Transcript of Record — Gray v. Powell

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UPREME COURT CF THE UNITED STATES

OcToRER TERM, L940 /

No. bat

S 4.- GRA. AS DIRECTOR

ON DENISTON Gn THE

PerER PE PoeG ret ea.

OF SHE BITUMINOUS

DEPARTMENT Ob THE

PEP TONERS

Vs

feteee fe. eer... JR. ANTI HENRY ¥V

Ls RECEIVERS OF s]

COMPANY

ANDERSON,

VbONRD ATR EINE RATELWAY

N WREP Of CERTIORARE To THE UNITED STATES eiRee it

OChNIOOR APPEARS FOR th FOURTUY CiRerii

PREEEION POR CERTIORARI PILE NOVEMBER cre. ee

CERETIORARE GRANTED

JANUARY G, 5081

SUPREME COURT OF THE UNITED STATES

OcTOBER TERM, 1940

No. 603

H. A. GRAY, AS DIRECTOR OF THE BITUMINOUS

COAL DIVISION OF THE LePARTMENT OF THE

INTERIOR, ET AL. PETUPIONERS

Vs.

LEGH Ro POWELL. JR. AND HENRY Wl ANDERSON.

AS RECEIVERS OF SEABOARD AIR LINE RAILWAY

COMPANY

ON WRIT OF CERTIORARI Oo THE UNITED SPATES CIRCUIT

COURT OF APPEALS FOR THE FOURTH CIRCUUT

INDEX

Origina Print

Proceedings before National Bituminous Coa! Comiunisston H ]

Appheation of Receivers of Seaboard Air Line Railways

Company for exemption | }

Notice of hearing (dated August 11, 1937 4 5

Memorandum from ©. F. Hosford, Jr. (dated September

14, 1937) - 10 5

Order of reference (August 11, 1937 i a

Affidavit of proof of service of notice of hearing in Docket

No. 49- FD. - 12 6

Notice of hearing (dated August T1, 1087 Leann )

fomitted in printing} 12-A th

Affidavit of proof of service of notice of adjourned hearing,

Docket No. 49-FD 13 6

Notice of hearing (dated August 11, 1937) (Copy)

fomutted in printing! 14 7

Affidavit of proof of publication of notice of hearing in

Docket No. 49 FD 15 7

Authorization to publish notice of hearing — - It) i

ZSTOSD 41 —]} 1

S|

Preeeestings before

| po

INDEX

National Bituminous Conl Commission-

Coomtinredd Original Print

Affidayit of pubbeation of notice of hearing in the Ash- ;

land Dailv Independent (September 24, 1937) aes Is Ss

Petition of Receivers of Seaboard Air Line Railway Ce.

for continuanee of hearing - 20 8

Memorandum granting continuance of | hearing in Doe ban

No 49 FD 24 10

Petition of Distriet Board @S for leave to intervene 25 1]

Transerpt of testimony in Docket No. 49° FD 20 12

SEPTEMBER 22, 1937

\

Caption and appearances . 30 (1) 12

Colloqus .. eo (%) 13

Petition of appleant (cops) fomitted in printing}. 30° (4) 14

Petition of intervenor (eopy) [omitted in printing! 30° (4) 14

Applicant’ s wittesse=

Irittain, Frank R 360°) 1S

Piummer, bL. i 30 3S 24

Plamimer, EB. Bo reeatled 300 Ho. 3H

Tynes. Buford ¢ boo1t4 63

Nelly.) J.. oF 30 0144 82

Shunk, Walter © 300557 S6

SeEVTEMBER 23, 1957

Caption and appoaraness 30 (167 -a 92

\y " ‘Ant = WAIthesses

Pynes, Buford C. reealled 3018S 92

Piumimer, L. Bo reealled 30 «176 a4

sh ink, Walter C. reeniled 30 (972 Q5

tiaudin, Joseph L 30197 10S

Perry, C.) Aten 30 (212 Lie

Pritc! Drrinel H 30 1231 126

Tynes, Baford Co (reeatled 30 (255 130

SEPTEMBER 12, 1930

Caption and appearances | 30 268 145

Notice of coutimenanee of oral argument it Omitted

on exeeptions to examiner's tndings + a3 %

of fact and recommendations printing} |30 269 145

Coltloquy id0 1270) 145

Argument by Mr Johnston (omitted in printing] 30 (272 7

Statement by Mr. French omitted in printing} 30 (297) 159

Ofiers in evidence:

Comptroller's Contract No. 23781 A) deed of lease) 35-163

Comptroller's Contract No. 23781-A (supplemental

agreement eat 49 172

Comptroller's Contract No, 23781-C. RAD RT chy . 58-A 179

Exhibit A--Statement of all terms, provisions, ete. 59 =: 182

INDEX

Proceedings before National Bituminous Coal Commissicna—

Continued,

Offers in evidence Continued. Orizinal

Letter dated Jane 30, 1936, to Reeeivers of Seaboard

Air Line Railway Company ‘Contract #23782 A) 72

Letter dated June 19, 1936, from Receivers of Sea-

board Air Line Ry. Co. (Contract #23782 A) 74

Supplemental indenture, dated April 14, 1936 (Exhibit

#2) 7s

Supplemenial indenture, dated April 14, 1936 (Exhibit

#2) XI

Letter re indenture of lease dated May 1, 1934, from

Receivers of Seaboard Air Line Rv. Co Sh

Indenture of lease dated May 1, 1934 (Comptroller's

Contract No, 23782. A) S7

letter dated April 28, 1937, re agreement No. 24363

Sup., dated April 28, 1937 125

Letter dated June 30, 1936, from Dingess-Ram Coal

Co, to Receivers of Seaboard Air Lire Ry. Co 128

Agreement No. 24363 Sup., dated June 36, 1936

‘Contract No. 24863-A) 130

Letter dated July 13 1935 5, from Dinge ss-Rum Coal

Company to Rece deers of 3. A. L. Ry. Company 134

Agreement #24363 dated July 5, 1935 137

Contract No. 23781. B, decree Sate d August 2, 1937 141

Exhibit A — ment of terms, provisions, ete.,

dated August 2. 1937 144

Exhibit B Spe eifieations for locomotive steam

coal 154

Exhibit C -Cost statement 155

Supplemental agreement, dated April 1, 1935 1i7

Agreement No. 23781, dated July 10, 1934 17a

Agreement #23782 Sup., dated May 25, 1937 RE

Agreement #23782 Sup, dated April 28, 1937 194

Agreement #23782 Sup., dated June 30, 1936_...--- 200

Supplemental agreement, dated June 18, 1936 —- 204

Specifications for locomotive steany coal, dated

June 1S, 1936- 208

Agreement dated June 5, 1936... - 210

Agreement dated May 14, 1936 213

Acreement dated April 14, 1936- 216

Letter dated April 6, 1935, from receivers of 8. A. L. Ry.

Co. . 219

Agreeme nt dated Ma~ , 1934... 221

Agreement dated May = i 247

Agreement dated Apri! 28, 1937. 249

Specifications for locomotive steam coal, agree-

ment dated April 28, 1937... ...--- sa 253

Agreement #24363-Sup., dated June 30, 1936. eye 255

Agreement dated July 5, 1935.....-..--.--------- 261

Hi

Irint

196

198

282

285

287

289

200

292

293

312

313

317

319

324

1V INDEX

Proceedings before National Bituminous Coal Conmiiission

Cont inved Original

Order on qietion for extension of time to file brief F

Brief snd argument on behalf of appleants

Brief for antervenor, Distret Board Nols -

ite pos ood applicants to boat for intervenor, District: Board

Nos

Letter of transmittal from SALE. Ry. Co, dated Oetober

7, 1937, to A.C. Pree. Washington, D.C.

Indenture of coal mining plant and equipment lease by

Reeeivers of So ALL. Ry. Companys

Apphestion Ne ToS in D.C. U.S. against Seabourd

Air Taine Ryo Company, Consolidated Cause in

Lquitv, No. 214

Order No. 16S in Equity Cause No. 234

Appleation Neo 146 in Destriet Court of the United

States against Senteard Air Line Kw. Company, et

al

Order No. 146 a. Equity canse No. 214

Copy of letter dated May 4, 1934, to S. ALL. Rv. Co

Cops of telegram: #23782. 44, dated April 28, 1934.

Plan Gessehold interest of a coal company, ete.)

Report of Pxamuner

Abstract of the evidence

Letter of transmittal dated Judy 28, 1988, to 8. ALE.

Kv. Co

Copy ef letter of transmittal te Distriet Board #8. July

28, 1938

Memeorandum, dated August 10, 1888. reextension of time

Copy of telegram dated August 10, 1938, to S. ALL,

Rv. Company, receivers

Applicants’ exceptions to proposed report and reeomamnuen-

dations of the trial examiner and brief

Notice of oral argument on exceptions taken to examiners’

findings of facet and recommendations _

Affidavit of service

Letter from S. ALL. Rasriwayv Ce., dated August 10, 1939_

Notiee of continuance of oral argument on exceptions

Athdavit of service

Order denving application for exemption. .-

Pinding- of fact. conclisions, and Opler of the Ssirector

Serviee of order, findings of faet. conclusions. and opimien

of the Director

Certifieate of the Bituminous Coal Division, United States

Department of the Interior [omitted in printing}

Proceedings in UL SC. C. AL. Fourth Crreuit

Petition of Reeeivers te review an order of the Tituminous

‘Coal Division of the Der uttimnent of the Interior

Appearance for petitioners

Notitiention of the fling ef petition to review

2067

DHS

Bu

3a4

349

Bil

HAT

ys

ed

ot

Vrint

238

320

349

373

382

383

427

444

INDEX

Original

Notice of motion of petitioners fer suspension order

Appearance for respondents

Minute entry of arguinent on motion of petitioners for suspern-

sion order

Order suspending order of Bituminous Coal Division and setting

case for argument on the merits.

Petition of Bituminous Coal Producers Board for Distriet No

S for leave to intervene

Certificate of service

Notice of petition to intervene — .

Certificate of service.

Response of petitioners to petition for leave to intervene

Minute entey of argument on petition for leave to intervene

(rder granting leave to intervene

Minute entry of argument of cause on merits

Appearance for respondent, Intervenor

Opinion, Parker, J

Decree ran

Issuance of mandate. :

Order authorizing Clerk to use original transeript of reeord in

making reeord for use on application for wrt of certiorart -

Clerk’s certificate fomitted in printing)_ -

Order allowing certiorari

ye 1

Sol

je2

Abed

Vv

Print

503

563

AB

hO4

564

570

570

470

j71

S72

572

573

573

jae

5S]

5S 1

H. A. GRAY. ET AL.< VS. LEGH R. POWELL, JR, ET AL. |

} Before the National Dittnmiuneus Coal Comunissien

Tn re Applheation Under Provisions of Section & A of the Bitu-

minonus Coal Aet of 1937 of Legh Ro Powell, Jr. and Henry

W. Anderson, as Receivers of Seaboard Air) Line Railway

Company, for Exemption

Applic ation for or me ption

Aug. 4. 1937

The undersigned, Legh R. Powell. Jr. and Henry W) Ander-

son, as Receivers of the properties and assets of Seaboard Air

Line Railway Company (hereinafter called “Applicants”), pur-

~uant to the provisions of Section 4-A of the Bituminous Coal

Act of 1937, file with the Honorable The National Bituminous

Coul Commission this, the Applicants’, verified petition for ex-

emption from the provisions of Section 4 of said Act, and

respectfully show herein as follows:

i. That under and pureuant to orders of the United States

District Court for the Eastern District of Virginia, tiled in the

eause therein pending entitled “Guaranty Trust Company of

New York and Merrel P. Callaway, as trustees, et al., Complain-

ants against Seaboard Air Line Railway Company, et al., De*ond-

ants.” Consolidated Cause in Equity No, 2¥4, and in the Constit-

nent Causes numbered 2138, 214, 228, and 229 of said Consolidated

Cause, Applicants are the duly appointed and acting Receivers of

the property and assets of Seaboard Air Line Railway Company.

Certitied copy of order of said Court. filed on December v3,

1930, in said Constituent Cause No, 215 appointing the

2 undersigned Legh R. Powell, Jr. as stich Receiver, and

certified copy of order of said Court filed on December

30, 1922, in said Consolidated Cause No. 214 and in said Constitu-

ent Causes thereof, appointing the undersigned Henry W. An-

derson as such Receiver, have heretofore, and as hereinafter set

forth, been Sled with the National Bituminous Coal Cominission.

2. That under said orders of said Court Applicants were au-

thorized and directed to take possession of and te manage and

operate, and are now in possession of and are continuing to man-

age and operate, the railroads, properties, and assets of said

Seaboard Air Line Railway Company.

3. That in their operation of said railroads and properties

under and pursuant to said court orders, and in order to secure

a dependable source of supply. owned and controlled by Apph-

cants, from which to obtain the coal, or a large portion thereof,

used by them in such operation, Applicants several years prior

» HOA. GRAY, ET AL. Vs. LEG? Ro POWELL, JR., ET AL.

to the effective date of the Bituminous Coal Act of 1927 acquired

Ly appropriate iastrument of conveyain.c from the respective

landowners, and owned and since said date have owned, and now

own, the exclusive right to extract and mine for Applicants’ own

use and consumption in their operation of said railroad and prop-

erties, the coal ja, on or under those certain boundaries or tracts

of coal bearing linds at what are respectively known as “William-

Ann” Mine, located in Mingo County, West Virginia, “Chilton

Block No. 1° Mine, located in Logan County, West Virginia, and

“Glamorgan” Mine, located in Wise County, Virgima, all

3 of said mines being located in District No.8 of the Districts

organized under the provisions of Section £ of the Bitumi-

nous Coal Act of 1937.

4. That Applicants have heretofare for several years prior to

the effective date of the Bituminous Coal Act of 1937 employed,

have since said date employe and now employ, certain individ-

uals te perform for Applicants at and for an agreed conipensa-

tion paid by Applicants to such individuals, che work and service

of extracting mining and loading on railroad cars at the mine

tipple. for shipment to Applicants and for use and consumptien

exclusively by Applicants in thetr operation of said railroads

and properties, the coal in, on or under said tracts or boundavies

of land so owned by Appleants: said individuals performing said

work and service for Applicants at said mines, respectiveiy, being

is follows:

Willian: Anon Mine—D. HE. Pritchard.

Chilton Block No. 1. Mine—D. H. Pritchard.

Glamorgan Mine—A. E. Stone and Walter C. Shunk, as Ke-

cervers of Glamorgan Coals, Incorporated

That the said coal se extracted. mined. and loaded by said

individiials at each and every of said three mines is. in each case,

coal owned ly and the property of Applheants, is coal consumed

by Appheants and is coal which is shipped by said individuals,

acting for and as the agent ef Applicants, to Applicants for use

and consumption by Appheants un their operation of said: rail-

— and properties,

4 Appheants state and assert that they are the pre.

Prt at each of said mines of the aforesaid coal produced

thereat within che meaning and intent of the Bituminous Coal

Act of 1937, and are included in the term “preducer,” as that

term is defined by Section 17, paragraph (co). of said Act, and

that Applicants, the said) coal produced at each of said three

mines and the transactions and commerce im said coal, are, under

and by virtue of the provisions of Section 4 (1) of Said Act,

H. A. GRAY, ET AL. Vs. LEGH R. POWELL, 1R., ET AL. 3

specifically exempted from all of the provisions of Section 4 of

said Act.

7. Applicants further state and assert that under and by virtue

of said specific exemption provided for im said Section 4 (1),

that they and the said coal and said transactions and commerce

in said coal, are also, and irrespective and independent of their

aceptance, heretofore filed as hereinafter stated, of membership

in the Co'e promulgated under said Act, exempted fron the

tax imposed by Section 38 (b) of said Act by the provisions of

suid Section 3 (b).

s. Applicants also state and assert. in support of and as their

further claim to exemption from the obligation>. duties, or lia-

bilities Imposed by Section 4 of said Bituminous Coal Act of

#37, that the provisions of Section 4 o1 said Act have ne apple

cation to Applicants, or te the coal produced from said iaines,

or any thereof, or to the transactions and commerce in said

coal, in that said Scetion 4 relates and applies only te

d coal which is sold or the title to which is otherwise trans-

ferred, and to transactions and commerce in coal which

involve the sale or other transfer of the title to said coal,

% Applicants state and assert that no sale or other transfer

of title by Applicants, or by the said individual. performing

said work and service for Applicants, of the said coal produced

at and shipped to Appheants from any of aid mires, eccurs

or is made; but said coal so extracted, mined and shipped is the

sole and exclusive property of Applicants and is coal consumed

by Applicants and transported by them to themmelves for con:

sumption by them in their operation of said) railroad ane

properties.

10. Appheants further state that in order to protect and fully

preserve the rights of Appl cants and of the receivership estate

of Seaboard Air Line Railway Company, Applicants heretofore,

on the vist day of July 1937, filed with the National Gitumineous

Coal Commission acceptance by them of membership in’ the

Bituminous Coal Code promulgated under the provisions of the

Bituminous Coal Act of 1937; that Applicants felt. and still feel,

und claim and assert, that the filing by them of such acceptance

Was not necessary or required but that such acceptance was tiled

by them as a precautionary procedure and, by virtue of the pro-

visions of Section 3 (f) of said Act. without any preclasien or

estoppel of Applicants from contesting the constitutionalty of

anv of the provisions of said Act or of said Code, or of the

validity or application either to Applicants or to any part of

the said coal produced at said three nitnes: that a copy of

—-*

4 H. A. GRAY, ET AL., VS. LEGH R. POWELL, JR., ET AL.

( said acceptance by Applicants was filed with E. C. Maban,

Acting District Secretary for District No. 8, Knoxville,

‘Penn, together with certified copies of the aforesaid orders of

the United States Distriet Court for the Eastern District of

Virginia, and that in connection with said acceptance Applicants

have heretofore also filed certified copies of said Court orders

with the National Bituminous Coal Commission.

11. That Applicants further claim and assert that if. and to

the extent that, any of the provisions of Section 4 of the Bitu-

minous Coil Act of 1937 relate or apply. or purport to relate or

apply, to said coal produced at said mines, or any thereof, or to

said) transactions in said coal, said provisions of said Act are

unconstitutional, void, and of no effect. in that said provisions

of Section 4 of said Aet are (i) violative and in contravention

of the commerce clause of the Constitution of the United States,

to wit: Article-One, Section S, Clause 3 thereof. and (il) vio-

lative and in contravention of the due process clause of the Con-

stitution of the Unifed States, to wit: the Fifth Amendment

thereof,

Wherefore, Applicants pray that exemption from all the pro-

Visions of Section 4 of the Bituminous Coal Act of 1937 be granted

by the Commission to Applicants, to said coal produced at each

and every of aid three mines and to said transactions and com-

merce im said coal, and that the Commission enter an order (1)

that Applicants, the said coal so produced and the said Cransac-

tions and commerce in said coal. are not subject to the previsions

of Section 4of said Act, (41) authorizing and directing that

i any and all assessments paid or other payments made by

Appheants prior te the effective date of said order under

or by virtue of any of the provisions of Section 4 of said Act.

he refunded and repaid to Appleants., and cin) for such other

and further relief as to the Commission shall seem right and

proper in the premises,

Leon R. Powerit, Jr.

