State ex rel. Mt. Hope Coal Co. v. White Oak Ry. Co.

• Decision Date: 19 January 1909
• Citation: 64 S.E. 630,65 W.Va. 15
• Parties: STATE ex rel. MT. HOPE COAL CO. v. WHITE OAK RY. CO. et al.
• Court: West Virginia Supreme Court

64 S.E. 630

65 W.Va. 15

STATE ex rel. MT. HOPE COAL CO. v. WHITE OAK RY. CO. et al.

Supreme Court of Appeals of West Virginia.

January 19, 1909

Submitted November 17, 19,08.

Rehearing Denied May 14, 1909.

Syllabus by the Court.

In mandamus by a coal operator commanding a railroad company, as required by section 2364, Code 1906, to make "reasonable provision" for the transportation of all coal offered it for shipment by him, the recitals in the alternative writ showing that the things commanded thereby were substantially those which in prior negotiations between the parties the railroad company had regarded as reasonable and proper, will on a motion to quash the writ be regarded as equivalent to the recital of other facts and circumstances necessary to show the reasonableness of such demand, and as making a prima facie case entitling relator to the relief demanded.

Price Smith, Spilman & Clay and C. R. Summerfield, for petitioner.

Dillon & Nuckolls, for respondents.

MILLER P.

The defendant owns and operates a railroad in Fayette county from Macdonald Station on the Loup Creek branch of the Chesapeake & Ohio Railway Company to Price-Hill Station, a distance of about three miles. The relator, the Mt. Hope Coal & Coke Company, has opened up a coal mine on the line of defendant's railway near Mt. Hope Station, where it has built a substantial tipple, and is ready to mine and ship coal. The defendant owns its right of way in fee of the width of 100 feet. It is impossible for relator to reach the main track of defendant, as now located, for shipping its coal except by side track and switch connection therewith constructed, in part at least, upon defendant's right of way. In June, 1907, negotiations were begun between relator and defendant for side track privileges, and on June 25 1907, the defendant's general manager wrote the relator's attorney, referring to the negotiations begun, saying: "I at that time advised you the freight rate was ten cents per ton. This I beg to confirm. Since looking over the records, I find the rate is ten cents per ton from the mines operating on this line, and, as the Mt. Hope Coal Co. have such a small area and the shipments from that area will be limited, we could not agree to furnish them a side track at our expense. We will, however, if they are willing to do the grading, pay for rails, ties, fastenings and switch connections, and labor in laying track, permit them to tap our main line and we will handle the coal from their operation on the basis of ten cents per ton of coal, distributing the cars on the branch in proportion to the capacity of the mine. It being also understood that this switch connection is made for the purpose of shipping coal and in default of at any time shipping less than one carload of freight per annum for every lineal foot of track the White Oak Railway Company reserves to it self the right to remove the switch connection. This for the purpose of preventing dead switches on their main line." After this letter was received, the relator began and completed the building of its tipple, extending the same out over the defendant's right of way, some 50 feet, so as to reach the proposed side track, and also did the work of grading, furnished ties, steel rails, frogs, etc., for switch connection and other material for the purpose of completing said side track and making the proper connection with defendant's main track, expending therein, and in opening its mine, some $17,000. It does not clearly appear under what special contract or agreement with the defendant, if any, relator extended its tipple over on the defendant's right of way, other than such as may be implied from said letter of June 25, 1907, and the negotiations which seem to have led up to it; but it is alleged in the petition, and not denied, that the work of building and completing the tipple and of grading and providing rails, ties, and other materials for the side track was carried on by the relator with the knowledge and acquiescence of defendant, and with no objection thereto by it until in the latter part of December of that year, when defendant refused to connect up the switch with its main track except on condition that relator would enter into a contract with it embodying substantially the terms of the Norfolk & Western Railway Company contract. Pending these negotiations, however, a contract was drawn up by defendant's counsel which relator was willing to execute, but which the defendant refused. Relator also proposed a contract in the form required by the Chesapeake & Ohio Railway Company for operators along its line, but this defendant also refused to accept, and refused to make any contract except that proposed by it. Neither of the agreements proposed contained any provision relating to the relator's occupancy of defendant's right of way with its coal tipple; nor does it appear that any of the negotiations contemplated any special provision therefor. Having failed to come to an agreement for such side track and connections, the relator now seeks to compel defendant by mandamus, and by force of the statute, to make reasonable provision for the transportation of its coal offered for transportation. It conceives that reasonable provision to be, according to its petition and the alternative writ, to require defendant to connect the said side track constructed by relator, Mt. Hope Coal & Coke Company, at its mines, with the defendant's railway line, or to permit said relator to make such connection; to furnish relator its due and proper proportion of the railway cars and equipment available for coal shipments from the region in which petitioner's mine is located; and to place such cars upon said side track and remove the same when loaded in the usual way in which said cars are placed and removed for other shippers along said line; and that it desist from discriminations in favor of other corporations named.

