United States v. Norfolk & W. Ry. Co.

• Decision Date: 24 June 1905
• Citation: 138 F. 849
• Parties: UNITED STATES ex rel. GREENBRIER COAL & COKE CO. v. NORFOLK & W. RY. CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

138 F. 849

UNITED STATES ex rel. GREENBRIER COAL & COKE CO. v. NORFOLK & W. RY. CO. et al.

United States Circuit Court, S.D. West Virginia.

June 24, 1905

C. W Dillon and Price, Smith & Spillman, for relator.

Jos. I Doran and Holt & Duncan, for Norfolk & Western Ry. Co.

Vinson & Thompson, for Empire Coal & Coke Co., Elkhorn C. & C. Co. and McDowell C. & C. Co.

Brown Jackson & Knight and David E. Johnston, for Turkey Gap C. & C. Co.

KELLER District Judge.

The Greenbrier Coal & Coke Company, suing in the name of the United States of America, exhibited its petition against the Norfolk & Western Railway Company, a corporation engaged in transporting interstate commerce, alleging a violation of the act of Congress approved February 4, 1887, c. 104, 24 Stat. 379 (U.S. Comp. St. 1901, p. 3154), entitled 'An act to regulate commerce,' and of the several acts amendatory and supplementary thereto. In the petition the other defendants were named as parties which had profited by the alleged unlawful discrimination against the relator, and they were therefore made parties, that they might appear and protect their interests.

The main averments of the petition, omitting certain special allegations, which, under the view of the case taken by me, have no pertinency upon the present motion, are briefly: That the defendant railway company is a railroad corporation operating a railroad in the state of Virginia, West Virginia, and Ohio, and is engaged in interstate commerce. That the other defendants are corporations organized under the laws of West Virginia, and are engaged in mining and shipping coal from points along the line of the railway company in West Virginia. That the relator is a like corporation, and engaged in a like business of mining and shipping coal from a point on the line of the railway company in McDowell county, W.Va., to various markets in other states than the state of West Virginia. 'That on the 1st day of April, 1904, and previous thereto, the defendant railway company agreed with the Greenbrier Coal & Coke Company, and all of the other coal companies herein mentioned as defendants, that the car supply upon which said coal companies were to ship their coal and coke to market should be furnished upon what was and is known in the particular coal field where said mines are located as the 'coke-oven basis.' That is to say, the coke ovens owned and operated by the respective coal shippers along its line were to form the basis of car distribution, and that the car supply furnished by the said railway company between the respective coal shippers mentioned herein should be distributed to each shipper in proportion as the number of coke ovens owned and operated by such shipper bore to the whole number of cars available for the shipment of coal from said field. ' That the relator owned and operated 200 such coke ovens, and the defendant coal companies respectively operated the numbers of coke ovens given in the petition, aggregating 9,307 in all. That 'said agreement and understanding to supply cars for the shipment of coal and coke upon said coke-oven basis was and is equitable and fair, and accepted by the relator and the other defendant coal companies, and according to which said basis of car supply the Greenbrier Coal & Coke Company was since the 1st day of April, 1904, and is now, entitled to two and one-eleventh per cent. of the total number of coal and coke cars furnished by said railway company for the shipment and distribution of coal and coke to said markets from the mines of the relator and the said defendant coal companies. That on the day and year last aforesaid, and since that time, it was always agreed and understood by and between said railway company, the relator, and the said defendant coal companies that cars and facilities for the transportation of coal mined and coke manufactured at the mines of the relator would be furnished by said railway company according to said basis of distribution, and that, if there should be a scarcity of cars, there would be no discrimination in the distribution of the same to the several miners and shippers of coal along the lines of the defendant railway company, but the same would be prorated between the relator and the other defendant coal companies according to said coke oven basis. ' That the relator has made repeated demands upon the railway company for cars for shipment of its coal to various points without the state of West Virginia; that the railway company has discriminated and is still continuing to discriminate unjustly in favor of the defendant coal companies and against the relator, by giving to said defendant coal companies an undue and unreasonable proportion of cars for the transportation of coal and coke, and giving to relator much less than the fair proportion of cars justly due it. That in consequence of such discrimination the relator has suffered great loss and damage, and is unable to retain the services of its miners and employes, and is subjected to loss of custom and to threatened suits for damage, etc.

Upon the presentation of the petition an alternative writ of mandamus was awarded, agreeably to the practice prevailing in West Virginia, returnable on the 6th day of June, 1905, at which time the parties appeared, and a motion was duly interposed on behalf of the principal defendant, the railway company, and certain of the other defendants to quash the alternative writ, and each paragraph thereof. This motion is in writing, and in substance alleges that the facts and allegations set up in the alternative writ (which under the practice prevailing in this state, contains all the averments of the petition) do not set forth a case of which the court has jurisdiction under the act of March 2, 1889, c. 382, 25 Stat. 855 (U.S. Comp. St. 1901, p. 3157). It is contended in support of the motion that the writ shows that the relator is seeking to enforce an alleged agreement with the railway company for the distribution among its shippers of its coal cars available for use in the coal field where the mines of the relator are situated, and not for the enforcement of the provisions of the so-called interstate commerce act in the manner provided by the act of March 2, 1889, and that the court therefore has no jurisdiction to award the writ.

I have already quoted the averment of the writ (and petition) setting up the existence of an agreement between the railway company, the relator, and the defendant coal companies for the distribution of coal cars in accordance with what is termed the 'coke-oven basis.' I now quote the language of the first command of the alternative writ, which is based on the first prayer of the petition therefor, and is as follows:

'That in the event of the scarcity of cars to be furnished by you, the said Norfolk & Western Railway Company, to shippers of coal along your lines, the proportion to which the said Greenbrier Coal & Coke Company is entitled shall be fixed and determined to be at least two and one-eleventh per cent. of the total car supply furnished to such shippers in the particular field wherein its mine is located, or whatever percentage of the whole number of cars furnished to the shippers of coal in the field where its mine is located the total number of coke ovens owned and operated by it bears to the whole number of coke ovens owned and operated by the other shippers of coal from said coal field.'

It is admitted that, except as conferred by statute in special cases, the courts of the United States have no original jurisdiction in mandamus, but their only power to issue the writ is in aid of jurisdiction already acquired. See Graham v. Norton, 15 Wall. 427, 21 L.Ed. 177; Bath Co. v. Amy, 13 Wall. 247, 20 L.Ed. 539; and the recent case of U.S. ex rel....