to order certain freight taken from the fifth class, it did not have the power to order it placed in the sixth class. In other words, the Commission did not order the classification changed which would fix a definite rate for the future.

have the power to

§ 210. Reasonable regulations in classifications.-The Commission has ruled, 6 I. C. C. R. 61, that the fact that different rates and classifications are in force in different sections of the country would not itself warrant an extension of the lower rate and classification to the section where a higher rate and classification were applied. There must be proof of unlawful discrimination or disadvantage or of unreasonable higher rates to justify directing an order for changes in the classification. In this case it was ruled that a mixed carload rate for cereal products or for cereal products and flour, that would have the effect of throwing out of the trade many competitors of complainant, or the manufacture only of certain kinds of cereal products and of centralizing the business in the hands of one or more of the dealers, should not be curtailed, when without it no wrong is done to any one and the market is open to all competitors. The Commission said therefore that to obtain the abrogation of a rule in classification denying a mixed carload rate upon specified articles, the rule should be shown to be unreasonable, unfair or unjustly discriminative.

§ 211. Facilities for interchange of traffic. The second paragraph of the third section, though based in part upon the English statute, is materially different therefrom, and the difference has been construed as substantial. Thus the English statute was construed as empowering the court to compel through routing of passengers or freight. The Commission. held in an early case, 1 I. C. C. R. 86, 1 Int. Com. Rep. 357, that this section of the act did not compel one railway company to sell through passenger tickets over the road of anothercompany. In the Kentucky and Indiana Bridge case, decided in 1890, which was really the pioneer case in the construction of the act, 37 Fed. Rep. 567, Jackson J. said that the Commission was not vested with authority to establish through routes nor to fix through rates between connecting lines.

It has since been definitely determined by the repeated decisions of the Courts that there is no authority in the Commission or in the Courts under the act to compel either the routing of passengers or freight, and that the requirement of this section for the affording of all reasonable and proper facilities for the interchange of traffic and the receiving, forwarding and delivery of passengers and property does not mean the receipt and delivery of cars or their through routing of any kind, but only the receipt and delivery of freight and passengers at connecting points without discrimination. This had been the construction given by the Supreme Court to the constitution and statute of Colorado prior to the enactment of the Interstate Commerce Act. A. T. & S.F. R. Co. v. Denver & N. O. R. Co., 110 U. S. 667, 28 L. Ed. 291; and such has been the construction given to the Interstate Commerce Act in a number of cases in the Circuit Courts and Circuit Courts of Appeal, cited approvingly by the Supreme Court in the Central Stock Yards case, supra, 192 U. S. 568, 48 L. Ed. 565. See also Little Rock & M. R. Co. v. St. Louis Iron Mountain & So. R. Co., 41 Fed. Rep. 559 and 59 Fed. Rep. 400; Oregon Short Line & Utah Northern R. Co. v. Northern Pacific R. Co., 61 Fed. Rep. 158, 9 C. C. A. 409; Allen v. Oregon Railroad & Navigation Co., 98 Fed. Rep. 616. It was held in all of these cases that through routing of passengers or freight depends upon contract voluntarily made between the carriers, and there is no power in the Commission or Courts to

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