Norfolk & W. Ry. Co. v. Public Service Commission
| Decision Date | 07 May 1918 |
| Docket Number | 3591. |
| Citation | 96 S.E. 62,82 W.Va. 408 |
| Parties | NORFOLK & W. RY. CO. v. PUBLIC SERVICE COMMISSION. |
| Court | West Virginia Supreme Court |
Submitted April 24, 1918.
Syllabus by the Court.
The act of Congress to regulate commerce, as amended (Act Cong. Feb 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1916, § 8563 et seq.]), conferring upon the Interstate Commerce Commission authority to compel railroads engaged in interstate commerce to provide shipping facilities for shippers tendering interstate shipments sufficient to justify the construction and maintenance of the same, does not deprive the Public Service Commission of jurisdiction to require such a railroad to provide such facilities to a shipper offering intrastate commerce in such quantities as warrants the installation of the facilities demanded, even though such facilities, when provided, may be used in the shipment of interstate as well as intrastate commerce.
Findings of fact by the Public Service Commission based upon evidence to support them will not be reviewed by this court.
A common carrier will not be excused from its duty of furnishing shipping facilities to one offering commerce to it, upon the ground that all of its energies are required to meet government needs, brought about by the present state of war, where it does not appear that the granting of such facilities would divert any of the carrier's energies, or require of it service which would make it less able to perform its public duty.
Petition by the Norfolk & Western Railway Company for suspension of an order of the Public Service Commission requiring petitioner to furnish shipping facilities to the Trace Coal Company for coal mined on its lands. Order of suspension refused.
Holt Duncan & Holt, of Huntington, for petitioner.
S. B Avis, of Charleston, and Meek & Renshaw, of Huntington, for respondent.
The Trace Coal Company made application to the Public Service Commission to compel the Norfolk & Western Railway Company to furnish it shipping facilities for coal mined at its plant in Wayne county. Upon a hearing the commission entered an order requiring the railway company to make its election, within 30 days, of one of three things which would furnish the facilities desired, and to thereafter permit the complainant to furnish the material and labor required to provide that one of the facilities so selected by the said railway company. The railway company procured a suspension of this order from this court and seeks to have the same set aside.
It appears that a number of years ago, for the purpose of furnishing facilities for the shipping of coal from several mines, the railway company constructed a spur off its main line at Dingess. This branch was something like a mile in length, and upon it were several small coal operations. After operating a few years these operations, about the year 1908 ceased to do business; the situation being such that they were unable to operate their mines profitably. From that time until quite recently no use had been made of this branch by the railway company, or by any one else, and it was allowed to fall into an unusable condition. A short time since a lumber company established quite a large mill on this branch line at a point some 2,000 feet from its connection with the main line of the railway company. In order to furnish service for this lumber company the branch was rehabilitated and repaired up to the lumber company's plant, and is now being used to that point for the purpose of serving said lumber company. The Trace Company acquired a lease on a tract of land which had theretofore been operated by one of the companies that had gone out of business in 1908, and desired to commence shipping coal from this property.
In fact, it has been mining and shipping some coal by hauling the same to the station at Dingess and loading it in cars at that point. This necessitates, however, a haulage of something more than a mile in wagons from the mouth of the mine to the place of loading, and, of course, makes it very expensive for the company to market its product. It appears that it has a tipple at its mine, and it desires this track rehabilitated from the lumber company's plant up to its mine, a distance of some 2,000 feet, and a siding put in, so that it might load coal from its tipple; or that the siding used by the lumber company be extended and it allowed to use the old main line track of the branch to haul coal to the lumber company siding, and there load it into the cars; or else that it be allowed to rehabilitate the main line of the branch and load the cars standing on such main line at its mine. The railway company declined to accede to any of these requests, and refused to allow the Trace Company to provide any facilities for the loading of its coal other than hauling it to its station at Dingess and loading it in cars at that point. The proposal of the Trace Company is to furnish all of the material and do all of the work at its own expense, in such manner as the railway company desires that it be done, and the commission's order gave the railway company the privilege of choosing which of the three facilities it would prefer, and after such selection made by it that it allow the Trace Company to provide the facility so selected, to the end that it might load its coal and ship the same without being subjected to the disadvantage of hauling it a long distance from the mouth of its mine to the siding at Dingess station.
The first contention of the railway company is that the Trace Company's freight is not sufficient to justify the expense of the improvement. A large amount of the testimony is directed to this proposition. The railway company contends that the coal in the mine of the Trace Company is of such character that it will be impossible for the Trace Company to mine it and ship it at a profit, and that it will only be a short time until the mine will have to close down. On the other hand, the Trace Company shows that this coal is about 36 inches in thickness, and that it has mined and shipped two carloads thereof at a profit, after being subjected to the expense of hauling it in wagons for a distance of more than a mile. It says further that this is not a question that need concern the railway company, inasmuch as it proposes to bear all of the expense of the improvements desired, and whether it can make a profit or not, or whether it closes down in a short time or not, can in no wise affect the railway company, for if it continues to operate and furnish the railway company the freights, it will receive its charges for hauling the same, whether they are produced by the Trace Company at a profit or at a loss, and should the Trace Company go out of business the railway company will be left with its facilities, so far as the tracks are concerned, in better condition than they are at present. The railway company argues, and there is some testimony to the effect, that the rails on this branch would have to be taken up, and rails of heavier weight substituted therefor, in order to accommodate its equipment. If this were true, it would still place no burden upon the railway company. But there is a report filed in this case by the Public Service Commission's inspector, who went upon the ground, and in that report it is shown that the rails which the railway company is now using in the main line of this branch up to the Hutchinson Lumber Company's plant are of the same size as the rails between that plant and the mines of the defendant, so that it is a little hard for us to conceive why the railway company's equipment would require heavier rails between the lumber company's plant and the mines than it does between its main line and the lumber company's plant. The evidence offered by the Trace Company shows that it has a capacity now to produce one carload of coal a day, and if it is permitted to have these facilities in a very short time it can and will increase this output to five cars a day. It also shows that it can mine this coal at a reasonable profit at the present price, and can even make a reasonable profit thereon when the prices are much less than they are at present if it can avoid the necessity of hauling its product to the railway line in wagons. The railway company argues that to require it to give the facilities asked would be a taking of its property, and that before this can be done it must be shown that there is a necessity therefor.
It is quite true that where a railway company is required to expend money in furnishing facilities to a shipper, there must be a showing that there is reasonable necessity therefor, and that the returns received by the railway company will be commensurate with the expenditures it is compelled to make. The application of this argument to the case here is a little difficult, however, in view of the fact that the railway company is required to make no initial outlay whatever. It is true the furnishing of these facilities contemplates that cars will be furnished for the shipment of the coal, but only such cars will have to be furnished as freights are furnished for, and the freight charges made by the railway company is the compensation for the use of its cars for this purpose. Its freight rates are so adjusted as to compensate it for the work it does in placing cars, and in removing them from the place where they are loaded to the point of destination. It is therefore quite clear that however many cars the railway company is required to furnish for the shipment of this coal, it is in a...
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