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lation of the Interstate Commerce Act for which plaintiff is entitled to recover
full damages with an attorney's fee and costs.*'*'

§§ 4024-4033. Between Mining Companies— § 4024. In General.—

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.*'"^

Power to Regulate. — The governmental power of regulation extends, in
time of car shortage, to compelling a just and e(|ual distribution of cars among
shippers, and to the prevention of an unjust and discriminatory one.*^"^ It may

60. Southern Pac. Terminal Co. v. In- — Northwestern Warehouse Co. v. Orc-
terstate Commerce Comm., 219 U. S. 498, gon R., etc.. Co., 159 Fed. 975.

55 L. Ed. 310, 31 S. Ct. 279. 65. In distribution of cars.— iHMrell &

61. Establishing station. — Northwestern Co. v. Great Northern R. Co., 119 Minn.
Warehouse Co. v. Oregon R., etc., Co., 302, 138 N. W. 284.

159 l""ed. 975. 66. American, etc.. Timber Co. v. Kan-

62. Switch service. — Interstate Stock- sas, etc., R. Co., 175 Fed. 28.

yards Co. v. Indianapolis, etc., R. Co., 99 67. Between mining companies. — United

Fed. 472. States v. Norfolk, etc., R. Co., 109 Fed.

63. Cedar Rapids, etc., Light Co. v. 831.

Chicago, etc., R. Co., 145 Iowa 528, 124 68. Power to regulate. — Interstate Com-

N. W. 323. mcrce Comm. v. Illinois, etc., R. Co., 215

64. Grant of right to build warehouse. U. S. 452, 54 h. Ed. 280, 30 S. Ct. 155.



§ 4024 CARRIERS. 3640

not be doubted that the equipment of a railroad company engaged in interstate
commerce, inchided in which are its coal cars, are instruments of such commerce.
From this it necessarily follows that such cars are embraced within the govern-
mental power of regulation, which extends, in time of car shortage, to compelling
a just and equal distribution, and the prevention of an unjust and discrimina-
tory one.^^

At Common Law. — If it should appear in any such case that any particular
shipper was given preference.in excess in his pro rata share of its cars, then such
preference would necessarily be an undue preference at common law.'^"

Under Statute. — The Interstate Commerce Act prohibits discrimination '^^
and requires carriers to furnish transportation on reasonable request therefor,
make it the duty of an interstate carrier to furnish equal facilities for transpor-
tation, as well as equal rates, to all shippers who are similarly situated.*^- Au-
thority to regulate the distribution of a railway company's fuel cars in times of
car shortage to the bituminous coal mines along its line was delegated to the
Interstate Commerce Commission by the act to regulate commerce ( Act Feb. 4,
1887), as a means of prohibiting the unjust preferences or undue discriminations
forbidden by the act.'^^ It is obvious, from even a casual reading of the statute,
that at the time of its enactment certain shippers were unable to operate their
mines so as to develop them, owing to the lack of car service, due to the unequal
distribution of cars among those who were engaged in operating coal mines,
and it was to correct this inequality that legislation of this character was deemed
to be advisable and expedient.'^'*

Under Agreement. — An arrangement between an interstate railroad company
and coal shippers in a certain field, fixing a basis which should be considered
equitable for the distribution of cars between such shippers, does not operate to
relieve the railroad company from the obligations imposed on it by § 3 of the
Interstate Commerce Act of February 4, 1887, to treat shippers without dis-
crimination.'''^

On Request for Full Service. — When called upon by a shipper for full car
service the only defense which the carrier can interpose, in case of failure to
comply with the demand, is that the supply which it has furnished is sufficient
for normal demands, or that in case of shortage it has fairly and impartially
prorated all of its car equipment.'^^

Prorating Cars. — 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 opera-
tion 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 un-

69. Interstate Commerce Comm. v. H- ing connecting interstate roads, it must
linois, etc., R. Co., 215 U. S. 452, 54 L- be accessible to all interstate shippers on
Ed. 280, 30 S. Ct. 155. equal and reasonable terms; the public

70. At common law. — Pitcairn Coal Co. can not be deprived of this right by the
V. Baltimore, etc., R. Co., 1G5 Fed. 113. separate or joint action of the carriers,

71. Under statute. — Act Feb. 4, 1887, c. and they can not be permitted to use it
104, § 3, 24 Stat. 380 (U. S. Comp. St. for purposes of discrimination between
1901, p. 3155). mine owners on its line. Heck v. East

