following history of the rates on eastbound shipments: It appears that about the year 1897 the rate on all brick from Chicago eastbound was 20 cents. This was raised later to 25 cents about January 1, 1900. Very shortly afterwards, upon representation of the paving-brick shippers, the rate on paving brick was reduced 24 cents, and in May, 1900, those shipping building brick having been heard from, the scale from Chicago was made-fire brick, 25 cents, building brick, 224 cents, and paving brick, 20 cents. About a month later the rate of 22 cents was made to apply on both building and paving brick. In September, 1904, about four years later, the rates were made 25 cents on fire brick and 20 cents on both building and paving brick.

Strasburg, Ohio, takes 70 per cent of Chicago-New York rates, and the rates from that point to New York are, therefore, 17 cents on fire brick and 14 cents on building and paving brick. Empire, Ohio, takes the 60 per cent basis, but the Pennsylvania System fixes the rates from that territory on the basis of 223 cents from Chicago, and the rates from Empire to New York are, therefore, 15 cents for fire brick, 13 cents for building brick, and 12 cents for paving brick. A similar relation exists on eastbound shipments from other shipping territory on the Pennsylvania Lines in Ohio and Pennsylvania for the three grades of brick shipped to eastern destinations. The complainant has been protesting to the carriers against the application of different rates on these grades of brick for several years.

The rates westbound are on a lower basis and are the same for brick of all descriptions; that is to say, from Pennsylvania brickmaking points to all points in Central Freight Association territory the three kinds of brick take the same rate, and that rate is lower than the rate eastbound between the same points. From Williamsport, Pa., a brick-manufacturing point, the rate westbound to Canal Dover (near Strasburg), Ohio, is $1.75 per ton (83 cents per 100 pounds), while the rate from Canal Dover to Williamsport is $3.10 per ton, or 15 cents per 100 pounds.

The defense claims that the $3.10 eastbound rate extends east as far as Philadelphia, while the westbound rate from Williamsport applies from a group of which Clearfield may be taken to be the most westerly point of shipment, and that the comparison is unfair. However this may be, the fact remains that as between Canal Dover and Williamsport the westbound rate on all grades is $1.35 per ton (63 cents per 100 pounds) less than the rate on fire brick eastbound. The rates between points in Central Freight Association territory, which is the transportation territory west of Pittsburg and Buffalo and east of the Mississippi River, are generally the same for the

three grades, but to this there are exceptions, some of which are here shown:

Tariffs do

St. Louis, Mo.

Paving-brick rates from Strasburg-rates given are from Canton district.

not specifically name Strasburg.

Face building brick from Portsmouth-except to Chicago, Detroit, East St. Louis, and St. Louis no specific rates in force on building brick shown in tariffs, and fire-brick rates are used.

From certain groups in Pennsylvania to points in territory known as Buffalo-Rochester territory the rates via the Pennsylvania Lines are the same, and the testimony indicates that the differing rates apply on shipments to Buffalo-Rochester territory from Empire and Strasburg. The westbound rate from Pennsylvania brick industries to Central Freight Association territory is made by adding certain arbitraries to the rate from Pittsburg. Johnstown, Pa., for example, takes an arbitrary of 50 cents per ton above Pittsburg. Eastbound the Johnstown rate is 30 cents below the rate to Pittsburg.

The brick in question are all made from fire clay, which, when used for brick making, is composed of a kind of clay rock ground and mixed with soft clay, both of which are found in the same localities at numerous points in Ohio and Pennsylvania and at one or more places in New Jersey. All three kinds of brick are composed of the same material, and may be, and often are, burned at the same time in the same kiln. The hottest part of the kiln produces paving brick, the medium burned are building brick, and those layers subjected to least heat are fire brick. Under present rates and commercial and manufacturing conditions pertaining to brick manufactured in Pennsylvania, the percentage moving west is much larger than the percentage of Ohio brick moving east. The westbound movement of Pennsylvania brick is estimated at 40 per cent and the eastbound movement of Ohio brick is stated to be approximately 15 per cent. The various plants compete for the eastern and western trade.

The brick for each grade is generally the ordinary 9-inch brick of commerce, but paving brick for street use often take the block size, and fancy building brick may be much longer and wider but not so thick. But for the purposes of this report fire, building, and paving brick may be taken as of the same size. The weight of each kind is 7 pounds or 3 tons to the thousand. Shipments fill the car to the maximum load of 10 per cent above marked capacity. The carrier, therefore, renders exactly the same service whether fire, building, or paving brick is shipped in carloads between the same points.

Complainant's fire brick ranges in value about as low as, if not lower than, its building or paving brick, taking all of its sales into account, but an extract from a report of the Geological Survey, put in evidence by the defense, shows that the general value of fire brick is somewhat in excess of the value of building brick, and that the latter slightly exceeds the value of the brick used for paving. In view of the policy of the defendants themselves in making the same rates for all kinds on westbound shipments, which practice also obtains in most instances throughout the Central West and in shipments to the South, the difference in value can hardly be said to furnish a basis on which to predicate a difference in rates. The practice of invariably making different rates on the three classes of brick seems to be confined to shipments into and between points in Trunk Line territory, and to this there is the exception above noted from Pennsylvania Railroad points in Pennsylvania to Buffalo-Rochester, N. Y., territory.

