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

• Decision Date: 15 June 1901
• Citation: 109 F. 831
• Parties: UNITED STATES ex rel. COFFMAN v. NORFOLK & W. RY. CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

109 F. 831

UNITED STATES ex rel. COFFMAN v. NORFOLK & W. RY. CO. et al.

United States Circuit Court, D. West Virginia.

June 15, 1901

(Syllabus by the Court.)

In mandamus under the act of congress of March 2, 1889, to compel a common carrier to move and transport interstate traffic, or to furnish cars or other facilities for such transportation, on the ground that there has been such a violation of the interstate commerce act of February 4, 1887 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, the gist of the whole proceeding is an unjust discrimination in favor of one shipper over another similarly situated. It is for the remedy of such a wrong that congress, by the act in question, gave the federal courts the power of mandamus, and for such a wrong alone. There must not only be a discrimination, but it must be an unjust discrimination; and that character of discrimination must not only be pleaded, but it must be proved, by the relator otherwise the writ of mandamus will be denied him.

While the capacity of a shipper of coal may be greater than his allotment of cars, yet, where such is also the case with every other operation similarly situated in the coal field it is the duty of the railroad company, when the supply of coal cars is short, to prorate the supply on hand, without unjust discrimination, among all the operators, including the shipper in question.

A railroad company's duty to allot cars without unjust discrimination among coal shippers cannot be altered by the furnishing of special cars to the railroad company by one shipper, to be used exclusively in the transportation of coal for that shipper, whether the cars are sold by the shipper to the railroad company on the installment plan, or the shipper retains title to the cars. If the cars are purchased from the shipper by the railroad company on the installment plan, the company thereby becoming interested therein at once, and finally the absolute owner thereof, then, in the event of an exclusive application of the same to the business of that shipper, there never would be a time, from first to last during which the railroad company, by such a course, would not be devoting rolling stock which it owns, or in which it is interested as a common carrier, to the demands of one shipper to the exclusion of others similarly situated, which it may not do; or, even if it should never become interested in, or the owner of, the cars, still it may not rent its tracks or permit them to be appropriated by any one to the detriment of other shippers whom it should serve to the uttermost; and in the stress of unusual business such special cars in its service would have to be applied to the accommodation of all shippers alike.

A system of coal-car distribution which a railroad company has applied in a given field, if that system, under the circumstances and conditions peculiar to that field, be a reasonable one, and fair to all, and is applied to all alike, affords no just cause of complaint on the part of any shipper.

Harold A. Ritz and B. M. Ambler, for relator.

J. F. Brown, John H. Holt, and Jos. I. Doran, for respondents.

JACKSON District Judge.

On the 5th day of January, 1901, W. H. Coffman, who is the sales agent for the Indian Ridge Coal & Coke Company, notified the agents of the Norfolk & Western Railway Company that he had orders for 4,450 tons of coal, 2,000 tons of which he desired transported by rail from the mines of the Indian Ridge Coal &amp Coke Company, state of West Virginia, to Lambert's Point, state of Virginia, there to be loaded upon a vessel, which would arrive on the 14th day of said month; and the remaining 2,450 tons he desired to be transported from the same mines to the same port, there to be loaded upon the steamship Chattan, due to arrive on the 17th day of said month; but he further informed the railway company that only 2,000 tons of the 2,450 was intended for cargo for the steamship, and that the remaining 450 tons was to be loaded in her bunkers, and need not be loaded upon the vessel before the 21st day of the month. The railway company began at once to furnish the mines of the Indian Ridge Coal & Coke Company with coal cars for tide-water shipment, and continued to place at said mines its quota or percentage of all available coal cars in the coal field wherein the Indian Ridge is situate, having due regard for the needs of other operations in the field and continued to so furnish cars until the 12th day of January 1901; but the cars were not furnished as rapidly as Coffman desired, and believing, or pretending to believe, that the railway company was discriminating against him in the matter of cars in favor of the sales agencies of other coal operations in the field, gave notice that he would, on the 14th day of January, 1901, apply to the circuit court of the United States for the district of West Virginia, at Charleston sitting, for a writ of mandamus under the interstate commerce act, to compel it to furnish cars for said shipments. The application was not made, however, either at the time or place named but was made to the same court at Parkersburg, on the 15th day of said month, and on that day an alternative writ of mandamus was issued against the railway company commanding it to furnish the cars as prayed for in the relator's petition, or appear on the 17th day of said month, and show cause to the contrary. The alternative writ recited that the relator, Coffman, was the factor of the Indian Ridge Coal & Coke Company for the shipment and sale of the product of its mines; that he had sold on its account 2,000 tons of coal, to be delivered at Lambert's Point, there to meet the barge R. T. Thomas on the 14th day of January, 1901, for re-shipment to Providence, R.I.; and 2,450 tons, likewise to be shipped to Lambert's Point, to meet the steamer Chattan, which was due to arrive on the 17th day of said month, 450 tons of which, however, was intended for said ship's bunkers, and would not be loaded therein until the 21st day of said month; that he had demanded of the railway company the placing of cars at the mines of the Indian Ridge for these shipments, and that the railway company had failed and refused to furnish the same; that Castner, Curran, and Bullitt were the factors and sales agents for many other coal operations situate in the same field as the Indian Ridge, and that the railway company had been and was promptly and in full filling the orders of Castner, Curran, and Bullitt for cars, and were failing and refusing to fill the relator's orders,--that is to say, the railway company was discriminating against the relator, in the matter of furnishing cars, in favor of Castner, Curran, and Bullitt; that this discrimination had lasted for a period of six months; and that the relator, in consequence, could not ship his coal upon as favorable terms as the said Castner, Curran, and Bullitt. On the return day of the writ the railway company, and L. E. Johnson, its general manager, N. D. Marr, its superintendent, D. E. Spangler, its car distributing agent, and . . . Jenks, its local car distributing agent, who had been made respondents with the railway company, appeared, and demurred to the writ, but their demurrer was overruled, and thereupon they filed their joint and separate return to the writ. The return admitted Coffman's notice to the railway company, of his two orders for the 4,450 tons, and his request of January 5th for cars in which to ship the same, and alleged in reply thereto that the respondents had at once given orders that the cars be furnished him, and that he had been regularly, promptly, and daily given his fair pro rata allotment of all available coal cars since distributed in that coal field, and that the respondents were still furnishing...