72. Act June 29, 190G, c. 3591, § 1, 34 Tennessee, V. & G. R. Co., 1 Interst. Com.
Stat. 584 (U. S. Comp. St. Supp. 1907, R. 495.

p. 892). 73. Interstate Commerce Comm. v. II-

"The Interstate Commerce Act, in pur- Hnois, etc., R. Co., 215 U. S. 452, 54 L.

suance of which this suit was instituted, g(j_ 280, 30 S. Ct. 155.

was passed on the 4th day of February, ^^^ Pitcairn Coal Co. v. Baltimore, etc.,

1887, and was mtended, among other p, q -^g- ^ed 113

things, to secure an equal and fair dis- ' ^V , ' ' " tt • ■, c^ .

tribution of car facilities to all shippers ,75. Under agreement.— Umted States t;.

similarly situated." Pitcairn Coal Co. v. g°!'^°'^' ^t^'- ^- C°-' '^* *-• ^- ^- ^^^' ^^^

Baltimore, etc., R. Co., 165 Fed. 113. Fed. 266.

Where a short railroad is used and op- 76. On request for full service. — Pit-

erated as a means of conducting inter- cairn Coal Co. 7'. Baltimore, etc., R. Co.,

state traffic in coal bj^ companies own- 165 Fed. 113.



3641 INTERSTATE COMMERCE ACT. §§ 4024-4025

just discrimination, among all the operations, including the shipper in ques-
lionJ "" Under the provisions of § 3 of the Interstate Commerce Law it is the
legal duty of a railroad company, in furnishing cars to coal mines along its
line, where a limited number only can be supplied, to distribute the same im-
partially, without unjust discrimination of favoritism."^

Profitable to Carrier or Mining Company. — The Interstate Commerce Com-
mission has power to compel an ecjuitable distribution as between the carrier
and the shipper, and to preventing the carrier from unduly favoring itself to
the prejudice of shippers in allotting cars for hauling freight for its own use.'''"^
An interstate carrier, in the distribution of cars, can not give a shipper a pref-
erence in order that it may profit thereby, or that the shipper may profit
thereby.'^"'

§ 4025. Ownership of Cars. — "There is nothing in the Interstate Com-
merce Act which prohibits a carrier from making any arrangement it may choose
as respects the ownership of cars which it operates on its lines. That is a matter
which is left entirely with the carrier; but, while such is the case, it is equally
true that the carrier can not, by any such arrangement, by indirection, accomplish
that which is prohibited by the statute."*^ Cars should be furnished irrespective
of ownership or of any contract, express or implied, for the use thereof.^- In the
distribution of cars by an interstate railroad company between the operators of
coal mines on its line, its ov^i fuel cars, the fuel cars of other roads sent upon its
line to be loaded, its regular equipment of cars, and the private or individual cars
of any mine operator should be placed absolutely on the same basis as together
forming the available car equipment of the road as a whole ; ^^ and where its own
fuel cars or those of other roads are consigned to a particular mine, or the opera-
tor's own private cars are delivered to it, they should be charged against such
mine, and it should be allotted only so many of the system cars as are necessary
to make up its pro rata share of the whole. ^^ The carrier can not evade such
duty in the distribution of cars by claiming that it is not the owner of a portion
of the cars carried over its lines. ^^ The act provides that cars shall be furnished
irrespective of ownership or any contract, express or implied, for the use thereof.
This makes it the duty of the company to furnish cars, regardless of ownership
or of any contract, express or implied. Therefore the question as to the owner-
ship of the cars or the purposes for which they are used can have no bearing in
this controversy. In other words, in a proceeding instituted pursuant to § 23
of the act, it would not be a good defense for the railroad company to insist
that it was using a portion of its cars for the purpose of transporting fuel, and
was therefore unable to give the relator its pro rata share of cars upon the basis
agreed upon.^*^

Cars Owned by Mining Company. — In the distribution of cars by an' inter-
state railroacl company between coal mining companies on its line, when the sup-
ply is insufficient to meet all demands, a mining company which owns cars indi-

?7. Prorating cars. — United States v. 81. Ownership of cars. — Pitcairn Coal

Norfolk, etc., R. Co., 109 Fed. 831. Co. v. Baltimore, etc., R. Co., 1(55 Fed.

