City of Indianapolis v. Wheeler, 8015.

• Decision Date: 29 January 1943
• Docket Number: No. 8015.,8015.
• Citation: 132 F.2d 879
• Parties: CITY OF INDIANAPOLIS v. WHEELER, Acting Director, Bituminous Coal Div. of Dept. of Interior, et al.
• Court: U.S. Court of Appeals — Seventh Circuit

132 F.2d 879 (1943)

CITY OF INDIANAPOLIS v. WHEELER, Acting Director, Bituminous Coal Div. of Dept. of Interior, et al.

No. 8015.

Circuit Court of Appeals, Seventh Circuit.

January 29, 1943.

Wm. H. Thompson, Perry E. O'Neal, and Patrick J. Smith, all of Indianapolis, Ind. (Edward H. Knight, Corp. Counsel, and Michael B. Reddington, City Atty., both of Indianapolis, Ind., of counsel), for petitioner.

Freedman, and Erwin B. Ellmann and Jerome H. Simonds, Attys., Bituminous Coal Division, all of Washington, D. C., for respondent.

Burr Tracy Ansell, Roger Robb and Ansell, Ansell & Marshall, all of Washington, D. C., for District Board 8.

Before SPARKS, MAJOR, and KERNER, Circuit Judges.

MAJOR, Circuit Judge.

This is a petition to review an order of the Bituminous Coal Division of the United States Department of the Interior, dismissing petitioner's application for exemption from the provisions of Section 4 of the Bituminous Coal Act of 1937, 50 Stat. 72, 15 U.S.C.A. § 828 et seq.

On May 7, 1940, the City of Indianapolis, a municipal corporation of the State of Indiana, filed its application, pursuant to the provisions of Section 4-A, of the Act, in which it was alleged, "the applicant's coal is of the class described in Section 4, part II(l) of the Bituminous Coal Act in that said applicant is a producer-consumer." It was further alleged that the applicant consumed substantial quantities of bituminous coal in connection with its manufacture and distribution of artificial gas, and that the coal so consumed was produced by the Milburn By-Products Coal Company, a West Virginia corporation, all of whose outstanding stock was owned by the city. Bituminous Coal Producers' Board for District No. 8, a respondent herein, was permitted to intervene.

Section 4, part II(l), upon which petitioner relies, provides: "The provisions of sections 831, 832 and this section shall not apply to coal consumed by the producer or to coal transported by the producer to himself for consumption by him." A hearing was held before an Examiner of the Division, attended by all interested parties. No question is raised but that all the parties were accorded a full and complete hearing. The Examiner submitted his report, recommending that the application for exemption be denied. Upon exceptions to such report, oral argument was had before the Director of the Division who in the main adopted the findings and conclusions of the Examiner. Subsequently, the order under attack was entered, dismissing the application for exemption on the sole ground that petitioner was not both producer and consumer of the coal in question, within the meaning of the section above quoted.

Petitioner places much reliance upon our decision in Consolidated Indiana Coal Company v. National Bituminous Coal Commission, Cir., 103 F.2d 124. In that case, we set aside the Commission's order denying an exemption. We thought we had the right and duty to review the facts upon which the Director determined that the producer-consumer relationship did not exist. This we did, and the conclusion was reached that the Director had made an erroneous determination. That we were without authority, however, to overrule the determination of the Director must be conceded, in view of the subsequent decision of the Supreme Court in Gray v. Powell, 314 U.S. 402, 62 S.Ct. 326, 86 L.Ed 301. Such being the situation, we see no reason to discuss the facts of the instant case, with the view of deciding whether they come within our holding in the Consolidated case.

In the Gray case, the Circuit Court of Appeals for the Fourth Circuit, Powell v. Gray, 114 F.2d 752, set aside an order of the Bituminous Coal Division denying an applicant's exemption, just as we did in the Consolidated case. There, as in the instant case, the sole question, stripped of all unnecessary verbiage, was whether the applicant was the producer of the coal in controversy. The Supreme Court reversed the decision on the ground, as we understand, that the Court of Appeals was without authority to overrule the determination made by the Administrator. In discussing such authority, the Court on page 411 of 314 U.S., page 332 of 62...