United States ex rel. Pitcairn Coal Co. v. Baltimore & O.R. Co.

• Decision Date: 17 September 1908
• Docket Number: 772,773.
• Citation: 165 F. 113
• Parties: UNITED STATES ex rel. PITCAIRN COAL CO. v. BALTIMORE & O.R. CO. et al. BALTIMORE & O.R. CO. et al. v. UNITED STATES ex rel. PITCAIRN COAL CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

165 F. 113

UNITED STATES ex rel. PITCAIRN COAL CO. v. BALTIMORE & O.R. CO. et al.

BALTIMORE & O.R. CO. et al. v. UNITED STATES ex rel. PITCAIRN COAL CO. et al.

Nos. 772, 773.

United States Court of Appeals, Fourth Circuit.

September 17, 1908

Hugh L Bond, Jr., John G. Wilson, and Edgar H. Gans (Charles Markell, Jr., on the brief), for plaintiff in error in No 772 and defendants in error in No. 773.

Wm. A Glasgow, Jr., and Frederick Dallam, for defendants in error in No. 772 and plaintiff in error in No. 773.

Before PRITCHARD, Circuit Judge, and McDOWELL and DAYTON, District judges.

PRITCHARD Circuit Judge.

These are writs of error from the judgment of the Circuit Court for the District of Maryland, by both the petitioner and defendants. The following statement substantially contains the facts as to the matters in controversy between the parties:

A petition for mandamus was filed in the Circuit Court to require the Baltimore & Ohio Railroad Company to cease from subjecting the relator and coal companies on the Monongah Division to undue and unreasonable discrimination in the shipping and transportation of coal. This petition was filed January 16, 1907, by the relator, the Pitcairn Coal Company, a corporation of West Virginia, against the Baltimore & Ohio Railroad Company and the Cumberland & Pennsylvania Railroad Company and 37 coal companies, most of them operating mines in West Virginia in what is known as the 'Fairmont region.' Of the defendants, the Fairmont Coal Company, the Clarksburg Fuel Company, the Pittsburg & Fairmont Fuel Company, the Southern Coal & Transportation Company, the Consolidation Coal Company, and the Somerset Coal Company are allied companies, practically all controlled by the Consolidation Coal Company, which also owns substantially all the capital stock of the Cumberland & Pennsylvania Railroad Company. The majority of the stock of the Consolidation Coal Company, until May, 1906, was owned by the Baltimore & Ohio Railroad Company, and was then sold by the Baltimore & Ohio Railroad Company to Clarence W. Watson, acting for himself and his associates; the railroad company retaining a lien for a portion of the purchase money. The allied companies are referred to as the 'Fairmont Coal Companies,' and the other coal companies operating in the Fairmont region of West Virginia are spoken of collectively as the 'Independent Companies.' The Baltimore & Ohio Railroad Company fully answered the petition, denying all allegations of undue preference or discrimination, and the Fairmont Companies fully answered, denying any discrimination in their favor. Thirteen other defendants answered, asking the same relief as prayed for by the relator, and others of the defendants who were summoned did not intervene in any way. At the hearing a jury was waived, and it was agreed by a stipulation in writing that the issues of facts should be tried and determined by the court without the intervention of a jury.

The Pitcairn Coal Company, the relator, owns a tract of about 1,000 acres of coal land near Clarksburg, W. Va., and has been operating a mine there since 1903, in what is known as the 'Monongah district,' on the West Virginia & Pittsburg Railway, which railway belongs to and is operated by the Baltimore & Ohio Railroad Company as a part of its railroad system. The Pitcairn mine has an eight-foot vein of good bituminous steam and gas coal, with working places for 208 miners, is well equipped with electric cutting machines, and is rated by the railroad company as having a possible physical capacity of mining 1,000 tons per day. The relator invoked the action of the court under section 23 of the act to regulate commerce (Act Feb. 4, 1887, c. 104, 24 Stat. 387), as follows:

'Sec. 23. That the Circuit and District Courts of the United States shall have jurisdiction upon the relation of any person or persons, firm or corporation, alleging such violation by a common carrier of any of the provisions of the act to which this is a supplement and all acts amendatory thereof as prevents the relator from having interstate traffic moved by said common carrier at the same rates as are charged, or upon terms or conditions as favorable as those given by said common carrier for like traffic under similar conditions to any other shipper, to issue a writ or writs of mandamus against said common carrier, commanding such common carrier to move and transport the traffic, or to furnish cars or other facilities for transportation for the party applying for the writ:

Provided, that if any question of fact as to the proper compensation to the common carrier for the service to be enforced by the writ is raised by the pleadings, the writ of peremptory mandamus may issue, notwithstanding such question of fact is undetermined, upon such terms as to security, payment of money into the court, or otherwise, as the court may think proper, pending the determination of the question of fact: Provided, that the remedy hereby given by writ of mandamus shall be cumulative, and shall not be held to exclude or interfere with other remedies provided by this act or the act to which it is a supplement.'

The provisions of the act of which the relator complains as being violated by the railroad company in favor of the Fairmont Coal Companies are set forth in section 3 (Act Feb. 4, 1887, c. 104, 24 Stat. 380 (U.S. Comp. St. 1901, p. 3155)), as follows:

'Sec. 3. That it shall be unlawful for any common carrier subject to the provisions of this act to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation or locality, or any particular description of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.

'Every common carrier subject to the provisions of this act shall, according to their respective powers, afford all reasonable, proper and equal facilities for the interchange of traffic between their respective lines and for the receiving, forwarding and delivering of passengers and property to and from their several lines and those connecting therewith, and shall not discriminate in their rates and charges between such connecting lines; but this shall not be construed as requiring any such common carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business.'

The complaint of the relator is thus formulated in its petition:

'(7) Relator shows that the capacity of its mine at Clarksburg, West Virginia, aforesaid, is one thousand (1,000) tons of coal per day, and that if cars are received by it to load the same that it can and would load as much as one thousand (1,000) tons per day for shipment over the said Baltimore & Ohio Railroad, but it has never been able to get the cars sufficient to ship that amount of coal, and it has been unable to ship sufficient coal to fill contracts which it has and has had on hand, and has been unable to take certain valuable contracts for the delivery of coal which were offered to it, because of its inability to get a sufficient supply of cars from the Baltimore & Ohio Railroad Company in which to ship the same.

'Relator further shows that it has frequently made within the last three months and prior thereto, reasonable requests for cars to fill its contracts and to enable it to take valuable contracts which were offered, but the Baltimore & Ohio Railroad Company refused, declined, or failed to furnish to it such cars and other vehicles, instrumentalities, and facilities for shipping coal as were needed by relator in order to fill its contracts, or to ship the coal which was required by it under its obligations to persons to whom it had sold coal, and to enable it to take the valuable contracts aforesaid.

'Relator further charges that the Baltimore & Ohio Railroad Company has declined to give to relator the cars for carrying coal from its mines to which it was justly and properly entitled, as hereinafter particularly set forth; and, further, that the Baltimore & Ohio Railroad Company, as hereinafter more particularly set forth, has given an undue and unreasonable preference or advantage to other persons, companies, firms, and corporations, as hereinafter more specifically set forth, in its distribution and assignment of cars for service and shipments from the coal mines and coal operations along its line of road; and, further, the Baltimore & Ohio Railroad Company, as hereinafter more specifically set forth, has subjected relator and the other independent coal operators, defendants to this petition, to undue and unreasonable prejudice or disadvantage in its system of car distribution, and in service to the coal mines owned and operated by relator and such independent coal companies.

'(8) Relator further says that when the supply of cars is sufficient on the Baltimore & Ohio Railroad Company that all orders for cars are filled, but that this condition of affairs rarely exists, except for a few months of the year in the summer time; but, whenever in any district the supply of cars is insufficient to fill all orders, cars are supposed to be distributed, and the Baltimore & Ohio Railroad Company alleges that it has distributed such cars, on a percentage basis, to all of the mines in such district, but in the distribution of cars on a percentage basis, before distribution is made, certain arbitrary assignments of cars are made, reducing the total number of cars to be distributed, on the percentage basis aforesaid, as follows:

'First. All cars placed at the mines for the fuel or supply coal of the Baltimore & Ohio

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