78. United States v. West Virginia 113.

Northern R. Co., 125 Fed. 252. affirmed 82. Pitcairn Coal Co. v. Baltimore, etc.,

134 Fed. 198, 67 C. C. A. 220. R. Co., 165 Fed. 113; Logan Coal Co. v.

79. Profitable to carrier or mining com- i'ennsylvania R. Co., 154 Fed. 497.
pany.— Interstate Commerce Comni. v. 83. Pitcairn Coal Co. v. Baltimore, etc.,
Illinois, etc., R. Co., 215 U. S. 452, 54 L. K- Co., 165 Fed. 113.

Ed. 280, 30 S. Ct. 155; Interstate Com- 84. Pitcairn Coal Co. v. Baltimore, etc.,

merce Comm. v. Chicago, etc., R. Co., I"^- Co.. 165 Fed. 113.

215 U. S. 479, 54 L. Ed. 291, 30 S. Ct. 85. Pitcairn Coal Co. v. Baltimore, etc.,

103. R. Co., 165 Fed. 113.

80. Pitcairn Coal Co. v. BalliniDre, etc., 86. Pitcairn Coal Co. v. Baltimore, etc.,
R. Co., 165 Fed. 113. R. Co., 165 Fed. 113.



s 4025 CARRIERS. 3642

vidually is entitled to have such cars assigned to its use." If a carrier, by
coni-ractual arrangement, operates individual cars belonging to mine owners as
a part of its equipment, such arrangement can not in the slightest degree relieve
the carrier of the duty to furnish equal facilities to all shippers similarly situated.
To adopt any other rule would be to make it possible for wealthy mine owners,
by the purchase of car equipment, to utilize the means of transportation operated
by the carrier to such an extent as to practically deprive other mine owners
similarly situated of any means of transportation, and it was to avoid this very
kind of discrimination that the provisions of § 1 and 3 of the Interstate Commerce
Act was enacted.'^"^ A railroad company's duty to allot cars without unjust dis-
crimination among coal shippers can not be altered by the furnishing of special
cars to the railroad company hy one shipper, to be used exclusively in the trans-
portation 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.s^ The mining company is not entitled in addition to a pro rata share of the
cars owned by the railroad company, and such a distribution, if made, resulting
in giving to such company larger facilities for transporting its product than are
given to other companies similarly situated, but which own no private cars, con-
stitutes the giving of an undue preference or advantage to such company, in vio-
lation of the interstate commerce law.'**^

Cars Owned by Consignee.— Under a rule providing that, in the distribu-
tion of the cars of a railroad company available foi» the transportation of coal,
cars for the railroad's fuel supply, foreign railroad cars, specially consigned for
the fuel supply of the consigning railroads, and individual cars owned by shippers
and assigned to specified mines for loading, should be charged against the capac-
ity of the mines at which they were placed, and that the difference between the
rated capacity of the mine and the capacity of such assigned cars should be the
rate on which all the other cars of the railroad company would be prorated, which
rule operated slightly to the advantage of the owners of individual cars, was
not objectionable as a discrimination against them.-'^

Cars Sold by Mining Company to Carrier.— 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,

87 Cars owned by mining company.— fere with such right of the individual
Pitcairn Coal Co. v. Baltimore, etc., R. owners to the exclusive use of their own
Co 165 Fed 113 cars, and the action of the railroad com-

88 Pitcairn Coal Co. v. Baltimore, etc., pany in deducting such individual cars
R Co 165 Fed. 113. before making the distribution and al-

89 United States' v. Norfolk, etc., R. lowing their owners in addition thereto
Co 109 Fed 831. their full quota of its own cars subjects

90 Pitcairn Coal Co. v. Baltimore, etc., other operators who own no cars to an
R Co 165 Fed. 113. undue and unreasonable prejudice and

Where some of the operators of coal disadvantage, in violation of § 3 of the
mines along a line of interstate railroad interstate commerce act of February 4,
own coal cars individually which are 1887 (2-t Stat. 380, c. 104 [U. S. Comp. St.
moved by the railroad company, they are 1901, p. 3155]). Pitcairn Coal Co. v.
entitled to the exclusive use of such cars, Baltimore, etc., R. Co., lo4_ hed. 108.
but in times when the total supply of 91. Cars owned by consignee.— It was
coal cars, including such individual cars so held under Pa. Const. 1874, art. 17,
and those owned by the railroad com- §§ 1. 3, 7, Interstate Commerce Act (Act
pany, is insufficient to meet the demand, Cong. Feb. 4, 1887, c. 104, 24 Stat. 380
in the distribution by the railroad com- [U. S. Comp. St. 1901, p. 3155]), prohib-
pany of cars between the different mine iting discrimination by carriers either in
operators on a percentage basis, calcu- rates or transportation facilities and P.
lated on the production of the several L. 1846, p. 323, § 21, requiring railroads to
mines each operator is entitled to its transport cars owned by individual ship-
percentage of all of the available cars, pers on reasonable rules and regulations,
whether owned by the company or in- Logan Coal Co. v. Pennsylvania R. Co.,
dividually, in so far as it will not inter- 154 Fed. 497.