It is entirely practicable to use fire brick for cheap building purposes and building brick or paving brick for fire-brick use, and instances have occurred where one kind has been purchased or sold to be used instead of another kind, and where fire brick shipped as for building use have really been used as fire brick, thus evading payment of the higher rate. Although interchangeable, each is usually confined to the individual use indicated by the name.

It may be fairly said in conclusion that the carriers in this case show no sufficient justification whatsoever for discriminating between the three kinds of fire-clay brick involved in this proceeding. The brick themselves are so nearly alike in color that, being the same size and of the same weight, they are practically indistinguishable the one from the other. To make different rates on each of these brick is virtually to permit the shipper to declare which of the three rates he chooses to impose upon the freight. The receiving agent of the railroad, unless an expert in fire-clay brick, could not tell which of the three rates to impose upon any one of the three varieties, except by inquiring what use was to be made of these brick. Aside from the difficulty in learning what use the brick were to be put to upon reaching their destination, we can not regard a classification as scientific,

or a difference in rates as well based, which is altogether founded upon a distinction that has no transportation significance.

Moreover, such a differentiation, if permitted and extended throughout the various classes of freight handled by railroads, would lead to an almost endless multiplication of rates, which could find no excuse save in the use which might be made of the article transported. One class of lumber of the same measurement and of the same value and of the same general appearance and of the same weight as another might be given a distinct and separate rate. And so with building stone and cement and steel in certain forms, and many other commodities which will readily suggest themselves. Classification must be based upon a real distinction from a transportation standpoint; and we can find no such distinction between these three classes of brick, which are made of the same material and come out of the same kiln, as justifies a difference in rates. To hold otherwise would be to promote false billing on the part of shippers, and to require the carriers, if they would avoid the penalty of the law, to make a practically impossible examination into the use to which each shipment of these brick was put.

We are not asked in this proceeding to determine what rate may be imposed as a reasonable one, and therefore shall leave this matter to be adjusted by the carriers, subject to review upon complaint by this Commission.

It will be ordered that the fire brick, building brick and paving brick made of fire clay and here considered shall, as to the points herein involved and as to the defendant carriers, bear the same rate.

No. 794.

DESEL-BOETTCHER COMPANY

v.

KANSAS CITY SOUTHERN RAILWAY COMPANY, TEXARKANA & FORT SMITH RAILWAY COMPANY, ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, AND INTERNATIONAL & GREAT NORTHERN RAILROAD COMPANY.

Submitted May 20, 1907. Decided June 24, 1907.

1. For the purpose of naming rates to various points in Texas, stations upon the Kansas City Southern Railway are grouped in territories as follows: Coming south from Kansas City all stations up to, but not including Siloam Springs,

are in Kansas City territory, while Siloam Springs and stations for a certain distance south are embraced in Little Rock territory. Defendants transferred Siloam Springs from Little Rock territory into Kansas City territory. Complainant alleges that this change, resulting in an advance of the rates on green apples in carloads from 49 cents to 58 cents per 100 pounds from Siloam Springs to Houston, Tex., was unwarranted. Held, That group rates must of necessity result in a certain amount of discrimination, but they should produce as little discrimination as possible; and Held further, That, upon the facts of this case, the change of Siloam Springs from the Little Rock group to the Kansas City group did not result in undue discrimination.

W. T. Bartholomew for complainant.

Hiram Glass for Kansas City Southern Railway Company and Texarkana & Fort Smith Railway Company.

H. Booth for International & Great Northern Railroad Company.

REPORT OF THE COMMISSION.

PROUTY, Commissioner:

The complainant is a corporation under the laws of Texas, doing a general produce business at Houston, in that State. Its complaint is that the defendants have overcharged it upon certain shipments of apples from Siloam Springs, Ark., to Houston. The shipments in question were 12 carloads; the rate paid was 58 cents per 100 pounds. The rate claimed is 49 cents per 100 pounds, and the difference between the amount actually collected by the defendants and the amount which the complainants insist should have been collected is $287.28.

For the purpose of naming rates to various points in Texas, stations upon the Kansas City Southern Railway are divided into what is. known as Kansas City territory and Little Rock territory. Coming south from Kansas City all stations up to, but not including, Siloam Springs are in Kansas City territory, while Siloam Springs and stations for a certain distance south are embraced in Little Rock territory.

At the time of these shipments, green apples, in carloads, moved upon the regular Class C rate-which was 58 cents from Kansas City territory and 49 cents from Little Rock territory.

According to the testimony, the apple-producing section upon the Kansas City Southern begins at about Goodman, 185 miles south of Kansas City, and ends at Siloam Springs, 229 miles from Kansas City. The three stations from which apple shipments are the largest are Decatur, 217 miles distant from Kansas City; Gentry, 222 miles, and Siloam Springs, 229 miles. From Siloam Springs to Houston the distance is 581 miles.

The defendants state that for the purpose of preventing discrimination in the rate between these different apple-producing points, they transferred Siloam Springs from Little Rock territory into Kansas City territory. The complainant claims that this action upon the part