]m<:,f(>r,e tt ik Railroad Commission of Wisconsin. :\rer)f(>rt) fiu^tt itvct^f\.ge eotmttvny a{jain.tt wiscoxsrx (t:íxtiial raitavay coaipaxy, ctii- (tA(}() A- XOTmiWESTEITX ITATIAVAY COAIPANY .a.\i> ElITCiAGO, AlIIAVAl'IvEK & ST. PATTL PAITAVAY COATPAXY. Decided May 11, 1906. T. T. FIdw.viíds, Secrchny, tor the ATodfnrd Frnit Par-kiige Company. Tiios. IT. Gii.i. for AVi.■ironsill Contral TFailway fYmi)any. S. A. l.Y.xnio for Gliicago &•. Xoi-tliwestcrn llailway Company. Cuas. E. yiioifax for Cliicago, Alilwankec & Sf. Paul Railway Ciompajiy. ()]>IXrO.X AXI> ORDEIT OF TITE COArATTRSTOX. COMPLAINT AGAINST CARRIER. RAlLEiOAD (XLM.MISSIOA OFi '.WISCOXSIK :MET)F()'E1) JEUIT PAOJCAGE COÍIPAAY against WISCOATSIET CBXTEAL EAIIAYAY CCÄIPAYY, GHICAGO & YiOEÏIIWEST'EEY PvAILiWAY COYI- PAÍTY, CHICAGO, HILWAUKEIE & ST. PAUL EAIIAYAY CXWIPAYY. Decided ^Iay IItii, 1906. J. T. Edwards, Secretary, appeared for tlie Medford Emit Package Co. Thos. II. Gill appeared for the lYiscoiisin Central Ey. Co. S. A. Lynda appeared for the Chicago A: Yorthwestern Ey. Co. Chas. E. Yronian apjieared for the Chicago, Milwaukee & St. Paul Ey. Co. The complainant in the ahove entitled action sets forth in its petition that it is a corporation organized and existing un¬ der the laws of the state of Wisconsin, with its principal office in the city of YIedford, Wisconsin; that its business consists largely in manufacturing fruit packages, baskets and berry boxes ; that its manufacturing plant is located on the line of 2 IlAILIîOAI) COililISSIOX OF WISCOXSIX. the Wisconsin Central Railway Company, and that it ships its manufactured prod\ict over said Wisconsin Central Rail¬ way and connecting lines, and that a portion of its manufac¬ tured product is delivered at destination to points in Wiscon¬ sin over the lines of the Chicago & Rorthwestem Railway, and Chicago, Milwaukee & St. Paul Railway ; that a large portion of the manufactured product of the petitioner con¬ sists of berry l>oxes which are crated and put up in as com¬ pact a foiTu as the nature of the package peiunits ; that these packages are now shipped in carload lots under class rates, and that such rates are excessively high considering the value of the manufactured product and other elements that should be taken into account in fixing a reasonable rate. The petition quotes from certain rules of the Western Trunk Line Com¬ mittee to be noted below, and complains that the carriers re¬ fuse to construe these rules in such a manner as to include the berry boxes under consideration. The petitioner avers that a proper constiniction of the rales referred to would permit it to ship its berrj^ boxes under the rales which prescribe the commodity rate on lumber with the lumber minimum. The petitioner further represents that the rates that are actually charged for the transportation of berry boxes in carload lots are excessive, and that if the present classification will not admit of these boxes being shipped at the same rate that is charged for the trans]Xjrtation of lumber then the classifica¬ tion of such articles should be. changed so as to permit the petitioner to ship goods in the manner indicated. The answer of the Wisconsin Cbntral Railway Company, which was substantially the answer of all of the companies, sets forth that the petitioner manufactures its ben-y boxes in the shape in which the same are to be used for the reception of the fruit and crates them in bundles for shipment in such form that thereby the space occupied by the inside of all of such boxes is entirely unoccupied by fi-eight paying material or product, in consequence of which but comparatively small tonnage or weight is contained in any carload of the material medford fruit package co. v. raiiavay COS. 3 so manufactured and shipped l)y the petitioner. Attention Tras further called to the fact that in the classification the inininnnn carload weight is ])nt at 10,000 pounds. That, upon the other hand, himher shipped bv defendant companies occupies almost the entire space in a car and produces several times the weight to each caidoad that is obtained from the product shipped by the petitioner, and* to change the rate so as to apply carload rates to petitioner's shipments would be a gross discrimination against shi])pers of Inmber and lumber products not e(jnal in bulk to petitioner's jn-oduct but of far gTcater weight. The petition was filed April 13th, 190(1, following a num¬ ber of fniitless informal conferences, and correspondence ex¬ tending over several months. The hearings ujion the case were held on !May 9th and 10th. The IMedford Fmit Pack¬ age romjiany was represented by its secretary, ,T. T. Edwards ; the Wisconsin Central Railway Comjiany was represented by Thos. ir. Gill; the Chicago & Xorthwestcrn Railway Company was represcïited by S. A. Lynde; the Chicago, ^lilwaukee & St. Paul Railway Conpiany was reprc.sented by Chas. E'. Vro- man. The vital (piestion at issue iu the case is the rate charged for the trans])ortation of a rectangular berry box made out of ''scarfed" material, set uj), ready for use, in crates of