Petitioner produces electric energy and sells it to a 60-mile by
30-mile service area in the vicinity of Tampa, Fla. In 1954, it had
two generating plants which consumed only oil in their burners, as
did all electric generating plants in peninsular Florida. It
decided to construct a new generating plant, and to try burning
coal in at least two, and possibly all, units of that plant, and it
contracted to purchase from respondents all coal it would require
as boiler fuel at the new plant over a 20-year period. Petitioner's
estimated maximum requirements exceeded the total consumption of
coal in peninsular Florida, but it did not amount to more than 1%
of the total amount of coal of the same type produced and marketed
by the 700 coal suppliers in respondents' producing area.
Respondents repudiated the contract on the ground that it was
illegal under the antitrust laws, and petitioner sued for a
declaratory judgment that it was valid, and for its enforcement.
The District Court declared the contract violative of § 3 of the
Clayton Act, and denied enforcement. The Court of Appeals
affirmed.
Held: the judgment is reversed. Pp.
365 U. S.
321-335.
1. The contract here involved did not violate § 3 of the Clayton
Act. Pp.
365 U. S.
325-335.
(a) Even though a contract is an exclusive dealing arrangement,
it does not violate § 3 unless its performance probably would
foreclose competition in a substantial share of the line of
commerce affected. Pp.
365 U. S.
325-328.
(b) In order for a contract to violate § 3, the competition
foreclosed by it must constitute a substantial share of the
relevant market. Pp.
365 U. S.
328-329.
(c) On the record in this case, the relevant market is not
peninsular Florida, the entire State of Florida, or Florida and
Georgia combined; it is the area in which respondents and the other
700 producers of the kind of coal here involved effectively
compete. Pp.
365 U. S.
330-333.
Page 365 U. S. 321
(d) In the competitive bituminous coal marketing area here
involved, the contract sued upon does not tend to foreclose a
substantial volume of competition. Pp.
365 U. S.
333-335.
2. Since the contract does not fall within the broader
proscription of § 3 of the Clayton Act, it is not forbidden by § 1
or § 2 of the Sherman Act. P.
365 U. S.
335.
276 F.2d 766, reversed.
MR. JUSTICE CLARK delivered the opinion of the Court.
We granted certiorari to review a declaratory judgment holding
illegal under § 3 of the Clayton Act [
Footnote 1] a requirements contract between the parties
providing for the purchase by petitioner of all the coal it would
require as boiler fuel at its Gannon Station in Tampa, Florida,
over a 20-year period. 363 U.S. 836. Both the District court,
168 F.
Supp. 456, and the Court of Appeals, 276 F.2d 766, Judge Weick
dissenting, agreed with respondents that the contract fell within
the proscription of § 3, and therefore was illegal and
unenforceable. We cannot agree that the contract suffers the
claimed antitrust illegality [
Footnote 2] and therefore do not find it necessary to
Page 365 U. S. 322
consider respondents' additional argument that such illegality
is a defense to the action and a bar to enforceability.
The Facts
Petitioner Tampa Electric Company is a public utility located in
Tampa, Florida. It produces and sells electric energy to a service
area, including the city, extending from Tampa Bay eastward 60
miles to the center of the State, and some 30 miles in width. As of
1954, petitioner operated two electrical generating plants
comprising a total of 11 individual generating units, all of which
consumed oil in their burners. In 1955, Tampa Electric decided to
expand its facilities by the construction of an additional
generating plant to be comprised ultimately of six generating
units, and to be known as the "Francis J. Gannon Station." Although
every electrical generating plant in peninsular Florida burned oil
at that time, Tampa Electric decided to try coal as boiler fuel in
the first two units constructed at the Gannon Station. Accordingly,
it contracted with the respondents [
Footnote 3] to furnish the expected coal requirements for
the units. The agreement, dated May 23, 1955, embraced Tampa
Electric's
"total requirements of fuel . . . for the operation of its first
two units to be installed at the Gannon Station . . . not less than
225,000 tons of coal per unit per year,"
for a period of 20 years. The contract further provided
that,
"if, during the first 10 years of the term . . . , the Buyer
constructs additional units [at Gannon] in which coal is used as
the fuel, it shall give the Seller notice thereof two years prior
to the completion of such unit or units, and, upon completion of
same, the fuel requirements thereof shall be added to this
contract."
