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The general ground upon which these refusals were put, as stated by the counsel for the defense, who also appeared for the recalcitrant witnesses, was that the testimony or evidence called for was immaterial and irrelevant to the issues in the case, that the contracts in question, exclusive of the Temple Iron Company contracts, related to the purchase and sale of coal within the State of Pennsylvania and could not be inquired into hy the Commission, and that the Temple Iron Company contracts were immaterial and irrelevant, and while perhaps competent evidence in a case under the antitrust law were not competent in a case arising under the interstate commerce law. A petition on behalf of the Commission was subsequently filed in the United States circuit court for the southern district of New York praying that the witnesses be conipelled to answer the questions and produce the contracts. The case was argued on June 12, 1903 (123 Fed. Rep., 969), on which date the court rendered a decision denying the petition except as to the question asked of William H. Truesdale, president of the Delaware, Lackawanna & Western Railroad Company, in relation to the elements included in the item covering general expenses in the annual report of that company to the Commission. The court said that inasmuch as the documents containing that item were in evidence before the Commission the witness should answer that specific question. The court held that the other questions and the contracts called for had no reference to transportation, and therefore were not relevant to the question of reasonable rates which were presented in the case. Ву virtue of these contracts the railroad companies or the coal companies controlled by them purchased the entire output of mines of independent operators, agreeing to pay the independent operators 65 per cent of the tide-water price.

The necessary result of such a contract was that the railroad companies obtained thirty-five per cent of the tide-water price for their transportation services. It seemed clear to the Commission that this evidence showing what the railroad companies actually received for the transportation of the coal so purchased of the operators was a fact bearing directly upon the question raised by the complainant as to whether the established tariff charge published by the railroad companies was reasonable. This evidence also, in the opinion of the Commission, bore directly upon the question whether the carriers had been making discriminating charges for the transportation of this coal. The so-called Temple Iron Company contracts were alleged to indicate a combination of the carriers for the purpose of fixing the price of coal at tide water, and also in relation to fixing rates established by the railroad companies for transportation. The complaint in the case alleged that these carriers were violating the antipooling section of the act to regulate commerce. The Commission believed and ruled that these contracts were competent and material evidence in the case; an appeal was taken to the Supreme Court of the United States and it is expected that an early date will be fixed for the argument.


During the first part of the present year a suit was instituted in the United States circuit court for the southern district of Georgia by members of an association known as the Georgia Sawmill Association, in which the court was asked to enjoin the Southern Railway Company and other carriers operating in the Southern territory from putting into effect and enforcing an advance of 2 cents per 100 pounds in rates on yellow-pine lumber from points in Georgia to Chattanooga and Ohio River points and destinations beyond. A temporary injunction was granted by the court, and a ruling was issued requiring the defendants to show cause why the injunction should not be made permanent. A hearing was had and demurrers to the bill for want of jurisdiction of the court were argued and overruled. The court maintained its jurisdiction to grant the relief sought in case it should be made to appear that the contention of the complainants was meritorious. On July 16, 1902 (123 Fed. Rep., 789), a further hearing was had and the court, Judge Speer, writing the opinion, held that the considerations submitted on that hearing had not changed its opinion as to the correctness of its conclusion. The court said that complainants' bill was properly before the court and might be maintained to adjust the rights of the contending parties as they were finally to be ascertained. It further said, “What these rights are in the present condition of the record may not be easily discerned.” The court, however, dissolved the temporary restraining order and referred to the following language used in the decree:

In case the respondents shall enforce the rates complained of, and the complainants shall make proper application to the Interstate Commerce Commission to redress their alleged grievances, the court will entertain a renewed application on the record as made and such appropriate additions thereto as may be proposed by either party, enjoining the enforcement of such rates pending the investigation by the Commission, unless otherwise dissolved; and on presentation to the court of the report of the Commission such other action will be taken as will be conformable to law and the principles of equity.

In its decision the court then goes on to say: Since then the respondents have enforced the rates which constitute the alleged grievance of the complainants. The complainants, it appears, have appealed to the Commission, but the Commission has not as yet taken action on such complaint. It is probable that this action will not be long delayed. It is probable that counsel in the cause will soon be enabled to present to the court the report of the Commission. It is certain that this report will be of the utmost value for the proper determination of the important matter in controversy. In the mean time it does not appear that the injury complainants will sustain will be irreparable. The respondents are all solvent-probably all of them highly prosperous-railway corporations. It will be easily competent for the complainants to keep careful account of all charges claimed to be unreasonable and excessive exacted by the defendants on shipments of lumber to Western territory described in the bill.

If their contention shall be maintained it will be competent for the court in its final decree to direct the respondents, or either of them, to make restitution of sums thus exacted. Indeed, the learned special counsel for the respondents, by his statement made in judicio, binds his clients to promptly repay to the complainants all such sums in case they shall finally prevail. Nor is it likely that in the interval which shall remain before the Commission will act there will ensue any serious impairment of the business of complainants, or either of them. It is easily conceivable that a case or cases of this general character might be presented on which it would seem obligatory on the court to grant an immediate injunction. Such injunctions, however, should not be granted save in the case of grave and compelling exigency. Judicial action should be ever conservative, and rarely is such conservatism more plainly required than when the vast commercial operations involved in interstate transportation will be arrested or disturbed. In this case the duty to grant the extraordinary order sought does not now seem imperative. The court, therefore, in view of the record and of the considerations mentioned, will withhold further judicial action upon the application until properly apprised of the action of the Interstate Commerce Commission. When we shall have received the valuable assistance in the performance of the grave duty before us which must be expected from the conclusions of that authoritative and eminent body, such other and further action will be taken on this application as the law and the principles of equity will seem to direct.


