Reporter's Statement of the Case Shukert v. Allen, supra, and that the plaintiff is entitled to recover. Judgment for plaintiff. It is so ordered. Moss, Judge; GRAHAM, Judge; and CAMPBELL, Chief Justice, concur. NEW RIVER COLLIERIES CO. AND CHESAPEAKE [No. B-170. Decided April 2, 1928] On the Proofs Eminent domain; acts of March 4, 1917, and June 15, 1917; order for coal upon sales agent; right of mining company to sue for just compensation; acceptance of prices fixed under Lever Act. An order for coal, given by the Navy Department under the acts of March 4, 1917, and June 15, 1917, to a company acting as sales agent for mining concerns, was not obligatory upon the company that mined the coal, and the mining company is not the proper party plaintiff in a suit for just compensation. Before the sales agent can maintain suit, the procedure prescribed by the acts of March 4, 1917, and June 15, 1917, must be observed, and acceptance in full of the prices fixed by the Fuel Administrator under authority of the Lever Act (act of August 10, 1917) is acquiescence in the compensation so determined and precludes recovery of any further amount. The Reporter's statement of the case: Mr. Ira Jewell Williams for the plaintiff. Messrs. Ira Jewell Williams, jr., Charles L. Guerin, Francis R. Foraker, and Francis. Shunk Brown were on the briefs. Mr. James J. Lenihan, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant. Mr. Dan M. Jackson was on the briefs. Messrs. Edgar T. Beamish, J. Harry Covington, and Spencer Gordon, and Covington, Burling & Rublee flled a brief as amici curiae. Reporter's Statement of the Case The court made special findings of fact, as follows: I. The New River Collieries Company, plaintiff herein, was at the time of the different transactions set out in these findings of fact a corporation duly organized under the laws of the State of New Jersey, having its principal office or place of business at 120 Broadway, New York City, in the State of New York, and engaged in the production of bituminous coal in Raleigh and Fayette Counties, West Va. On September 15, 1923, the New River Collieries Company sold its physical properties and is no longer an operating company, but is still in existence. II. The Chesapeake & Ohio Coal and Coke Company is now, and was at the times hereinafter mentioned, a corporation existing under the laws of the State of West Virginia and having its principal place of business at 120 Broadway, New York City. The Chesapeake & Ohio Coal and Coke Company, sometimes in these findings referred to (for brevity) as the Chesapeake Company, was organized prior to the organization of the New River Collieries Company and it had a good will in the coal business, which was thought to be valuable. III. The Chesapeake & Ohio Coal and Coke Company was the sales agent of the New River Collieries Company and also was sales agent for other companies. The New River Collieries Company did not sell its coal direct to consumers or the public. The Chesapeake Company sold, shipped, and delivered all of the coal mined by the New River Collieries Company and received all of the compensation therefor from the purchaser. The terms upon which it accounted to the owner of the mines do not appear. They had substantially the same board of directors and officers. The Chesapeake Company itself owned no mines and produced no coal. It bought coal from others and sold the same. The coal which is the subject matter of this suit was produced from its own mines by the New River Collieries Company. Prior to the order of June 14 the Chesapeake Company had entered into one or more contracts with the Navy Department for the furnishing of coal and the same had been furnished. The New River Collieries Company had never made a contract with the Navy Department. Reporter's Statement of the Case On March 20, 1918, the Chesapeake & Ohio Coal and Coke Company applied to the United States Fuel Administration for a license to engage in and carry on the business of distributing coal and coke, and the correctness of the statements therein was sworn to by the president of said company. Among the statements in said application was one that the said company had "no interest in any mine" and another that "no stockholder in this company owns any interest in any mine producing coal." On April 12, 1918, license No. X-01129 was issued to said company "to engage in and carry on the business of distributing coal and coke pursuant to the proclamation of the President dated March 15, 1918, and the rules and regulations prescribed by him relating to such business." During the period from July 4, 1917, to June 28, 1919, the Chesapeake & Ohio Coal and Coke Company applied for and received from the War Trade Board a large number of export permits, in the aggregate 110 permits, for the exportation of coal and under the authority of which permits that company exported coal to the amount of 610,500 gross tons. This tonnage exported under said permits was exported by the Chesapeake & Ohio Coal and Coke Company from Hampton Roads. IV. On June 14, 1917, the Secretary of the Navy wrote to the Chesapeake & Ohio Coal and Coke Company, which letter was received, as follows: "Effective at once please be prepared to furnish your proportion of the total quantity of coal required by the Navy for the period ending September 30, 1917; it being estimated that