1905 - N&W Coal Car Distribution

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Bluefield Daily Telegraph - June 25, 1905


ALTERNATIVE WRIT IS QUASHED BY U.S. COURT

Case of Greenbrier Company Against M&W Dismissed

Charleston, W.Va. June 21 - The most important case heard at this term of 
the
federal court was disposed of today when Judge Keller decided favborably on
the motion of Attorney Holt for the defendants to quash the alternative writ 
to the
mandamus proceedings of the Greenbrier Coal and Coke Company versus the
Norfolk and Western Railway Company, the Empire, the Elkhorn, the McDowell
and the Turkey Gap Coal and Coke Companies.

The writ was quashed and the case dismissed.

The fight was over the distribution of cars by the Norfolk and Western 
Railway,
the Greenbrier Coal & Coke Company, claiming they did not receive the number
of cars they were entitled to under the act of the Intersate Commerce law.

The company owns 200 coal and coke ovens and claims they should have 
received
two and one eleventh per cent of the entire distribution of cars by the 
railroad company.

The motion to quash was for the following reasons:

1. Because the alleged right of the realtor, set up in the alternative writ, 
is not based
upon the violation of a duty imposed upon the railway company by the 
Interstate
Commerce Act as supplemented by the Act of  March 2, 1889 but upon a duty or
obligation arising  out of an alleged contract between the realtor and the 
railway
company and the other defendants which later obligation or duty this court 
has no
jurisdiction to enforce by writ of mandamus.

2.  Because the alternative writ nowhere charges that the unlawful 
preference or
discrimination complained of is such "as prevents the realtor from having 
its interstate
traffic moved upon terms or conditions a sfavorable as those given by said 
common
carrier to like traffic under similar conditions to any other shippers.

3.  Because this court has no jurisdiction by mandamus under the Interstate 
Commerce
Act to determine what, if any, damages have been sustained by the realtor by 
reason
of the unlawful preference or discrimination complained of, and these 
defendants move
especially to quash paragraphs 6, 7, 9, 10, 12, 13 and 15 of alternative 
writ.

4.  Because the allegations therein contained are mere conclusions of law 
not supported
by any statement of the facts from which the court could determine whether 
these
paragraphs if proven charge an unlawful preference or discrimination.

-------------------------------------------------------------------------------------
Alex Schust

(Note 1:  According to the February 1902 N&W car allotment sheet
Greenbrier Coal & Coke (located on North Fork Branch) was entitled to 2.152% 
of the
car distribution based on coke ovens built and arbitraries and allotments. 
However based
on coke ovens actually built on January 1, 1902 and without arbitraries and 
allotments the
actual car allotment percentage in use was reduced to 1.427%)

(Note 2:  Turkey Gap Coal & Coke Company signed a separate contract with
Seaboard Airline Railroad to get all of the coal cars they could load and 
wasn't
as dependent on N&W for coal cars.  Turkey Gap Coal & Coke worked six days
a week when many of the other mines were idle waiting on coal cars.)