A case of some importance under the last section of the act to regulate commerce (termed in the act “New section”) in the United States circuit court for the northern district of West Virginia was decided October 15 last. In this case the Kingwood Coal Company, the relator, applied for a mandamus to compel the West Virginia Northern Railroad Company to supply its mines with a greater proportion of cars for the shipment of coal to interstate destinations. The points of the decision, as shown in a syllabus prepared for an advance copy, are substantially as follows:

In reaching a proper basis for the distribution of railroad cars to coal mines upon the line of railway, it is necessary that an impartial and intelligent study of the capacity of the different mines be made by competent and disinterested experts, whose duty it 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 allotinent. The capacity of a coal mine for car-rating purposes is the amount of coal it is able to place in railroad cars in a given time, and that depends on its working places, the thickness of the coal seams, its switches, workmen, mine cars, and tipples, its general equipment, and management. If a railroad withholds cars from a mine, it thereby to a certain extent retards its development, while, on the other hand, if such management discriminates in favor of a mine by allowing it cars more than its proper rating entitles it to, the result is the rapid and abnormal development of that mine to the prejudice of those competing with it, and it is therefore evident that if equitable rules are not observed the power that controls the railroadcar supply can foster one mine at the expense of another or build up one locality while it is tearing down another.

Coal cars were distributed by defendant along its line of railway upon the following basis: Kingwood Coal Company, 17 per cent; Atlantic Coal and Coke Company, 27 per cent; and Irona Coal Company, 56 per cent. The Kingwood Coal Company filed


petition for a writ of mandamus under provisions of the act to regulate commerce as amended, alleging discrimination in favor of the Irona and Atlantic Coal and Coke companies. It was held that defendant's basis for the apportionment of cars unjustly discriminated against the petitioner; that the petition may be amended to conform to the facts as found herein, and thereafter a peremptory writ may issue requiring the defendant to cease giving preference and advantage to the Irona Coal Company and to the Atlantic Coal and Coke Company over the Kingwood Coal Company in the shipping and transportation of coal, and to furnish to said Kingwood Coal Company without discrimination, and upon conditions as favorable as those given to other shippers, the full supply of cars due it under existing conditions, amounting in tonnage thereof to at least 31 per cent of the present distribution.

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The question whether transportation passing through different States, but beginning and ending in the same State, is subject to regulation by State or Federal authority has at last been definitely determined by the United States Supreme Court. The court held during the present year, in the case of Hanley v. Kansas City Southern Railway Company (187 U. S., 617), that such transportation is interstate commerce and subject only to regulation by Congress. In its decision the court cites a like ruling made by this Commission in the Milk Producers' Protective Association v. Delaware, Lackawanna & Western Railroad Company. (7 I. C. C. Rep., 160.)


In what is known as the Lottery case, having for its docket title Champion v. Ames, No. 2, the United States Supreme Court held (188 U. S., 321) that lottery tickets are subjects of traffic among those who choose to buy and sell them, and their carriage by independent carriers from one State to another is, therefore, interstate commerce, which Congress may prohibit under its power to regulate commerce among the several States; that legislation under that power may some times and properly assume the form or have the effect of prohibition; that legislation prohibiting the carriage of such tickets is not inconsistent with any limitation or restriction imposed upon the exercise of powers granted to Congress.


The act of August 7, 1888, regarding Government aided railroad and telegraph lines, and which confers jurisdiction upon this Commission in certain cases, was construed by the United States Supreme Court in United States v. Northern Pacific Railway Company et al. (120 Fed. Rep., 546) in a case brought by the United States to compel the Northern Pacific Railway Company to maintain and carry on, by its own officers and agents, and for commercial and public purposes, a line of telegraph coextensive with its line of road. The Northern Pacific Railroad Company, the predecessor of the Northern Pacific Railway Company, entered into an agreement with the Western Union Telegraph Company for the construction and operation of telegraph lines along the railroad right of way. The Government contended that this suit was controlled by the decision of the Supreme Court in United States v. Union Pacific Railway Company (160 U. S., 1). The court, however, found that the contract between the Northern Pacific Railroad Company and the Western Union Telegraph Company was essentially different from the contract between the Union Pacific and the same telegraph company involved in the earlier case, and that the differences between the two contracts were controlling.

The court held in this case that the contract between the railroad company and the telegraph company by which the telegraph company agreed to construct telegraph lines along the railroad's right of

way and grant to the railroad the exclusive use of one of two wires erected and the right to stretch additional wires, for which the railroad company agreed to pay one-third of the cost of construction and to transport the property and employees of the telegraph company in constructing and maintaining the line free of charge, was not a violation of the act of August 7, 1888. The court further held that the fact that the railroad company in receiving messages for points beyond its line required the sender to designate the connecting telegraph company over whose line the message should be sent, and made a small additional charge for the words necessary to designate such line, which charge was in accordance with the uniform practice among telegraph companies, was not an arbitrary impost or discrimination prohibited by section 2 of the act. The court therefore found that the railroad company has since the passage of the act of August 7, 1888, by and through its own respective corporate officers and employees, maintained and operated for railroad, governmental, commercial, and other purposes a line of telegraph coextensive with its railroad system, and that if the contract between the Northern Pacific Railroad Company and the Western Union Telegraph Company were fully performed the same would contain no provision which would obstruct the railroad company in the performance of its duties under the act of August 7, 1888.


Brewer et al. v. Louisville & Nashville Railroad Company et al. Griffin, Ga., long and short-haul case. United States circuit court, southern district of Georgia.

Interstate Commerce Commission v. Northern Pacific Railroad Company et al. Fargo, N. Dak., long and short-haul case. United States circuit court, district of North Dakota.

Interstate Commerce Commission v, Western New York & Penn

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