transport these individual cars, and there is no reason that I can see why they should not be regarded in the distribution of cars to shippers as part of the equipment, in order that the defendant company may be enabled to treat all shippers the same, and, as near as may be, at all times in the year furnish car facilities for the transportation of coal along its line upon a basis fixed upon the rated capacity of the mine as ascertained - by the method adopted by the railway company.

*

What has been said in regard to individual cars applies 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 defendant company in its treatment of these cars by the order of January 1, 1906, in no way that we can see unduly or unreasonably discriminated against the relator.

That case merely held that granting the rule to be as set forth in the petition, the relator, which owned individual cars, was far from being unduly discriminated against, or unduly prejudiced by said rule, in fact had an advantage over its competitors, and that, therefore, the petition for mandamus should be dismissed. It does not approve the Pennsylvania Railroad Company's plan of distribution, but condemns it by saying:

The general trend of the decisions is to the effect that all cars, whether individual cars or owned by the railroad company, or assigned 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.

This Commission did not indorse or commend the plan of the Pennsylvania Railroad Company, nor was that plan approved by Judge Holland in the Logan coal case.

On January 16, 1907, the United States ex rel. Pitcairn Coal Company, which owned no individual coal cars, filed a petition in the circuit court for the district of Maryland for a mandamus to require the Baltimore & Ohio Railroad Company et al. to cease from subjecting the relator and other coal companies on the Monongah division to undue and unreasonable discrimination in the shipping and transportation of coal. The case was decided by Morris, district judge, June 11, 1907, 154 Fed. Rep., 108. The relator had charged that, whenever in any district the supply of cars was insufficient to fill all orders, cars were supposed to be distributed, and the Baltimore & Ohio Railroad Company alleged that it had distributed such cars on a percentage basis, to all the mines in such district, but in the distribution of cars on a percentage basis, before distribution was made, certain arbitrary assignments of cars were made, reducing the total number of cars to be distributed.

In discussing this case the court said:

The purchases of coal at the mines by the Baltimore & Ohio Railroad Company itself amount to about 5,000,000 tons a year; the consumption being greatest in the winter time, when the car shortage is most felt. This coal is delivered by the mines from which it is purchased directly onto the engines, tenders, and company's cars,

and does not pay freight, and does not enter into interstate commerce. It is consumed by the Baltimore & Ohio Railroad in operating its own lines. It is naturally purchased from the larger mines, having coal of the grade and price used, because they have the capacity to furnish daily the large quantity daily required by the railroad, but the coal so sold is not counted in the shipments on which the percentage rating is based. This statement of the facts in the Pitcairn case does not apply in these cases against the Southern Railway Company, because it is conceded that even the company's fuel supply bought at the mines in Tennessee is largely hauled to, stored, and used in the states of North and South Carolina; it does enter into interstate commerce. Again, the Southern Railway Company does count its own fuel coal in ascertaining the ratings of the various mines in the Coster division, and even if defendant's own fuel were not shipped to interstate points its plan of car-distribution would interfere with and affect interstate shipments of commercial coal.

The Pitcairn case, like the Logan case, was a petition for mandamus, and was based upon a plan of car distribution, but these are the only points of similarity: The Pitcairn Company owned no individual cars, the Logan Company did; the Pitcairn Company was adjudged "entitled to a peremptory writ requiring the Baltimore & Ohio Railroad Company, in cases of car shortage, in distributing the pro rata shares of the general coal-car equipment of the railroad company according to the percentage to which each mine is entitled, to include in the available car supply as the basis of the calculation the individual cars of mine operators regularly used on the Baltimore & Ohio Railroad, not intending, however, to give to the relator, or those in like situation with him, in any event the use at any time of individual cars to the exclusive use of which other mine operators are entitled."

In the case of the Railroad Commission of Ohio et al. v. Hocking Valley Railway Company et al., 12 I. C. C. Rep., 398, this Commission said:

The total of the foreign railway fuel cars, the private cars, and the system cars should be taken into consideration in determining the distribution. If the number of foreign railway fuel cars or of private or leased cars is less than the percentage or proportion of the company to which such cars are consigned or assigned, that company should be given all of the foreign railway fuel cars consigned to it and all of the private or leased cars belonging to it, and a sufficient number of system cars to make up its proportion. On the other hand, if the number of foreign railway fuel cars consigned to it and of private cars assigned to it is greater than its proportion, all such cars so consigned or assigned to it should be delivered to it and the available system cars should be divided among the other operators on the basis of a changed percentage because of the elimination of the company or companies to which the foreign railway fuel cars and private cars have been consigned, assigned, and delivered.

The railroads must have fuel; they are entitled, and indeed required by law, to take all proper and just measures to assure the regularity and certainty of their fuel supply; but in securing such supply they

are not justified either in beating down the price of coal by means of plans of car distribution or in penalizing mines that refuse to sell fuel coal by lowered mine ratings or lessened car supply.

