Norfolk & v. Commonwealth Ex Rel

• Decision Date: 11 April 1934
• Citation: 174 S.E. 85
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. RY. CO. et al. v. COMMONWEALTH ex rel. MATHIESON ALKALI WORKS, Inc.

174 S.E. 85

NORFOLK &

W. RY. CO. et al.

v.COMMONWEALTH ex rel.

MATHIESON ALKALI WORKS, Inc.

Supreme Court of Appeals of Virginia

April 11, 1934

.

.

Appeal from State Corporation Commission.

Proceeding by the Commonwealth, at the relation of the Mathieson Alkali Works, Inc., against the Norfolk & Western Railway Company, the Southern Railway Company, and another. From an adverse order of the State Corporation Commission, named railway companies appeal.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, GREGORY, and BROWNING, JJ.

Lucian H. Cocke, Jr., of Roanoke, and H. L. Walker, of Washington, D. C, for appellants.

John E. Benton, of Washington, D. C, for appellee.

PER CURIAM.

The Mathieson Alkali Works, Inc., has its plants at Saltville, Va., which is on the Norfolk & Western Railway, 37 miles from Bristol, Va.

On August 21, 1931, it filed its complaint before the State Corporation Commission of Virginia, alleging that the rate of $1.80 per ton of 2, 000 pounds charged by the Interstate Railroad Company, Southern Railway Company, and Norfolk & Western Railway Company for the transportation over Virginia intrastate routes, in carload lots, of bituminous coal from the mines in the Appalachia Group, in Southwest Virginia, which are on the Interstate Railroad & Southern Railway, including mines at St. Charles, Derby, and Roda, to Saltville, Va., is excessive, unjust, and unreasonable, and praying that the commission establish for future application just and reasonable rates for such service.

The coal from the mines in the Appalaehia Group which are on the Interstate Railroad moves to Saltville by a three-line haul over the Interstate Railroad, the Southern Railway, and the Norfolk & Western Railway. That from the mines in that group which are on the Southern Railway moves to Saltville by a two-line haul over the Southern and the Norfolk & Western railroads. The average distance from all these mines to Saltville is about 116 miles.

The Norfolk & Western Railway Company and the Southern Railway Company filed answers denying that the rate of $1.80 was excessive, unjust, and unreasonable, and opposing any reduction.

The Interstate Railroad Company did not appear. The complainant introduced evidence in support of its complaint and of its contention that the rate should not exceed $1.35 per ton. The two respondents introduced evidence to support the contention made in their answers.

On January 17, 1933, the commission entered its order which reads as follows:

"It is ordered, that on and after February 15, 1933, the defendant carriers establish and maintain on bituminous coal, carload, from mines located on the Interstate Railroad and Southern Railway Company in the so-called Appalachia Group including mines at St. Charles, Derby and Roda, Virginia, to Saltville, Virginia, a rate not in excess of $1.45 per ton of 2, 000 pounds.

"It is further ordered, that the rate of $1.45 per net ton shall not include the emergency charge of 6 cents per ton which will be in addition to the rate herein prescribed."

The Norfolk & Western Railway Company and the Southern Railway Company filed a petition asking that the commission reopen the case. Argument was heard by the commission on this petition on February 10 and 11, 1933, and by a supplemental order entered February 13, 1933, it postponed the effective date of its order of January 17 from February 15 to March 1, 1933.

The Interstate Railroad Company did not join in the petition for a reopening of the case. On the contrary, on February 11, it telegraphed the commission as follows:

"Referring to decision Mathieson Alkali case four six eight four understand at argument for reopening on tenth statement was made that Interstate Railroad had authorized representation favoring petition stop We have not extended this authority and really have no objection to the decision as it stands."

On February 24, 1933, the commission issued its order suspending the effective date of the rate of $1.45 pending the appeal of the case and final action of the Supreme Court of Appeals of Virginia, subject to the conditions of a bond filed under § 156, subd. (e) of the Constitution of Virginia, and approved by the commission.

From these orders the Norfolk & Western Railway Company and the Southern Railway Company have appealed, making the following assignments of error:

"1. Said order is unjust, unreasonable and arbitrary in that it requires a rate or charge to be established, maintained and applied by defendants upon bituminous coal in carload lots from the Appalachia Group of mines located in Southwest Virginia, including mines at St. Charles, Derby and Roda, Virginia, via intrastate routes, to Saltville, Virginia, of $1.45 per ton of 2, 000 pounds, which said rate of charge is unreasonably low and is therefore arbitrary and unlawful.

"2. Said order is illegal and void for the reason that same is founded upon evidence erroneously admitted to the record despite the protest of petitioners.

"3. Said order is illegal and void and con trary to law for the reason that same is not supported by the evidence.

"4. Said order is illegal and void because the rate prescribed is arbitrary and unreasonably low and constitutes a taking of property without due process of law contrary to the provisions of article 1, § 11 of the Constitution of Virginia, and the Fourteenth Amendment of the Constitution of the United States, the protection of which is invoked."

Upon a careful review of the record, we are of opinion that none of the four assignments of error present good ground for setting aside the order of the commission.

Under the second assignment of error, the appellants contend that the commission erred in several particulars in admitting and considering evidence. Their first contention is that the commission erred in making the telegram received by it from the Interstate Railroad Company a part of the record and in considering it as evidence in the case. The point they make is that the appellants had no knowledge that this telegram had been received by the commission until, on April 19, 19.33, they received a copy of the commission's opinion in which it is quoted, did not know it was to be put into the record, and had no opportunity to cross-examine the witness by whom it was introduced in evidence. The telegram was in the nature of a pleading by one of the parties to the proceeding, and was properly made a part of the record. Doubtless it was a mere oversight on the part of the commission that it was not called to the attention of the appellants. But, however that may be,...