Baltimore & Ohio Railroad v. United States ex rel. Pitcairn Coal Co.

delivered the opinion of the court.

To decide the merits of this cause will require us to determine the legality of the regulations of the Baltimore and Ohio Railroad Company, by which that company distributed cars to coal mines along the line of its road in case of car shortage. As an incident to this general question we would further be required to consider the relations, irrespective of its mere attributes and duties as a common carrier, of the Baltimore and Ohio Railroad with various coal mines along the line of its road and the relation with or control over some, if not all, of these coal mines by other mines or mine operators, and in

The Baltimore» and Ohio Railroad Company, a corporation existing under the laws of Maryland, owned and operated a. railroad or railroads in the States of Maryland, West Virginia, Virginia, Pennsylvania, Ohio and other States, and, as a common carrier, was engaged in interstate commerce between such States. The main line of said road west of Cumberland, Maryland, passes through a bituminous coal field, which is worked by many coal operators, the product of whose mines depend for their movement to market in interstate commerce on the facilities for such movement which the Baltimore and Ohio affords. For the purpose of this case, the coal mines referred to may be treated as situated in what is described as the Mohongah District of the Baltimore and Ohio Railroad..

1. Baltimore and Ohio Railroad cars placed at miñes for Baltimore and Ohio fuel coal.

2. New mines are allotted an arbitrary number of cars daily or weekly for development. In cases where the inspection shows a marked increase in the. capacity of certain mines, and it is not practicable to change the percentage of the whole district, proper arbitraries are applied pending a general revision.

4. Cars of individual companies placed at mines owned by such companies and cars owned by individual consumers placed at mines for their coal.

There are also certain exceptions of a local character, as follows:

1. Curtis Bay premium. Whenever a shipper on the Baltimore and Ohio Railroad handles cars at Curtis Bay promptly in any one month, he is allowed in the succeeding month a premium of fifty per cent of the number of cars so handled, in addition to his regular percentage. This in lieu, of an assignment of cars to the Curtis Bay trade.

2. At certain points, noted on the percentage sheets, an arbitrary number of cars is assigned to mines on fire.

3. At certain mines in the immediate vicinity of industries, empty cars intended for loading at such industries are first sent into the mines for loading coal for such industries.

4. When annual contracts are placed for foreign railroad fuel coal with mines on the Baltimore and Ohio, arrangements are made that if the foreign railroads’ cars are furnished for this fuel coal, the Baltimore and Ohio will allow the mines shipping the coal a number ¡of Baltimore and Ohio cars equal to the foreign cars furnished.

5. When mines are connected with foreign railroads as well, as with the Baltimore and Ohio, their rating is reduced fifty per cent. A similar reduction is made in cases where mines are located near rivers and are equipped for loading boats.

Where mines needed, box and stock cars for the shipment of coal, as to which class of cars shortage rarely arose,, there was a special rule which we need not notice.

With the system just referred to in force on the nineteenth of January, 1907, the. Pitcairn Coal Company, a West Virginia corporation, owning a. coal mine on the line of the Baltimore and Ohio Railroad in West Virginia, filed its petition in mandamus in the United- States Circuit Court for the District of

There was voluminous testimony and a protracted trial, each side requesting findings and instructions embodying their respective contentions and excepting in so far as they were' overruled. The court considered all the contentions raised by the pleadings except several which were not pressed at bar. It held that in view of the relations which the Cumberland and Pennsylvania Railroad had to the Baltimore and Ohio and

The Baltimore and Ohio Railroad Company, the Fairmont Companies and the Pitcairn Coal Company prosecuted error. The Circuit Court of Appeals held as follows: a, that the system of rating, so far as taking into view thfe shipments and percentages based thereon was considered, Was discriminatory and preferential; b, that'while the right to' allot cars to the Cumberland and Pennsylvania Railroad under the facts found below was lawful, the methods by which the allotment

One of the assignments of error assails the correctness of the conclusion of the court below to the effect that, compatibly with the act to regulate commerce, there was power under the circumstances disclosed by the record to consider the subject-matters which were complained of, and to award the relief concerning them which was prayed. Indeed, the nature of the controversy and the relief which it requires is such that, even' without the assigned, error, to .which we have' referred, the question, at the very, threshold necessarily arises and commands our attention as to whether there was power in the. courts, under the circumstances disclosed by the record, to grant the relief prayed consistently with the provisions of the act to regulate commerce, and to that subject we therefore at once come.

To a consideration of this question it is essential to at once summarily and accurately fix the subject-matter of the alleged grievances and the precise character of the relief required in order tq remedy the evils complained of upon the as-.

The controversy is controlled by the considerations which governed the ruling made in Texas & Pacific Ry. Company v. Abilene Cotton Oil Co., 204 U. S. 426 . In that case suit was brought in a court of the State of Texas to recover, because of an exaction by a carrier, on an interstate shipment, of an alleged unreasonable rate, although the rate charged was that stated in the schedules duly filed and published in accordance with the act to regulate commerce. After great, consideration, it was held that the relief prayed was inconsistent with the act to regulate commerce, since by that act the rates, as filed, were controlling until they had been declared to be unreasonable by the Interstate Commerce Commission on a complaint made to that body. It was pointed out that any other view would give

We say this record, because, as has been pointed out, one of the questions .which we would be called upon to decide if the merits were open is whether the court below was right in holding that if anything but the physical capacity of a- mine was taken into consideration by a railroad company in rating the mine for car distribution in time of car shortage, the act to regulate commerce would be violated, and therefore the system adopted by the Baltimore and Ohio Railroad Company, was repugnant to the act, because it made, not alone the physical capacity but past shipments factors to be considered. .But the reports of the Interstate Commerce Commission show that on a complaint made to that body on the subject of the system of mine rating of the Baltimore and Ohio Railroad Company, the commission, before the decision of the Circuit Court of Appeals in this case was announced, had expressly refused to hold that the system was either preferential or prejudicial within the act to regulate commerce. In that report, speaking of the Baltimore and Ohio system of mine rating, it was said (Rail & River Coal Co. v. B. & O. R. R. Co., 141. C.