Henry W. Anderson,

cls Receivers of Seaboard

Air Line Ratliray Company.

WRLC. Cocke,

General Counsel for

Receivers of Seahoard Air Line Raliway fom pany.

L. B. Prom Mer,

General Attorney for

Receivers of Seaboard Alr Line Railay Company.

[Duly sworn to by Leah Ro Powell, Iv purat omitted in

pro tind, |

H. A. GRAY, ET AL... Vs. LEGH R. POWELL, JR. ET AL. 5

NATIONAL BittumtNous Coan ComMMISsION

©

WASEINGTON, D.C.

Docket No, 49-FD

In the Matter of the Appuicarion or Receivers. SEABOARD AIR

Lint Rainpway ror EXEMPTION

Votice of hea ring

Notice is hereby giver. that the Commission has assigned the

above entitled case for hearing on the 300 day of August 1937,

ut ten (10) o'clock A. M.. at a Hearing Room of the Commission,

Carlton Hotel, Washington, D. C.

As provided in the Rules of Practice and Procedure before

the Commission, the applicant shall at such hearing present evi-

dence in support of the appireation, and all other interested

persons may appear and be heard.

By order of the Commission.

Dated this Lith day of August 1937.

{ SEAL | EF. W. MeCuniougu, Secretary.

10 Before National Bituminous Coal Commission

Mi Meord nal ”)

SEPTEMBER 14, 1957.

To: F. W. McCullough, Secretary.

From: C.F. Hosford, Jr.. Chairman.

Subject: Change of order of assignmetit, Docket No. 49 FD, Sea-

board Airline Railways Company.

Please take note that subject appleation will be heard) by

Examiner Tilman D. Cantrell in place of Examiner Charles S.

Mitchell.

(Sed.) ©. F. Hosrorp. Jr.

te I. Hosford, Jr.

lt NATIONAL Brremixous Coat COMMISSION

WASHINGTON. D.C.

| Title omitted. |

Docket No. 49-FD

Order of re fe rence

Upon due consideration the above entitled matter is hereby—

1. ( ) Reserved for consideration by the fill Commission :

v. (X) Assigned and referred to:

(a) ( ) A Board of —_--_- Commissioners.

-*

f- H. A. GRAY, ‘ET AL., VS. LEGH R. POWELL, JR., ET AL.

(h) ( ) A Coramissioner,

(©) ( ) A board of 2222 - employees,

(d) (NX) An examiner,

for the Purpose oo

lL. ( ) conducting an investigation and making a report’ to

the Conimission.

2. (XX) conducting a hearing and submitting findings of fact

and the recommendation of an appropriate order in’ the

premises.

By order of the Commission.

Dated this Lith day of August 1937.

| SEAL | (Sgd.) F. Wircner McCutsoven.

F. Witcher McCullough,

Secret ferry.

lv Before National Bituminous Coal Conmunis-ien

Criy or Wasnineron,

District of ¢ ‘ohum bla xs 7

Atidavit of proof of KEP CICE

Sherman E. Burt, Assistant to the Seeretary of the National

Bituminous Coal Commission. being first duly sworn. on his oath

deposes and says: That he served upon Receivers, Seaboard Air

Line Railway Company, the Consumer's Counsel, District: Board

No. 8, and the Commissioner of Internal Revenue a true and

correct. copy of Notice of Hearing, Docket No. 48- FD. a true

and correet copy of which is attached hereto and made a part

hereof, by mailing it properly addressed with postage prepaid

te the above named parties an the ilth day of August. 1937,

(Sgd.) Suerman E. Burr.

Subscribed in my presence, and sworn to before me this 14th

day of August 1957.

| se AL | z (Syd.) ANNAN. JotNson,

; (Title) Votiry Public.

My Commission expires August 6, 1938.

12-A | Notice of hearing omitted in printing. |

13 Before National Bitun inous Coal Commission

+ .

’ J -

Ciry or WASHINGTON,

District of Columbia, ss:

Affidavit of proof of service

Sherman E. Burt, Assistant to the Secretary of the National

Bituminous Coal Commission, being first duly sworn, on his oath

Maw

H. A. GRAY, ET AL., VS. LEGH R. POWELL, JR., ET AL. 7

deposes and says: That he served upon Receivers, Seaboard Air

Line Railway Company, the Consumers’ Counsel, District: Board

No. 8 and the Commissioner of Enternal Revenue a true and cor-

rect copy of Notice of Adjourned Hearing, Docket No. 49 FD,

a true and correct copy of which is attached hereto and made a

part hereof, by mailing it properly addressed with postage pre-

paid to the above named parties on the 3rd day of September

i937.

(Sgd.) Suerman FE. Beer.

Subscribed in my presence, and sworn to before me this Sth

dav of September 1937.

| SEAL} (Sed.) Exeanor L. Harry,

(Title) Notary Pabhlic.

My Conimiission expires,

14 i Notice of hearing omitted in printing. |

ep Before National Bituminous Coal Commission

City oF WASHINGTON,

District of Columbia, gas

A thrlavit of proot of pub i witha;

Eugene J. Earley, Administrative Assistant of the National

Biteminous Coal Commission, being first duly sworn. on his oath

deposes and says: That he sent by letter on the Luth day of

August 1937. to the Ashland Indepengdgnt. Ashland. Kentucky,

for pubbeation. a true and correct ye ae f Docket No. 49 FD,

Notice of Hearing. “In the matter of es fla he ition of Receivers,

Seaboard Air Line Railway Company for exemption” a true and

correct copy of which is attached hereto and made a part hereof,

(Sud.) 0 Eucenrt | Eavrcey

Subscribed in my presence, and sworn to before me this 13th

day of August 1937.

| SEAL | (Sgd.) ANNAN. JomNson, |

(Tithe) Notary Public.

My Commission expires August 6, 1938.

16 Avoust 12. 1937

AsHnAND INDEPENDENT, Ash/and, Kentucky.

GENTLEMEN: This is your authorization to publish on one day

Docket No. 49-FD, Notice for Hearing, copy of which is

attached,

-< j

S H. A. GRAY. ET AL., VS. LEGH R. POWELL, JR., ET AL.

Please note government regulation provides that the adver-

Uisemient must be set solid without paragraphs.

Very truly yours,

Nationan Brruminous Coan Comission.

By FLW. MeCuitoven, Seer tary.

Enclosure:

KE as.

Mr. Hand.

iy | Notice of hearing omitted in printing. |

is A Adarvit of pu Alive “tion

Asitanp Datty TNpereNDENT

ASHLAND PUBLISHING ©O.. INC.

Ashland. Kentucky

Srare of Kenruecky.,

County of, Boyd, xx

Before me a Notary Public in and for the state and county

aforesaid, came the undersigned B. F. Forgey, who states that

he as president of the Ashland Publishing Company. publishers

of the Ashland Daily Independent, the paper designated as the

official organ for all legal publications in the city of Ashland,

Kentucky, and that there was published the attached Notice of

Hearing—Department of the Interior, National Bituminons Coal

Commission—Docket 49 FD and Docket 31-FD, in the Ashland

Daily Independent on August br, 1937,

(Sgd.) B. F. Forery,

Preside nt, Ashland Publishing f'a.

Subseribed and sworn to before me this the 24th day of Sep-

tember Ly.

(Sed.) Ertien Wansney.

Ne tary Puhlie, Boyd County, AY ntuckhy.

My Comunission expires February P38. 1940,

1) | Notice of hearmg oluttedt in printing. |

4) Before National Bitunimous Coal Conimission

| Ad tition of Te ah R. F airs 7, aud HT MPU W. A rule Poli, Us

Le CeT OTS of Ne aboard d lir rites Railivay Comp: THY, for CON -

timuance of the hearing set for A NQust 3), L907

Aug. IS, 1937

The undersigned, Legh R. Powell, Jr, and Henry W. Ander-

son, as Receivers of the properties and assets of Seaboard Air

H. A. GRAY, ET AL., Vs. LEGH R. POWELL, JR., ET AL. ]

|

Line Railway Company, hereinafter called “Applicants,” respect-

fully show to this honorable Commission :

That pursuant to the provisions of Section 4-A of the Bitu-

minous Coal Act of 1937 Applicants filed with the Honorable

The Nationa! Bituminous Coal Commission, on the fourth day

of Augnst 1937, their verified petition for exemption from the

provisions of Section 4 of said Bituminous Coal Aet of 1s,

That by its Order No, 49-FD, dated the 11th day of August

1937, the Commission notified Applicants that hearing upon

their petition for such exemption would be held on the 3h

day of August i937, at ten o'clock A. M., at a hearing room of

the Commission, Carlton Hetel, Wasinngton, D.C.

That the said order was received by Applicants on the Izth

day of August 1937,

That the time between the receipt by Applicants of sa:d Order

No. 49-FD and August 30 1937, the date fixed therein for the

hearing upon Applicants’ said petition for exemption, is not

-ufficient to enable Applicants and or their counsel to collect

th» docugnentary evidence and arrange for the oral evi-

21 dence it will be necessary for Applicants to present at

said hearing in support of their said petition, and which

evidence Applicants are informed and believe the Commission

will require be full, complete, and in detail.

Applicants state that the railroads in their possession and

control and being operated by them are extensive and that the

operation thereof requires a large staff of officers and other em-

ployees; that at this season of the vear many of their othcers

and other employees are on vacation, and their official and cleri-

cal forces are now, and will for not less than thirty more days,

be materially depleted thereby: that among their officials now

absent on vacation is their General Counsel, Mr. W. R. C. Cocke,

whom Applicants will desire to participate in the presentation

of Applicants’ case at said hearing and who will not be available

until after the date set by the Commission for said hearing.

Applicants further state they are advised that) the executive

officer of one of the corporations from which Appheants acauired

title to certain of the coal invelved in Applicants’ said petition

for exemption lad, prior to the issuance of the Commission's

said Order No, 49-FD, departed on an extended vacation and

will not return or be available to your Applicants as a witness

until the middle of September 1987, or later. Applicants also

state that their inability to lave these parties present at) said

hearing may prejudicially affect Applicants and the receivership

estate of Seaboard Air Line Rulway Company which is being

administered by Applicants under the control and direction

po

10 H. A, GRAY, ET AL., Vs. LEGH B. POWELL, JR., ET AL.

22 of the District Court of the United States for the Eastern

Distroet of Virginia.

Applicants further state that a number of the parties connected

with the transactions of Appheants at the respective mines re-

ferred to in Applicants’ petition for exemption are seattered,

reside at distant points and that more time will be required in

arranging for their attendance as witnesses for Applicants at

said hearing than is avatlable between the date of sari Order No.

40-FD and the date now set for said hearing.

Applicants are advised it is the desife ef counsel, who will

represent Applicants at said hearing to confer in advance with

counsel for the Commission and if possible agree with counsel

for the Commission upon the stipulation of certain material and

relevant facts and chereby conserve the time of this honorabtie

Commission. Such conference cr conferences will require counsel

for Applicants to go to Washington, D. C.. and will consume fuir-

ther time.

Wherefore, Appheants pray that the Conunission enter its or

der contnning and pestponing the hearing upon Appheants’

sud petition for exemption, for a period of not less than tairty

dave from and after August 30, 1937, and for such other and

furvier relief as te the Commission shall seem right

pd and proper in the premises.

Leon R. Powers, Jr..

Henry Wo ANbERSON,

As heeceivers of Scahoard

Avr Line Raliray Company,

‘

L. B. Prewarer,

(rs fie ret | fife “tre Af Jor Re it Pa, a of Ny ahoara Avr Line

ey .

PRadieay Compare

| Duly serorn to a) Legh PR. Pore MP Jr. peat anerbhe d in print

ing. |

O4 Nadtowan Brruminous Coss CosMMisston

WASHINGTON

Memorandum qranting continuance

AvGustT 20, 1937.

To: Mr. A. G. Price. Chief of Docket Section.

From: F.C. Faris.

Subject: Appheation of receivers of Seaboard Air Line Rail-

rewd for continuance of hearing, Docket 49-FD.

The application for continuance of the Seaboard Air Line

Railroad has been granted and the hearing will be on September

H. 4. GRAY, ET AL., VS. LEGH R. POWELL, JR., ET AL. 11

15 in the Patio Room of the Carlton Hotel. This will serve as

notice of continuance,

; (Sgd.) E. C. Faris, Jr..

Clerk of Leas MHS,

2) Brrore NatioNan BiruMinous Coan Cox Misston

UNITED STATES DEPARI MENT OF THE INTERIOR

Docket Number 49-FD

Inthe Matter of Application of Receivers or Sranovrp Ain Line

Rainway por Exemptions

Pi tition of Bituminous Coel Producers Board for District &

for leaie to ante PeCCchHe

The petitiover, Bituminous Coat Producers Board for District

by its attorney, respectfully requests the National Bituminous

( ‘cal Commission to enter its order in the above-entitled matter

allowing the petitioner to intervene in such matter and: assigns

in SUpeport thereof the following reasons:

(1) The petitioner ix the district board of code member- or-

ganized pursuant to the provisions of subsection (a) of Part I

of Section 4 of the Bittnituus Coal Net of 1937 (Public. Num-

ber 48. Toth Conggl-t sess.) for District So as such district. is

described in the Mimex to said Aet. with address at Transpor-

tation Building, Cincinnati, Obie,

26 (2) The application of Receivers of Seaboard Air Line,

hereinafter referred to as applicants, for exemption from

the code. filed in this matter, shows that the mines involved

herein are located in Mingo County, West) Virginia, Logan

County, West Virginia, and Wise County, Virginia, respectively,

and are. therefore, included within: the territory comprising

said Distriet S as described in the said Annex to the said Act,

The application of the applicants further indicates that,

if said application be granted, all commerce in all coal produced

at said mines in Mingo rsa West Virginia, Logan County,

West Virginia, and Wise County, Virginia, respectively. will be

exetupted from the provisions of Section 4 of the said Act.

(4) The petitioner is informed and believes that. beginning

with the third day following the filing of the appheation herein,

all commerce in all coal preduced by the applicants at the said

mines in Mingo County, West Virginia, Logan County, West

Virginia, and Wise Cownity, Virginia, respectively, has been

exempted from the provisions of Section 4 of said Act and

287059—41-——2

e

_

tN

"1. A. GRAY, ET AL., Vs. LEGH R. POWELL, JR., ET Ai.

shall so remain exempted until such time as the Commission

shall act upon the application, pursuant to the provisions of

the second paragraph of Section 4-A of said Net,

(5) The petitioner has imposed upon it by the terms of said

Act important and extraordinary duties in respect of the execu

tion of the provisions of Section 4 thereof which require that

at all times it be capable of ascertainment of both the commerce

in coal and the producers thereof which are subject

to the provisions of said Section 4 as far as they relate

to District s and otherwise.

The Det. 1Oner further prays, in the event that its petition

for intervention in the above-entitled cause should) be granted

hy the Commission as set forth hereinabove, that the National

Bituminous Coal Commission enter its order denying the apple

eation of the applicants in se far as it relates to commerce in

coal produced at the -aid mines located in Mingo County, West

Virginia, Logan County. West Virginia, and Wise County, Vir-

vinia, respectively, and assigns in support thereof the following

reasons:

(1) ‘The petitioner is advised and believes that certain coal

produced at the said mines in Minge County, West Virginia,

Logan County, West Virginia, and Wise County. Virginia, re-

spectively, is not coal consumed by the preducer or coal trans-

ported by the producer to himself for consumption by him,

(2) The petitioner is advised and believes that the commerce

in certain coal produced at the mines im Mingo County, West

Virginia, Logan Counts, West Virginia, and Wise County, Vir-

yimia, respectively, is such commerce in coal as deseribed and

covered by the third paragraph of Section 4 of said Act) as

“interstate commerce” and, therefore, subject to the application

of all of the provisions of said Section 4.

The petitioner farther prays fer such other relief as the Na-

tional Bituminous Coal Commission may deem necessary and

proper. :

srumiNnous Coat Propucers Bowrp For Districr §,

i“

ye)

By Secctiaina eas Attorney,

‘ on Trans por tation Building, Washington, )). c,

a irore THE NatrioNar Britt minous Coan

COMMISSION

Wednesday, September 22, 1937

A hearing on petition for exemption under Sections 4 and 4(a)

of the National Bituminous Coal Act. by the Receivers of the

Seaboard Airline Railway Company, (Docket 49-FD) was held

i, ~

x

4

H. A. GRAY, ET AL., Vs. LEGH R. POWELLS, JR.. ET AL. 13

at 10°10 o'clock al im... Wednesday, September 22, 1937. in the

Rose Room of the Washington Hotel, Washington, D.C.

Examiner, Troman D. Cantrrei.

Present for die Conunission: Legal Division: Leo W. Harring-

ton, Carl D. Sheed. Marketing Division: E. 8. Meany. Con-

sumers’ Counsel: Wim. S. Eichelberger.

‘ l Pye UMA S

W. OR. Cocke. Counsel for the Applicant. L. Bo Plummer,

general attorney for the Applicant. © W. EL Delaney. Attorney

for the Appiteant. Bo Tl Ausell, counsel for District Board

Noo s, in opposition to the application.

30(2) a ( ‘ologuy

The Exawiner. Gentlemen’ we are waiting just a few minutes

for Mr. Eden. Tam advised he will be here in just a second. In

the meantime while we are waiting for Mr. Eden wil! vou give

your appearances to the reporter f

Mr. PruowMerr. We have already cone so.

Mr. Hannineron, Yes.

The Examiner. TP think we will go on without Mr. Eden.

I would like for you to make an opening statement if) vou

Will, please, so that we can better follow the introduction of

evidence here.

Mr. Cocke. Mr. Pluniumer will make it.

Mr. Premarr Mr. Examiner, this is a proceeding on the appli-

cation of Legh R. Powell and THenry W. Anderson as receivers

of the Seaboard Air Line Railway Company, filed ander the pro-

visions of Section 4 (a) of the Bituminous Coal Act of 1937. for

exemption from the provisions of Section 4 of that Aet.

As set forth in the receivers’ application exeniption is claimed

by them by virtue of the provisions of Section 4 Gi) of the

Act. which Section reads as follows: "The provisions of this

section shall not apply to the coal constmed by the producer or to

coal transported by the producer te himself for consumption

by him.”