differ¬ ent sizes. The specimen crate ])rfKluced at the hearing con¬ tained sixteen such berry Itoxes. The ik-itv box in question is the one which is commoidy in use in the berry trade in this )iart of the country. The minor (picistions relating to the construction of: the Weste'u Trunk Line Piules and the West¬ ern Classification, which in turn involve the <]uestion of the classification of the berry boxes under consideration, idti- mately reçoive themselves into the ([ucstion of the rate, because the rate varies with the chi.ss to which au article belongs. The Western Classification, wliich a])plies to all the terri¬ tory west of Chicago and the ^Mississippi river, has been adopted by some seventy railways doing Imsiness in this sec¬ tion of the United States, includiiig all the railways in the 4 liAlI.lîOAI) COMMISSIOX OF WIWOOXSIX. state of Wisconsin, (hi pago 14, items B2 and 33 of the Western (dassification Xo. 40, effective A])ril 1, lOOti, eve find tiie following apnlicalile to the commodities under con¬ sideration in the ])resent case : Ba.skets (\ L. (Subject to Knie (5—^B.) Xestcd or K. ]). .Minimum M'eight 10,000 lbs 2 Rule B is found on jiage 2 of the (Tassification and jiro- vidcs in substance that as the size of the car increases the minimum weight shall increase apjiroximately in the same proportion. The basis of this classification is found in a number of jirinciples, none of which are so clearly and well defined that they can he oxiircssed or formulated with mathe¬ matical accuracy. However, generally speaking, the chief features which it seems necessaiw to consider in detemiining the proper classification of an article are the space occupied for each one hundred iwnnds of the article, and the value per one hundred pounds of the same. The first is supposed to represent the amount of car space which thé carrier must fur¬ nish in the transportation of the ai-ticle, and the second is sujiposed' to represent in a general way the risk which the car¬ rier assumes, as well as the ability of the commodity to be transported to laiar a certain rate. Having detennined the number of cubic feet of car space occu])ied by 100 pounds of an article, and the value of 100 ])nnnds, both expressed deci- ilially, these two items are added together and constitute what has been termed a classification unit. This is not an exact but rather an approximate unit, which sciwes the purpose of coniijiarison with articles already in the classification, or with other articles still to be added to the classification. A certain niunher of classification units are theoretically, at least, re¬ quired of all the conunodities in a certain class. For in¬ stance, an article which represents between 1.") and 20 units falls into the first class; an article which represents hetAveen 10 ami 15 classificatif)!! units falls into the second class; be¬ tween 5 and 10 units third class; 5 or fewer units fourth class. These units may be regarded as index numbers giving JXEDFOIÎD FRUIT PACKAGE 00. V. R.\ILWAY COS. O the clue to tlie correct classification of any particular article. Ohvionsly, a large nunilx'r of (lifferent considerations enter into the classification of thousands of articles, and a unit rule of this kind must he regardcid as ap])licahle only in a general way. Articles which are not included within the classifica¬ tion, hut which are trans¡)orted in considerable volume, are geiu rally carried at what are known as commodity rates. It is generally understood that commodity rates are lower than class rates. Articles which do not have a commodity rate take the class rate, the same rate applying to each article in a class, while the commodity rate a})plies only to the ])articular com- nnality in (piestion. A])i)lying thesi> general comsiderations relating to the classification of ohjects of transportation, it may he pointed out that berry boxes, like those involved in the present case, are carried at class rates, while berry baskets, which are used for the same ]>ur])ose, and which com])ete in the market with boxes, are carried at commodity rates. The rea¬ son for this will a])pear in the following ])aragTa])li. The Western Trunk Line committee is a body re]iresenting about thirty railways, all of which are iuchided in the list which has a])])r(;ved the Wi'stern Classification, cousecpieutly the territory in which these tliirty raliways o])erate is a ])art of the larger territory re])resented by the Western Classification. The Tnmk Line rules take ])recedence over the Western Classi¬ fication and, theoretically at haist, it is assumed that the Trunk Line rules are mon» nearly adai)ted to the peculiar con¬ ditions and movements of traffic prevailing along the lines of the various carriers re])resented in the committee than the Western Classification. Tn tiie case of a confiict between the Trunk Line rules and the classification the former control. .Vs has heen stated, all the defendants in this case are members of the Western Trunk Line committee, and as such they ahide by tlm rules of that association ; although technically and legally, as we understaml the situation, the rules ami rates published hy tiie Western Trunk Line committee are supposed to he establislud by the individual action of the various lines embraced in its immbershi]), and the relation of the committee (5 It.