Temple Anthracite Coal Co. v. Federal Trade Commission, 4434.
| Citation | 51 F.2d 656 |
| Decision Date | 09 July 1931 |
| Docket Number | No. 4434.,4434. |
| Parties | TEMPLE ANTHRACITE COAL CO. v. FEDERAL TRADE COMMISSION. |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Wm. J. Fitzgerald, John R. Wilson, and John P. Kelly, all of Scranton, Pa., for plaintiff.
Robert E. Healy and Martin A. Morrison, both of Washington, D. C., Edward L. Smith, of Phillipsburg, N. J., and H. A. Cox, of Washington, D. C., for defendant.
Before BUFFINGTON and WOOLLEY, Circuit Judges, and THOMPSON, District Judge (now Circuit Judge).
This case comes here upon the petition of the Temple Anthracite Coal Company for review of an order entered by the Federal Trade Commission requiring the petitioner to cease and desist from alleged violation of the provisions of section 7 of the Clayton Act (Act of October 15, 1914, c. 323, § 7, 38 Stat. 731 15 USCA § 18).
The uncontradicted facts developed at the hearing are as follows:
The petitioner is a corporation of the state of Delaware organized August 25, 1924, with an authorized capital stock of 60,000 shares of no par value; its registered office is in Dover, Del.; and it maintains an office in Scranton, Pa.
The Temple Coal Company is a Pennsylvania corporation with its principal office and place of business in Scranton. Its capital consists of 10,000 shares of common stock of par value of $100, all issued and outstanding in October, 1924, when the Commission's complaint was issued. It has been and is engaged in mining and selling anthracite coal from its mines in Pennsylvania. Prior to 1924, it had acquired and now owns the physical assets of the Northwest Coal Company, Edgerton Coal Company, Sterrick Creek Coal Company, Babylon Coal Company, and Forty Fort Coal Company. It owns all of the capital stock of the Mount Lookout Coal Company, engaged in the mining of anthracite coal in Pennsylvania and in the sale of such coal. It also owns 80 per cent. of the capital stock of the Lackawanna Coal Company, Limited, also engaged in mining of anthracite coal in Pennsylvania and the sale of such coal.
The collieries owned by the Temple Coal Company and those in which it owns a controlling stock interest are located in Lackawanna and Luzerne counties in the northern anthracite field of Pennsylvania. In August, 1924, the total coal in place in all of the properties owned, controlled, and leased by the Temple Coal Company, the Lackawanna Company, Limited, and the Mount Lookout Coal Company was approximately 66,730,205 tons, and the value of the physical properties of those companies was in coal $9,192,750 and in property $3,450,000. Since 1914, the coal mined by the Temple Coal Company, the Lackawanna Coal Company, Limited, and the Mount Lookout Company has been and is sold through Thorne, Neale & Co., Inc., which is engaged in the business of buying and selling anthracite and bituminous coal and maintains offices in Philadelphia, Buffalo, Chicago, Baltimore, and New York. From its offices sales of coal are solicited throughout a large territory traveled by representatives of such offices. The Buffalo office solicits and makes sales in Canada also. Thorne, Neale & Co., Inc., secures orders for coal mined by Temple Coal Company, Lackawanna Coal Company, Limited, and Mount Lookout Coal Company, which orders are transmitted to Temple Coal Company by Thorne, Neale & Co., Inc. These orders give the name of the consignee, destination, route of shipment, the equipment of the cars containing the coal, the mine from which the coal is to be shipped, the quantities and kinds of coal ordered, and the price of the coal, f. o. b. mine. If the price mentioned in the order is satisfactory to Temple Coal Company, the coal is shipped by Temple Coal Company to the customer at the price offered. Thorne, Neale & Co., Inc., collects from the purchaser the selling price of the coal, paying to Temple Coal Company the selling price, less a commission of 4 per cent. for making the sale. In the event that the price on the order given by Thorne, Neale & Co., Inc., to Temple Coal Company for the coal to be shipped is not satisfactory to Temple Coal Company, the order is not filled. Such has been the method of sale employed by Temple Coal Company, Mount Lookout Coal Company, and said Lackawanna Coal Company, Limited, with Thorne, Neale & Co., Inc., at least since 1914.
When shipments of coal are made directly by Temple Coal Company to Thorne, Neale & Co., Inc., the coal is billed to Thorne, Neale & Co., Inc., at a price agreed upon between it and Temple Coal Company, which price is paid to Temple Coal Company by Thorne, Neale & Co., Inc., irrespective of the price received by Thorne, Neale & Co., Inc., from the ultimate purchaser.
