109 F. 831 | U.S. Circuit Court for the District of West Virginia | 1901
On tbe 5th day of January, 1901, W. H. Coffman, who is the sales agent for tbe Indian Eidge Coal & Coke Company, notified tbe agents of tbe Norfolk & Western Eailway Company that be bad orders for 4,450 tons of coal, 2,000 tons of wbicb be desired transported by rail from tbe mines.of tbe Indian Eidge Coal & Coke Company, state of West Virginia, to-Lambert’s Point, state of Virginia, there to be loaded upon a vessel, wbicb would arrive on tbe 14th day of said month; and tbe remaining 2,450 tons be desired to be transported from tbe same mines to the same port, there to be loaded upon tbe steamship Chattan, due to arrive on tbe 17th day of said month; but be further informed tbe railway company that only 2,000 tons of tbe 2,450 was intended for cargo for tbe steamship, and that the remaining 450 tons was to be loaded in her bunkers, and need not be loaded upon tbe vessel before tbe 21st day of tbe month. Tbe railway company began at once to furnish tbe mines of tbe Indian Eidge Coal & Coke Company with coal cars for tide-water shipment, and continued to place at said mines its quota or percentage of all available coal cars in tbe coal field wherein tbe Indian Eidge is situate, having due regard for tbe needs of other operations in the field, and continued to so furnish cars until tbe 12th day of January, 1901; but tbe cars were not furnished as rapidly as Coffman desired, and believing, or pretending to believe, that tbe railway company was discriminating against him in tbe matter of cars in favor of tbe sales agencies of other coal operations in tbe field, gave notice that be would, on tbe 14th day of January, 1901, apply to tbe circuit court of tbe United States for tbe district of West Virginia, at Charleston sitting, for a writ of mandamus under -the interstate commerce act, to compel it to furnish cars for said shipments. Tbe application was not made, however, either at tbe time or place named, but was made to tbe same court at Parkersburg, on tbe 15th day of said month, and on that day an alternative writ of mandamus was issued against tbe railway company commanding it to furnish tbe cars as prayed for in tbe relator’s petition, or appear oh tbe 17th day of said month, and'show cause to tbe contrary. Tbe alternative writ recited that tbe relator, Coffman, was tbe factor of tbe Indian Eidge Coal & Coke Company for the shipment and sale of the product of its mines; that be bad sold on its account 2,000 tons of coal, to be delivered at Lambert’s Point, there to meet the barge E. T. Thomas on tbe 14th day of January, 1901, for reshipment to Providence, E. I.; and 2,450 tons, likewise to be shipped to Lambert’s Point, to meet tbe steamer Chattan, wbicb was due to arrive on tbe 17th day of said month, 450 tons of wbicb, however, was intended for said ship’s bunkers, and would not be loaded therein until tbe 21st day of said month; that be bad demanded of tbe railway company the placing of cars at tbe mines of tbe Indian Eidge for these shipments, and that tbe railway company bad failed and refused to furnish tbe same; that Castner, Curran,
At the trial the relator, Coffman, was examined on his own behalf, as well as his bookkeeper, Mr. Hardie, Mr. Kilpatrick, the president of the Indian Kidge Coal & Coke Company, and Col. Botsford, the manager of the mines of said coal and coke company. On behalf of the respondents was heard the evidence of L. E. Johnson, general manager of the railway company, M. D. Maher, its superintendent of that portion of the road which traverses the coal field in question, and I). E. Spangler, its general car-service agent. In a general way, but accurately, upon the subject of discrimination, the evidence of the relator showed: (1) That Coffman had not received a sufficient number of cars in which to ship as much coal as the Indian Bidge mine was capable of shipping. (2) That something like 300 cars were weekly distributed to the various coal operations in the field in which the Indian Kidge is situate, in which distribution the Indian Bidge Coal & Coke Company did not participate. (3) That certain arbitrarles were allowed certain coal operations in that territory; that is to say, that the Southwest Virginia Improvement Company and other coal operations in the general Pocahontas coal field were arbitrarily allotted a certain' number of cars in addition to the allotment to other operations in that
