be charged 20 per cent higher (subject to a minimum increase of 1 cent per 100 pounds) than if shipped subject to the conditions of the standard bill of lading.

Both the uniform and standard bills of lading contain provisions similar to that quoted above from the Western Classification.

It is therefore seen that these rules have existed for a long time. That they have been adhered to or that there has been any general effort to enforce them may well be doubted. But now that tariff rules and regulations are recognized as possessing a sanctity never before possessed, the reincorporation of such rules in tariffs and classifications is a question of much importance.

The practice of basing rates upon the condition that the carrier shall not be responsible for losses due to causes beyond its control has received legal sanction. Similarly we find no impropriety in a graduation of rates in accordance with the actual values of specific commodities. Household goods, for example, differ widely in value, and it is fair to all that the man who ships goods of low value should receive the benefit of a lower rate than the man who ships more expensive goods. Rate-making upon this principle is in every respect legitimate. It is proper to say, however, that the words "Value limited to * are misleading. The phrase "Agreed to be of the value of recently incorporated into the tariffs of the roads which are members of the Southeastern Freight Association are less objectionable. They are indicative of the theory upon which these rates are justified-they are fixed with reference to the real value of the property, and not because of an agreement that the amount of recovery shall be limited to an arbitrary specified amount. We can not emphasize too strongly our position that these rates must not be used by the carrier as a means for escaping the liability which the law absolutely forbids it to cast off. The same good faith that is required of the carrier is likewise enjoined upon the shipper. The carrier's agent can not always be expected to know the value of the goods that are tendered for transportation. In most instances it must accept the valuation fixed by the shipper; and when the amount so specified is accepted in good faith and made the basis of the transportation charges, the law will not require the carrier to respond in damages to a greater amount.

We are not to be understood as suggesting a general revision of rates, for such revision is not necessary in order to conform to these views. But we should not hesitate to express our disapproval of tariff rules that are ambiguous and misleading, and to a certain extent incapable of enforcement. Rule 4 of the Western Classification, quoted above, would be unobjectionable if it went no further than to absolve the carrier from liability for loss due to causes beyond its control.

The carrier could not, however, escape responsibility for losses due to many of the causes catalogued therein if its negligence were the legal cause of the damage. The carrier must know, too, that the courts will not give full effect to stipulations that there shall be no liability for losses "from any cause to property carried on open cars." Again, the stipulation that "shipments not made as above provided are subject to an additional charge of 20 per cent" is unreasonable. A certain differential between rates which leave the carrier's liability unlimited and rates which provide for a limited liability is obviously proper, but the differential should exactly measure the additional insurance risk which the carrier assumes when the liability is unlimited. An increased charge of 20 per cent is manifestly out of all proportion to the larger risk involved, and its virtual effect is to restrict the public to rates calling for limited liability. Herein lies the vice in stipulations of this character. It is a mischievous practice for carriers to publish in their tariffs and on their bills of lading rules and regulations which are misleading, unreasonable, or incapable of literal enforcement in a court of law. A revision in the interest of simplicity and fairness, eliminating such provisions as may be open to legal objection, would go a long way toward improving the relations of the railroads and the shipping public.

13 I. C. C. Rep.

No. 1411.

MARSHALL MICHEL GRAIN COMPANY

v.

MISSOURI PACIFIC RAILWAY COMPANY.

Submitted April 11, 1908. Decided June 1, 1908.

Complainant shipped 2 carloads of bran, milled in transit, from Salina, Kans., to Little Rock, Ark., over defendant's direct line through Coffeyville, and was charged the published through rate, which is higher than an alleged combination of a rate on bran over defendant's line to Kansas City, Mo., plus a proportional rate from Kansas City to Little Rock; Held, That under defendant's tariffs there was no combination on Kansas City less than the through rate.

C. W. Durbin for complainant.

James C. Jeffery for defendant.

KNAPP, Chairman:

REPORT OF THE COMMISSION.

The complainant, engaged in buying and selling grain and its products at Kansas City, Mo., purchased in September, 1906, 2 carloads of bran from a dealer in Salina, Kans., at a delivered price in Kansas City. The bran was not shipped to Kansas City, but upon orders from complainant was shipped to Little Rock, Ark., over defendant's direct line through Coffeyville.

A part of the wheat from which this bran was produced originated at Smolen, Kans., on May 28, 1906, and the balance originated at Falun, Kans., between July 24 and 28, 1906. Smolen and Falun are local stations on the line of defendant west of Salina.

One of the rules published by defendant in its tariff reads as follows: When the rate upon the product of the grain is lower than the rate upon the grain from which the product is manufactured, the grain rate will be used from point of origin of the grain to final destination.