It was understood and agreed, however, that
"the Buyer has the option to be exercised two years prior
Page 365 U. S. 323
to completion of said unit or units of determining whether coal
or some other fuel shall be used in same."
Tampa Electric had the further option of reducing, up to 15%,
the amount of its coal purchases covered by the contract after
giving six months' notice of an intention to use as fuel a
by-product of any of its local customers. The minimum price was set
at $6.40 per ton delivered, subject to an escalation clause based
on labor cost and other factors. Deliveries were originally
expected to begin in March, 1957, for the first unit, and for the
second unit at the completion of its construction.
In April, 1957, soon before the first coal was actually to be
delivered and after Tampa Electric, in order to equip its first two
Gannon units for the use of coal, had expended some $3,000,000 more
than the cost of constructing oil-burning units, and after
respondents had expended approximately $7,500,000 readying
themselves to perform the contract, the latter advised petitioner
that the contract was illegal under the antitrust laws, would
therefore not be performed, and no coal would be delivered. This
turn of events required Tampa Electric to look elsewhere for its
coal requirements. The first unit at Gannon began operating August
1, 1957, using coal purchased on a temporary basis, but, on
December 23, 1957, a purchase order contract for the total coal
requirements of the Gannon Station was made with Love and Amos Coal
Company. It was for an indefinite period cancellable on 12 months'
notice by either party, or immediately upon tender of performance
by respondents under the contract sued upon here. The maximum price
was $8.80 per ton, depending upon the freight rate. In its purchase
order to the Love and Amos Company, Tampa estimated that its
requirements at the Gannon Station would be 350,000 tons in 1958;
700,000 tons in 1959, and 1960; 1,000,000 tons in 1961; and would
increase thereafter, as required, to "about 2,250,000 tons per
year." The second unit at Gannon
Page 365 U. S. 324
Station commenced operation 14 months after the first,
i.e., October, 1958. Construction of a third unit, the
coal for which was to have been provided under the original
contract, was also begun.
The record indicates that the total consumption of coal in
peninsular Florida, as of 1958, aside from Gannon Station, was
approximately 700,000 tons annually. It further shows that there
were some 700 coal suppliers in the producing area where
respondents operated, and that Tampa Electric's anticipated maximum
requirements at Gannon Station,
i.e., 2,250 tons annually,
would approximate 1% of the total coal of the same type produced
and marketed from respondents' producing area.
Petitioner brought this suit in the District Court pursuant to
28 U.S.C. § 2201 for a declaration that its contract with
respondents was valid and for enforcement according to its terms.
In addition to its Clayton Act defense, respondents contended that
the contract violated both §§ 1 and 2 of the Sherman Act, which, it
claimed, likewise precluded its enforcement. The District Court,
however, granted respondents' motion for summary judgment on the
sole ground that the undisputed facts, recited above, showed the
contract to be a violation of § 3 of the Clayton Act. The Court of
Appeals agreed. Neither court found it necessary to consider the
applicability of the Sherman Act.
Decisions of District Court and Court of Appeals.
Both courts admitted that the contract "does not expressly
contain the
condition'" that Tampa Electric would not use or
deal in the coal of respondents' competitors. Nonetheless, they
reasoned, the "total requirements" provision had the same practical
effect, for it prevented Tampa Electric, for a period of 20, years
from buying coal from any other source for use at that station.
Each court cast aside as "irrelevant" arguments citing the
Page 365 U. S.