8003) The position of the Receivers is that they are producers

of the coal at each of these three mines within the purpose

and intent of this section 4 (1) of che Act: that the coal produced

at each of these mines is the Receivers own coal. It is coal

which is transported by them for themselves: for consumption

or use by them, and coal which is actually consumed or used

by them in the operation of railroads in their possession and

contre! and is hence, coal exempted by the provisions of Section

14 H. A. GRAY, ET AL.. Vs. LEGH RB. POWELL, JR.. ET AL.

4 (1) of the act: expressly exempted from: the provisions of Sec-

tion fof the Act.

The Eximiner. Mr. Reporter, Ido not beheve it will be neces-

sary to take down the opening statement if yeu please.

(Whereupon the balance of the opening statement was made

off the record.)

The Examiner. Are there any other interested) parties other

than the ipplicant here this morning é

Siro Awsece. Mr. Examiner my name is B. TL Ansell. counsel

for District Board No. 8, a board of producers organized under

Section 4 of the Act, with authority giver: under the Act over

Distriet Now Sas described in the Annex to the Aer,

It appears from the appheation filed in this matter that

BO) there is production and commerce of coal mvelved and

scaled from mines within the territory of District No.

s. The District Board perceives it is interested mm this matter

by reason of the duty imposed upon the Board under the Act

———_ . °

and wishes to file this petition for leave to intervene. “Tlie pe-

tition also tneludes a prayer that the applicant’. application in

this matter be denied. For the reason, first. that the applicants

are not entitled to exemption under either paragraphs of Section

4, whereunder they claim.

Therefore. we ask that the Examiner receive the petition on

behalf of the intervenor which has been drawn im accordance

with the Rules and Regulations of practice before the Conunt=

sion. copy of which has been served upen the applicants.

‘The Examiner. Mr. Ansell, do vou want a copy of this peti-

tion to be made also as part of the reecrd as Mr. Plummer re-

quested of the application itself ¢

Mr. Anxsewn. I do.

The Examiner. The petition of the Iniervenor will be ae-

cepted,

i Petition of Applicabt omitted. Printed side page. 1

ante, |

Bai Ld) | Petition of the intervenor omitted, Printed side page.

25 ante. |

s0(19) CONTINUATION OF PROCEEDINGS

Mr. Harrtncton. Have you an extra copy of that petition for

the Legal Department?

Mr. Awsent. And filed the requisite number of copies?

Mr. PucouMer. Mr. Examiner I would like to ask if the appli-

cation of the Receivers for exemption is being made part of the

record ?

H. A. GRAY, ET AL., Vs. LEGH R, POWELL, §R., ET AL. 15

The Examiner. Yes. The application of the Receivers for

exemption is being made part of the record. Yes, sir.

Are you ready to proceed now gentlemen

Mr. Poeser. Yes: we are recdy to proceed, We will call

our first withess,

The Exawiner. Have you more than one witness /

Mr. PrumMir. Yes.

The Examiner. Let us swear all of the witnesses at the same

Urine.

Me. Prosar. We will swear three, if that suits you, initiadly

aid then if we decide to put on more you can swear them.

Tie Examwingr. As you please.

(Whereupon three prospective witnesses for the Ap-

26.20) phicant were produced and duly sworn. )

Frys R. Brrrrais: was produced) for and on behalf of the

applicant and having: beea previonsty duly sworn, was exainined

and testitied as follows:

Direct examination by Mr. PrumMer:

Q. Will you stare your name and residence and in what eapae-

sty Vveu are employed by the Receivers of the Seaboard Aw

Line Railway Company: and if so employed, how long have you

been so employed: and whether you are of age ¢

A. Frank R. Brittain, Portsmouth, ¥ irginia. To am and have

heen since previous to 1934 continuously erniploved as Contract

Cierk and Custodian of Records for the Receivers of the Sea-

board Air Line Railway Company. Tam over twenty-one years

of age.

Q. Are you employed, Mr. Brittrin: are you not, as custodian

of contracts ¢

A. Yes, sir: contracts.

Q. Of what do your duties consist 4

A. T examine, record, index, and file as part of the contract

records of the Receivers contracts of the Receivers. T also make

und distribute to the departments interested abstracts of such

contracts.

Q. Have vou as such custodian received for filing, ab-

30(21) stracting, and recording the respective instruments of to

the Receivers of the coal in what is known as the Gla-

morgan mine; in what is known as the William-Ann Mine in

Mingo County, West Virginia and what is known as the Chilton

Block, No. 1 mine in Logan County, West Virginia ¢

A. I have.

Q. Have you as such custodian received for filing, abstracting.

and recorded the contracts between the Receivers and the respec-

~\

16 H. A. GRAY, ET AL. V<. LEGH R. POWELL, JR.. ET AL.

tive individuals or corporations who have in the past and are now

performing for the receivers the work and service of extracting,

mining, and loading for the Receivers the coals produced in each

of .7 three mines ¢

. LT have.

= Are you familiar with these instruments of conveyance of

the coal to the Receivers and with the contracts that those in-

dividuals or corporations who have performed and are now per-

forming this work and service for these Receivers at these three

mines ¢

A. Tam.

4). T hand you the following set of papers marked “Comp

trollers Contract No. Z3781L A." Please examine these papers and

identify them and state what those papers cover,

Mr. Cockr. We propose to ask that these original documents

be received but that we be permitted to substitute copies because

these are the originals for the Receivers’ files.

SO 22} The Examiner. That request will be granted and you

will of course substitute certified copies ?

Mr. Cocke. Yes,

The Examiner. That will be all right.

Mr. Puuom™er. I think it will save time if we have this wit-

ness identify them, naming the contracts in each case,

‘the Examiner. Do LT understand that each coutract is already

identified ¢

Mr. Prummer. It will be identified by the witness himself.

The Examiner. By the witness himself #

Mr. PicsMen. Yes.

The Examiner. T don't object to that. ‘That ts all right.

Mr. Pucwaer. To owill withdraw that question and put it this

way if 1 may.

. By Mr. PuomMer:

Q. Do vou identify thi, set of instruments to be the instru-

ments of convevance to the Receivers of the coal in the Glamorgan

Mine?) Mr. Brittain, To am asking you another question. Do

you identify these instruments as being the instruments of eon-

veyance to the Receivers of the coal in the Glamorgan Mine?

A. I do. J

30623) The Exvainer. Do” vou feel very strongly about not

having the exhibits identified by the reporter ¢

Mr. Purwaer. No. Tam asking that the reporter may iden-

tifv this as Exhibit No. 1, for the Applicané.

(Whereupon Comptroller's Contract No. 28781 40 was marked

“Applicant's Exhibit No, 1° for identification.)

H. A. GRAY, ET AL., Vs. LEGH R. POWELL, JR. BT AL. = 17

Mr. Cocker. I ask that we be permitted to substitute copies

in place of the originals of these decuments.

The Examiner. Yes.

By Mr. PrumMer.

Q. L show you this paper marked “Comptroller's Conutraet”—

a set of papers marked “Comptroller's Contract: No, 23782-A."

Do you identify these papers to be the instruments of conveyance

to the Receivers of the coal in the Willhiam-Ann Mine ¢

A. I do.

(Wherenpon Comptroller's Contract Ne. 23782-A was marked

“Applicant's Exhibit No. 2° for Identification.)

Q. LT hand you a set of papers marked “Comptroller's Contract

marked 24363-A.° Do vou identify those papers as being the

instruments of conveyance to the Receivers of the coal in’ the

Chilton Block No. 1 Mine?

A. IT do,

SO(24) Mr. Puum™er. Task the reporter to identify this as

Exhibit 3.

(W hereupon Comptroller's Contract No, 24363 A was mi: arked

“Applieant’s Exhibit No. 3° for Identification. )

Q. | hand you a set of papers cnarked "Comptroller's Con.

tract No, 23781-B."° Task that it be identified as Exinubit 4. De

vou identify these papers to be the contracts providing for the

performance for the Receivers of the work and services of ex-

tracting., mining, and loading coal for the Receivers at the Gla-

morgan Mine ¢

A. I do.

(Whereupon Comptroller's Contract No. 23781-B was marked

“Applicant's Exhibit No. 4° for Identification. )

Q. To hand vou a set of papers marked “Comptroller's Con-

tract 23782 - BO which T request be identified as Exhibit 5. Do

you identify these papers to be contracts providing for the per

formance for the Receivers of the work and services of ex-

tracting, mining, and loading coal for the Receivers at the Wil-

liam-Ann Mine /

A. I do.

(Whereupon Comptroller's Contract No. 23782-B was marked

“Applicant's Exhibit No. 5” for Identification. )

Mr. PucmMer. I request the —s to mark this as Exhibit

No. 5

By Mr. PucumMer: {

Q. I hand you a set of papers marked “Comptroller's

80(25) Contract 24363-B.” which I request to be identified and

marked as “Exhibit 6.° Do vou identify these papers to

Is H. A. GRAY, ET AL., Vs. LEGH R,. POWELL, JR., ET Ab.

be the contracts providing for the performance for the Receivers

of the work and service of extracting, mining, and loading coal

for the Receivers at the Chilton Block No. 1 Mine ¢

A. I do.

(Whereupon Comptroller’s Contract No. 24363-B was marked

“Appheant’= Exhibit No. 6° for Identification.)

Mr. PrucemMer. Mr. Examiner. we tind there is one instrument

Which constitutes part of this Comptroller's Contract 2a782-A

offered as Exhibit No. 1. which we omitted to hand to the witness

and we ask permission to add that and offer it to be added as

part of that same exhibit.

The Examiner. Yes.

Mr. Cocke. T understand that is an instrument which has only

been recently executed and we would like to have Jeave to supply

additional copies of that instrument as soon as we can have it

copied.

Mr. Puemmer. We have no copy.

The Examiner. T see that it is nota dong instrument. T imag-

ine it can be done during the course of this hearing. Tt is only

two or three pages long.

By Mr. PLrumMer:

30(26) * QT will ask the witness to identify these instru-

ments as partof such instrument of conveyance in which

the Receivers acquired tithe to the coal at the William-Ann Mine,

Do vou identify that contract as beige a part of it?

A. IT do.

( Whereupon the sad Papers were marked “Applicant's Ex-

hibit 1 (ad for Identification.)

The Examiner. As Touncerstand it, the first instrument with

reference to this particular contract with this mine was iden-

tified as Exhibit No. 14

Mr. Harrineron. Mr. Examiner: do To understand now that

those instruments are being offered here for identification only ?

The Examiner. They are being offered for identification only

at this time. They are not offered in evidence vet.

Mr. Pruomaer. Mr. Examiner, I ask that the original—these

original conveyances and contracts which Mr. Brittain lias just

identified be received in evidence and that we be permitted to

withdraw them and substitute copies of them, certitied by the

Witness as such custodian of the records. “s

We also ask that those copies as so certified be identitied by

the Exhibit Numbers in the place of the originals. 1 to 6. and

1 (a).

H. A. GRAY, ET AL., Vs. LEGH R. POWELL, JR., ET AL. 19

Mr. Harrincton. Mr. Examiner. IT wish at — this

20(27) tame to enter an objection to the admission of these

documents as evidence in this case,

The Examiner, The documents offered by the Applicant and

introduced as Exhibits 1 to 6. inclusive and 1 (ay will be ac-

cepted in evidence subject to the cbhjection: with the right of

the appheant to furnish certified copies of each of the said

exhibits.

Mr. Cockr. May we ask what the grounds of the objection

to the introduction of these doctuuments i ¢

Mr. Harrineron. Well. the grounds are that first, we liave not

had an opportunity of reading over those documents and there-

fore we might have some objection that we could offer at this

tine. But we now submit and mitke a general objection for

the reason that we want to read the instruments over and. then

later, if we find there is some material here we wish to object

to we cap save ourselves by this general objection.

Mr. Ansenn. Tohave had ne opportunity to examine any of

ithe documents offered for identification and mow offered for ad-

mission into evidence. T have no objection to their going in

provided they are going in subject to a motion to strike them

out, Which To may make after [ have had an opportunity te

eXanaine them,

The Examiner. Mr. Ansell, these exhibits. as vou

30,28}; see, are rather lengthy. FE do not: believe any of vou

gentlemen would have an opportunity. to make a real

study of the exhibits at this time without a considerable delay

of the earing.

Mr. Ansene. As T stated. Mr. Rxaminer., T have no objection

provided that the record show T reserve the right to meve to strike

them out and ask that the gris consider that motion,

The Examiner. Let the record show that reservation. It will

be considered et the time of the finding of facets, or recom.

mendations,

Mr. Cocke. May Toamake an additional observation, Mr.

Examiner /

The Examiner. Yes.

Mr. Cocke. T cannot imagine that it would be proper on any

legal grounds that fean conceive of, to admit any of these doeu-

nents subject to anv motions to strike from the record. ‘These

documents are offered in evidence in support of the Application

made by the Receivers for exemption. Whether these documents

bear out the claim for exemption. of course is the question which

is directly in issue before vou now. But certainly to show what

the situation is and what the relationships of the Receivers are

20) H. A. GRAY, ET AL., Vs. LEGH R. POWELL, JR., ET AL.

to these three mining operations, it is inconceivable that

30 (29) these documents are not relevant to prove those facts. We

therefore insist, in order that the record may be clear,

that these documents are plainly admissible in evidence and not

conceivably subject to any motion to strike.

Mr. Awnsenn. To think, as a party to these proceedings, Tam

certainly entitled to examine those documents before they be sad-

mitted into evidence. Tami very much surprised that the gentle-

mnan takes the position that he does.

The Examiner. Mr. Ansell, as I understand Mr. Cocke, the

exhibits offered here are mainly for the purpose of showing

the relationship between the Receivers and—-are they coal com-

panies or separate corporations from the Receivers ¢

Mr. Puum™Mer. As to these Seaboard Receivers¢ In the sense

of any stock ownership ‘

The Examiner. The three mines that you referred to here are

corporations separate and apart from the Receivers

Mr. Pruumaer. Yes: these landlords are entirely separate and

apart from the Receivers. The Receivers lave no stock.

The Examiner. The purpose of the itroduction of these ex-

hibits is to show the relationship between the Receivers and the

corporation or other individuals mvolyved.

30(30) Mr. Cocke. The contractual relationship.

Mr. PrumMer. The purpose is to ‘sy the nature of

the transaction; the terms and provisions of the contract, which

are in effect.

The Examiner. T understand that the objections of the Legal

Division and the Intervenor to be merely this: That they have

not had an opportunity to read the exhibit- at this time, nor

have [—and that they are merely reserving their rights, as vou

gentlemen would do, to object if they find out at some subsequent

trme when they have had time to study the exhibits, that they

are improperly accepted into evidence. So they are accepted

subject to the objections made,

(Whereupon the documents referred to were marked in evt-

dence.)

By Mr. Pucmoer:

Q. You have with vou, have vou not, copies certified by vou,

of the original documents which have been identified and offered

in evidence?

A. I have.

Q. Is each copy a true and correct copy of the original and

has attached thereto your certificate to that effect ¢

A. Yes, sir.

H. A. GRAY, ET AL.. VS. LEGH R. POWELL, JR. ET AL. 21

Mr. Pucomwer. Mr. Examiner, these are the copies which I

hand to the Reporter to substitate for the originals.

BOB L) Mr. Cocker. Mr. Examiner, I distike to spend any more

time on preliminaries than is absolutely necessary but in

view of the objections made by counsel I would like to have this

situation made entirely clear.

We have witnesses here who are capable of identifving the

acthal execution of those original documents, as having been

properly executed for what they may be worth legally.

Does the objection go, Mr. Ansell, to any question of the ex-

ecution of the imstruments or merely to their admissibility 4

That is. do vou make any question as to the execution of them?

Mr. Harrinetox, We make ao question of the legality of the

instruments themselves.

Mr. Cocke. T see. ATP right.

The Examiner. That is true of the Intervenor, too?

Mr. Anseci. Well. it may be. Of course, never having had

any occasion Whatsoever to knew what they are. outside of the

siatement of counsel, T do not know what niy objection to them

may be. T objeet simply because TP did not have an opportunity

to examine them,

The Examiner. Well, Mr. Ansell. T do not understand. What

Mr. Cocke says--vou are not objecting to the introduction and

identification of these documents whatever they might

30(32) contain, and identification of then; as documents o: as

contracts of the appheant company here. In other

words, Mr. Ansell, you are not requiring a more strict identifica-

tion of the documents! Are you not objecting to the way they

were offered or introduced in evidence ¢

Mr. Anse. Well, as I] recall. tirst they were offered for iden-

tification as contracts that were entered into by certain predeces-

sors of the Seaboard Air Line Railway or Receivers. In view of

counsel's statement, which [T have no occasion to doubt, T would

be perfect!y willing te say they are those instruments.

Mr. Cocke. Mr. Ansell, here is the—what I may say, to ilus-

trate—here are the formal drafts of the documents showing the

signature of the Peerless Coal Corporation by W. C. Shunk, its

president, and then the signature of the witness, and then the

signature of Legh Powell and Henry W. Anderson, as Receivers

of the Seaboard Air Line Railway Company; also witnesses to

the execution and the signature of the Receivers.

Now, my question is whether or not your broad reservation of

the right to object to these instruments would, by any possibilty,

include any challenge as to the proper, formal execution of the

instruments themselves.

2” H. 4. GRAY, ET AL.. Vs. LEGH 8. POWELL, JR.,. ET AL.

Mr. Anseun. Mr. Examiner, Twill concede. as far a:

30(33) District Board s is concerned, that these documents are

what they purport to be and as described by the witnes-

and by counsel,

The Examiner. Will vou proceed then, Mr. Phiammer ¢

Mr. Proven. T understand then, counsel is excepting to the

geniimeness of these instruments.

The Examiner. That is correct, the Examiner understands that.

Mr. PrumMer. Here is one additional instrument, Mr. Ex-

amiper, Which T desire to hand to the witness.

By Mr. Prumarer:

Q. To hand you an instrument, being an agreement between

the Receivers of the Sea Board Air Line Railway Conipany

and the Peerless Coal Company, dated Seprember 1. 1987. be-

tween the Receivers of the Seaboard Air Line Railway Coni-

pany and the Peerless Coal Company and ask the witness if

he identifies that contract as being ene of the instruments under

which the Receivers acquired title to the coal at the Glamorgan

Mine?

A. I do.

Mr. PromMen. Task that it be—

Mr. Hankkineron Cinterposing). Cannot the witness identify

then himself, without the attorney identifving it for him? 1

mean. the witne-s is familar with these contracts and T think

he would be in a position to identify them by his own

80(34) statement rather than by it leading: question of counsel.