The carrier must be free to contract for the total output of a mine, if it so desires; or it may contract for any part of a mine's output less than the whole, and it is entitled to get its fuel coal first, for without fuel it can not haul even commercial coal to its destination, to say nothing of complying with its obligations to the public at large; but in all its acts it must deal even-handed justice in the matter of car distribution as in the matter of rates. If a mine contracts to furnish only a part of its output to the railroad for fuel, and if the filling of its contract with the railroad calls for its full pro rata of cars, or more, then it should not receive other cars for commercial shipments. such a mine in filling its contract to supply fuel coal to the railroad does not exhaust its equitable pro rata of cars, then cars should be given it for commercial shipments sufficient to complete its full pro rata share of all available cars.

If

We are clearly of opinion that in the matter of car distribution, where there is an inadequate supply of coal cars, the only regulation or practice in respect to the transportation of coal from the mines that is just, fair, and reasonable to be hereafter followed is to allot to each mine its fair and just proportion of the coal cars estimated upon its justly ascertained capacity and without regard to whether the mine furnishes partly fuel coal and partly commercial coal, or commercial coal only.

ages.

Two of the complainants, the Tennessee Coal Company in docket 1306, and the Minersville Coal Company in docket 1307, claim damA great deal of time was consumed by the complainants in attempting to show that if they had been supplied with all the cars they needed, and if they had had sufficient laborers, and if they had sold all the coal so mined and shipped at about the average mine price for that period, then they would have made a profit on a certain number of supposed tons of coal equal to the difference between the said average mine price per ton and the estimated cost of producing the coal. But the testimony as to what would have been the cost of producing the coal, making all the assumptions enumerated above, is too indefinite, as it is based upon a cost to the operator excluding fixed charges as having been paid by the coal which, during the period, was actually shipped. The testimony is not positive nor direct, but is inferential, vaguely indefinite, and altogether lacking in certainty, and, without considering the question of our jurisdiction to make an order for reparation in such cases, does not justify this Commission in making an award of damages to either company.

The conclusions of the Commission are that the plan of distribution of cars by the defendant in cases of car shortage gives an undue

and unreasonable preference and advantage to mines furnishing it with company fuel when the fuel contract calls for less than the total output of the mine, and subjects the purely commercial mines to an undue and unreasonable prejudice and disadvantage in that their pro rata shares of the coal-car equipment of the defendant are not only absolutely reduced in the daily allotment of available cars, but their relative ratings based on actual shipments in comparison with the fuel-furnishing mines of the Coal Creek group are also progressively reduced by reason of their inability to get their full share of cars; and that the only reasonable and just plan of car distribution is for the carrier to consider and count its own fuel cars in the same manner as foreign fuel cars are considered and counted, and that the defendant should be required to cease and desist from its present plan of car distribution, and within a reasonable time put in force the plan of car distribution indicated. The defendant should continue its present practice in the matter of the publicity of ratings and provide full and fair ratings of the capacities of the mines of the respective groups, publishing at regular intervals the ratings and car tonnage received by the mines within the period covered by the report. In cases where commercial mines have received more or less than their equitable pro rata of the car tonnage during any particular period the overplus or shortage for such mines should be adjusted, as far as possible, within the period next succeeding, and such correction should be shown in the subsequent reports.

No reparation should be allowed to any of the complainants.

After these cases had been fully argued the Pennsylvania Railroad Company, by its general counsel, asked to be heard with respect to the rule of that carrier referred to above. Permission to file a brief herein was granted and the brief filed.

The Pennsylvania Railroad Company, in its brief, does not discuss any decision of the courts or of this Commission concerning the matters in issue, but its whole argument is based upon a statement that the fuel coal sold by the operator to the carrier at the mine is carried thence by the carrier for its own benefit and not for the benefit of the operator. In other words, the operator in selling fuel coal to the carrier makes a purely local sale, the ultimate destination of the commodity thereafter being at the will of the carrier, and the mine operator not being a shipper at all with respect to the fuel coal delivered by him to the railroad.

This argument is ingenious, but far from convincing. If it proves anything it proves too much. Commercial coal is usually sold f. o. b. at the mines, and the routing and freight charges thereon assumed by the purchasers. Would the Pennsylvania Railroad Company contend that the tonnage of such shipments should not be charged against the pro rata shares of car tonnage to which such mines are

entitled? In both cases the available equipment of the carrier is used and the number of cars that can be furnished other shippers proportionately reduced.

Again, the argument proves too much, for if followed to its logical conclusion it would result in the condemnation of the very rule in support of which it is offered. The rule of the Pennsylvania Railroad is that: "The difference between the rated capacity of a mine and the capacity of the assigned cars placed for loading" railroad fuel supply "will be the rated capacity on which all other cars," that is, for commercial shipments, "will be prorated."

But why make such computation at all? If the contention now made in the brief of the Pennsylvania Railroad Company be true, such reduction of the rated capacity of the fuel contract mines is unfair to them. The cars should be assigned arbitrarily and without deduction from the rated capacity of the mines. The mere statement of the result of the argument refutes it. The fact of the matter is, however, that the occupation, the user, and the consequent reduction of the available equipment of the road is the vital matter in all cases of car distribution in times of shortage, and whether the cars are used for fuel supply or for commercial shipments they should be furnished the mines as herein before set forth.

An order in accordance herewith will be issued.

13 I. C. C. Rep.