There has been an agreement or there has been an understanding on the part of the railway company with its operators that the coke-oven basis was the basis of car distribution, and I have not felt at any time, neither do I feel now, that the railway company would be justified in changing a method that was established twenty-three years ago, which has been enforced all of this time, and for many years has served its purpose well, without the approval and consent of a very large majority of those who had received their car distribution on that basis.

It is the duty of railroad companies to provide suitable vehicles of transportation and to offer their use impartially to all shippers. That unjust discrimination in the matter of car distribution is prohibited by the act to regulate commerce has been repeatedly held by the Commission: Richmond Elevator Co. v. P. M. R. Co., 10 I. C. C. Rep., 629; Eaton v. C. H. & D. R. Co., 11 I. C. C. Rep., 619; Railroad Commission of Ohio v. H. V. R. Co., 12 I. C. C. Rep., 398. While the mine capacity of a given shipper of coal may be greater than his allotment of cars, yet where this is also the case as to other shippers similarly situated in the same coal field, it is the duty of the carrier, when the supply of cars is inadequate, to fairly distribute the available number among all operators, including the shipper in question, United States ex rel. Coffman v. N. & W. Ry. Co., 109 Fed. Rep., 831. It only remains, therefore, to determine whether the facts disclosed in this proceeding sustain the charge of unjust discrimination against complainant in the distribution of coal cars by the defendant company in the Pocahontas field.

The "coke-oven basis" is characterized in argument and briefs as "archaic," "anomalous," "absurd," "arbitrary," etc. Each of these adjectives may fairly describe the system and yet not indicate that it violates any provision of the regulating statute. "The mere showing of such a rule and claim that it works discrimination is insufficient. The actual effect of the rule during the time covered by the complaint is necessary to a determination of the question of unfairness in the distribution of cars," Richmond Elevator Co. v. P. M. R. Co., supra. The argument for the coke-oven basis is well summarized by the court in United States ex rel Coffman v. N. & W. Ry. Co., 109 Fed. Rep., 831, in the following language:

It is convenient for the railway, because it is uniform in principle and conduces to the education of its employees upon fixed and mathematical lines; and it is highly advantageous to the coal operators-First, because of the publicity of its operation. Under it secret discrimination by the railway company in favor of one operator against another is impossible. Each operation knows the number of coal cars owned by the railway company and the number of completed coke ovens in the field. Each operation knows the number of its own ovens and the number of its neighbors' and, in consequence, knows its particular percentage in the allotment of cars. There can be, therefore, under such a system no secret discrimination whatever. Secondly, each operation

having knowledge of the number of cars, the number of ovens, and its own per centage of distribution, knows exactly what car supply it can rely upon, and is enabled, in consequence, to employ its hands, dig, ship, and sell its coal accordingly. In other words, each operation attains regularity in its business. What may be designated as an unreliable or mercurial business-that is to say, a business first up and then down in volume-is avoided, and all the beneficial results of trustworthy regularity are realized.

These observations appear in the decision of the court upon the application of Coffman, sales agent of the Indian Ridge Coal & Coke Company, for a writ of mandamus under the act to compel the Norfolk and Western Railway Company to furnish cars for shipments of coal to certain vessels at Lamberts Point, Va. The court held that inasmuch as unjust discrimination in the distribution of coal cars had not been proved the writ of mandamus would not issue.

In marked contrast with the paragraph quoted from the Coffman case are the following remarks of the court in United States ex rel. Kingwood Coal Co. v. West Virginia Northern R. Co. et al., 125 Fed. Rep., 252:

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 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 allotment. Among the matters to be investigated are the following: 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.

The capacity of a coal mine for rating purposes is the amount of coal it is able to place in the railroad cars in a given time, and that depends on its working places, the thickness of its coal seams, its switches, workmen, mine cars and tipples, its general equipment, and its management. The output of a mine is the amount of coal it in fact places in the railroad cars for shipment, and that is regulated by the number of such cars it is able to secure, provided its general equipment is efficient, and it may be, and generally is, less than its capacity, but can never exceed it. It is on account of these matters and those similar in character-of frequent occurrence in the mining regions-that no ironclad rule can be established with safety for the disposition of the questions we are now considering, and so it is that no separate element of a mine's capacity can be said to certainly control its output, which can in fact only be determined by the careful observation of impartial experts who have worthily and discriminatively studied and applied the conditions applicable thereto.

In affirming the decision of the circuit court in the Kingwood case, the circuit court of appeals, in an opinion by Mr. Chief Justice Fuller, 134 Fed. Rep., 198, said, inter alia:

Granting that discrimination has resulted in diminishing the relative output of the Kingwood mine for lack of its just proportion of cars, that discrimination was unlawful, and the correct distribution and rating can not be allowed to be affected by conduct contrary to law.

It appears upon inspection that the record in this case does not disclose the relative capacity of the mines of complainant and other operators in the Pocahontas field by comparison of the number of working places, number and size of mine cars, mining machines, and other elements which tend to show the working capacity of a mine. Owing to the fact that the distribution of cars in this field has been for many years upon the coke-oven basis, it may be that no capacity rating of these mines has ever been made, and therefore none could be shown at the hearing. In the absence of such comparative data it is not altogether easy to decide the issue of discrimination, because it might well be claimed that if the coke-oven basis, with the exceptions noted, does as a matter of fact measure with approximate correctness the relative car rights of the different operators in the Pocahontas field, then, whatever may be its probable effect upon the future development of that field and of complainant's mine, no present discrimination can be said to exist.