\.IM{()AI) COMMISSION OF WISCONSIN. to' tlio action of tlic individual lines is that of a publishing agene%. The trunk line eoniniitttee as a publishing agency issues rules and regulations from time to time. Rule 56-B of Rules Circular W. T. L. îio. (i, effective April 1, 1905, which is reissued as rule 56-0 in amendment lío. 5 to the Cir¬ cular just mentioned, effective April 10, 1906, provides that the lumber rates and merrv boxes under consideration, he did not think it rvas possible to designate any article manufactured in this or any other state, in whieh the carriers are subject to Trunk Line rules, to whieh this partieu- lar item did apply. The applieation of both the classification and of the Trunk Line rules appear to turn upon the definition of the term "nest¬ ing." In the general rules which are a part of the Western Classification there is no mention of the term "nesting." On pages 16 and 118 of Western Classification Ho. 40, Ave find the only thing ivhich may he constnied as a definition of "nest¬ ing." The reference on page 16 reads as follows; "Ratings for nested paper boxes will apply only on paek- ages in which one-third of the s]>ace is saved by nesting." On page 118 we find the folloAving: "Tinware may be regarded as nested Avhen 20 ]->er cent or MEDFORD FRUIT PACKAGE CO. V. RAILWAY COS. one-fifth of space is saved by placing: one article within an¬ other. Dinner pails, consisting of several jiarts jilaced inside the pail proper, are ratable as nested tinware." On the same page there is also found the following: "Xested solid, i. e. : The outside and bottom surfaces of the article above must rest against the inside and surface of the bottom of the article below without any intervening space, and is exclusive of articles with projecting ears, handles, spouts, etc., which nest, but not solid as above described." On page 6 of Southern Classification Xo. 34, is found the following definition : "The tenu 'nested' as used in this Classification covers a series of three or more like articles fitting closely one within another." In the testimony it was explained by the secretary of the Western Classification committee that the definition incorpor¬ ated in the Southern Classification is the one which has been generally applied in construing the Western Classification. It was suggested at the hearing that in the absence of a gen¬ eral rule as well as (T a s]>ecial rule applicable to nested boxes in the Westein Classification, the berry boxes under considera¬ tion, Jilaced in crates, should he regarded as lieing nested, for the reason that the manufacturers of these boxes j>ay for "nest¬ ing'' the same when they pay for placing these boxes in crates. It was furthermore urged that boxes, being necessarily rect¬ angular ill sliajie, could not jiossihly he nested in any manner other than that shown in the sjiecimen crate of boxes pro¬ duced in evidence. While there is some force in these repre¬ sentations, we cannot acquiesce in the conclusion drawn from them; and we are constrained to hold that no commodity can properly he regarded as nested within the meaning of the Classification or Trunk Line niles, unless certain articles of a certain kind fit into one another in such a manner as to effect a substantial saving in sjiace as compared with the amount of space the same munher of the same article would occupy when not thus nested, hut simjily jilaced in close jirox- imity to one another. The scarfed berry boxes, set up and ,s KAII.líOAI) CO.M .M ISWIOX OF WISCONSIN. orated, as sliowii in tlio sjiooiiiion orate, are therefore not to he roo-ardod as nested witiiin tlic ineaniiif»' of the Western Classi- fioation nor tlie Western Trunk Line rules. Hence, as the rules now stand, these herrv boxes are subject to the rates of class 2 of the Western ( dassification ; whereas, the herrv ba.sk- eta produced at the hearing, and referred to as exhibit 1, take a eoniiniodity rate the same as that which a])plies to lumber with the same minimum weight. Fruit hasket.s like those of exhibit 1 are conoeiled to he more valuable than the Irerry boxes under consideration, and one naturally looks for some (x])lanatÍGn of the unlike troatnienti accorded to these tw^o classes of comjieting commodifiies in the FOassification and Trunk Line mies. To illustirate the effect of the existing rnlcs u]ion these commodities, a carload shipment of each from IMedford to Hilwaukee may he taken. The second class rate lictween IMedford and ^Milwaukee is dfiVii cents per 100 lbs. The lumher rate from IMedford to IMllwaidiee is 10 cents per 100 lbs. .Assuming that each of these cars is loaded to the required minimum, namely, 10,000 lbs. in the case of the car¬ load of be rry boxes, and :10,000 lbs. in the case of the carload of berry baskets, at the given rate the baskets yield a total revenue of ^.'lO.OO, while