173 F. 930 | U.S. Circuit Court for the Northern District of Illnois | 1908
(after stating the facts as above).- A charter duty of railroads is to provide cars, as well as tracks and locomotives. So far as the shipping public is concerned, it is a matter of indifference whether railroads discharge'this duty by purchasing or by renting or by borrowing cars. But since no vehicle for transporting commodities in commerce can have any rights upon the tracks of -a public carrier except under and by virtue of the carrier’s charter, a shipper who is not also a lessor or lender of cars is interested in seeing that the carrier abstains from discriminations in conditions of service on account of the ultimate ownership of any of the instrumentalities used by it in the transportation of commodities in commerce. A shipper who owns cars is not entitled on that account, or on any account, to a preference in rates or in promptness of service. If his cars are used, all that he is entitled to is to be paid the just value of the use, whether measured by mileage or otherwise. If he has a contract with the carrier that calls for more, that contract is pro tanto void. In our judgment, therefore, the so-called private cars, if accepted by an interstate carrier for use by it in transporting a commodity in commerce, must be-treated as constituting a part of the carrier’s available commercial equipment.
It appears that certain shippers who own cars do no business outside of Illinois. In their behalf it is suggested that, even if private cars used in interstate commerce must be counted, the complainant carriers cannot be required to take into consideration the cars of shippers who do only an intrastate business.
Where federal authority exists, it is paramount. It exists here by virtue of the fact that complainants are interstate carriers. No practices on' their lines can be permitted which favor local commerce at the expense of interstate and foreign commerce. In case_ of a conflict with a rule for the protection of interstate commerce, which has been duly made by the Interstate Commerce Commission, local Constitutions, statutes, orders of Railway Commissions, and regulations of the carriers, all must give way.
II. Fuel Cars of Foreign Railroads.
The fact that these railroads are themselves common carriers has nothing to do with the case. Here they stand as mere consignees of a commodity that is transported in commerce by an interstate common carrier, which is forbidden to prefer them in any way above other consignees or shippers. In so far as complainants receive upon their roads the fuel cars of foreign railroads, they must count them as part of their own available commercial equipment.
III. Fuel Cars of Complainants.
Coal is brought by complainants from mines along their roads under contracts whereby the coal is. delivered to them at the mine tipples. Some is there loaded directly into the tenders of the locomotives. The remainder is taken in cars to the railroads’ coal chutes. All is for the complainants’ own consumption.
But this does not mean that these cars do not affect the problem of an equitable distribution of commercial equipment. The mine operators are objects of interest under the interstate commerce law, not as diggers of coal, but as shippers who tender a commercial product for transportation by interstate common carriers. The basis, therefore, on which the mines in a district should be rated, is not their average output as a physical question, but the average output which they respectively tender for transportation in commerce. If two mines have capacities of producing 1,000 tons each per day, they should have the same rating if they are each offering the whole amount for transportation in commerce. But if one of these mines, by reason of exhaustion of a vein, or flooding of a shaft, or the operator’s local consumption of his own fuel, can and does offer for transportation in commerce only 500 tons per day, equity requires that the carrier should rate it at only one half of the other mine. And we perceive no just ground for a difference, if the mine’s diminished capacity comes from the carrier’s act. While the carrier’s cars that are being employed in hauling its own fuel are not a part of the available commercial equipment, yet the diminished capacity of the mine to tender coal for transportation in commerce should be taken into consideration, and computing the average number of the carrier’s own fuel cars set out at a mine may be the easiest and surest way of gauging that mine’s diminished capacity.
In our judgment, complainants are not entitled to relief against that part of the order which requires them to count the so-called private cars and the fuel cars of foreign railroads as available commercial equipment; but they are each entitled to an injunction against the enforcement of that part of the order which commands them to count their own cars that are being employed in hauling their own fuel as available commercial equipment, and against their being compelled to take such fuel cars into consideration, except as a means in determining the true capacities of the mines to lender coal to them for transportation 'in commerce.
Decrees will be entered accordingly.