3643 inte:rstate commerce; act. §§ 4025-4026

there never would be a time, from first to last, during which the railroad com-
pany, 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 accom-
modation of all shippers alike. '^-

Cars to Be Charged Regardless of Ownership. — The fuel cars of the car-
rier, its regular equipment of cars, the cars of other roads sent in for fuel, and
the private or individual cars of the mining operators should be placed absolutely
upon the same basis in so far as the distribution of car service by the carrier is
concerned. There is, no theory upon which the carrier can relieve itself from a
charge of discrimination, when it is shown that such cars are arbitrarily allotted
to certain mines, and not charged to such mines as a part of the percentage to
which they are entitled under the arrangement by which it is undertaken to se-
cure a fair distribution of car service among shippers on its line.^^ Where the
mining company's own private cars are delivered to it, they should be charged
against such mining company, and the company should be allotted only so many
of the cars of the railroad system as are necessary to make up its pro rata share
of the whole.9^

§ 4026. Fuel Cars. — Commerce, in the constitutional sense, includes the in-
strumentalities by which commerce is carried on, and extends to the coal cars
owned by a railway company engaged in interstate commerce, in which it receives
from the tipple of the coal mines along its line coal purchased by it and used
solely for its own fuel purposes. ^^ The rule in regard to individual cars ap-
plies to the use of fuel cars, whether they be those of the defendant company
or fuel cars of other corporations purchasing coal from the relator. They should
be treated the same as individual cars in the distribution of available cars, and the
general trend of the decisions is to the effect that all cars, whether individual
cars or owned by the railroad company, or assigsed by other railroad companies
for fuel, shall be treated as an available car equipment as a whole, distributable
pro rata to shippers desiring their use along the line, upon a basis giving each
equal facilities with the other. ^^ The same considerations apply to coal pur-
chased by any buyer for its own use to be delivered into its own cars at the mine^
and which does not become a subject of interstate commerce.^"

92. Cars sold by mining company to Co., 154 Fed. 497, quoted in Pitcairn Coal
carrier. — United States v. Norfolk, etc., Co. v. Baltimore, etc., R. Co., 165 Fed.
R. Co., 109 Fed. 831. 113.

93. Cars to be charged regardless of The practice of a railroad company in
ownership. — This question has been distributing coal cars for use between
passed upon by the Interstate Commerce mine operators on its line in times of
Commission in the case of Railroad Com- shortage of cars not to charge against a
missioner v. Hocking Valley R. Co., 12 mine as a part of its quota cars of other
Interst. Com. Rep. 398. Pitcairn Coal railroad companies who had bought coal
Co. V. Baltimore, etc., R. Co., 165 Fed. for fuel, from such mine and sent the
113. same, when the coal so sold is not taken

94. Pitcairn Coal Co. v. Baltimore, etc., into consideration in computing such
R. Co., !(■)."> Fed. 113. mine's percentage, does not sul)ject other

95. Fuel cars.— Decree, Chicago, etc., mine operators to an undue or unreason-
R. Co. V. Interstate Commerce Comm., able prejudice or disadvantage in viola-
173 Fed. 930, reversed in Interstate Com- tion of § 3 of the interstate commerce
merce Comm. v. Illinois, etc., R. Co., 215 act of February 4, 1887 (24 Stat. 380, c.
U. S. 452, 54 L. Ed. 280, 30 S. Ct. 155; 104 [U. S. Comp. St. 1901, p. 3155]).
Interstate Commerce Comm. v. Chicago, Pitcairn Coal Co. v. Baltimore, etc., R.
etc., R. Co., 215 U. S. 479, 54 L. Ed. 291, Co., 154 Fed. 108.