By Mr. Presauer:

Q. Powill ask the witness then, to state from his knowledge

of the contract that it is such eontract.

A. This is an agreement by the Peerless Coal Corporation

to assume obligations and it agrees to perforni the duties assumed

by the Ghanergan Coals, Ine. under the contract already intro-

duced, for mining and manufacturing coal.

QQ. That ts really a part of Exhibit 1. Mr. Examiner, and we

wold like to have it be admiutted as an exhibit.

(Whereupon the papers referred to were marked “Applicant's

Exhibit 1 ¢b).° in Evidence.)

Mr. Promer. This is a part of Comptroller's Contract

Y8TSL A which has been previously introduced,

Mr. Harkixerox. Do you offer that in evidence /

The Examiner. Yes.

Mr. Puom™er. Yes: 1} am offering that in evidence.

Mr. Harrington. TI wish to object to the introduction of this

document mn evidence for the sarae reasons stated i. the objec-

H. A. GRAY, ET AL., VS. LEGH R. POWELL, JR., ET AL. 23

tion to the other instruments introduced here, Exhibits frem 1

to Gand 1 (a).

Mr. PromMer. We understand, Mr. Examiner, that the objec-

tion of counsel to this is not directed to the genuineness of

this instrument.

BURBS ) The Examiner. That is the understanding.

Mr. Awnsenn. Mr. Examiner, To ohave an objection to

nuke with the same reservation and the same objection with

reference to the other exhibits offered, as to their genuineness.

Mr. Prcm™Mer. We have no further questions to submit to this

WITHESS.

The Examiner. Does the Legal Division have any further

estlons ¢

Cross-examination by Mr. Harrineron :

Mr. Brittain, are you familiar with the contract, or deed,

or lease, maade on the l2th day of July 194. wherein between

the Glamorgan Coal Land Corporation and the Receivers are

lessees in that imstrument /

A. Yes, sir.

Mr. PrumMer. May I interrupt? Is that one of the exhibits

already introduced in evidence? Well, then, this witness was

purely for the purpose of identification and we submit the in-

sfrument is the best ev idene ‘eto stute the contents.

The Examiner. Mr. Harrington, May 1 sugeest—you havg

had ne Opportunity whatsoever to see what these exhibits are,

I will call a recess for fifteen minutes to give you an

30,36) opportunity to check over the exhibits in a general sort

of way and to talk with Mr cimmmer and Mr. Cocke,

And at that time if yeu have any further quescions of this

Witness Why then vou may ask them.

(Whe reupon a fifteen minute recess was had.)

Mr. Cocke. Mr. Examiner. in view of the natural desire of

the other counsel to have some understanding as to what, not

only what these documents which have been introduced in evi-

dence contain but alse what the purpose is and how they work,

ho has occurred to us that it might save time in the tong run

and be iuminating in this hearing if we were to place Mr. L. B.

Plummer on the stand and have him sworn and explain those

documents, subject. of course, to cross-exomiination,

Mr. Plummer has for vears been intimately fanulinr with all

the details, ell of the details of these particular transactions.

He has participated in all the negotiations for the making of

these contracts. As a matter of fact he has himeelf been the

draftsman of mostly all of them and T think it would be helpful

not only to the Examiner but to the other counsel if he were

— ]

24 H. A. GRAY, ET AL., VS. LEGH R. POWELL, IR. EF AL.

te take the stand and desertbe these imstruments, ther essential

proviscons and the manner in which they operate. And

BUST) if there is no objection to that, of course, we would

like to have that done,

The Examiner. T think it would be helpful to the Examiner,

Do the attorneys have any objection to the attorney Mr. Plum-

mer explaning these exhibits offered in evidence ¢

Mr. Harnineron. [ object: IT would like to have it understood

that some of the parties who signed these contracts be called

and some of the officers and the Receivers of the different coal

cogupanies be placed on the stand and give us a cliamee to cross-

eXamine in these contracts, besides the attorney.

Mr. Cocke. There is no officer of the Receivers but we lave

some Witnesses here who are of the Receivers organization and

will be glad to expiain any question.

Mr. Harrineroxs. You have witnesses here or any of the officers

of the coal COL pales that signed these contracts ¢

Mr. Cocker. Yes.

Mr. Hargineron. And you are going to call them as with -sses

too?

Mr. Cocker. We will be glad to, :

Mr. Harrixeron. Then that will be all right to me if) vou

put him oon the stand.

: The Examiner. You have the ful! right of -cros<-examiination

of Mr. Plummer who is now appearing as a witness for the

purpose of explaining the exhibits.

BCBS) Whereupon L. B. Puoaer was called upon asa witness

on behalf of the Appheant and, having been first duly

sworn, testified as follows :

i ad

DIRECT EXAMINATION

The Examiner. Let me make one further statement. T said.

“For the sole purpose”: T don’t want to try to limit the testimony

vou are seeking to adduce through Mr. Plummnier.

Mr. Cocke. T understand that.

By Mr. Cocke:

Q. Your name is L. B. Plummer ¢

A. Yes,

Q. You held the position with the Receivers of the Seaboard

Air Line Railways Company as general attorney. do you not. Mr.

Plummer #

A. Yes: T do. :

Q. Mr. Plummer, for a number of years you have been in the

Seaboard law department, the member of that organization which

Soe

H. A. GRAY, ET AL... Vs. LEGH R. POWELL, JR., ET AL. 25

has been most intimately famyhar with the negotiations and the

drafting of the instrument~ relating to these transactions which

are now the subject of this hearing ?

A. Yes, sipp-the preparation of these contract-———

Q. (Interposing.) Talk a little louder, please.

30(39) A. The preparation of these contracts has been part of

my duties and T have also participated in each of the

negotiations which have resulted in the making of these con-

tracts. T personally drafted each one of these contracts. And

IT think Tam, of course, thoroughly familiar with the provisions

of them.

Q. Now, when you—-will vou firsi, with reference to each of

these three sets ef documents describe in brief detail just) what

these documents are, without any argumentative conclusions, but.

merely stating briefiy what the contents are and th» way in which

these contracts are designed to operate. And T would suggest,

since the oldest of these transactions, going the farthest back,

is that with the United Thacker Coal Company and begin with

that and deseribe it and take up the others thereafter.

Mr. Harrixneron. Pardon me. Will vou describe that—iden-

tify that as exhibit what / \

Mr. Cocke. That is Exhibit 2. Bat this is the oldest of the

transactions and has more of a background.

Mr. Harrineton. Well, T would like to have them identified,

too,

By Mr. Cocke: ae

Q. You go ahead in your own words.

A. In the point of tine. an arrangement which has stood for

some time and is still in force. that at the Wiliam.

80.40) as the oldest. And T think it would clarify the situation

somewhat for me to give you a Tittle of the histories

summary of this particular arrangement and the other similar

arrangements.

Tn 1934. the William-Ann Mine—the coal in the William-Ann

Mine had been leased by the United Thacker Coal: prior to 1924

by the United Thacker Coal Company and the Cole and Crane

‘Trustees. That lease was—I don’t know whether it was to Mr.—

it Was to a corporation. And a default occurred in that lease

and the lease was cancelled and the properties were recaptured,

which had belonged to the lessee corporation when recaptured by

the lessor companies, the landlords. And the mine had been shut

down,” Now, at that stage of the matter the Receivers entered

into an arrangement with the owners of these coal-bearing lands

and the then owners, through recapture, of the mining equip-

ment.

ied 7}

:

26 HM. a. GRAY, ET AL., VS. LEGH R. POWELL, JR., ET AL.

Q. Who are thos¢ owners

A. Those owners were the United Thacker Coal Company and

the Cole and Crane Trastees.

By Mr. Harrincton :

Q. Are they the owners of the fee and of the plant?

A. They are the owners of the fee and of the plant. These

negotiations resulted in an arrangement under which the

Receivers of the Seaboard acquired directly by grant from the

land-owners, the coal at this mine: the exclusive right

80(41) and privilege to extract, mine, and produce that coal

or cause it to be extracted, mined, and produced for their

account.

By Mr. Cocke:

Q. Let me interrupt vou there Mr. Plummer to ask whether

or pet prior thereto or during any of these transactions which

you have se far described or will hereafter described, whether at

the present time there is any sert of stock ownership or other

kind of relationship other than is shown by these documents

introduced in evactence between the Receivers of the Seaboard

Air Line Railway or the Seaboard Air Line Railway itself with

either theentied Thacker Coal Company or the Cole and

Crane ‘Trustees ¢

A. Absolutely mone.

Mr. Harrinerox, What is the name of that other company

please ¢

Mr. Cocke. United Thacker Coal Company.

The Wrrness. United Thacker Coal Company.

Mr. Cocker. And the Cole and Crane Trustees.

The Wrrness. The trustees.

By Mr. Cocker:

Q. Now what is the distinetson in respect to the ownership of

the fee of these lands between the United Thacker Coal Com-

pany and the Cole and Crane Trustees, if vou happen to know

It?

A. Weil. it is my understanding of that, Mr. Cocke,

SOed2) that some of those hinds included in this mstrument of

conveyance are owned separately by the United Thacker

Coal Company and by the Cole and Crane Trustees. The pur-

pose of this lease. this grant. is to convey to the receivers the

entire property interest of both the grantors in this coal.

Q. Ail right now, will vou proceed with your story ¢

The Exasiner. May bask one question to clarify my thought

on this?

The Witness. Yes.

eal | J

bj

ie ed” Seip ag a

Ae

BPs Marty,

ae

sed

Bs

3

2

i

4

4

g

H. A. GRAY, ET At., Vs. LEGH R. POWELL, JR., ET AL. 27

The Examiner. Does the United Thacker Coal Company own

the top works and the mine equipment or is that owned by the

United Thacker Coal Company and the Cole and Crane Trustees ¢

The Wirness. I am not——

The Examiner (interposing). | rather understood that the

mining equipment and the property itself; that is, the title of

the works belonged to one company and pessibly the fee of the

coal to another company: is that correct ?

The Wrrness. I am not prepared to say how that ownership

is div ed: if at all, it is between the two grantor companies, but

indeed one. It is owned either solely by one or jointly by both.

I don't know. But the Receivers—but neither the Receivers or

the operator at this mine own the mining equipment.

30( 43) Mr. Cocker. I think there will be witness to succeed,

that will come after Mr. Plummer, some time in the

course of the hearing, that can give vou that information.

The Examiner. I don't know that that is at all important.

Mr. Cocke. If it is I think we can develop that information,

By the Witness:

A. (Continuing.) The Receivers of the Seaboard Air Line

Railway Company acquired in the manner [ have stated the

ownership of the coal at this William-Ann Mine. They then

negotiated an arrangement, a contractual arrangement, with Mr.

Daniel H. Pritchard as an experienced operator, for the opera-

tion of this mine; extracting, mining, and loading of the coal

on railroad cars at the mine for shipment to the Receivers.

Now, that arrangement, originally, it is my recollection, I

am quite sure, the contract will indicate it, was for a period

of one years with the privilege of renewal in the Receivers in

beth cases, for successive yearly periods. The duration of the

grant and the duration of the contract with Mr. Pritchard. the

Cperator, Was co-extensive in time.

Now, at the expiration of that first year and within the time

required by the contract) provisions, the Receivers exer-

cised their right of renewal. And these contracts have

30(44) since that time, since 1934, been each successively re-

newed by the Receivers. And by agreements which are

filed now in this case between the Receivers on the one band

and the land owners and between, on the other hand. the Receiv-

ers and the operator. And these arrangements have hence been

continued continuously in effect) since 1934, and are now in

effect and continue in effect until, under the existing agreement,

until October 1. 1938, with the right in the Receivers to renew

both the grant from the land owner and the contractual arrange-

28TN59— 41—--3

si

28 H. A. GRAY, ET AL., Vs. LEGH R. POWELL, JR.. ET AL.

ment with the operator for a further period of one year, at the

Receivers option,

Q. In other words, as T understand it, it is an option for

renewal which runs from year to year?

A. Yes. sir. Although it was originally. Mr. Cocke, for a

period following the first year term of the agreement, I believe

it was in the original grant. But now, Emight say this much,

the right of renewal has been one which has been in coutempla-

tion by the parties when the original agreement was made, And

the Receivers have simply renewea the agreement. Of course

the renewals have been subject to changed in tonnage and some

adjustment of the compensation to the contractor, you see, from

itme to time, where those——

Q. (Interposing.) Without attempting to state ail the minute

details of these instruments will you state briefly their

80(45) mest prominent provisions, just by way of a short de-

scription ¢

A. Well, T would say that these contracts give—the agree-

iments or the grant from the landowners to the Receivers give

the Receivers the right te--the exclusive right to extract) and

mine this coal for them own use. Now the Receiver—the con-

tractiial arrangement with the contractor provides that the con-

tractor shall extract mine and load a certain tonnage from each

of these mines within a minimum and a maximum limits.

Now the Receivers pursiant te the contract provisions Isstle

tistructions each month to the operator indicating the amount

of tonnage they will require for their next seceeeding month.

That is foliowed by weekly instructions. Thus. Cie amount of

cont, Of course which the Reeeivers desire to take and do take

from those mines is dependent and fhictuates of course, with

their business, Now then, the arrangement with Che landowners

is that the Receivers pay directly of course to the landowners

or for their account. a rovalty. which they pay. and these con

tracts prowe that, of course. “Chese grants or conveyances pro

video in line with the usual practice, for mininitun rovalties to

be paid the lindlord. These royalties, as T have stated. are

paid by the Receivers directly to or for the aceount of the land-

Owlhers,

30(46) (). Does the contractor himself participate in any way

directly or indirectly in the peyment of these royalties to

the landowner?

A No. Those royalties are paid by the Receives. directly to

the landowner for their account. In one of the cases royaltie-

nave been assigned by the landowner in the Glamorgan Com-

panies to the Shenandoah Life Insura.ice Company. These roy-

H. A. GRAY, ET AL., Vs. LEGH R. POWELL, JR. ET AL. 29

alties have been asigned in one case by the landowners to the

Shenandoah Life Insurance Company.

Q). You are not referring to the United Thacker Coal Com:

pans :

A. No. That is a different arrangement. You want me to

confine this to the United Thacker Company ¢

Q. Yes.

- Suppose we strike that out.

(). Mr. Plummer, state briefly the basis on Whieh the Receivers

compensate the contractor for his services in extracting the coal

froin the property leased to the Receiver by the United Thacker

Coal Company and the Cole and Crane Trustees.

‘The Receivers compensate the contractor ona flat: stim-per-

ton basis of coal produced at this mine.

Q). Who pays the expense of the mining of the coal ¢

A. Well. initially of course, that expense is paid by the

operator, He secures reimbursement of it, of course,

80(47) when he is compensated by the Receivers.

By the EXAMINER:

@. May Task one question now’ There is a matter of defini-

tion of terms there. i understand when you refer to the com-

tractor you speak of the United Thacker Coal Company and the

Cole and Crane Trustees /

A. No. They are the lessors and grantors of the coal.

Q. When you refer to the operator ¢

A. Tam referring to Mr. Pritehard——

Mr. Cocke. (Interposing.) He is the contrector,

By the Wrrnrss:

A. (Continuing.) He is the contractor who is emploved hy

Receivers to extract, pune, and Joad this coal for the Re-

CeLVORS, I

By the Examiner:

Q. Then the contractor end operator are one and the same: is

that correct 4

A. Yes. sir: yes, sir; one and the same.

Mr. Cocke. He physically operates the mines under a contract

to do so, with the Receivers.

By Mr. Cocke:

(. Now, Mr. Plummer, will you proceed to describe in’ the

sume general way, briefly, the type of instrument under which

the Receivers have acquired the mining rights in these

SO(48) other mines; and also, the manner in which the coal i

extracted.

30 HW. A. GRAY, ET AL. Vs LEGH R. POWELL, JR., ET AL.

A. In the case of the Glamorgan Mine—--

The Examiner. Would you please identify that then as Exhibit

No. 1b: is that correct /

The Wriness. Exhibit No. 1 Yes.

By Mr. Cocke:

Q). Exhibit No. 1.

A. In the case of the Glamorgan Mine the Receivers have

acquired by, grant or conveyance—and conveyance— from the

Glamorgan Coal Land Corporatio: the owner of the fee in the

land. the tithe te the coal produced at that mine, And it has

the sole and exelusive right to extract, mine and load and ship.

of course for the Receivers own account, the coal produced at that

mine. The Receivers of the Seaboard Air Line Railway Com-

pany: the corporation, have absolutely ne interest in the form

of stock ownership or otherwise in the Glamorgan Coal Land

Corporation. Et) ts an entirely separate and tichepenederit

company,

Q) In other words the relation: hip-—wned this might saver of

Hi conclusion ana if Veu object l will withdrew the question —

hetween the Reeeivers and the owners ef the Clhimergan Mine

are purely arhis length transactions ¢

A. Absolutely.

Q. With no interest of the Receivers im the owner

SOCIM) corporativen !

A. Entirely so. Now, at the Glamorgan Mine the Re-

ceivers. in this contract: with this-—-at th time they weduired

title co the eoal in that nine they entered inte a contractural

arropgement with Cllanvergan Coals. Ine. Now, Gelamergean

Couls, Ine. had aegrived ina) foreclostre sale all the properties

of the Stone Gap Colliery Company, which formerly owned the

inihing equipment at this maine; and the tithe te that mining

equipment, The Receivers acquired tithe te this coal from the

Glamorgan Coal Land Corporation and concurrently they en:

tered inte a contractural relationship—arrangement—with Glam-

orean Coals. Ine. which is identically similar in) principle and

effect with the arrangement that we have wich Mr, Pritchard at

the William-Ann Mine. under which Glamorgan Coals, Tne.

nerformed, and up te the time of the appomntment of the Re-

evivers, Whieh oceurret on dannary 16, 1937, for its properties.

pet formed the work and service of extracting, mining, sel loadl-

ing at the nine this coal and shipping the coal for account of

the Receivers to the Receivers for const ptlon and tse by the

Receivers.

Now. that concludes the arrangement in the Glamorgan case,

Q. Now, what happened at) the Glamorgan f You men-

q

3

L™‘ Sawa a

H. A, GRAY, ET AL, Vs. LEGH BR. POWELL, JR. PT AL. 31

tioned the fact that the Receivers were appointed for its

30(50) properties. Now, what was the stbsecuent course of

events with respect to that particular operation ¢

A. The Receivers were appointed, First it was—there was

only one Receiver, Mr. A, E. Stone was appointed Receiver of

the properties and assets of Glamorgan Coals, Inc.. by decree

of the Wise County, Virginia, Superior Court on January 16,

1937. An order appomting Mr. Stone Receiver directed that he

continue to carry on the business of Glamorgan Coals, Inc., and

Mr. Stone as Receiver, continued the perf: cmance of the contract

between the Glamorgan Coals, Inc., or Seaboard Receivers. Sub-

sequently, TE think. in February, was it, dir. Shunk? Is he here?

