Chesapeake Ry Co v. United States, 73
| Decision Date | 09 March 1931 |
| Docket Number | No. 73,73 |
| Citation | 75 L.Ed. 824,283 U.S. 35,51 S.Ct. 337 |
| Parties | CHESAPEAKE & O. RY. CO. v. UNITED STATES et al |
| Court | U.S. Supreme Court |
Messrs. Robert B. Tunstall, of Richmond, Va., Herbert Fitzpatrick, of Huntington, W. Va., and Thomas L. Preston, of Richmond, Va., for appellant.
Messrs. Thomas D. Thacher, Sol. Gen., and Nelson Thomas, both of Washington, D. C. (Daniel W. Knowlton, of Washington, D. C., of counsel) for the United States and Interstate Commerce Commission.
Messrs. John H. Holt, of Huntington, W. Va., Robert E. McCabe, of Charleston, W. Va., D. Lynch Younger, of Washington, D. C., and Theodore W. Reath, of Philadelphia, Pa., for appellees Guyandot & T. R. R. Co. and Norfolk & W. Ry. Co.
This suit was brought by the appellant, for brevity called the Chesapeake, under the Urgent Deficiencies Act, title 28 U. S. Code, § 47 (28 USCA § 47) against the United States. the Guyandot & Tug River Railroad Company and the Norfolk & Western Railway Company. The former is a subsidiary of the latter and both may be called the Norfolk. The Interstate Commerce Commission appeared as a defendant. Title 28 U. S. Code, § 45a (28 USCA § 45a). The purpose of the suit was to set aside and annul so much of an order and certificate of the Commission entered and issued July 23, 1928 (145 I. C. C. 167, 188, 193) and so much of subsequent orders in the same proceeding as authorize the Norfolk to construct and operate a line of railroad in West Virginia from Gilbert about 10 1/2 miles to Wharncliffe. The case was tried before three judges. A condensed statement of the evidence and exhibits before the Commission was submitted to the court. After hearing argument for the respective parties, the court entered its decree denying plaintiff any relief and dismissing the bill. (D. C.) 35 F.(2d) 769.
May 7, 1925, the Chesapeake filed its application for a certificate that the present and future public convenience and necessity require the construction by it of an extension of its Logan subdivision from Gilbert easterly 47.3 miles to Mullens and an extension of its Winding Gulf line from Stone Coal westerly 8.2 miles to Mullens. On October 29 1925, the Guyandot Company filed its application for a similar certificate for the construction of a line of railroad extending from a connection with the Virginian Railway at Elmore westerly 53 miles to Wharncliffe. The Norfolk and the Virginian joined in this application. An amended application was filed December 24, 1925, by the Guyandot which was joined in by the Norfolk alone. January 21, 1927, the Virginian & Western Railway, a subsidiary of the Virginian Railway Company-both may be referred to as the Virginian-ile d its application for a like certificate for the construction of a line extending from a connection with the Guyandot branch of the Virginian at Ittman down that river 40.6 miles to a connection with the Chesapeake at Gilbert. This application was joined in by the Virginian Railway Company.
The locations of all the proposed lines between Gilbert and Mullens, Elmore or Ittman were in the narrow valley traversed by the Guyandot river. Authority to build the line between Gilbert and Wharncliffe was sought only by the Norfolk. The three applications were considered at the same hearing. The Virginian supported the Norfolk's application for the Gilbert-Wharncliffe connection. The Chesapeake opposed. All the applications were disposed of by the same report and order.
The Commission granted to the Virginian permission to construct its line in the Guyandot valley from Ittman to Gilbert and to the Norfolk leave to build between Gilbert and Wharncliffe. It denied the rest of the application of the Norfolk and that of the Chesapeake in toto.
The appellant seeks reversal upon the claim that neither the findings of the Commission nor the evidence affords any support for the order and that the record shows the construction of the proposed line between Gilbert and Wharncliffe to be contrary to the public interest and to have been authorized under an erroneous theory of the applicable law. It says that the only finding of the Com- mission that supports the order is that the construction of the line will enable the Norfolk to compete with the Chesapeake for westbound traffic moving over the Virginian from the Guyandot valley and will assure the coal operators on the Virginian competitive service to the west. And it maintains that the Commission is not authorized by the Act to grant a certificate of public convenience and necessity for new construction upon a naked finding that competition between carriers and competitive service to shippers will result.
The situation, as disclosed by the report and the undisputed evidence, is as follows:
That part of West Virginia which is south of the Kanawha and New rivers contains vast deposits of coal and has many mines in operation. The Chesapeake, the Norfolk and the Virginian are the only railroads of importance in the district. The eastern terminus of the Chesapeake is at Newport News. It serves mines immediately south of these rivers. It has lines extending to the west where it has connections at Cincinnati, Columbus, Chicago and elsewhere on the Great Lakes. The eastern termini of the other carriers are at Norfolk. The lines of the Norfolk through the coal district are in the valleys of the Tug and Big Sandy considerably to the south of the lines of the Chesapeake and separated from them by a range of mountains extending from near Matoaka 150 miles or more northwesterly where it ends not far from Huntington on the Ohio. The Norfolk's main line crosses that of the Chesapeake at Kenova on the south side of the Ohio some distance below Huntington and extends to the west where it has connections at Cincinnati and Columbus. The Virginian has main and branch lines in the easterly part of these coal fields but it has no line to the west. It connects with the Chesapeake at Deepwater, a station on the Kanawha, and with the Norfolk at Matoaka which is a little over the divide south of the valley of the Guyandot.
These railroads have long been competing carriers of coal from that district. The tonnage controlled by the Virginian is about one-seventh of that of the Norfolk and that of the latter is about 60 per cent. of that of the Chesapeake. In 1927, 47 Coal mines were served by the Virginian alone. These are called local mines. And 55 were served by it and also by the Chesapeake. These are called joint mines. Such local and joint mines during the first nine months of that year...
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