30 S. Ct. 163. 97. Pitcairn Coal Co. v. Baltimore, etc.,

96. Logan Coal Co. v. Pennsylvania R. R. Co., 154 Fed. 108.



§§ 4026-4028 carriers. 3644

Charged to Mining Company. — An order of the interstate commerce com-
mission commanding a railway company to desist from its practice not to take
into account the company's fuel cars in the daily distribution of coal cars in
times of car shortage to the bituminous coal mines on its line, and requiring it for
a future period of two years to count such cars against the share of the mine
receiving them, is within the authority delegated by Act June 29, 1906, upon
complaint duly made, to declare a rate of practice affecting rates illegal, and
to determine and prescribe for a term not exceeding two years what w-ill be a
just and reasonable rate, and what regulation or practice in respect to transpor-
tation is just, fair, and reasonable thereafter to be followed. ^^

Freedom of Contract Not Destroyed. — Requiring a railway company in
making its daily distribution of coal cars in times of car shortage to the bitu-
minous coal mines on its line to desist from it practice not to count the company's
fuel cars against the share of the mine receiving them can not be said to destroy
the freedom of contract, on the theory that any discriminations or preferences
resulting from such practice arose from the fact that the railway company chose
to purchase coal for its fuel supply from a particular mine or mines. ''^

§ 4027. Cars Used in Intrastate Commerce Only. — A railroad company
engaged in interstate commerce in making distribution of cars between coal min-
ing companies engaged in such commerce w^here there is a shortage has no legal
right under Interstate Commerce Act to leave out of consideration private or for-
eign cars usd by such a company, although only in intrastate commerce, and
make the allotment with reference to its own cars alone by which such company
is given a preference or advantage over its competitors in interstate commerce.^

§§ 4028-4033. Determining Mining Company's Share of Cars —
§ 4028. — In General. — The distribution should be based on a disinterested and
intelligent examination by experts of the dift"erent mines, and upon a considera-
tion of all the factors which go to make up their capacity, both actual and poten-
tial, the most important being the number of workings and their capacity for pro-
duction, the equipment in use for handling and loading the product being second-
ary, because it may be readily and quickly increased if necessary to meet the
requirements. 2 Ji-idge Goff, in a very able and exhaustive opinion on this sub-
ject, in discussing the proper rule to be observed in working out the most desir-
able basis for securing a fair distribution of railroad cars to the mine owners,
says: "I am of the opinion that in reaching a proper basis for the distribution
of railroad cars it is necessary that an impartial and intelligent study of the ca-
pacity of the different mines be made by competent and disinterested experts,
whose duty is should be to carefully examine into the different elements that are
essentially factors in the finding of the daily output of the respective mines which
are to share in the allotment. Among the matters to be investigated are the fol-
lowing: The working places, the number of mine cars and their capacity, the
switch and tipple efficiency, the number and character of the mining machines
in use, the hauling system and the power used, the number of miners and other
employees, the mine openings, and the miners' houses. No one of these various
and essential elements can safely be said to be absolutely controlling, though likely

98. Charged to mining company. — De- r. Illinois, etc., R. Co., 215 U. S. 452, 54
cree, Chicago, etc., R. Co. v. Interstate L. Ed. 280, 30 S. Ct. 155; Interstate Corn-
Commerce Comm., 173 Fed. 930, reversed merce Comm. v. Chicago, etc., R. Co.,
in Interstate Commerce Comm. v. Illi- 315 U. S. 479, 54 L. Ed. 291, 30 S. Ct.
nois, etc., R. Co., 215 U. S. 452, 54 L. 163.

Ed. 280, 30 S. Ct. 155; Interstate Com- 1. Cars used in intrastate commerce

merce Comm. v. Chicago, etc., R. Co., only. — Majestic Coal, etc., Co. v. Illinois

215 U. S. 479, 54 L. Ed. 291, 30 S. Ct. 1G3. Cent. R. Co.. 162 Fed. 810.

99. Freedom of contract not destroyed. 2. Determining mining company's share
• — Decree, Chicago, etc., R. Co. v. Inter- of cars. — United States v. West Virginia
state Commerce Comm., 173 Fed. 930, Northern R. Co., 125 Fed. 252, affirmed
reversed in Interstate Commerce Comm. in 134 Fed. 198, 67 C. C. A. 220.



3645 IXTKRSTATE COMMERCE ACT. §§ -4028-4031

the most important of them all are the real working places, the available points
at which coal can be profitably mined. At each true working place a certain
quantity of coal, to be determined by the thickness of the seam and conditions
peculiar to the different coal fields, can be excavated and removed during stated
periods of time ; and so it follows that, if other essentials are adequate, the daily
output of a mine can be computed by the number of its available working
places." ^

§§ 4029-4033. Facts Considered— § 4029. Agreement of Parties.—



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 102 of 214)