Mr. Sutnk. February lth.

By the Wrrness:

A. (Continaing.) February 14th, Mr Walter TL Shunk by

decree of the Wise County, Virginia, Circuit Court, was ap-

potted coal receiver of the properties of the Glamorgan Coals,

Tne. The coal receivers continue to carry out and perform the

contract between the Glamorgan Coals, Ine.. and its Receivers.

Relative to wage increases and increases in the price of materials

and so forth, some modifications of course, were made in

the terms of the agreement—some inerease allowed

S0(5L) in the compensation allowed to the operator and the

Receivers of the Glamorgan Coal Co... Ine. was in-

creased, Now, what is the date of that decree we liad there /

April? :

By Mr. Cocke:

(). The exact date is not necessary. The approximate time

is all right.

A. The decree was liter entered in the Glamorgan Receiver-

ship Cause, to which was attached: (aid that has been introduced

now in this case). to which is atttejed a statement marked Ex-

tubit A. which sets forth all the terms and conditions of the

contract in eifect) between the Glamorgan Coals, Ine. or its

Receivers and the Receivers of the Seaboard Air Line Railways

Company, as of April 22. 1937. The Court entered an order

directing the Glamorgan ‘Receivers to adopt that contract: con-

taining the terms and provisions set forth in that instrument,

exhibit. attached to that decree and to carry out and perform

it. ‘The order was subsequently entered ——

By Mr. Cocke:

Q. May I interrupt just one second, Mr. Plummer? You have

named the exhibit number of the decree of the Glamorgan num-

ber four ¢

32 H. A. GRAY, ET AL., VS. LEGH R. POWELL, JR., ET AL.

The Examiner. Number four?

The Wreness. Number four! That is not number four. That

is one; that is the decree, marked exhibit four ¢

20(52) Where I said February 14th a little while back it

sliould be February 12th.

The Examiner. What year was that, 1936 or 1937 ¢

The Witness. 1957.

By the Witness :

A. (Continuing.) After the entry of the order directing the

Receivers of Glamorgan Coals, Inc... to adopt and continue to

carry out and perform this contract, and order was entered dt-

recting the sale of the properties and assets of the Glamorgan

Coals. Inc. That order provided that the right—or right, title,

and interest of Glamorgan Coals, Inc.. er its receivers, should be

sold along with all the right, title, and interest: of Gianergan

Coals, Tne, or its Receivers under the existing agreement with

the Seaboard Receivers should be sold as part of the assets of

Glamorgan Coals, Inc. subject to the assent of the Seaboard

Receivers to the sale and transfer of the contraci. Now, that

condition was inserted in the order because the contract: between

the Receivers and Glamorgan Coals, Ine.. provided that the

rights of Glamorgan Coats, Ine., should not be transfered or a--

signed without the consent of the Seaboard Receivers. At the

sale of all the right, title, and interest of Glamorgan Coals, Ine.,

and its receivers, under this contract, that property Was

30(53) bought in—bid in—by Mr.--a representative of the—

acting for the Pearless Coal Corporation.

By Mr. Cocke:

Q. Let me interrupt von to ask whether the Peerless Coal Cor-

poration was one in which the Receivers of the Seaboard, or

Seaboard Air Line Railway Company itself, had any interest by

stock ownership or otherwise ?

A. Absilutely none. It is an entirely separate and = distinct

and independent company, and the Seaboard or the Receivers

have po interest in it whatever through stock ownership or other-

Wise,

By Mr. Harrineton :

q). When was that court sale made ¢

A. Pardon me ¢

Q. The court sale

A. That was August 23rd. Mr. Shunk, when was the sale made

of the contract rights?

Mr. Suunk. August 23rd.

———

H. A. GRAY, ET AL., VS. Lo 3H KR. POWELL, JR., ET AL. 33

By the Witness:

A. August 23rd.

Now, the sale of the properties and assets of the Glamorgan

Coals, Inc.. and its receivers, were duly confirmed by order of

the Keceivership Court, the Glamorgan Receivership Court.

By Mr. Cocke:

Q. That is. the Wise County 4

50(54) A. Yes. The contract was then entered into between

the Seaboard Receivers and the Peerless Coal Corpora-

tion under which the Receivers assented to the purchase by the

Peerless Coal Corporation of all the right, title, and interest of

the Glamorgan Coals, Inc., and its receivers under this contract

with the Seaboard Receivers.

Q. That is the agreement marked for the purpose of identifi-

eation | (b)*% Exhibit 1 (>).

A. (Continuing.) And under that agreement Glamorgan Coals,

Inc.. agree to carry out and perform the obligations on the part

of the operator te be carried out and performed under that

agreement. And the terms containing the terms and conditions

set forth on a statement attached to it, marked Exhibit A. which

is identical to the same statement of terms and conditions as I

have previously referred to as attached, as part of the decree

in the Wise County Circuit Court, authorizing the, and directing

the Glamorgan Receivers to adept the contract and carry out

and perform it and continue to carry out and perform it. That,

Mr. Cocke, outlines that.

Q. Now will you proceed with the outline of the third

operation ¢

A. In the case of the Chilton Block No. 1 M!ne——

Q. ¢Interposing.) Which is described in the papers

30(55) marked “Three”“—three, isn't it Exhibit No. 3/4

A. Three.

The Examiner. That mine is known as the Chilton Block

No, 1?

By the Witness:

A. Yes; that is what we call it and as it is described in these

contracts and described in our petition for exemption. Now,

in the case of the Chilton Bleck No. 1 Mine, the Receivers, under

the same general plan acquired by assignment and transfer from

the Chilton Block Coal Company the right to take the coal from

the Chilton Block Mine: acquired the ownership of the coal and

with the assent of the Dingess-Rum Coal Company. which is the

owner of the fee of the land and who had previously leased the

right to take the coal from this mine to the Chilton Block Coal

. ee

34 H. A. GRAY, ET AL., VS. LEGH R. POWELL, JR., ET AL.

Company. At the time of this transaction, this arrangement

was effected. the Chilton Block Mine had not been operated for

some time. Now, the Receivers employed, under a contractual

arrangement entirely similar to the one existing in the William-

Ann Mine case, Mr. Daniel R. Pritchard, to extract, mine, and

load the coal on railroad cars and ship it for the account of the

Receivers to the Receivers, at this Chilton Block No. 1 mine.

Q. Mr. PuumMer. Have the Receivers of the Seaboard or the

Seabdard Air Line Railways Company itself, any owner

80(56) by stock, or otherwise, or any connection with Chilten

Block Coal Company or the Dingess-Rum Company ¢

A. Absolutely none. They are both entirely separate legal en-

tities and neither the Seaboard Receivers nor the Seaboard cor-

poration has any interest in stock, share, ownership, or other-

Wise, :

Q. Nor as far as you know, have any of the directors or officers

of the Railway Company /

A. That is the same thing, as far as any interlocking direc-

torates and it is true of all the other companies.

Q. In other words, there is no sorth of intercorporate tie-up

iInvany part of these transactions or operations which vou have

described ?

A. No, sir.

Q. Go ahead.

A. Well now, that pretty generally—I have stated--I think I

did—under the same general arrangement, that the Receivers

employed Mr. Pritchard to perform the services at this mine. T

might add. right there, that this Chilton Block arrangement

was made originally in 1935 and it has since been continuously

In effect, through extension and renewal agreements, effective

with both the landowners and the operator at this mine.

Q. Now, have you any further statement te make in

30157) connection with these transactions Mr. Pliammer. before

your testimony is closed, as to the history of these cpera-

tions?

A. T just thought that thE Xora iner and counsel would be

interested in——

Q). Talk a licle bit louder please.

A. (Continuing.) It ocenrred to me that the Examin’r and

the-e counsel would) perhaps -be interested in one other point

of history connected with these transactions. These original—

these original arrangements between the Receivers at the Wil-

liam-Ann Mine and at the Glamorgan Coal Mine were made

at the time when the N. R. A. Code was in effect.

__ aaron

se

%

H. 4. GRAY, ET AL., Vs. LEGH R. POWELL, JR., ET AL. 35

The Receivers, from their desire, of course, to indicate to

the Code Authorities that they were not seeking in any way

to de anything to evade the provisions of the N. R.A. Code,

or otherwise, decided that before they would enter into these

arrangements that they would submit this plan to the N. R.A.

Code Authorities.

I accompanied Colonel Anderson, one of the Seaboard Receiv-

ers, to Washington prior to the titne these contracts were entered

into. We explained the plan fully to Mr. Donald Richberg,

who at that time was general counsel for the N. R. A. Mr.

Richberg indicated to us that there was no legal objection to

it at all but before committing himvelf one way or the other

he desired- to consult the Bituminous Coal Authorities and the

head of the division who was just about to

30(58) meet him in conference. So we gave him this memo-

randum and he conferred with the head of the N. R.A.

Code Division.

Q. What was the memorandum? One describing the——

A. .interposing.) Well, it’s just an outline, exactly what I

have stated, that is, the plan of this what we proposed.

And two days later we received a telegram from Mr. Ri berg

to the effect that they saw no legal objection to it at all.

I merely wish to add that the present arrangements in effect

at each of these mines are identically the same in principle and

in in effect, with what were in effect at that time and put into

effect with the approval of the N. R.A. Code authorities.

Mr. Cocke. That is all T have to ask. Are either you or Mr.

Ansell to cross-examine /

Mr. Harrineton. Do you want to recess

The Examiner. Is it twelve o'clock ¢

Mr. Harrineton. It is twelve o'clock.

The Examiner. Do you gentlemen bave any preference as to

how long we should recess? Do you prefer and hour or an hour

and a half?

Mr. Cocke. I think an hour would be sufficient. T should like

to complete this if we can, today.

Mr. Harrineten. I wavit to glance over these contracts and an

hour and a half would suit us better.

30 (59) The Examiner. In view of that we will recess for an

hour and a half, until i: 30.

(Whereupon at 12:00 M. a recess was had until 1:30 o'clock

p. m. in the above-entitled matter. !

fh

36 H. A. GRAY, ET AL., Vs, LEGH R. POWELL, JR., ET AL.

30 (60) AFTERNOON SESSION

(The hearing was resumed at 1:30 o'clock p. m.. at the expira-

tion of the recess. )

Whereupon L. B. PreumMer, the witness on the stand at the

taking of the recess, resumed the stand and was further examined

and testified as follows:

The Exvminex. Mr. Cocke. you may proceed with the examina-

tion of the witness.

Mr. Cocke. Mr) Examiner, I stated at the close of the morning

session that T had ee my examination of Mr. Plummer,

but there are a few o™ver questions that have occurred to me. So

I would like to proceed. if Tmay, with a brief further hearing.

The Examines. All right, sir.

Direct examination (continued) by Mr. Cocxe:

Q. Mr. Plummer, the various documents which have been in-

troduced in evidence numbered respectively as exhibits constitute

all the contractual arrangements both with the lessor owners of

the land and with the contractors employed by the receivers

to remove this coal ¢

A. Yes. They constitute all of the existing documents

30(61) between the landowners and lessors on the one hand

and the operators and receivers on the other.

Q. Are there any other agreements of any nature or under-

standings, oral or otherwise, bearing upon or in any manner sup-

plementing these written documents which have been introduced

in evidence ? 5

A. None whatever.

(). Then these written documents already Introduced as ex-

hibits in this hearing are the sole repositories of the agreements

between the various parties in interest ?

A. That is correct.

Mr. Cocke. Mr, Examiner, the intervention filed by this coal-

producing board for District No. & states in support of it. claim

that the petition or application of the receivers of the Seaboard

Airiine in this matter should be dismissed on the gorunds, 1. that

the petitioner is advised and believes that certain coal produced

at the said mines in Mingo County, West Virginia, Logan County,

West Virginia, and Wise County, Virginia, respectively. is not

coal consumed by the producer or coal transported by the pro-

ducer to himself for consumption by him; and, second, that the

petitioner is advised and believes that the commerc? in certain

coal produced at the mines in Mingo County, West Virginia,

}

H. A. GRAY, ET AL., Vs. LEGH R. POWELL, JR., ET AL. 37

Logan County, West Virginia, and Wise County, Virginia, re-

spectively, is such commerce in coal as is described and covered

by the third paragraph of section 4 of said act as “im-

80(62) terstate commerce,” and is therefore subject to the ap-

plication of all provisions of said section 4. Now, we

wish to traverse both ef these statements or conclusions: and I

assume that it will not be necessary for us to file any written

reply or rebuttal to that statement.

The Examiner. I assume that that is correct, and T will so rule

at this time,

Mr. Cocke. Very well.

By Mr. Cocke:

Q. Now. Mr. Plummer, will you state briefly and so far as your

own knowledge goes and your own understanding that may be

supplemented by the additional testimony from the witnesses

what disposition is made of the coal produced at these three

mines, shipped by whom and to whom, and how that coal is used

or disposed of: and also whether or not it is a fact, as set forth in

this intervening petition, that some of this coal is sold by the

receivers in the market instead of being consumed by themselves /

Will you state briefly what the facts are as far as your knowledge

goes?

A. So far as my knowledge of the facts goes, none of this

coal produced at either of these mines, except small quantities

commonly known as house coal, which ts sold as a necessary

incident to the mining operations to mine empioyvees., is

sold——

BOCK ) Q. You mean coal for their own houses ¢

A. Yes. For their domestic use—is seid by the re-

eervers. Tt is all with that exception shipped from) the mites

to points on the Hines of railroads owned by the Seaboard Airline

Railroad Company and operated by the receivers and is used or

consumed by the receivers in their operation of their raitroads.

Q. You do know further, do vou not, that there are outstand-

Ing positive and definite instructions issued by the receivers

through their duly authorized officers that no coal produced at the

mines shall he sold otherwise than for these small domestic

purposes to the miners there at the mines ¢

A. Yes: T know positively that advice was given by me as

veneral attorney to the various departments of the Seaboard that

none of this coal except this so-called house coal should be sold

or otherwise disposed of. My information is that clear and post-

tive instructions were issued by the law department to that effect.

It is further my understanding that none of this coal shipped to

the receivers from this mine or shipped from the mines is being

<old or otherwise disposed of. and that all of it is being consumed

3S H. A. GRAY,’ET AL., Vs. LEGH R. POWELL, JR., ET AL.

and used by the iines in the operation of these railroads.

30 (64) Q. Now, Mr. Plummer, in the past—T am not speak ne

of the present—but in the past were there any instar :es,

isolated or otherwise, within your knowledge in) which there

had been sales of coal: and, if se. have any such occasional

instances been entirely discontinued: and. if so. when?

AL Tt was brought to my knowledge, T think. in the early pare

of May.if Tam not mistaken, that some of this coal. after its

receipt on the railroads operated by the receivers had ty some tse-

lated cases and in some infrequent transactions beos sold te i-

dustries Toeated nearby and in order to meet their emergency

requirements,

Q). Tn mail or large quantities f

Al In =mall quantities. Just a car ata time. was my nader

standing. | farther understand that pursuant te advice given

by the law department, instructions were issned in May, accord.

ge to bis recollection, as soam as this know ledye was brought te

our attention. that these sales te industries should be diseon-

tinned. 1 further understand that they have been discontinued.

(Seo far as vou loanow, those istructions have been observed ;

at the present time /

Al So far as — knew, those instructions have been strictly

observed: and we have witnesses here to testify ioe that

effect,

BueGD) Mr. Cooke. T think that is all. “The witness t+ ready

for cross-examination.

Cross-examination by Mr. Povrrineros :

Q. How long have you been attorney for the Seaboard Airline

Railway Company ¢

A. LT have been attorney for the Seaboard line continuously

since iz. PT passed the bar examination ii E910. it is my

recollection.

Q. Could you tell us where the Seaboard Airline purchased

their coal from prior to the making of the contracts between

the companies mentioned here /

A. 1 cannot tell you that of my own knowledge, because the

purchase of coal, of course, is not within the province of the

law department. But T can siate that my information is that,

of course, they purchased this coal from the ordinary coal pro-

dacers. Who they were IT don’t know. Tam not informed.

@ Did they purchase coal from the Glamorgan Coal Com-

pany!

A. I can state positively that the Seaboard receivers never

purchased any coal from the Glamorgan Coal Corporation,

Q. Iam speaking of the railroad now.

H. A. GRAY, ET AL., Vs. LEGH R. POWELL, JR., ET AL. 39

A. T am speaking of the railroad. The Seaboard

80(06) Railroad Company or its receivers never purchased any

coal from the Glamorgan Coal Corporation or the Gla-

morgan Coals—which one are you referring to?

Q. The Glamorgan Coal. the one which is in operation of

the coal lands.

A. No: they did not.

@. And at the time this contract was made you just went out

wha tarde itoin D4. and was that made for the purpose of

eeading or contravening any act of the “it. Alf

A. Absolutely not. it was niade as a business move or meas-

wre in an effort to secure the coal as cheaply ts they could.

(). Phe reason T asked that question ts that you stated in

yeur direct examination that voit submitted these contracts to

the direeor or the administrator of the N. R.A. Code for his

epproval,

A. Yes: that was done because it was the unanimous view of

cH othe counsel for the receivers was that the receivers were

entirely within their legal rignts to make arrangements of this

sort. However, the recervers, as I explained before, felt that om

view of the then existence of the No Ro AL Bitunitnens Coal

ugreemept, they should submit the matter to the Code authors

ties: and. if possible and proper, get their concurrence in the

entire legality of these arrangements, which wa. done.

BON GT) Q. Do the railroad companies receive all of their coal

from the contractors mentioned in your petition, or

cothey have to bay other coal in the open market /

A. Oh. ves: this supply that we get fron these mines repre

vents onlyoof course, a portion. The Seaboard Airline receivers,

IT stppeose, consume over a million tons of coal a vears and. of

course, this is just a part of their coal supply.

(). You signed the petition filed bere, Mr. Plianiuer. as atten:

nev for the Seaboard Airline Kailway Company, did vou net?

A. Pf signed the petition as general counsel for the receivers.

Q. You ask in this petition, for the return of ail assessments

patd and other pavinents meade hy thie appleants prior to the

eHective date of this order. De you know of any payments

that vou have made ¢

A. Tdon't know whether the Seaboard receivers have made any

payments. We wrote a letter, concurrently, T think, either just

hefore or just after the petition was filed, in answer to an iqiiry

Which came to us from District No. &. asking whether the re-

celvers are going to pay this assessment levied under section

& (b) of the Act. We wrote the District Board that this peti-

tion was being filed, asking if it would be satisfactory to

40 H. A. GRAY, ET AL.. Vs. LEGH R. POWELL, JR., ET AL.

30(68) them to withhold any payment of it) pending action

of the Commission upon this petition. That was on

the ground, of course, that if we obtained this exemption or are

entitled to it, then we are not liable te that 3 (b) assessment,

because that is a provision of the Code—not under 3 (b) assess-

ment. It is under some provision of section 4-4 (b). That

ix my recollection.

