The prayer of the complaint is, among other things, that the Commission fix "a just rate for the through transportation of beer in carload lots from said city of St. Louis to said city of Leadville." There is no suggestion either in the complaint or in the prayer looking to the establishment of a joint rate, and that subject was not referred to either upon the trial or in the argument. This being so, we ought not to establish a joint through rate, and we do not think that we should undertake by our order to fix in this proceeding the locals which will make up the charge for the through movement in the future. There has been no practical difficulty in making these shipments over this route in the past. If the Denver & Rio Grande does not reduce its charge in accordance with this report, or if suitable through facilities are denied, the complainant can file its petition asking the establishment of a joint through route and rate. 13 1. C. C. Rep.

No. 1167.

HYDRAULIC PRESS BRICK COMPANY

v.

ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY; ST. LOUIS, SAN FRANCISCO & TEXAS RAILWAY COMPANY; HOUSTON & TEXAS CENTRAL RAILROAD COMPANY; TEXAS & NEW ORLEANS RAILROAD COMPANY, AND MORGAN'S LOUISIANA & TEXAS RAILROAD & STEAMSHIP COMPANY.

Submitted March 3, 1908. Decided April 6, 1908.

1. Defendants' rate of 48 cents per 100 pounds for the transportation of enameled brick from Cheltenham, Mo., to New Iberia, La., is under the circumstances unjust and unreasonable and should not exceed 30 cents per 100 pounds for the future. Reparation awarded.

2. The practice of inserting obscure and general clauses in voluminous tariff publ cations, to the effect that where a combination of locals, either general or in specific instances, will make a lower aggregate through rate than the specific joint through rate therein stated, the former will be used, has been found by long experience to result in gross misapplication of the tariffs and in unjust dis criminations. Under this practice the individual or concern whose busines is large enough to warrant the employment of a traffic or rate expert will be able to secure combinations resulting in lower aggregate charges than can be secured by the smaller or occasional shipper who is unable to employ such an expert and who is required to pay the joint through rate appearing on the face of the tariff. It is self-evident that if such discriminations are to be broken up there can be but one lawful rate in effect at a given time on any commodity in the one direction between two points.

3. A carrier may in its own interest, if it so desires, carry for a longer distance over its own line than would be necessary if carried between the same points over the line of its competitor, in order to obtain a portion of the competitive business, upon terms that will afford some profit. It does not necessarily fol. low, however, that a carrier in competing for traffic in this way thereby subjects itself to an order compelling it to do so.

William S. Bedal for complainant.

F. C. Dillard for Houston & Texas Central Railroad Company, Texas & New Orleans Railroad Company, and Morgan's Louisiana & Texas Railroad & Steamship Company.

J. G. Egan for St. Louis & San Francisco Railroad Company, and St. Louis, San Francisco & Texas Railway Company.

REPORT OF THE COMMISSION.

CLEMENTS, Commissioner:

Between August 2 and October 1, 1906, complainant shipped from Cheltenham, a suburb of St. Louis, Mo., to New Iberia, La., three carloads of enameled brick over the St. Louis & San Francisco Railroad to Houston, Tex., and thence by the lines of the Morgan's Louisiana & Texas Railroad & Steamship Company to destination, upon which shipments charges were collected at the rate of 40 cents per 100 pounds on a total alleged weight of 132,165 pounds, making an aggregate charge of $528.66. A class rate of 48 cents per 100 pounds, car-load minimum 40,000 pounds, was then and is now effective upon such shipments. The rate of 40 cents appears to have been applied through an unexplained error on the part of the railway agent at destination. One car containing 6,500 brick, estimated to weigh 38,350 pounds, was charged on the basis of the 40,000-pound minimum. Another carload was estimated to weigh 49,560 pounds, as shown in the waybill, and charges were collected on that basis. The other car contained 6,945 brick, estimated in the waybill to weigh 40,395 pounds, but freight was charged and collected on an alleged weight of 42,605 pounds. The complaint is that the rates in effect and charged are, in so far as they exceed 25 cents per 100 pounds, excessive, unreasonable, and unjust, and that on the last-named car the charges were made upon an erroneous weight, in excess of actual weight. Reparation is asked for the charges collected in excess of 25 cents per 100 pounds and on account of the alleged excessive weight upon which the charges on the car last above referred to were assessed.

The defendant, Morgan's Louisiana & Texas Railroad & Steamship Company, on the line of which New Iberia is located, in its answer, after alleging that the rate of 40 cents was applied in error and that steps would be taken to collect the amount of the undercharge, further says:

This defendant is perfectly willing, with the approval and authority of the Interstate Commerce Commission, to apply a 33 cent rate by all routes made up of 15 cents to New Orleans and 18 cents beyond on the shipments referred to by complainant and made the basis of this complaint and also on future business.