the tonnage which will be taken from your company during that period will amount to about 14,000 tons; delivery being required at the following-named points: "Navy Standard Mines, W. Va., 14,000 tons. "The coal furnished will be from mines now on the Navy acceptable list. "The price to be paid for such tonnage as you may be required to deliver is to be determined later, and as the result of this department's decision as communicated to the Committee on Coal Production, Council of National Defense, will be contingent on the cost of production, data concerning which are now being prepared. As an advance payment, however, this department will allow the unit of two dollars Reporter's Statement of the Case thirty-three and one-half cents ($2.335) per gross ton, f. o. b. mines-although it is to be understood that any payments made at this rate will be subject to such increases or decreases as may be later decided upon as proper by reason of the ultimate decision with respect to cost of production, plus such reasonable profit as may be allowed. "It will also be understood that the figure finally agreed upon as a proper amount to be paid your company will be subject to such increase or decrease in transportation or labor costs as may be exacted of you during the period of the formal contract. "In making the allotments described herein every effort has been made to treat all suppliers equitably-consideration being given to the questions of production, convenience of transportation, and other governing factors. However, in view of the inability to reach a definite agreement as a result of the several conferences held on this subject, it has not been practical to as yet investigate as thoroughly as might be desired, so that if it is found a possible injustice has been done to any supplier, upon receipt of satisfactory evidence bearing out such contention, steps will be taken to remedy same in subsequent allotments in the best interests of all concerned. The forms of delivery required are to be those stated under the various classes of the within schedule allotted to your company. "It is probable that deliveries under this order may be required in the immediate future, and you will, therefore, make all necessary preparations to meet such deliveries as may be called for, on which it may be necessary to make telegraphic assignments." V. During the period involved in this action, and for some years prior, the Navy Department of the United States maintained a list of mines known and designated as the " Navy acceptable list." This list contained the names and locations of all mines, the production of which had been inspected and tested by the Navy Department, and had been found to be up to the Navy Standard and fit for use by the Navy Department. Eccles mines 3, 5, and 6, Raleigh County, West Virginia, and Sun mines 1 and 2, Fayette County, West Virginia, were placed in 1916 on the Navy acceptable list, which also gave the Chesapeake Co. as the sales agent. These mines were at the time owned by the New River Collieries Company. All of the coal involved in this action came from Sun mines Nos. 1 and 2 and Eccles mines Nos. 3, 5, and 6. Reporter's Statement of the Case VI. On June 15, 1917, the Paymaster General of the Navy sent the following telegram to the Chesapeake Company: "Referring Secretary's letter fourteenth instant please immediately direct your representative at mines to resume all rail shipment Tiburon." VII. On June 22, 1917, the Paymaster General sent the following telegram to the Chesapeake Company: "Attention invited this department's telegram of nineteenth instant. Inspector again advises your operators have received no instructions to resume all rail shipments. Attention also invited Secretary Navy's letter dated fourteenth June, which was prepared under authority acts approved four March and fifteen June, nineteen seventeen, and it is hoped will not be necessary impose penalty prescribed in those acts by reason your refusal to comply with order placed your company. Immediate reply is requested." On the same day the said Chesapeake Company replied as follows: "Your telegram June twenty-second. We have no contract with Navy Department and have not agreed to supply coal at less than a very fair price of two dollars ninety-five cents. Did not understand Secretary's letter June fourteenth to be an order issued pursuant to authority of two acts mentioned your telegram. Letter refers to no act of Congress and was written before one of the acts was passed. It is requested that you give reference to penalties prescribed in two acts referred to your telegram." On the following day, June 23, 1917, the Paymaster General wired the Chesapeake Company that the Secretary's letter of June 14, 1917, constituted a formal demand for coal, and that the acts of March 4 and June 15, 1917, provided that the penalty for failure to comply with the Government's request would be "possession of your property by Government." This telegram further stated that the company would be expected to make up all delinquencies, and that in view of delays then occurring no consideration could be given on account of embarrassment which might result later because of increased tonnage to maintain specified weekly deliveries. On June 25, 1917, the Chesapeake Company wired the Paymaster General that in view of his statement 358-28-c C-VOL. 65—14 |