Q). The Seaboard Airline Compeny receivers have accepted

the Code, have they not 4

A. Yes, sir.

Q. Have the contractors mentioned in this petition, Daniel

Pritchard and the Peerless Coal Company, accepted the Code ¢

A. Tt ois my understanding that they did. as far as the re-

eeivers are concerned. To think as far as the operators are con-

cerned, they have. of course, accepted membership in the Code

with full reservation of their fegal rights pursicint ty ao pro-

vision of the Act itself. which says that they shall not be

estopped or peecluded on their part from contending that they

are not subject to the Code or the provisions of the Act.

Q. With reference to the William Anne mine, whe operated

that mine before the receivers took it over /

ALT cannot answer that question: but. based on informa-

tio that Mr. Pritehard gave me during me previous

30(60) testimony. Po ounderstand that it) was operated by the

corporation. dust what company that was f dont know,

We had no transactions with that company at all as far as T

know. DT don’t know of any.

Q. Your contract or lease was made between the United

Thacker Coal Company and the Cole and Crane trustees 4

A. Yes. Tomay explain there, if TP omay repeat. what DT said.

Those companies had previously leased or conveyed the coal in

this mine te this corperation which had previously operated it.

‘That corporation owned at the time of that lease the mining

cquipment. “Chat corporation defaulted in the performance of ite

lesse Provisions, The lease was terminated by clue trotiee by

the United Thacker Coal Company to the Cole and Crane

trtistees: and they repossessed or recaptured, rather, the mining

equipment and machinery in the foreclosure of a tien which

their lease ouve them.

That invested the tithe to this mining equuiiphaent in the United

Thacker Conl Conipans and the Coal and Crane trustees or one

or the other of them. T don’t know which one ef them: owned it.

That was the status of the thing at the time that the receivers

nade this contiactual arrangement with the operator, and at the

tine they obtained this convevance from the mine owners,

q@. How big a tract of land does this lease cover /

~

H. A. GRAY, ET AL., Vs. LEGH R. POWELL, JR. ET AL. = 4]

30170) A. I cunnot answer that, but it is all described in the

lease. I think the acreage is given in there. Do you

recall that, Mr. Cocke ¢

Mr. Cocke. The lease which we introduced in evidence will show

that. However, Mr. Tines will succeed Mr. Plummer om the

stand as a witness for us, and T think he can give you all of that

detail.

The Examiner. Is Mr. Tines one of the operating officials ¢

Mr. Cocke. He is counsel for the United Thacker Coal Com-

pany.

The Examiner. Are you going to introduce any witness who

is an operating official of any of the companies involved here ¢

The Wrrness. Do you mean the landowners, or the operators ¢

The Examiner. Of the mining companies themselves. _

The Wrrness. Tf the Examiner desires to hear any of them

on any point, we have them here ready to go on.

Mr. Hariineron. Well, Mr. Plummer seems to be very familiar

with all the terms and conditions of all the contracts that are

drawn up here; and I think he is qualified to testify here on

cross-examination the same as he has testified on direct

examination.

Mr. Cocke. Tam not questioning vour right to examine

30(71) Mr. Plummer, Mr. Harrington. 1 said that any details

that Mr. Plummer is not entirely familiar with Mr. Tines

could supplement in any way that we have information.

Mr. Harrineton. What was that last question ¢

The Wrrness. You asked me if IT was familiar with the acreage

and what acreage was involved; whether it was large tracts of

land or not; and T said that T cannot answer that. The lease

here, of course, will answer that. The properties are described

in that by metes and bounds.

By Mr. Harrineron :

Q. T just wanted approximately the acreage that was covered

by the agreement. .

A. T cannot tell you what acreage it is. T don’t know.

Q. Then the contract was made with the Glamorgan Mining

Company to operate the property ¢

A. You are speaking now of the Wilham Anne mine ¢

Q. The Witham Anne mine.

A. The contract for operation was made with Mr. Daniel KE.

Pritchard individually as the operator of this mine for the

recelvers,

Q. That was a contract with Pritchard ?

A. Yes: that is the one. It is tied in with the United Thacker

Coal Company grant.

Q. That is the Willian Anne mine /

42 H. A. GRAY, ET AL., VS. LEGH R. POWELL, JR., ET AL.

30( 72) A. That is the William Anne mine. Yes, sir.

Q. Is Mr. Pritehard considered an independent con-—

tractor in your contract with him to operate this mine ¢

A. Of course, that is a question, T suppose. of law. to be deter-

mined from the facts and cireunmstances of the ease. Ino miyv

opinion, if you desire me to state it, TP think that Mr. Pritchard

is operating the mine—that is, the Willian Aune mine and the

Chilton Block mine—as a party employed by the receivers for

that purpose: and TP think that the receivers are producing coal

at those mines through the agency or instrumentality of Mr.

Pritchara

Q. in the contract he is mentioned as an independent. con-

traetor,

A. That ix in there to protect the receivers against claims or

possible claims of third partivs.

Q. Your liability is limited from the acts of Mr. Pritchard

mm the operation of this rine!

A. We are protected under the contract provisions against

any liability, and we eertamly have a right of rennbursement

there ueainist Mr. Pruehard. I think. for—

Q. Will vou piewse answer my question, and then yeu may

fuske o statement afterward,

A. Yes.

Q. Fo beliewe in veur contract with Mr. Pritchard the re-

ceivers had a right te reyoet certain coud that does not

B30:73) five up to certain specifications. Ts that true ¢

A. Ethink that is correct. Yes.

Q. Do vou knew whet i dene with that coal when it is Ye-

jected?

AL No: Thave no knowheige of that. TP don’t know whether

SUTnN of the coal has ever beer rejected. T understand that it

has all been in complance with these requirements,

Q. Does Daniel Pritchard do basiness as a sole trader or is

he meorporated ¢

A. He does business as an individual only. He is not incor-

porated. We perfected our relations with bim or our arrange-

ment with him as an indiviaual.

@. Does he have the exclusive right to hire and discharge

miners in the operstion’ef the mine?

A. L think he does,

Q@. Does he pay the Social Security tax and any other tax

that might occur in the operation of his mine ¢

A. What do you mean by “any other tax”?

(2. T mean personal property tax.

A. For instance, the tax assessed under this Act ?

H. A. GRAY, ET AL, Ve. LEGH RB. POWELL, JR. ET AL. 43

The tax assessed on the immprovementy and the Social Se-

curity tax on his employees.

A. Well, T.think he pays all taxes of that character ex-

cept the Social Security tax. He is expected (oe get

80(74) rennbursemenat out of the compensation which the re-

ceivers pay him.

Q. I an jast asking you vow whether be pays the taxes.

A. [chink he does, so far as T know. [imagine he does.

(!. Now, in your lease contract with the owners of the fee, does

that lease cover or include the uuiprovements at the topple?

A. Of course, the lease speaks for itself on that. But my

recotlvetion of the provisions of that jease is chiat the landowners,

that is, the owners of this mining equipment and machinery, and

so forth, agreed to permit the contractor or the operator to use

that mining equipment in the conduct of the mining operations

at this mine. dust what the arrangement ts between tiie con-

tractor and the operator and the iandowner as to the-—-+

QQ. The use of it?

A. The use of it and as to the compensation T don't know. But

the point that Tam trying to make is that the contract that they

have — the landowners oblige tes the Jandowners—-—

r€ Po permit the contractor to use the mine /

To permit the contractor Co use this nie and equipment

Pe property.

Q. ‘That the contractor is responsible to the lindowner

80°75) for any damage that might occur fo the improvemetits

on the property ¢

A. [should say he was. Of cotirse, P want to say right through

that that is an arrangement, of course. in which those improve-

ments and machinery were owaed by Glamorgan Coals. Tnicor-

porated, and not by the landowner. The Glamorgan Coals. In-

corporated, in its contract with the Seaboard receivers agreed to

Juse that mining equipment and property in the contract of these

mining Operations.

(). Who owns the fee in the Glamorgan mine /

A. The Glamorgan Coal Corporation.

Q. The Glamorgan Coal and Land Corporation ?

A. Yes; it isa separate and distinct entity from the Glamorgan |

Coals, Incorporated.

Q. What company was foreclosed on and the property sold—

the Giamergan Coals, Incorporated. or the Glamorgan Land

Corporation 7

A. You mean recently?

Q. Yes; recently. The sale of August 23.

287059—41——-4

Fr C:sCts;

>

44 H. A. GRAY, EY AL., Vs. LEGH R. POWELL, JR., ET AL.

A. That was the Glamorgan Coals, Incorporated, ihe oper-

etors,

Q. All that they lost, then, was the improvements and the

property at the time of that sale?

A. They lost the improvements and the property.

30 (76) Q). And the title to the property rests in the Glamorgan

Coal and Land Cormpany ¢

A. Yes: the Glamorgan Coal and Land Corporation.

QQ. The Glamorgan Land Corporation ¢

A. The Glamorgan Land Corporation.

Q. The Peerless Coal Company, then. is only the owner of the

improvements and the property

A) That is my understanding. TP think that as a natural result

of the sale of the properties and assets of the Glamorgan Coals,

Incorporated, was thar the Glamorgan Coal and Land Corpora-

tion acquired through foreclosure of its lien, which was an old

lien for royalties due to this company some vears ago, and then it

foreclosed that hen, and the Ghimorgan Coal and Land Corpora-

tion purchased at this sale this mining equipment and property

which previously belonged to the Glamorgan Coals. Incorporated.

Now. PE think that the same arrangement lias been made be-

tween the Glamorgan Coal and Land Corporation and the Peer-

less Coal Company under which the Peerless Coal Company has

acquired the right to use this mining equipment and property

in the operation of this mine. That is the way that the situation

stands.

Q. Well. new. asa matter of fact. the Peerless Coal Cor-

SO(77) poration is the contractor at the Glamorgan mine at this

time. is it net?

A. Oh, ves.

(). There has been a veparate contract trade between the re-

ceivers of the railroad and the Peerless Coal Corporation

A. Yes.

Q. Which has heen introduced ines hence ¢

A. Tt is a separate contract in the sense. as I -tated before, that

the Poerless Coal Land Corporation at the sale bought inthe right.

title, and interest of the Glamorgan Coals, Incorporated, or its

receivers in this contraet with the Seaboard; and they bonght it

subject to the ascent of the Seaboard, hecause the contract is net

essignable without the assent of the Seaboard, They bought tn

the lease under that contract subject to the assent of the Seaboard

receivers. ‘The Seaboard receivers liave recently, following that

purchase, entered into a contract with them under which they

have assented to the transfer to the Seaboard of this contract to

the Peerless Corporation. The Peerless Coal Corporation has

agreed in that contract to continue to perform and carry out the

H. AL GRAY, PT AL. Vs. LEGH 8. POWELL, IR. ET aL. 40

cbligations of the. contract on the part of the operator to be carried

ont and performed,

Q. Your petition alleges that A. EL Stone and Walter

C. Shunk as receivers of the Glamorgan Coals, Tnceorpe-

30¢78) rated, are the operators of Glamorgan mine. Is that

correct f

A. Yes. sir: that ts correct. They were at the time the petition

wa- filed.

() At the time the petition was filed ¢

A. This other development has since occurred,

Q. Who are the real operators now of the Glamorgan mine ¢

A. The operator now is the Peerless Coal Corporation.

Q. Is that company in receivership?

A. No: that is a newly organized company. organized at the

towe that the rights under this contract were purchased. [tis a

recently organized company.

Q). How does that company operaie in reference to the produc-

tien of this coal?

A. They operate in identically the same way that the Gla

morgan Coals operated before.

&. They have adopted the Glamorgan Couls contract !

A. Yes: they adopted their contract and assumed and cureed

tocurry out its performance.

(). The receivers, then, agreed to and dd pay the Peerless Coal

Corporation on a cost plus basis ¢

A. Nogit is net a cost plus basis at all

Q. On a straight cost ¢

A. Tt is an agreed flat compensation per ton.

Q. A flat compensation based on cost ¢

mac Te) A. No: T don't know what it is based on. Tt is bases!

ona bid submitted. Tt is a flat sum which presumably

includes all the cost and is designed te give the operator some

profit. Otherwise T den’ “TEP pase he world have submitted it.

(). Do the receivers have any control over the Peerless Com-

pany in the operation of the mine?

A. In what aspeet

Q. With reference to the employment of the miners or in ref

erence to directing then: how they shall mine the coal.

A. Not that I know of.

The Exawiner. You are addressing these questions to the

Glamorgan Company, are vou?

Mr. Hareineron. No,

The Examiner. Exhibit No. 2. or to all three mines ¢

Mr. Harrineron. The Glamorgen mine. that is being operated

hy the Peerless Coal Company.

46 H. A. GRAY, ET AL., VS. LEGH R. POWELL, JR., ET AL.

The Exawiner. That is the one that vou are addressing these

qiiest lois tocar elo Vou mern all three of them 4

Mr. Pixnnixeros. Loam addressing it only to che Glamorgan

mine,

Bv Mr. Harrineron :

Q). The receivers for the railroad company hold a dease on the

Chilton Block No. 1 mine, do they?

(SO) A. Yes. ‘

(3. That is a lease giving them the right to mine the

coal in that particular mine?

A. Yes.

QQ). They don’t own the fee in there. do they ¢

A. No: ot is the same nature of tithe as in these other cases.

fnoother words, inaimy opinion and judgment—the contract will

determine that--the Dingess Run Coal Company. who operated

toat the time i was transferred to the receivers—the transfer

tas assented te by the Dingess Rum Coal Company. We in effect

own thi coal We have acquired it in this privity of assent by

the Dinwess Run Coal Company to the Seaboard receivers in

respect to this coal.

(J. Do vou operate that on the rovalty basi-. the same as you

do the others /

A. Yes,

()) Paying -0 much a ton?

A. We pay so much a ten royalty to the landowner or for his

ere aa.

(). This preperty is operated by Mr. Pritchard as contractor

AL Yes: the Chilton Block No. 1 ix operated by Mr Pritchard

tndivielually.

(). Hew do vou pay Mr. Pruchard ¢

Best) AL We compensate dim there on a flat -nm per ton

losis, It i the sine arrangement, ldentically on the

sine arrangement.as inthe Wilham Anne niine.

(). How do vor pay dim? By che month or week or how?

A. We pay hun by the month. except that sometimes maybe

When fie vet. a hittle hard up he bias Wart some a little earher:

and we det him have itoen account. We pay him monthly on

monthly statements.

Q. Do vou give hink a check for the coal that he bas delivered

in the cars to vou for that month?

A. He reports the cars. We receive his report: on these cars

as te loading and so forth and weights amd tonnage, and the

tonnage ts computed from: that: and on that basis the flat sum

per ton is meultiphed by the number of tons. and he is paid on

that basis: and the receivers based on that pay directly io the

ae 4

H. A. GRAY, ET AL, VS. LEGH R. POWELL, JR. ET AL. 47

landowner or for the Jandowner’s account the royalty on that

coal.

Q. You pay the royalty? The receivers pay the royalty ¢

A. Yes. The receivers pay the royalty.

Q. And the contractor pays all other obligations against tue

property ¢

A. He pays all

(. Taxes /

A. Yes. He pays all taxes, except that he does not

40(S2) pay such taxes, for instance, as are assessed under section

% (a) of this Act. He does not pay taxes to the land-

owner on the land. The receivers pay those taxes.

(). He pays the taxes on all the improvements

A. L think under an arrangement he pays the taxes on that.

Mr. Tines will probably have to elaborate that a littl for you,

because that is determined to some extent on the arrangement

Ietween the landowner and Mi. Pritchard under which he is

permitted to use this mining equipment and property, He can

testify as to that.

(3. Does the Seaboard Airline Railway connect with all these

properties that are involved 4

A. They have no connection with them at all. They are all

located on other railroads.

Q). What arrangement is made as to the payment of freight

on the railroads after the coal is loaded into cars and before it

is received by the Seaboard Company or the receivers ¢

A. We have another witness to testify as to that. But my

understane'ng as to how that is handled is that the cars are

loaded ane ~hipped by the operator for the accoune of the re-

ceivers and consigned to the receivers. The receivers pay for

the coal. These shipments are made at the receivers’

(83) risk, and as coal owned by them. In the event that a

wreck or something off-line happens, then the receivers

would have to stand that loss. unless. of course, and to the extent

that they could recover from the off-line carrier.

By Mr. Cocke:

Q. They pay the freight ?

A. The receivers pay the freight.

By Mr. Harrineton : ;

Q. Do you know where the inspection takes places on this coal

by the receivers ?

A. No: Edo not. LT don't know just where it is inspected. I

think it is in the mine, but I don’t know.

Q. I beg your pardon ¢

a -

48 H. A. GRAY, ET AL., Vs. LEGH R. POWLLL, JR., ET AL.

A. T imagine it is at the mine. I don't know where if is ia-

spected,

Q. Do you have a witness here who can testify to that ¢

A. Yes; we can show that by another witness.

Q. Mr. Plummer, can vou explain to us the provision in the

contract which provides that in the event that you can purchase

coal in the open market for ten cents below the price set in the

contract with your company, that you can declare the contract

nuli and void #

A. TL don't recafl any such provision in the contract where it

specifies a difference of ten cents at all. There is a pro-

30(S4) vision in the contract to the effect that if the receivers—

by reference to ten cents you mean to refer to the royalty

cost to the receivers! There is a provision in this contract which

gives the receivers the right in the event that they can buy coal

from other sources, acquire it from other sources, at a cost to the

receivers, made up of the amount of compensation that thes pay

the contractor, plus the anwount of rovalty and taxes that they

pay the landowner, then the receivers shall lioive the right to

cancel the contract.

Q. IT want you to explain that part of the contract.

That provision is in there. There is a further provision

that the receivers have that right unless, upon my recollection,

Unless within 60 days the operator will reduce his price to meet

MW. That is just simply a provision put in there for the receivers’

protection. That simply gives the receivers the vight to deter-

mine Wh other they are going to continue this arran cement or not,

depending lipaon low expensive i" might be to then

Q. In other words, if you can buy coal in the op on market for

ten cents less Chan the coal produced by vour contractor costs

you, you have a right to ge out and buy that coal?

