United States v. Norfolk & W. Ry. Co.
| Decision Date | 06 February 1906 |
| Docket Number | 623. |
| Parties | UNITED STATES ex rel. GREENBRIER COAL & COKE CO. v. NORFOLK & WESTERN RY CO. et al. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Geo. E Price, C. W. Dillon and Wm. A. Glasgow, for plaintiff in error.
John H Holt and Z. T. Vinson (Brown, Jackson & Knight, Holt & Duncan, Vinson & Thompson, Jos. I. Doran, and D. E. Johnston on the brief), for defendants in error.
Before PRITCHARD, Circuit Judge, and WADDILL, District Judge.
This is a petition for mandamus to the Circuit Court of the United States for the Southern District of West Virginia, under the provisions of the act of Congress of March 2, 1889, alleging a violation of 'An act to regulate commerce,' approved February 4, 1887, and acts supplementary thereto. Upon this petition an alternative writ of mandamus was awarded, and on the 6th day of June, 1905, the parties defendant appeared and a motion was made by the railway company and certain other defendants to quash the alternative writ of mandamus and each paragraph thereof, which motion the court sustained. The allegations upon which the writ is asked are that the Norfolk & Western Railway Company is a common carrier, and is subject to the provisions of 'An act to regulate commerce,' and the several acts amendatory and supplemental thereto, and said railway company is engaged in carrying coal and coke for the plaintiff company and other coal companies in the state of West Virginia in various markets in other states; that the Norfolk & Western Railway Company agreed that the car supply furnished by it to the several shippers of coal along its line would be distributed pro rata to such shippers; that the railway company agreed that the coke ovens owned and operated by the respective coal shippers along the line of the said railway should form the basis of coal car distribution, and that the car supply furnished by the said railway company between the respective coal shippers mentioned would be distributed to each shipper in the same proportion as the number of ovens owned and operated by such shipper bore to the whole number of ovens owned and operated by all the shippers of coal from such field; that said coke ovens basis of distribution was and is equitable and fair; that the railway company agreed, with the plaintiffs in error and all the other coal companies mentioned as defendants, that the car supply would be furnished upon the coke ovens basis aforesaid; that the railroad company had declined to furnish the plaintiff in error with the number of cars to which it was entitled under this basis of distribution; that the railway company has departed from such basis of distribution and has furnished to coal companies, other than the plaintiff in error, more than their fair number of cars, and the railway company thereby discriminated against the plaintiff in error, and did not carry out the fair and equitable basis of distribution above set forth. Upon the hearing the Circuit Court held that, inasmuch as all the parties interested in the distribution of cars had agreed upon a method of distribution according to an arbitrary basis, it could not enforce such an agreement by mandamus under the act of March 2, 1889.
The main question presented for consideration is whether the court erred in sustaining the motion to quash the alternative writ of mandamus. Section 3 of the interstate commerce act, approved February 4, 1887 (Act Feb. 4, 1887, c. 104, 24 Stat. 380 (U.S. Comp. St. 1901, p. 3155)), in pursuance of which the petition was filed herein, is as follows:
'That it shall be unlawful for any common carrier subject to the provisions of this act to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or any particular description of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever,' etc.
This section, while comprehensive in its scope, did not afford effective means by which the provision of the act could be carried into effect, and as a result Congress passed a supplemental act on the 2d of March, 1889 (25 Stat. 862, c. 382 (U.S. Comp. St. 1901, p. 3172)), section 10, of which is as follows:
'That the Circuit and District Courts of the United States shall have jurisdiction upon the relation of any person or persons, firm or corporation, alleging such violation by a common carrier, of any of the provisions of the act to which this is a supplement and all acts amendatory thereof, as prevents the relator from having interstate traffic moved by said common carrier at the same rates as are charged, or upon terms or conditions as favorable as those given by said common carrier for like traffic under similar conditions to any other shipper, to issue a writ or writs of mandamus against said common carrier, commanding such common carrier to move and transport the traffic or to furnish cars or other facilities for transportation for the party applying for the writ: provided, that if any question of fact as to the proper compensation to the common carrier for the service to be enforced by the writ is raised by the pleadings, the writ of peremptory mandamus may issue, notwithstanding such question of fact is undetermined, upon such terms as to security, payment of money into the court, or otherwise, as the court may think proper, pending the determination of the question of fact: provided, that the remedy hereby given by writ of mandamus shall be cumulative, and shall not be held to exclude or interfere with other remedies provided by this act or the act to which it is a supplement.'
The purpose of this act is to place 'all shippers on an absolute equality. ' The sections in question were intended to prevent discrimination in all branches of freight traffic. The language employed therein is plain, and...
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