the boxes yield $40.50. On the as¬ sumption before us there is a difiiorence of $10.50 -which could not he accounteil for by any of the facts brought out at the hearing. iXot only was it shown that a carload of boxes which must bear between the ]i<)ints mentioned, this rate of $40.50—a.ssuming the minimumi weighti—is less valuable than a carload of baskets, Imt also less valuable than a carloael of lumber at the average iprice ])revailing to>-day. In addition, tlui amount of lundicr reipiired to make a carload shi]nnent when manufactured into boxes of this kind will produce sca'- eral carloads of freight, so that in reality in the one instance the railway receives a revenue of only $00.00, as compared with a revenue several times $4().50, which it ultimately re- received, on the boxes manufactured out of this lumber. The ( xact extent of the dis]iarity in the treatment of herrv boxes and b< rry baskets is brought out even more forcefully when MEDKOIil) l'IiEIT I'ACKAGE CO. V. líATT.WAA' COS. !) lU'ttial weights are considered. Tiie testimony estahlished llie fact that the nested baskets of exhibit 1 raiely, if ever, readied tibe niinininin weight of ;5(),()00 pounds; wherea.s, the average wcdght of four ears of Ix'rry boxes siiipped by the cnni- plainant, was 13,70.") pminds. llenee, if tlicise ears had lieen sliipjied from .Meeiford to ]\Iilwankee at tiie existing rates, the nested baskets would have yielded the railway comjianv not to excex'd $3().()(), and the boxes $(>3.73 in revenue iier ear, or $33.73 more jier ear for the boxes than for the baskets This is a diseriminatimi against berry boxes for which no adequate ilefense can be made. It seems clear that the entire matter of the classitication and rates on different kinds of fruit jiackagisi is in need of careful revision and adjustment. To make such a revision requires time. I'lie f-iea>son for shi])])ing fruit pacikag'es 'is now at hand. Delay in reaching a deeision would mean hard- shi]i to tiie shippers. Tiie granting of immediate relief seems necessary. Tiierefore, in order to meet tiie situation wiiicli actually exists, and without coiiimitting ourselves to s])ecific niles and ])rinci))les a]q)iicahle to tlie future, and wiiicii may possiiily he deduc.iiile from our order, we are inclined to iie- lieve, on tiie iiasis of the facts before u.s, the extension of the luniher rato and minimum to the .scarfed lierry boxes, set up and crated, as siiown in the specimcai at tliei hearing, is fair to all the ])artie.s in interest. We expressly di.sclaim approval of the ])ractice of a])]iiying a])]iarently low (•oniniodity rates to light bulky ai'ticles with a high minimum, iiy means of which tiie real rate is made several times as iiigii as the nominal ceniniodity rate. We believe it is mncii more expedient, clearer, and therefore le.ss liaide to misconstruction or to cause dissatisfaction, to ciiarge 30 cents jier 100 jiounds for a car^ load of 10,000 jiounds, than 10 cents iier 100 pounds for a carload su])]iosed to weigh 30,000 pounds, imt onedialf or more of which assumed weight is fictitious weigiit. We commend the aims of tliei Western fdassification committee to ])rovide a minimum wiiicli can actually be loaded in a car; and we dis¬ countenance the method of carriers by wiiicli rates are changed 10 liAIl.KOAl) COM .\[ISSI()A" OF WISCONSIN. tlirc-iijili the instniinciitality of tlic classification and minimum \v( i<>lit ratluM- than h_v directly changing the rate. The method of changing a rate throngh the classification and minimum weight is an indirect, jircccdnre which veils the real nature of tiio change which it involves. We are of the opinion that the existing rules and rates eon- stitntc an nnjnst discrimination against the heriw boxes sho^vö at the hearing; and it is further our judgment and deteimiin- ation that the present rates charged for the transportation of lunilier, with a niinimnni u'eight of 30,000 pounds, as applied to nested herry baskets, are remunerative, and that such rates should also he charged for the trans))ortation of berry boxes. It Is Tiierf.foke Oiíderei), That Rule 4fi-B of the Rules Circular W. T. L. Xo. 0, shall a]iply to the scarfed herry boxes, set up and crated, under consideration in this case, thus giving these ho.xcs the benefit of the rate and minimum u-eights applic¬ able to lumber, until September 1, lOOC, which we regard as a reasonable chai-ge. On or before that date a revised classi¬ fication and schedule of rates applicable to fruit packages may he submitted to the Commission for its approval. If no such classification and schedule of rates can he agreed upon by the carriers and manufacturers, and others in interest, the Com¬ mission will procceil as soon as ])ractica.hle thereafter upon its own motion to investigate further the existing classifica¬ tion ami rates on fruit ])ackagcs, and to order snch changes as may a])]K'ar just on the basis of the facts then before it. Dated this 11th day of ^lay, A. 1). 1906. RAILROAD (TIILMISSIOX OF WISCOXSIX, By doHN Barnes, B. 11. ^Ieyer, 1 Ialfori) Ekickson, Commissioners.