A. No: you mean under the provisions of the contract

BO So) now! That is a provision of the contraet—-that if we

ean buy coal somewhere else—

Q. That was what Twas asking you adeut.

A. Yes: we have the right te go out and buv it. Yes. DT think

weocan do Ghat under the provisions of this contract. T don't

recall just what that term ois. That is my recollection. Bat 1

know that we have the right. if we find that we can procure coal

somewhere else cheaper. we have the right to cancel this arrange

mient,

Q). OF course. this arrangement cheat yeu have with these con

tractors is more or less. DP oassume, for your own convenience in

order te bay coal as cheaply as Vou prose bls ean’ Ts that true?

Of course, one purpose inomiotking this agreement is to save

=

H. A. GRAY, ET AL.. Vs. LEGH R. POWELL, JR., ET AL. 49

the receivers money in the cost of the coat. That is, of course,

one of the objects. in making tlie agreement, That) is just an

ordinary business transaction.

Q. Well, now, Mr. Plaummer. you know as a matter of fact

that the receivers have no control over the contractor in the

production of his coal¢é Isn't that true ¢

A. In what respect do you mean ¢

Q. As to how mach coal he produces,

A. No.

Q. Or how he will pay his employees ¢

A. Oh, yes.

BU(S6) Q). Or in what manner?

A. We do have control over that, absolutely, in that

we have the right to specify the amount of coal which we

require,

Q. In other words, the only obligation that you have is to

specify how much coal you will want during the month 4

A. No. We have the right to specify how much coal we want.

produced there at this mine.

Q. And what kind?

A. Not what kind.

Q. You have the right to reject this coal. have you not?

A. We have a right. of course. to require the contractor to

produce this coal between maximum and minimum limits. Phat

was put in there for the protection of the receivers in the event

that there are fluctuations in their business and in thea fuel

requirements.

Q. The of the coal is costing vou too much, ten certs too

much, and if you can buy coal for ten cents below the price that

the contractor bills you for. then vou can Geclare this contract

null and void ¢

A. Well, we can cancel the contract tf we see fit. Tt is our own

coal, We can continue to mine it or te produce it or net as we

see fit.

It does not have to be ten cents Jess. Ti ean be

S0(57) any amount less ¢

A. That is why T asked vou about the ten cents. 1

didnt recall any provision in there about ten cents.

Any amount. If vou can buy it in the market for any

amount Jess than what he bills vou for. veu can cancel this

contract ¢

That is simply for the receivers” protection,

Q. Tam asking vou if that is a fact.

A. Yes.

Mr. Cocke. The contract ~peaks for itself,

50 H. A, GRAY, ET AL., Vs. LEGH R. POWELL, JR., ET AL.

The Wirxess. The contract speaks for, itself. That provision

is in there. It is clear. 1 think you can see it.

Mr. Harrinerox. But) you are testifying under cross-

examination.

The Wrrness. Sure. There is a provision in the contract :

which gives the receivers the right in the event that they find

that they can precure coal Cheaper than under this arrangement,

to cancel this arrangement, in other words, to discontinue pro-

ducing their own coal if they see fit to do so; the right to go

-out in the market if they want to if they can buy it cheaper

than under this arrangement. Then they can cancel this ar-

rangement with the contractor or operator.

30 (88) By the Examiner:

(). Mr. Plummer, has this arrangement at any time in

the past heen cancelled with any of the mines in question ¢

A. No. This arrangement——

QJ. What in your opinion would be the result so far as the con-

tinued operation of the mine is concerned if such arrangement

were cancelled ?

A. Well, if such arrangement were cancelled, we would either

have to make a new similar arrangement with somebody else who

would be willing to perform the service for us at a cheaper cost

to us, or we would have to go out and buy the coal. We have

got to have the coal somewhere,

Q. But so far as the mine itself is concerned, the operator of

the mine, would it mean a continuation of the operation of the

mine, or would the mine cease to operate upon the cancellation

of your agreement with it?

A. Tt would cease to operate unless we made a similar arrange-

ment: unless the receivers elected to operate it themselves and

go ahead and pay the required people to run it. We claim that

we are doing teat now: that we are simply doing that through

the instrumentality of the contractor, In any event the receivers

would still own the coal and would still be liable for the mini-

mum royalties under the contract.

HOS) Q. It is your contention that the receiver has abso-

lute management and control of the contracting mines

us to the operation ¢

A. No. We don’t contend that exactly. We contend, sir, that

we own the coal; that it is our contract; and that the receivers

are producing this coal through the agency and instrumentality

of the contractor for the operator. It is the receivers’ coal. The

contractor has no interest or title in the coal at all. It is the

receivers’ own coal, in the ground continuously. The receivers

own the coal until it is consumed and used.

ie Shales.

H. A. GRAY, €T AL., Vs. LEGH R. POWELL, JR., ET AL. 51

Mr. Cocke. May Task a question there that T think will clarify

the situation, Mr. Examiner?

The Examiner. Yes.

By Mr. Cocke:

Q. Uf Mr. Pritchard's arrangement is cancelled on the William

Anne mine. he cannot any further operate that mine except with

the consent of the receivers ‘

The Examiner. That is my question.

A. Oh. no. Absolutely ne. He has no interest in the coal at

all. He has no right to dispose of it. None at all.

By the Examiner:

Q. Your answer would be the same as to the other two mines

involved here?

30 (M0) A. The same as to the other two mines involved. Ab-

solutely. He has no right te dispose of that coal. The

sole right to dispose of that coal and the sole ownership of it is

in the Seaboard receivers.

The Examiner. Pardon me, Mr. Harrington. IT didn’t mean

to interrupt. T wanted to get that straight.

By Mr. Hyreimetoye .

Q. Along that line of questions. you contend that the Sea-

beard Airline Railroad Company is the producer of this coal

A. Yes.

Q The actual producer in the operation of the mine!

A. We say that the Seaboard receivers are the producers of

this coal,

Q. Then what do you think that this contract ts. for the min-

ing of coal?

A. I think that that is nothing in the world but an arrange-

ment uaider which the receivers have ensploved these individuals

ty operate these mines for them.

Q. That is a matter of opinion anyway. T think you have

answered that question.

A. That they are producing this coal through the ayency and

instrumentality of these operators.

The Examiner. To would like for the record te show spe-

cifically just which corperations are members of the

80°91) Code and which ones are not. In other words. T should

like you to tell us whieh of thes corporations invelved

in this proceeding are Code members, and whether or not Mr.

Damel Pritchard himself is a Code member. You stated that

you didn't know, but that vou thought that they were.

The Wrrness. If I may state that subject to confirmation as

to Mr. Pritchard and as to the Peerless Coal Corporation. I

a2 H. A. GRAY, ET AL., Vs. LEGH R. POWELL, JR, Ey AL.

would say that the Seaboard recet.ers have accepted member-

ship.

By the Exatiner:

() You can answer that specifically as far as the Seaboard is

concerned ¢

A. The Seaboard receivers have accepted membership in the

Coal Code. Tt js my understanding that Mr. Pritchard has ae-

cepted membership in the Code. T- that correet, Mr. Pritchard ¢

Mr. Priverntvrp. No. T have not.

The Wrrness. Mr. Pritchard lias not.

Mr. Shunk. how about Peerless Coal Corporation ¢

Mr. Sut sk. The Code was accepted. Mr. Pluananer, according

te my infortaation, ny the receivers of the Glamorgan Coals.

The Wriesess. In other words. the predecessors in interest,

which were the Glamorgan Coals recervers, accepted rmember-

bership in this Coal Code. Phe Peerless Coal Corpo-

30,92) ration is a very recently: organized company: and I

vnderstand from Mr. Shunk that that company hes net

accepted memiberstip in the Code.

Mr. Suuxk. We assume. since we pureliased the contract, the

new company pureha ed the contract, the Peerless Company,

from the Glamorgan Coals receivers. that we are members of the

Code therefore. We have not as a new company, Mr. Fxam-

thie y, asked for membership ini the Corde. We assumed, <inee

We purchased the comtrnet fron: the (viumorgan Coals with the

Seaboard Aurline recelvers, that thes had accepted the Code and

had become menibers.

The Exswinen. Pounderstand that that is) vour contention.

Bat the fact is that the Peerles. Coal Company ds a corporate

CMtIEV Is tet a Code member’ Ts that correct /

Mr. Satnk. Yes. sir.

The Examiner. Now. with reference to the others ¢

The Worrness. That as all that are invelved—the Seaboard

reeervers, op course, and the landowners. Phe landowners are

net producing: the coal, se they are net rivelved. “The Peerless

Coal Company and Mr. Pritchard are the operators, vou see

By Mr. Harrineres :

(). Mr. Plammer, does the Seaboard Atrline Company have

any control over the purchase of supplies bw the

BOCES) contractor da the Operation of the mine?

A. Thes have control in this aspect: that we have

aright. af course. te check up the supphes purchased and so

forth. Wei have the right te keep. von might sav. abreast of

how the contractor's costs are running.

(J. To mean direct “Upervision over the prea r hase of supplies.

£

ee

Rie een”

H. A, GRAY, ET AL. Vs. LEGH R. POWELL, JR. ET AL, 03

A. No: we don’t control the purchase of supplies. Ele ean

purchase them. of course, as his requirements necessitate.

(). Did To understand vou to sav. Mr. Plummer, that the con-

tractor does make a profit on the price that he charges the

railroad for the coal 4 —

A. Tevanot answer that. T dont know if he does or not. It

is tis rick whether he makes a profit or how much he makes. It

isa flat sume per ton compensation to him.

() Tn vour contract with Mr. Pritchard on the William Anne

nine does the contract provide for a cost basis‘ Ts it based on

the cot of the coal 4

AJ Nor oii gives the receivers the right at their option te

change this method of compensation, which is a flat sum, from

that flat stm per ton compensation to a cost plus basis if thes

soeleet. But the receivers have never availed of that privilege.

Q. Toam not referring to that) particularly. Tam

SOCSE) vefervone to this figure mentioned here mi the contract

of SE6G per ton, What dees that figure refer to/

A. TP dowt know. Vhat is an offer or price submitted by Mr.

Pritchard, and presumably Ho oinclades his estimated cost and oa

reasonable profit to himself? for the serviee thet he performs.

Q. That is the figure thet has been accepted as part of this

contract up Exhibit 6. isnt at?

A. We have accepted it.

Q. That is the contract figure. isn't it/

A. Thats what we are paying him, plus the amount that

We fave to pay in rovalties te the lindowners and the taxes

that we have to pay.

Q. Tam speaking of the contract now: aet anything that you

~penel outside of it.

A. Yes: that represents the cost.

Q). That represents the cost 4

A. That represents the cost, except that im addition to that

the receivers pay the section 3 (a) taxes. They pay Yhem direct

on the theory that we are the producer of the coal and consuming

it. We pay that tax, which ts one cent per ton.

Q. Now. that sam includes the four cents per ton that os paid

as Sochal Security ‘axes!

A. Yes.

ay Qs) Q. And it also imelucde~ the 4 eent. a ton. the amount of

the mmerease in wages effective on atidafter April 1-1. 137 ¢

A. That ss right. Yes, sir.

(). And ito mnelides two and a half cents per ton ob mecourt of

the increase of cost of unsigned materials and supplies?

A. Thatis right. And the reason for that, Dmight point ont to

Vou, ts that. of course, throne fivuires were based on estimates when

ot H. 4. GRAY, ET AL., Vs. LEGH R. POWELL, J8., ET AL.

this contract was made. The recetvers have the right te check

these items: and if they find that. as vou have just read——-

Q. They liave already been accepted. haven't they. at the con-

tract price?

A. They have been accepted, subject to the right of the ac-

counting departinent te check these figures,

Mr. Hanrineron. Olives. Thave ne farther questions,

The Examiner. Mr. Ansell. do vou lave any cross-examination /

Ma. ANsenn. DT sugeest that Consumers” Counsel may have some

eXamination,

The Examiner. Does Consumers’ Counsel have any examination /

Mr. Ercrecerrerk. No questions.

Sue) Mr. AN*ELI. Then l should Tike to borrow from Con-

simmers Cous el COPS of the extiubits that we had this

morning.

The Examiner. Pocan fer vou have mine or anv ones that are

available here.

Cros--examonation by Mr. ANsELL:

Q) Mr. Plummer. To believe vou stated on direct examination,

and Edireet vour attention particularly to the Wiliam Aine mine,

that the original lease entered inte for the right to the coal con-

tained in that property was fora period of one vear. with terns of

renewal forone vear. [sit that a fact ¢

A. What was the date of that?

Q. Tt was entered into on May 1. 143d. and Cerminalble Jats t.

135. which isa period of 14 months.

A. That may be se

(.. And there was a renewal provision,

\. Renewable for snecessive yearly periods. DP think. after June

1935. Those periods are somewhat changed by -ipplenmients ate!

o forth.

Q. Po vou know why the original lease was entered inte fora

period of Tt raontlis 4

A. What period do vou men 4

(). May 1. 19354, te duly 1. 1935.

ESD) A. Do think the reason for that was this: that of ts

tis recollection that the Seaboaurd—and T think the other

rathroads in the country—ostally negonate for them coal supply

p the batrer poart of June for the first pruert oft Asay, Thi be May

or Augie. However, there are other withe-ses tere that ean in-

dicate that. We hadon mind that fact in fining the termi of that

lease.

Q. Toassume that the termination date. July 1. 185. was set

without any relation te the expiration of the National Pndustrial

Recovers Act?

t

‘

H. A. GRAY, ET AL... Vs. LEGH R. POWELL, JR... ET AL. .

; RPE ON Cy si

~~

=

~

‘ A. Oh, ves.

Q. You don't believe that that wa. considered at all?

A. Absolutely not.

Q. Without attempting mivself te follow the siceessive leases

through, To come to one in the Williams Anne mine. Exhibit 2.

dated April 14. 1936.

j A. Do you know what the nature of that isé Tam asking so

Tecan identify that particular agreement.

(Mr Ansell handed a paper to the witness. )

The Wrrness. What is your question ¢

»\ Mr. ANSELL:

Q. Cai you explain why that was entered inte on April 1.

36. 1f the periods of renewal of the lease were to run for

periods of one year starting Judy tl, 19354

A. Welly in’ each stiecessive Year it Was ip to the

BUS) receivers to determine whether or not they were going

te exercise this right of renewal While it is truce that

the grant for this particular year did not expire until June

30, E36, in April 1986. the receivers sHuplv determined thet

they were going to exercise that right of renewal: and thies

negotiated an extension with the landowners. That is the only

reason TP oxnow for it, diet aminute. Letame rend this further

Provision, My recollection is that it would appear from the

provision ii that contract at that time that a deeision was es

pected from the Supreme Court on this Collard Coa] Con porn

Case,

(). What would that have to do with this ¢

A. Tt -tmply involved a testing of the legality. of this Criithy

Act.

x Q. How did that affect you people ¢

A. So far as the legality of the contraer is coneerbed we

felr that it did not affeet us,

Q. Did not affect vous

i AL Did not affect us. But naturally. just hike any other

business proposition, we feit thar if the Net was de lareedd rin

constitutional, the whole market world probably dwenk. said. it

TORR RS Sem Ee Oe

fist be dere advantageous for us to eo out and buy the coal

rather than te continue the caftiped tetne UPriaiiwedient~

S099) Pherefore we just ~inaiply provrded thisat Thies bnterlit frave

; Wn Interins eNtelision. sane iden batey We eXtended ot

further.

Q. So oon April Ta. 1086. rather than wiving notice to the

United Thacker Coal Company and the Coal and Crane Trustees

that seu would extend this lease for a period of a veary Ven re

effect advised then: that vou would extend it fer a premio ofa

ow HLA. GRAY, ET AL. Vs. LEG R. POWFLL, JR... ei AL.

vear op the event that the Suprenie Court did not hold that the

iirst Guify Aco was aneonstitutional in the meantime 4

A. TP dont think that that is the effeet of it at all. It is

simply a precautionary measure by the receivers to put them-

selves in the position of leaving themselves free in the event that

the Gutfy Act should be declared unconstrutional and the coui

market should break and they found that it would be more ex

pensive to them to obtain coal this way, to terminate the contract

und det it fall at the end of the vear.

Q. There is another part of Exhibit 2. a supplementary in.

denture dated May 14. 136. Tash von if you can tell me whi

that was entered inte hating a paper to the wittiess |.

A. Let me see new what this says. [After looking at paper. |

That seems to have been an interim: extension or an extension

for a short period from July 31. 1986 to and inclusive

SO(L00) of August 20, 1996: and T stppose that. while there

isntoany reference in this te the Guiffy Net. DP suppose

that it is pending legislation for the same reason that induced

the receivers to agree on that interim extension to hiold this

question epen as in the other case,

Q. Withont my referring to the copies ef the leases in the

case of the Glaniorgan mone and the Chilton Bloek Neo To mine.

Mr. Plituuer. can vou tell me whether similar supplemental

tndentures were ninde ta those cases 4

A. Those contracts speak for themselves. But miy recollection

Is that it was not meeessary om these cases. for the reason tint

the first renewal of the lease fron: the Gbunergn Coal and Panel

Corporation and the related arrangement. contractual arrange

ment, with the contractor, was extended for a periad of two

Vears—that ts omy reeedlection of it—with a further right of re.

newal In the case of the Chilton Block mune Wis recollection is

that that lease arrangement was originally for one year: and

that it was afterward extended under the optrorial renewal

provision,

Q. do deheve vou stated upon cross-exaniimation by cormused for

the Commission that mo veur opinion. although Mr. Pritchard

was deseribed in certain leases as oan ridependent contractor, he

Was in faet an eriplovee of the Seahoard Airline Rathway or its

receivers !

BOCTOn) A. Thats my opinten. TP othink he is vers provers

under the decision of the courts entitled to aet im that

dual relationstap. He can be an agent between the parties and

at the same time can be an individual contractor as a third party.

Q. So that the only control which the receivers of the Seaboor |

Airline Railways exercised over Mr. Pritchard was in the spec

H. A. GRAY, ET AL., Vs. LEGH R. POWELL, JR., ET AL. ayy

bes

pe"

3

Bi

|

fication of the temnaye that was to be delivered over certain

perteds of time. Is that true ¢

: A. Phat is my recollection,

Bat agam the contracts will have

to speak for themmel ves.

But that is mv recollection of the faet—

that the receivers did not retain under these contract provisions

any contvel over Mr. Pritchard's enaployment of his miners and

the manner in which he could do the Work. On ep L believe there

Is a prevision om the contract requiring him to comply with all

lawtal regulations atid so forth with respect to that.

(J. When vou speak of the contract ~peaking fer iteelf. do J

Understand vou to dean that all contrel whieh the Seaboard

Airline Ratiway Company or its receivers may exercise over

Mr. Pruelard os expressed i that comtracdt 4

A. TD should say se.

(). De Vou Kriaw whether there Is al lador coblibact with any

labor organization for the qinung of the coal at the Wilinon

Anne nine?

suchoz) ALT dont know.