The defendant challenges the sufficiency of the alternative writ, and moves to quash the same, and also files its return in writing thereto. The motion to quash is predicated upon three grounds: First, that the alleged right of relator is not based upon violation of any duty imposed upon defendant by law; second, that the alternative writ does not allege any facts or circumstances upon which it can be determined whether defendant has refused to discharge its legal duty to relator; and, third, because the alleged rights of relator are based wholly upon a duty or obligation arising out of an alleged contract or agreement between relator and railway company, which the court by mandamus has no power to enforce.

The first and third grounds are evidently based upon the erroneous theory that relator rests its right to relief upon its negotiations for a contract, or upon the proposition contained in the defendant's letter of June 25, 1907. We do not so understand relator's position, but, on the contrary, that the right claimed is a statutory right. It is argued for defendant that, where the relator's rights rests wholly on a special contract involving no question of public trust or official duty, the writ will be refused. Merrill on Mandamus,§ 16. Without contract a railroad company has a public duty to discharge. Our statute (section 2364, Code 1906) upon which relator especially relies provides that: "Every railroad corporation along whose line of railroad the industries of mining coal and manufacturing coke is carried on, shall without discrimination between or amongst shippers, and without unnecessary delay, make a reasonable provision for the transportation of all such coal and coke offered for transportation over its railroad, and no such railroad corporation shall discriminate in rates, distribution of cars or otherwise against or among shippers of coal or coke offered for shipment on its line or lines." Section 2366 imposes a penalty upon such railroad corporation, its officers, and agents who knowingly and willfully violate any of the provisions of that act. Because the negotiations for a contract failed, has the relator lost any of its statutory rights? We think not. The statute does not contemplate any agreement of the parties. The mandate of the statute is that the railroad company shall without any unnecessary delay make a reasonable provision for the transportation of all coal and coke offered for shipment, a command which the railroad company cannot neglect without incurring the penalty of the statute. What will constitute such reasonable provision will depend, of course, upon the facts and circumstances of each individual case. But the statute makes the industries of mining coal and manufacturing coke the special subject of railroad regulation. The extent and importance of these industries in this state in the judgment of the Legislature required this, and we think the statute should be given a construction broad enough to accomplish the purposes plainly intended. On the second ground of the motion, if we understand the purpose of relator in setting forth the prior negotiations for a contract, it was that they might serve as a substitute in part, at least, for allegations of fact necessary to show the reasonableness of the provision required by it, and we think they do serve such purpose. It might have been better, and but for these recitals of the alternative writ it would have been necessary, no doubt, in order to show the reasonableness of such provisions, for relator to have alleged and proven the probable output of its mine, the number of cars it would likely require per day or per month, or per annum, the probable expense of making such provisions, and any other facts available, this for the purpose of showing the extent and nature of its operations and the reasonableness of...