The greater part of the shipments of coal on orders furnished by Thorne, Neale & Co., Inc., went into interstate commerce. Some shipments were made to their customers in Canada.
The East Bear Ridge Colliery Company is a Pennsylvania corporation with its principal office and place of business in Scranton, Pa. Its authorized capital is 25,000 shares of common stock of a par value of $25 each. It is engaged in the business of mining anthracite coal in Pennsylvania and in selling such coal. Its collieries are located in the southern anthracite region in Schuylkill county, Pa., about seventy miles distant from the collieries of the Temple Coal Company and the other coal companies operated by the latter company. Its physical property in September, 1924, consisting of its mines, improvements, and developments, was valued at $893,492.42, and its coal tonnage in the mine was estimated at 4,700,700 tons. Since 1914, the coal mined by the East Bear Ridge Colliery Company has been sold through Madeira, Hill & Co., which is engaged in the business of buying and selling anthracite and bituminous coal.
Madeira, Hill & Co. maintains offices in Philadelphia, New York, Boston, and Washington, from which offices sales of coal are solicited throughout a large territory traveled by the representatives of such offices. Madeira, Hill & Co. secures orders for coal mined by East Bear Ridge Colliery Company, which orders are transmitted to East Bear Ridge Colliery Company by Madeira, Hill & Co. These orders give the name of the consignee, destination, route of shipment, the equipment of the cars containing the coal, the quantities and kinds of coal ordered, and the price of the coal, f. o. b. mine. If the price mentioned in the order is satisfactory to East Bear Ridge Colliery Company, the coal is shipped by East Bear Ridge Colliery Company f. o. b. mine consigned to the customer at the said price, Madeira, Hill & Co. paying to East Bear Ridge Colliery Company the selling price of the coal, less a commission of 4 per cent. for making such sale. Madeira, Hill & Co. collects from the purchaser the selling price of the coal. In the event that the price on the order given by Madeira, Hill & Co. to East Bear Ridge Colliery Company for the coal to be shipped is not satisfactory to East Bear Ridge Colliery Company, the order is not filled. Such has been the method of sale employed by East Bear Ridge Colliery Company with Madeira, Hill & Co. at least since 1914.
In addition to shipping coal to customers secured by Madeira, Hill & Co., East Bear Ridge Colliery Company, in the usual course of its business, ships coal directly to Madeira, Hill & Co. When such shipments of coal are made directly by East Bear Ridge Colliery Company to Madeira, Hill & Co., the coal is billed to Madeira, Hill & Co. at a price agreed upon between them and East Bear Ridge Colliery Company, which price is paid to East Bear Ridge Colliery Company by Madeira, Hill & Co., irrespective of the price received by Madeira, Hill & Co. from the ultimate purchaser.
The coal sold on orders furnished by Madeira, Hill & Co. was shipped f. o. b. mines, consigned to purchasers in Pennsylvania and interstate commerce. The Temple Coal Company, the Mount Lookout Coal Company, the Lackawanna Coal Company, Limited, and the East Bear Ridge Colliery Company sold coal of the same kinds and sizes, and Thorne, Neale & Co., Inc., and Madeira, Hill & Co. were in active competition in securing orders for coal. The orders solicited, obtained, and filled through Thorne, Neale & Co. were in the same territory, in the same cities, and, in many instances, from the same dealers from whom orders for coal, mined by the East Bear Ridge Colliery Company, were solicited, obtained, and filled through Madeira, Hill & Co.
On or about October 11, 1924, the petitioner, the Temple Anthracite Coal Company, acquired by purchase, and has ever since owned, all of the outstanding capital stock of the Temple Coal Company, and on or about the same date acquired by purchase, and ever since such acquisition has owned, 98 per cent. of the outstanding capital stock of the East Bear Ridge Colliery Company. Through its stock ownership, the Temple Anthracite Coal Company has chosen the officers and directors of the Temple Coal Company and its subsidiary companies and of the East Bear Ridge Colliery Company.
The Federal Trade Commission found that the effect of the acquisition by the Temple Anthracite Coal Company of the capital stock of Temple Coal Company and the East Bear Ridge Colliery Company and the use of such stock has been and is to substantially lessen competition in interstate commerce between the Temple Coal Company and the East Bear Ridge Colliery Company in violation of the second paragraph of section 7 of the Clayton Act (15 USCA § 18, par. 2). The Commission thereupon entered an order upon the petitioner in the alternative, requiring it, within ninety days of the date of service upon it of the order, to divest itself in good faith of all the capital stock of the Temple Coal Company owned by it and all of its interest therein; or, within ninety days, to divest itself in good faith of all the capital stock of the East Bear Ridge Colliery Company owned by it and all of its interest therein.
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