“This method of rating mines was adopted by'the defendant in 1902, after a careful examination of the various systems in force on other lines. It was intended as a compromise between ratings based on physical capacity only and ratings based on commercial capacity only.”

And after elaborately weighing the matter, it was said, (p. 95): “ In combining the two. systems the defendant has adopted a middle ground, apparently upon the thought that neither the physical nor the commercial capacity is always a fair test. We are not prepared, on this record, to say that there is no force in that view, and that a system of mine rating based upon a combination of the physical'and commercial capacities of the several mines does not more closely approximate the actual car requirements of' the mines than a system based upon physical capacity only.”

We say also the Illinois Central case, since it is shown in that case that when the railroad company changed its regulations presumably to have them conform to the administrative ruling made by the commission in the Hocking Valley case, such change was, prevented from going into effect by an injunction issued by the Circuit Court of the United States for the Northern District of Illinois in the Majestic Coal Company case. And when the commission came to discharge its duty upon the complaint made to it in the Illinois Central case it was put to the alternative of either abdicating its administrative duties or making an order in violation, of. the injunction.

And the. destructive effect upon the system of regulation devised by the act to regulate .commerce, which these illustrations show must' be the result of construing that act as giving authority to the courts, without the preliminary action of the- commission, to consider and pass upon the administrative questions which the statute has primarily confided, to that body, may be greatly multiplied. This is shown by the opinion of the commission in the Baltimore and Ohio case, to which we. have already referred, where the decisions of

The court below deemed that it was its duty to . award to the coal company the relief by mandamus which was prayed, upon the theory that § 23 of the act to regulate commerce rendered it imperative to do so, this conclusion being specially based upon the provision of that section authorizing • the remedy of mandamus to compel carriers “to furnish cars or other facilities for transportation for the party applying for the writ.”

The section in question is as follows (§ 10 of Act of March 2, 1889, c. 382, 25 Stat. 855 , 862):

“Sec. 23. 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 of 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, of 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 he 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.”

That it is not necessary to point out that there is ample scope for giving effect to and applying the remedy embraced in § 23, if that section be construed in harmony with the act of which it forms a part, and not as destructive of one of the main purposes of the act, is, we 'think, obvious. It is to be observed that the section) besides empowering the use of the writ of mandamus to compel the furnishing of cars and other facilities for transportation, also authorizes the use of that writ for the purpose of compelling the movement of traffic “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.” As it was.settled in the Abilene, case that the right to question in the courts the rates established in accordance with the act to regulate commerce without previous resort, by complaint, to the commission, in order'to determine their unreasonableness, would be destructive of the act, and therefore was not permissible, that ruling is equally applicable to the provision as to furnishing cars contained in § 23, which is here relied upon.- But as we are required, for the determination of the case now before us, to consider the scope of the act to regulate commerce as now existing, as a result of the amendments of 1906, we shall not rest our conclusion alone upon the persuasive force of the reasoning which constrained to the conclusion announced in the Abilene cáse. Speaking generally, it is true to say that, prior to 1889, although the prohibitions of the act bo regulate commerce as to preferences and dis-criminations were far reaching, the mechanism provided by the statute for the enforcement of orders of the' commission on the subject, as.wéll as those concerning a finding as'to unreasonable rates, were deemed to be in many respects ineffective, or at least tardy in operation or unsatisfactory in prompt remedial results, and this because immediate" effect was not given to the orders of the commission, but the aid

Nor is there anything in the contention that the decision in Southern Ry. Co. v. Tift, 206 U. S. 428 , qualifies the ruling in the Abilene case, and is. an authority supporting the right to resort to. the courts, in advance of action by the commission for relief against unreasonable rates or unjust discriminatory practices, which, from their nature, primarily require action by the commission. While it is true that the original bill in the Tift case sought relief from alleged unreasonable rates before action by the commission, yet, as said by this court (p. 437):

“The Circuit Court granted no relief prejudicial to appellants on the original bill. It sent the parties to the Interstate Commerce Commission, where, upon'sufficient pleadings, identical with those before the court, and upon testimony adduced upon the issues made, the decision was adverse to the appellants. . This action of the commission, with its findings and conclusions,, was presented to the Circuit Court, and it was upon these, in effect, the decree of the court was rendered. There was no demurrer to that petition, and the testimony taken before the. commission was stipulated into the case, and the opinion of the court recites that, ‘with equal meritorious purpose, counsel for respective parties agreed that this would stand for and be the hearing for final decree in equity.’

The judgment of the Circuit Court of Appeals is reversed, and the cause is remanded to the Circuit Court with directions to set aside its judgment, and enter judgment dismissing the petition.

Reversed.

Mr. Justice Harlan and Mr. Justice Brewer dissent.