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Jack v. Williams

which this had been discontinued, after running them for a time, because they were unprofitable. The question is not as to the existence of the duty, but as to its extent and qualifications. The duty of a railroad company is not more than to meet the public wants. If trains run at reasonable and moderate fares, and cannot be supported, it is because they are not needed."

The text writer Morawetz also says:

"The duty of a railroad company to operate its road requires it merely to meet the public wants and exigencies. If there is not sufficient traffic over a particular line of road to pay for the expense of running trains, this is sufficient evidence that the public do not require it to be kept in operation. In such case the company may cease operating the road, unless this be contrary to the express terms of the charter." Mor. Priv. Corp. § 1119.

This is sustained in Ohio & M. R. Co. v. People (Ill.) II N. E. 350, 30 Am. & Eng. R. Cas. 509.

In Coe v. Columbus, P. & I. R. R. (Ohio) 75 Am. Rep. 524, the court says:

"If we are at liberty to suggest on what the legislature very probably relied for the continued operation of a railroad, once constructed, we should say it was the interest of the owners. If it can be operated profitably, the interest of those concerned will rarely, if ever, fail to keep it in operation so as to subserve the public use. If it cannot, we know of no mode by which the state can compel those by whom it was constructed to operate it at a loss, and certainly there is no mode provided by which it can be operated at the risk of the state." There is another point of view. The purchasers of this railroad bought it at public auction, under an order of this court. They purchased all the visible property of the insolvent railroad corporation, its rolling stock, roadbed, iron on the road, together with its franchises, including the rights of way. At the time they purchased, private persons could buy, own, and operate a railroad. The legislature of South Carolina repealed this privilege, and required all natural persons owning railroads to organize as a corporation within 60 days, and, failing so to do, declared that they forfeited all the franchises of the railroad company. They did not fulfill this condition. They could not be compelled to fulfill this condition. No power exists in the legislature to compel an individual to join a corporation or to compel several individuals to become a corporation. They accepted the results of a failure to comply with the condition, and voluntarily forfeited its franchises. This, however, did not deprive them of their property, not included in their franchises. Being the owners of this property, having dominion over this property, they could dispose of it at pleasure. True, it had been applied to a publić use. But the legislature has defeated and forbidden that use. If the purchasers, this act having been passed,

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Jack v. Williams

cannot dispose of their property, they are deprived of it without due process of law.

So far the question has been discussed with reference to the facts and circumstances surrounding the case when the purchase was made, and the order permitting the removal of the iron was passed. Since this intervention two persons have made distinct and binding offers to lease the railroad, if it be restored, and so to operate the same. This offer comes too late. Rights have vested and acts have been done which cannot be set aside. The rails have been removed and have been sold. To restore them would require the investment of money by the purchasers, the remuneration of which will be fixed, not at its value, but at the rental value, which, in the estimation of third persons, will enable them to operate the road. Nor can these offers be taken as indicating the value of the road at the date of its sale. Apart from the fact that long experience has shown that the best test of the value of property is a sale at public auction open to all bidders, not one effort was made by any one, either among those using the road or owning property adjacent to it, either to buy it or to aid it in its extremity. Not a dollar of subscription money was used in its construction. Not a bid upon it was ever made except by these purchasers, and two of them were holders of receiver's certificates, bidding to protect themselves. No better test could be had showing that in public opinion the property was not profitable. When the conveniences offered by the road-offered, but by no means accepted by the public-were withdrawn, then some of the public became awake to the fact that that road could have been made useful,—had been neglected. But this neither the purchasers nor the court could foresee. The value of the road, or rather its hopeless want of value as an investment, was determined by the facts existing at the time and the attitude of the public to it.

As the result of this examination, it will appear that, in the circumstances of this case, the purchasers could rightfully exercise the option of accepting the provisions of the act of the legislature by incorporating themselves within 60 days after its passage, and trying the operation of the road, or of forfeiting the franchises they had purchased; that they exercised this option, and forfeited the franchises, rendering any proceedings in quo warranto unnecessary; that thence forward any attempt by them to exercise the franchises of a railroad company would have been unlawful; that they, being the owners of property which could not be used for the purposes of a railroad, by reason of this forfeiture, and the illegality of its use consequent thereon, could lawfully dispose of the same; that having thus taken up the rails on the road, and having sold them, this court will not compel them to buy other rails, rebuild the decayed trestles, decayed when the purchase was made, renew the cross-ties, which were also

United States v. Norfolk & W. Ry. Co

decayed at that time, and operate the railroad without remuneration.

There is another intervention in this case filed by landowners through whose lands the railroad company had rights of way. Their rights will depend upon the correctness of the adjudication on this branch of the case. As without doubt the review of an appellate court will be sought, further proceedings in the matter will be postponed to await such an adjudication.

UNITED STATES ex rel. COFFMAN v. NORFOLK & W. Ry.
Co. et al.

Interstate

(Circuit Court, D. West Virginia, June 15, 1901.)

[109 Fed. Rep. 831.]

Commerce-Mandamus-Pleading-Evidence-Unjust Dis

crimination.

In mandamus under the act of congress of March 3, 1899, 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. Railroads-Distribution of Equipment.

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.

Same-Special Cars.

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

United States v. Norfolk & W. Ry. Co

in the stress of unusual business such special cars in its service would have to be applied to the accommodation of all shippers alike. Same-System of Coal-Car Distribution.

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.

(Syllabus by the Court.)

Mandamus. Issue having been joined upon the writ of alternative mandamus and respondents' return thereto, this cause came on for trial before the court without a jury, both sides, by a stipulation filed, agreeing that the issues of fact upon the pleadings might be tried and determined by the court, and expressly waiving a jury.

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 & 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 tidewater 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

United States v. Norfolk & W. Ry. Co

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 reshipment 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 him cars in that way to the best of their ability. It denied all discrimination against him in favor of Castner, Curran, and Bullitt, or any one else, either with respect to the particular shipments in question, or during the six months last past, or for any other period, or at any other time. The relator moved to quash the return, but his motion was overruled, and

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