Under this rule bran, the product of wheat, would take the wheat rate. Other rules provide for milling in transit of grain at certain stations, including Salina, on the line of defendant.

At the time this bran was shipped the rate on wheat, and therefore on bran, from Smolen to Kansas City was 15 cents and from Falun to Kansas City 15 cents. At the same time there was in

effect a proportional rate on bran from Kansas City to Little Rock, Ark., of 12 cents.

On May 28, 1906, when the wheat from which a part of this bran was made originated at Smolen, the rate from Smolen to Little Rock was 32 cents. Subsequent to July 8, 1906, and during the time when the wheat from which the balance of the bran was made originated at Falun, the rate from Falun to Little Rock was 304 cents.

It will thus be seen that the rate from Smolen or Falun to Kansas City plus a proportional of 12 cents from that point to Little Rock would be less than the through rate from either point of origin to Little Rock, and complainant claims that it was entitled to such lower combination on Kansas City instead of the through rate of 32 cents, which was actually charged. Whether or not this claim is well founded is the only question in controversy, as the reasonableness of the through rate is not challenged in the complaint.

Defendant meets this contention by reference to a further rule in its tariff which provides as follows:

Proportional rates named herein must not have the effect of reducing through rate from original point of shipment. When the local rate into reconsigning point (junction from which rates apply, shown herein), plus the proportional rate out, has the effect of reducing the through rate from original point of shipment, the proportional rate must be increased sufficiently to protect the integrity of through rate from point of shipment.

Under this rule, the meaning of which is plain, it is apparent that the proportional rate of 12 cents from Kansas City to Little Rock was not applicable to the bran in question, because the wheat from which it was produced originated at points taking rates to Kansas City, which, added to the proportional therefrom, would make a combination rate lower than the through rate to destination. In other words, the proportional rate to which this bran was entitled under the tariff then in force was not 12 cents, but the difference between the through rates to Little Rock and the local rates from points of origin to Kansas City. The rule last quoted was evidently intended to prevent a combination on Kansas City which would be less from any point of origin than the published through rate.

The representative of complainant at the hearing stated that he "expected" to have the benefit of the proportional rate from Kansas City on the shipments in question, and claimed that this proportional rate had been applied on other shipments. But he failed to show any instance where this had been done with the result of securing a combination rate less than the through rate from points of origin, Undoubtedly shipments have been made by complainant from Kansas City on the proportional rate of 123 cents, but apparently only in cases where the combination on Kansas City was the same as 13 I. C. C. Rep.

or more than the through rate, since there is no evidence in this record that the defendant has at any time carried traffic on proportional rates in disregard of its tariff provisions.

As above stated, the bran in question was transported via Coffeyville and charged a rate of 32 cents. This was an error as to a part of 1 carload, as the through rate from Falun was only 30 cents. If the bran had been shipped to Kansas City on the local rates and then reshipped to Little Rock upon the proportional rates applicable when the wheat originated at Smolen or Falun, the combination rate by that route would also have been 32 cents from Smolen and 30 cents from Falun.

This would be so upon the assumption that the proportional rates on bran were applicable to the shipments in question, but it appears from the rule first above stated, to the effect that the product rate must not be less than the grain rate to destination, that the only proportionals applicable from Kansas City, if any, would be the proportionals on wheat. Prior to July 8, 1906, the proportional on wheat was 17 cents and after that date 15 cents. These proportionals added to the locals into Kansas City would give a combination rate of 32 cents from Smolen and 31 cents from Falun, which are not less than the through rates actually charged.

Moreover, it is doubtful whether any proportionals are applicable on these shipments, in view of the fact that the wheat from which this bran was milled had already received the milling-in-transit privilege at Salina, and the rule of defendant seems to exclude the reconsignment rate when the milling-in-transit privilege has been enjoyed.

It thus appears that the rates charged upon these 2 carloads of bran were in strict accordance with defendant's tariff, except for the error mentioned, and that complainant is mistaken in supposing that there was a lower combination via Kansas City. Not only were the through rates the only lawful rates, as the Commission has repeatedly held, but those through rates are not greater than the locals to Kansas City plus the proportionals applicable therefrom when Smolen and Falun are the points of origin. As there is no allegation or proof that these through rates are unreasonable, we must hold that the defendant is entitled to a dismissal of the complaint.

As above stated, however, an error was made in charging 32 cents on both these shipments. That was the through rate from Smolen, but the through rate from Falun subsequent to July 8, 1906, was 30 cents. This error resulted in an overcharge on 1 carload of $8.04, which the defendant stated it was ready to refund, although not embraced in the complaint, and which it should refund without an order, because in excess of the published rate.

An order will be entered accordingly.