The Illinois Central Railroad Company had at the time of these shipments and still has in effect a rate of 15 cents from St. Louis and Cheltenham to New Orleans, and the Morgan's Louisiana & Texas Railroad & Steamship Company had a rate of 18 cents from New Orleans to New Iberia. The St. Louis & San Francisco, the Morgan's Louisiana & Texas Railroad & Steamship Company, and the Illinois Central Railroad Company are parties to a tariff carrying the through class B rate of 48 cents and also naming a commodity rate of 20 cents 13 I. C. C. Rep.

on pressed brick. This tariff, however, contains a provision which in effect limits the St. Louis & San Francisco Railroad Company to participation in through rates therein named to points on other roads where they exceed 20 cents per 100 pounds.

Mr. C. W. Owen, assistant general freight agent of the last-named defendant company, in his testimony said:

Prior to the administrative rulings of your honorable body, there was in our tariff a clause that provided for the application of combination rates, which were always through published rates, and upon the ruling of the Commission that such clauses in tariffs were illegal we felt in duty bound to apply the class rates on these shipments. In answering this complaint we have admitted that we believe that the 48-cent rate was unreasonable, because on its face it was higher than the combination of the locals through New Orleans.

While the short-line distance via the Illinois Central Railroad Company from St. Louis to New Orleans and thence via the Morgan's Louisiana & Texas Railroad & Steamship Company to New Iberia is 835 miles, the distance by the route over which these shipments moved is 1,208 miles.

From St. Louis and Kansas City territory, including the point of origin of these shipments, to points in Arkansas, there is no difference in the rates on pressed brick and enameled brick. At the time the shipments in question moved the rate on both kinds of brick from St. Louis and points taking same rates, including Cheltenham, to Texas common points, also Galveston and Houston, was 22 cents per 100 pounds. This rate continued in effect until June, 1907, when the rate on enameled brick was advanced to 25 cents. There is no difference in the rates applying on shipments from St. Louis to Columbus, Ga., and other southeastern points, and none on shipments originating in Central Freight Association territory, destined to points in the South. Generally speaking, no difference is made in these rates, and even in the exceptional cases in which the rate is not the same, the difference seldom, if ever, exceeds 3 cents per 100 pounds except in some instances where brick of the one kind have been placed in one class and those of the other kind have been put in another class or given a commodity rate to meet some special conditions. This seldom occurs, however, as brick of both sorts are usually carried on commodity rates. From Mount Savage, Md., to Texas common points there are special commodity rates of 49 cents on enameled brick and 39 cents on common brick. From Joplin, Mo., to both Beaumont and Port Arthur, Tex., the rate on brick (except both enameled and fire brick) is 12 cents.

Since this case was submitted, the rate on enameled brick, effective March 30, from St. Louis (including Cheltenham) to Texas common points, also to Houston, Galveston, and Beaumont, has been raised from 25 cents to 39 cents, the Class E rate. The reasonable

ness of this increased rate is, of course, not before us in this proceeding.

The Western Weighing and Inspection Bureau is maintained by the railways operating in this territory for the purpose of securing the application of correct weights upon freight by actual weighing or reliable estimates. By becoming a member of this association and subject to its rules a shipper may have weights of some commodities, including brick, estimated according to the rules fixed, upon condition that his books shall be open to inspection of the association at any time, and weights as thus made are accepted by the railroads as prima facie correct. Complainant was a member of this association until August 20, 1906, just two days before the first of these shipments was made, and during the period of his membership therein had made numerous shipments on the basis of 5.8 pounds per brick, which was the weight estimated by the association and which had been uniformly accepted without question by the railroads.

Not being a member of the association when these shipments were made, complainant's cars were weighed by the carriers, the alleged net weight of the brick being ascertained by subtracting the stenciled from the gross weight of the loaded cars. By this method freight was charged on 132,165 pounds on the 3 cars.

The defendants admitted that the cars had not been weighed when empty and that this weight, 132,165 pounds, was arrived at by the method above stated of deducting the stenciled weight of the car and applying the minimum of 40,000 pounds on the car loaded below that minimum. They also admitted that if complainant had continued to be a member of the weighing association, the estimated weight of 5.8 pounds per brick would have been accepted.

The mere fact that the complainant had withdrawn from the association would in nowise have affected the weight of the brick, as the determination of the question lies between accepting on the one hand the weights as ascertained by the carriers in the manner above stated, and on the other of taking the estimated weight which the carrier admits would have been accepted had complainant continued to be a member of the association. This method of basing freight charges on estimated weights is not shown to be incorrect and is yet applied to shipments of members of the association.

The principal witness for one of the defendants testified that he had found in his experience that the weight stenciled on freight cars was from 500 to 800 pounds less than the actual weight. Where this is true and weights are arrived at as in the case of these cars, the shipper is charged on from 500 to 800 pounds more freight than is actually loaded into the car.

The Commission finds and concludes that the weights arrived at by accepting the estimated weight of the brick constitute a reasonable basis for the assessment of freight charges.