When we consider, therefore, the pleadings ,and proof and the act of congress under which this proceeding was instituted, it becomes evident that the peremptory writ of mandamus should be refused. In the first place, the gist of the whole proceeding is an unjust discrimination in favor of one shipper over another similarly situated. It is for the remedy of such a wrong that congress, by the act in question, gave the federal courts the power of mandamus, and for such a wrong alone. There must not only be a discrimination, but it must be an unjust discrimination; and that character of discrimination must not only be pleaded, but it must be proved by the relator, otherwise the,writ of mandamus will be denied him. Act Cong. March 2, 1889 (supplemental to Interst. Com. Act Feb. 4, 1887); Interstate Commerce Commission v. Baltimore & O. R. Co., 145 U. S, 276, 12 Sup. Ct. 844, 36 L. Ed. 699; Interstate Commerce Commission v. Louisville & N. R. Co. (C. C.) 73 Fed. 409; Harding v. Railroad Co., 1 Interst. Com. R. 104; Perry v. Railroad Co., 5 Interst. Com. R. 97; Brewer v. Railroad Co., 7 Interst. Com. R. 224. In the present case no unjust discrimination in favor of Castner, Curran, and Bullitt was proven. If any discrimination at all were shown, such discrimination was fully explained and justified. The only effort, as we have seen, at such proof, was the arbitrarles, which were fully explained, and the 300 coal cars, in the allotment of which Coffman was not permitted to participate by reason of his own fault and refusal. While the capacity of the Indian Ridge mine may have been greater than its allotment of cars, yet that was shown to be the case with every other operation similarly situated in that field. In other words, the supply of coal cars was short, and the railway company simply prorated the supply on hand, without discrimination, among all the operations, the Indian Ridge included, which, under all the authorities, it not only had the right to do, but was compelled to do. Iowa Railroad Commissioners, 1878, p. 20; Riddle v. Railroad Co., 1 Interst. Com. R. 594. And the railway’s duty was not affected in the least by proof that the president of the Indian Ridge Coal &• Coke Company offered to furnish the railway company cars to be used exclusively in the transportation of coal from the Indian Ridge mines: First, because these cars were to be purchased of the Indian Ridge by the railway upon the installment' plan, the railway thereby becoming interested therein at once, and finally the absolute owner thereof; so that, in the event of an exclusive application
“It is properly the business ol railroad companies to supply to their customers suitable vehicles of transportation (Railroad Co. v. Pratt, 22 Wall. 123, 133, 22 L. Ed. 827), and then to offer their use to everybody impartially. If the varieties ol' traffic are such, and their requirements of rolling stock so numerous and diversified, that this becomes impracticable or burdensome, so that the aid of their customers becomes essential or convenient, the supply obtainod by their assistance cannot, with any justice, be utilized by the carrier in such manner as to establish discriminations which would otherwise be inadmissible. The carrier has no right to- hire rolling stock and then allow it to be used exclusively by one class of persons on such terms as will drive out of business those who are compelled to use its own rolling stock in a competitive traffic.” Rice v. Railroad Co., 1 Interst. Com. R. 503.
In tlie third place, it was established- by the evidence that the defendant railway company has a system of car distribution, which system it has uniformly applied to all coal operations in the Poca,hontas field. Therefore, if that system be a reasonable one, having been applied to ail alike, there could be no just cause of complaint on the part of any. I>ut, if it be unreasonable, then the uniform application of it might result in unjust discrimination. li will be seen, therefore, that the unreasonableness of such system is put to the test in. this case; and on behalf thereof it may lie said that it was demonstrated upon the trial to be not only unique,, but exceptionally fair and advantageous to all concerned. It is convenient for the railway, because it is'uniform in principle, and conduces to the education of its employds upon fixed and mathematical lines; and it is highly advantageous to the coal operators —First, because of the publicity of its operation. Under it secret discrimination by the railway company in favor of one operator against another is impossible. Each operation knows the number of coal cars owned by the railway * company, and the number oi completed coke ovens in the field. Each operation knows the number of its own ovens, and the number of its neighbors’, and, in consequence, knows its particular percentage in the allotment of cars, There can be, therefore, under such a system, no secret discrimination whatever. Secondly, each operation having knowledge of the number of cars, the number of ovens, and its own percentage of distribution, knows exactly what car supply it can rely upon, and is enabled, in consequence, to employ its hands, dig, ship anti sell