It is remarked above that the coke-oven basis, with certain exceptions, is now in force in the Pocahontas coal field, but this is hardly an accurate statement. The actual fact appears to be that there are to-day in that field two separate and distinct methods of division. To a majority of the mines cars are distributed in proportion to the number of coke ovens erected. The eastern operations, regardless of the number of ovens heretofore built, receive .05985 per cent of the aggregate car supply, while the operations mentioned under exception (3) receive of the available cars a share equivalent to that which would accrue to them upon the erection of 757 ovens. It is difficult to explain this arbitrary allowance except upon the theory of an honest effort to approximate the relative capacity of the several mines in question. It follows, therefore, that in the distribution of cars. throughout the field the coke-oven basis is applied to certain mines, while to other mines is applied what may be termed a modified capacity basis. Nor can it be doubted that, in case of refusal of any present or prospective operator to erect coke ovens, it would be the duty of the railway company to furnish such operator with a fair share of its available car supply.

While the coke-oven basis may have the various advantages of publicity and uniformity mentioned by the court in the Coffman case, it has also the inherent disadvantage, among others, of lacking flexibility and adaptation to varying needs. It seems self-evident that the application of a uniform and rigid rule to widely dissimilar conditions is likely to result in unjust discrimination. The failure of the coke-oven basis to meet the exigencies of the situation is shown in the counting of assumed or imaginary ovens in addition to the ovens actually erected, and in the distribution of cars to the Hiawatha and

other companies purely upon the basis of hypothetical ovens. Moreover, the continuance of that basis under present conditions must involve an economic waste which ought to be avoided. The record shows that about 52 per cent of the existing coke ovens are sufficient to supply the current demand for coke from the field in question. This means that in order to increase its relative output of coal complainant must erect additional ovens at an expense of $500 each, with no other reason for the outlay or benefit therefrom than the resulting addition to the number of cars which would be secured for shipments of coal, and without regard to any increase or decrease in the productive capacity of its mines.

It requires only ordinary imagination to see the illogical and artificial character of the coke-oven basis. One company, with limited capital, uses its money in building coke ovens instead of extending its underground workings, while another company expends the same sum in enlarging its mining facilities, but without adding to the number of superfluous ovens. The necessary result would be that the former, with its mining capacity unchanged, would secure an increased car supply, while the latter, with largely augumented ability to produce coal, would have fewer cars for its shipment. A system which involves such absurd consequences is certainly open to grave objection.

The situation in the Pocahontas field at present is not greatly at variance with the case supposed. During the year 1906, under the coke-oven basis, the Pocahontas, Norfolk, Rolfe, Sagamore, Shamokin, Booth-Bowen, Buckeye, Goodwill, Crystal, Crane Creek, Algoma, Elk Ridge, Ashland, Shawnee, Peerless, Bottom Creek, Tidewater, and Page companies were entitled to and received many more cars than they had occasion to use; while, according to the record, complainant was never able to secure a sufficient number to approximate its loading capacity. In other words, in the same field and among operators similarly situated, one concern was seriously crippled by car shortage while other concerns had more cars than they could load.

It has already been observed that the distribution sheet for July and August, 1907, does not furnish an accurate basis of comparison, for the reason that shipments of fuel coal for carrier's use are included therein, while the cars for such shipments are not charged against the allotment under the coke-oven basis. Nevertheless, this record is strongly suggestive. The Page Company, with 500 ovens erected and entitled under the coke-oven basis to more than twice as many cars as complainant, shipped during July and August, respectively, only 0.01942 and 0.01899 per cent of the aggregate output of the field, as against complainant's shipments of 0.02250 and 0.02670

per cent of such aggregate. Thus, while both mines were supplied with cars to the extent of their working capacity, a company entitled to twice as many cars as complainant actually loaded much less tonnage during the period in question. When to this is added the fact that eleven of these companies, which in July and August failed to ship a proportion of the total output of the field equivalent to their share of available equipment under the coke-oven basis, also failed during the year 1906 to use all the cars to which they were entitled under that basis, the conviction is quite irresistible that the coke-oven basis does not fairly measure the relative rights of the various operators in the Pocahontas district.

Upon consideration of all the facts and circumstances disclosed in this case, and with our view of the obligations of the defendant carrier, we are led to the conclusion that the present basis of car distribution to mines in the Pocahontas field unduly and unjustly discriminates against complainant and operates to the undue and unreasonable preference and advantage of other mining companies in the same field.

It appears that the defendant railway company some years ago became and still is the virtual owner of the coal lands upon which the operations in question are located, the legal title thereto being in the land company whose stock is owned by the railway company. The coke-oven basis of car distribution seems to have been the outcome of the general policy of the railway company, in accordance with which the land company required each lessee of coal lands to construct a certain number of coke ovens per hundred acres of land leased as above stated. This policy was evidently adopted for the purpose of encouraging coke production and the manufacture in that district of articles which could be made by the use of coke. The railway company now prefers to discontinue the coke-oven basis and apparently desires an order of the Commission as a justification for taking that

course.

While we are convinced by the facts and circumstances disclosed that the present basis is unjust and results in unlawful discriminations, we are not unmindful that the change which will be directed. may occasion loss and injury to some of the operators whose expenditures for the construction of coke ovens, as required by their leases, may be materially and perhaps greatly diminished in value. Although not warranted in sanctioning a further continuance of the coke-oven basis, which under existing conditions is found to be neither just nor suitable, we do not desire or intend that the report and order herein shall affect the rights, responsibilities, or liabilities of any of the interested parties under any contract or agreement which they might otherwise be able to enforce for their benefit.