(). Was there any entered inte by the mceivers of the

Seaboard Airiiie Railway Company

A. No,

Q Mr. Phoumer, what did the Peeriess Corporation acquire

by reason of this purchase on August vo. leat. ef all Ge mehr,

tithe, and uiterest ca the Glamorgan Coals. Incorporated. or its

receivers under the Seaboard Airline agreement ¢

A. Tt acquired the sane rights an! interest under that eontraet

Which the Glamorgan Coat Corporation ar its receivers had pre

Vieusty enjoyed. Tn other words, whatever rights they had, they

acquired,

Q. Do vou know what rights they had ¢

A. Yes: they had the right of compensation. for instance.

They had the mght to perform this work under the contract,

And they had the mght te require pavinent of compensation for

the work and service which the contract provided. That. of

course. is stibjeet to the assent of the Seaboard receivers, becuse

of a provision in the conteact wheel prolubirs the transfer of the

assigninen., without ther consent

QW. So that the transfer would be a sale¢

A. T should say that it would mean a sale of the right to

mine the coal. To think that thar

Bo.b0s) of the decree. T dont remember it.

of that decree was filed.

Mr. Cocke. Yes: it has been filed.

A. (Continued) You will find at in that decree. Of course,

you understand that Glamorgan Coals, Incorporated. and the

receivers of the Glamorgan Coal-. Tnecorporated, hive neo thie

was ‘he Janguage

Tthink that a copy

Qs H. A. GRAY, ET Ak.. Vs. LEGH R. POWELL, JR., ET AL.

Whatever to this coal. All that they fad was a contractual right

niider the agreement to mine this coal for the receivers, and to

receive compensation for it. “Phatais what passed in this transfer

to the Peerless Coal Corporation,

yy Mr. ANSeLL:

Q. Mr. Piuminer, TP believe you sated on direct: examination

that shortly prior to or about the time that you ortgiaally en

tered into the contract of Jease with the United Thacker Coal

Company and the Coal and Crane Coal Conipeny as trustees for

the right tTomtmhe the coalat the Williaa Anne property vou or

other representatives of the reeeivers of the Seaboard Airline

Railways approached Ma. Niehberg with reference to that trans-

aetion,

Ne Yes.

QQ. Why were they approwhing Mr. Richberg?

A Well the receivers. as To stated fofere in my testimony,

counsel for the reeervers an counsel for the landowners.

SUCTOd) amd also counsel for the operator which was involved

In this proposed trapsaction. unanimously agreed that

there Was nothing whatever in those arrangements violutive of

the NORA. Code provision. However, the recervers ace operat-

tna these properties under the direction of the Federal Court:

ch the receivers naturally felt that maybe some charge might

be miade that they were seeking to evade the provisions of this

Act. and they preferred before they made these arrangements

(fective that Colonel Ansell and Pee to Washington and confer

sath Mr. Riehberg and Tay the plan before hint and obtain his

me pprowal atid the approval of the Code authorities, which we did,

QQ. Who do von mean ov the "Code anthorities” ¢

Vhe Bithiainons Coal Division. My recollection was that

Myr. Richbery ~trted that the head of the conl division was the

party that he had conferred with.

(). Yor domt knew who that was :

\. No: TP don’t know,

(). You yvourelf saw Mr Richberg on that wension ¢

\. Absolutely. Yes. <ir,

0 Woot question shd vou present to Mr. Richberg ?

\ We sapey gove him a memorandnii. a short memorandum.

mowho th we eurtined the essential features of this plan-—first, the

Hoe sition of the tithe to this coal by the receivers

MOET) throne 4 owner, the emplovmer of a contractor or

eperautoy hy the receivers to prods the coal, nnd point-

rhe enrit that the coal Was to he used and consumed by the

receivers in tho operation of the railread. That was the sub-

C1 Aen

H. A. GRAY, ET Al.., Vs. LEGH R. POWELL, JR.. 71 ye)

eo

stance of the plan. “Phat the substance of these plans. aud it

ix still in effect in each case in all its essentials.

Q. You state thet all interested counsel were in accord that

the agreement was not violative of the Code /

A. T mean that it was net violative. To miean it did) not con-

fliet with any Code provisions.

Q. What was the effect of the agreement insofar as it related

to the Bituminous Coal Code under the N. Ro A.¢

A. My recollection is that there was some price provision in

the No ROA. Code. TP don't remember. T think there was some-

things of that sort. In other words, they established prices in the

No. AL Code for coal in sales, didn’t they

QJ. Tojust want vou to tesitfy,

Ao Thats my recollection. that they did. They published and

established and promulgated a code for bituminous coal, and in

that code they established certain prices,

Q. The effect oof vour agreement was to remove the

coal which is supphed to the Seaboard Atrline Company

SOCTOG) through these mines from the operation of the price

provisions of the No RL AL Code?

AJ No. fo wonldn't put it exactiv that was. The object of

teese arranyvements was to enable

Q. Lain speaking of ats effeer. Mr. Phanmer.

A. Well, all right. The effect. Put it this way: Phe pur-

pose and itent and etfeet of these arrangements was to enable

the receives to precare a coal supply at less cost to the receivers

than if they had te go out in the open market and buy the coal.

QJ. That is. at less than the Code prices ¢

AL Well, ves. “They naturally were seeking to save money.

They wanted to buy the coal as cheaply as they could. So they

vorcerved the plan oof buying the coal in the ground and en-

ploving these parties to produce at for then.

Q. TP believe vou stated that subsequent to this conference with

Mr. Rocliberg vou received a telegram from: hin 4

A. Yes.

Q. Do vou have that telegram with vou. Mr. Plammer/

AJ No. TP havent at with me. but To would be lad to file a

copy oft. Tn fact. the telegram is not addressed te me. Tt was

addressed to Colonel Ansell. To think we filed a copy

With that mesvorandium: copies of that telegram. with

the N. ROA. Code authorities at the time ond later.

Q. You speak of the NO R.A. Code authorities, De) vou know

What Code authorities they were /

A. Tt was the Bituminous Coal Division. “Phat ts iv reeot-

lection of it. The clivision tneler which Wl conte Wits established

BLOAT)

OnTON—4]

ty) ‘2. ws GRAY. ET AL... Va. LEGA &. POWELL. JS... ET AL.

for bituminous coal under the N. Ro A. under which that coal

was administered by what they called the Bituminous Coal Divi-

sion. Phat is what T mean by “the Code authorities.” To mean

the parties that were charged with the administration and se

ferth of that Code, and of the promulgation of it.

QO. DS you mean the Board of Operaters that adiunmistered

the Code 4

AL No. T dent hnow just how the thing was created. It

has been so many vears ago. DT have forgotten,

QW. Do vou know where it was filed 4

A. Where what was tiled /

Q). Copies of that velegram: and memorandum,

Nf think ait was the District Board. But T think that we

filed a copy of tliat with the then Tyistrict Board created under

the N. R A.

(). In Cineiniiati?

BUC TUS) A. My recollection is that it was in Cincimnat:. TPean

very easiiv and would be perfectly willing to let the

Comtilsston have copies of that corbespondence if they desire Ut.

Mero ANsenn. TP have nothing further.

Mir. Cooke. Po would tike to ask Mr. Plummer one or two

(qdestions,

Redirect exaimimation by Mr. Cocke:

(J. Mir. Pituimer, under the provisions of these three sets of

instruments, Pf ioany one or more cases of rights reserved in

the contracts with the contractor the receivers should terminate

the arrangement with the contractor, would that erther directly

or indivectiv relieve the receivers of the continuing obligation to

prary the ros alties to the owners of the properties, the lessors of

the properties /

A. in the case of the Woilhan Anne mine and the Chilton

Block mine it would met. We would still be liable for the roev-

altie. under the contract. My recollection is—and Twill let Mr.

Ansel! speak for himself—that in the case of one or more mines

we have a corresponding provision in our Jease on the Glamer-

gan Coal and Land Corporation to the receivers which gives us

the right in the event that we should terminate the contract. or

arrangement with the operater, that then we have the

30 (109) right to terminate the lease. In these other cases that

right does not under the existing contracts exist,

Mr. Cocke. That is all,

30 (110) The Examiner. Mr Harrington, do you or Mr. Sneed

have any question /

Mr. Harrincron. No questions,

Mm. An GRAY, ET AL, YS. LEGH KR. POWELL, FR., ET AL. oO]

The Examiner. T would like io ask one clarifying question. a

veries probably in one. Mr. Plammer, To recognize that this situe

tion Is clear to you gentlemen because vou are very familiar with

it. Tt is just a bit confusing to me. There are about seven cor

porations invelved im this particular proceeding, aven't there ¢

Mr. Prosimer. Yes, sir.

The Examiner. Now with reference to the United Thacker

Coal Conipany. it is a corporation

Mr. PromaMer. United Thacker Coat Company is a corpora-

thon: ves, sir.

The Examiner. Where is that incorporated 4

Mr. Proswwer. Tcant answer that. Mr. Tynes. in what State

is tonited Thacker Incorporated ¢

Mr. Tynes. In Maine.

The Examiner. Do the receivers of the Seaboard Airline own

any of its stock /

Mr. PrumMer. None wiiatever,

The Examiner. Do vou know anything concerning the stack

ownership of the United Phacker Coal Conipsriy /

Mr. PrcemwMer. T have no knowledge of ul but DT doe kas

retther the Receivers nor Seabourd Adriane Railway owns any

of it.

MM LT) Mr. Cocke. Or any officer or director,

The Exawiser., With reference tow te the Peerless

Coal Corporation, do vou knew where that corporatien 1s

organized ¢

Mr. Puom™er. Its organized asa corporation in the State of

| Virginia,

The Examiner. And do veu know anything concerning ‘lie

stock ownership of the Peerless Coal Company ¢

Mr. Prosaer. TP do not. but TP know neither the Seaboard Aa

line nor its receryers own any of the stock.

The Exaxiner. Ts theres anyone here who can testify com.

cerning that /

Mr. PrumMer. Yes: Mr. Shunk.

The Exananer. T should like for Mr. Shunk to be called a.

witness in that respect.

Now with respect to the Ghaunergan Coal Land Corporation,

where is that organized ¢

Mr. Pruca™er. That is a corporation of Virginie.

The Exxminer. And the same question with reference to the

ownership of steck.

Mr. Prcwaer. The Seaboard Receivers or Seaboard Airline

Company has no interest whatsoever im the stock and has no

representatives on its Beard.

| Eas

2 H. A. GRAY, ET AL. Vs. LEGH RB. POWELL, JR... ET Ab,

The Exawiner. And do you knew anything concerning the

stock ownership of that partictlar corporation /

Mr. Prowarrr. Except as hearsay. To uncderstand Mr.

30(i12) Kelly. who is here. is one of the stockholders and he wall

testify aus to that,

The Exanener. With reference to Glamorgan Coals, Ine.

Where is that organized /

Mr. Pucsaer. That ix defunct. It passed out of existence. It

was a Virginia corporation,

The Examiner. Andoit ism receivership or just defuanet,

Mr. Proven. Tt is virtually closed out. Tt is in receivership

wand all properties and assets have been sold.

The Exawiner. And they have been purchased by whom

Mr. Prosever. As DP stated. DP think the mining equipment and

property have been purchased bys Ghanergan Coal Land Corpo-

pation. Gaameorgan Coal Land Corporation, TP understand. bas

leased that naming property to Peer’ess Coal Corporation,

Neither Seabourd Receivers tor Seaboard Corporation have any

~tock ownership evointerest in either one of them,

The Exasiner. Phe Chilton Block Coal Conipany is a core.

rations is it netoand do you know where otis organized ¢

Mr. Pruowsterk. That isa West Virginia corporation,

Phe Exaywixek. And wiat do vou know concerning ti

he stock

ownership ¢

Mio Puc uwer. Neither the Seabourd Receivers or Corporation

have HY Titerest ii it,

The Exawinern. Naud os there someone here who can testify

as ote othe -teck ownership oof the Chilton Block Coal

Company ¢

a Bee Mr. PecwMer. Yes. =ir.

Phe Exavinek. TD ouncderstand there are no firther

corporations invelved in this proceeding other than those that

Thave questioned you about just now,

Miro Prowser, Nome whatever,

Phe Fx awiner. Hlow about the Dingess Rum Coal Company /

Mir. Prowserr. PE think that is iheorporated in West \ irginia.

Neither the Seaboard Adriine nor the Seaboerd Receivers hiave

anv daterest whatever in that corporation. in the stock owner:

shpat otherwise.

The Baasinen. Do vou know what person or persons own the

stock of that particular corporation /

Miro Prawwen. T do not.

Phe Examiner. Ps there nhvote here whe could testify as te

ihiat 4 :

Mr. Cooke. DP don't think soe. tindess Mr. Tynes might. He will

testify right after Mr. Plummer,

H. A. GRAY. ET AL.. V=. LFGH BR. POWELL, 1H. ET AL. 5

Meo Pivrrineren, Did ven say who owns the steck of th

Chilton Block Corporation ¢

Mr. Prosar. Pean't say. Phe Seaboard Receivers and Sea

beard Airline Railway Company have no interest whatever iii i.

Mr. Harnixeron. Do vou know whether Mr. Pritchard own-

the miagerity of the stock in-that corporation

The Exawiner. A witness will be put on the stand who will

testify with reference to that. Mr. Harrington.

Mb dda) Boerorp (. Tywes. catled as oa witness for and on

behalf of the appleant. was daly sworn and testitied

as follows:

DIRECT EXAMINATION

Mere Cocnwe. Will vou state vour iaume snd oanitiads fer the

recor / . : :

Mi. Ty~es. My name is Buford ©. Tynes. Huntington. West

Virginia. a lawyer by profession. and interested in the caal bars

hess.

Mr. Cooke. Mr. Paynes. what connection if any dive von with

the United Thacker Coal Company. one of the concerns abort

Which testimony has previously been given in this hearing 4

Mr. Pyses. Toate vitee president ana ehie teil Codlbseb cea a caati

COPpOrAniOn, abd tiave beer sueh for the last ten or twelve Veur~

Prior te that time and back as faroas P91 Db ovwas general gaan

ayer and general counsel. As vice-president Tana in charge and

have been for thease vears of the companys plivsionl properties un

West Virginia, inehucding all its conl anil Pipher levticks,

Mr. Cooke. Mr. Tynes. wilh vou state what relationship: the

United Thacker Cond Company has by way of ownersiip ot

otherwise te the coal properties Known as the Wolltam- Ann pon

and leased to the Seaboard Recemvers /

Mr. Tywes. Tn that connection, Mr Cocke. if you. writ Pevaiiit

me Po owill go far enough afield of voir question te

TTS) oaiswer seme of the questions that apparenthy were

the I Xsanuiners raged, hie alae conse] for the ae

shall 7?

The Exawiner. Phat wonld be satisfactory. stbpeet te ans

Ob pection cotpsed Tra liave te offer,

Mer. Tyses. The Unated Thacker Coal ©. Pany owns a fittle

ever 60 percent of what is known mm the eco boas the Willi,

Ann leasehold Minge County. The Colo a € rane Real Betate

Trust owns the remaining 46 pereent Go chat aereage. The

aerenge is owned dio severalty div the respective owners as |

Hisgs e risermect,

Mr. Coen. That means ai fee owhership rn thee ferried.

| aa

t\4 H. 4. GRAY. ET Al... ¥5. LEGH BR POWRLL. IB. ET AL:

Mr. Panes. A fee ownership is the land. The properties of

the two ownerslops were co-mingled da such a way so that no

part of the coal leasehold which approximates 4,000 acres could

be decsed by either of the two land owners separately. The

Coated Uhacker Coal Company owns the frontage in fee simple.

The Coie & Crane ownership is around in the center of the 4,000

vere boundary, for all practical purposes. To give the back-

ground. in 1422 the two landlords leased the property to the

Wilhanm-Ann Coal Company, which operated the property. te

the fall of 1933, sometimes successfully and sometimes not sue-

cessfully. with the result that as of the fall of 1933. or in Jannu-

aryoor February of 1034. that company had fallen into arrears

inits rovalties tothe extent of. oh T don't recall, seventy

SO( 116) five toe ninety thousand dollars. included in which total

Was about S22.006 for the last twelve months in tonnage

rovalties,

The two landlords conchlided after consulting the William

Ann Coal Conipany as te its future hopes and expectations that

we could not allow the operating company to fall further inte

arrears. and therefore we mist repossess the property. So in

February, DP beheve. the two landlords ander my supervision and

direction andl Jaber. tmiade a common oral reentry into the lease-

hold, took possesslon of the leasehold: that reenury carried with

aH perinanent inprovements. or in common parhince. fixtures ;

and we had the shertPiaake a levy for the last vear’s taxes under

the West Virginia law—neot the last vear’s taxes but the bust

ta royalty. one years rovalty. and sold the movable property

for that one vears delinquent rovalty or rental and the United

Thacker Coal C omipany bewght the movable property in for the

amount ef the veurs back rental.

The improvements of a permanent nature whieh were fixtures

were all on the fee lands owned by the United Thacker Coal Com-

pany and none on that owned by Cole & Crane, further than that

~ome of the underground rat] may have gone throngh some of the

ownership of Cole & Crane. But the mining camp. tipple. side

track=. out-buildings of every character, iichiding supply hoses,

electric transformers, were all on the land owned in fee

SOCEIG) sample by the United Thacker Coal Company, which

company today stil owns those improvements,

Inthe late winter or early spring of 14 Mr. Daniel Pritchard,

Who is known very casually to the United Thacker Coal Companys

as bemg the brother of the two Pritchard bovs who had been

operating unsuccessfully the Willam-Ann Coal Company. asked

The if the United Thacker Coal Company would be interested in

finding a lessee for the old William-Ann plant. and if se. if we

H. A. GRAY, ET AL., Vs. LEGH R. POWELL, JR., ET AL. 65

would give him an opportunity to find the lessee. T toeid him

that we would. and he did.

Subsequently he came to me with the suggestion that he had

found he hoped a lessee who would take the property over, who

would be acceptabie to the landowners, and that after a trip to

Norfoik he would be prepared te divulge the name of the

prospective lessee and the terms upon which he thought that

prospect would lease the property. He returned subsequently,

probably two weeks later, and stated that the Seaboard Airline

Railway Company was the prospective lessee. T knew it was then

in receivership. He stated they probably would not be accept-

able, but on further reflection, which was almost immediately, I

said they would .probably be a very acceptable lessee as their

monthly rentals would be taxed as court costs.

Out of that in the next two or three we

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Transcript of Record — Gray v. Powell · 314 U.S. 402 | Frix