325
use of oil as boiler fuel be Tampa Electric at its other
stations, and by other utilities in peninsular Florida, because oil
was not, in fact, used at Gannon Station, and the possibility of
exercise by Tampa Electric of the option reserved to it to build
oil-burning units at Gannon was too remote. Found to be equally
remote was the possibility of Tampa's conversion of existing
oil-burning units at its other stations to the use of coal which
would not be covered by the contract with respondents. It followed,
both courts found, that the "line of commerce" on which the
restraint was to be tested was coal -- not boiler fuels. Both
courts compared the estimated coal tonnage as to which the contract
preempted competition for 20 years, namely, 1,000,000 tons a year
by 1961, with the previous annual consumption of peninsular
Florida, 700,000 tons. Emphasizing that fact, as well as the
contract value of the coal covered by the 20-year term,
i.e., $128,000,000, they held that such volume was not
"insignificant or insubstantial," and that the effect of the
contract would "be to substantially lessen competition," in
violation of the Act. Both courts were of the opinion that, in view
of the executory nature of the contract, judicial enforcement of
any portion of it could not be granted without directing a
violation of the Act itself, and enforcement was therefore denied.
[Footnote 4]
Application of § 3 of the Clayton Act.
In the almost half century since Congress adopted the Clayton
Act, this Court has been called upon 10 times, [
Footnote 5] including the present, to pass upon
questions arising under § 3.
Standard Fashion Co. v.
Magrane-Houston Co., 258 U. S. 346
(1922), the first of the cases, held that
Page 365 U. S. 326
the Act
"sought to reach the agreements embraced within its sphere in
their incipiency, and in the section under consideration to
determine their legality by specific tests of its own. . . ."
At. p.
258 U. S. 356.
In sum, it was declared, § 3 condemned sales or agreements
"where the effect of such sale or contract . . . would under the
circumstances disclosed probably lessen competition, or create an
actual tendency to monopoly."
At pp.
258 U. S.
356-357. This was not to say, the Court emphasized, that
the Act was intended to reach every "remote lessening" of
competition -- only those which were substantial -- but the Court
did not draw the line where "remote" ended and "substantial" began.
There in evidence, however, was the fact that the activities of
two-fifths of the Nation's 52,000 pattern agencies were affected by
the challenged device. Then, one week later, followed
United
Shoe Machinery Corp. v. United States, 258 U.
S. 451 (1922), which held that, even though a contract
does "not contain specific agreements not to use the [goods] of a
competitor," if "the practical effect . . . is to prevent such
use," it comes within the condition of the section as to
exclusivity. At. p.
258 U. S. 457.
The Court also held, as it had in
Standard Fashion, supra,
that a finding of domination of the relevant market by the lessor
or seller was sufficient to support the inference that competition
had or would be substantially lessened by the contracts involved
there. As of that time, it seemed clear that, if "the practical
effect" of the contract was to prevent a lessee or buyer from using
the products of a competitor of the lessor or seller and the
contract would thereby probably substantially lessen competition in
a line of commerce, it was proscribed. A quarter of a century
later, in
International Salt Co. v. United States,
332 U. S. 392
(1947), the Court held, at least in tying cases, that the necessity
of direct proof of the economic impact of such a contract was not
necessary where it was established that "the volume of business
Page 365 U. S. 327
affected" was not "insignificant or insubstantial," and that the
effect was "to foreclose competitors from any substantial market."
At p.
332 U. S. 396.
It was only two years later, in
Standard Oil Co. v. United
States, 337 U. S. 293
(1949), that the Court again considered § 3 and its application to
exclusive supply, or, as they are commonly known, requirements
contracts. It held that such contracts are proscribed by § 3 if
their practical effect is to prevent lessees or purchasers from
using or dealing in the goods, etc., of a competitor or competitors
of the lessor or seller, and thereby "competition has been
foreclosed in a substantial share of the line of commerce
affected." At p.
337 U. S.
314.
In practical application, even though a contract is found to be
an exclusive dealing arrangement, it does not violate the section
unless the court believes it probable that performance of the
contract will foreclose competition in a substantial share of the
line of commerce affected. Following the guidelines of earlier
decisions, certain considerations must be taken. First, the line of
commerce,
i.e., the type of goods, wares, or merchandise,
etc., involved must be determined, where it is in controversy, on
the basis of the facts peculiar to the case. [
Footnote 6] Second, the area of effective
competition in the known line of commerce must be charted by
careful selection of the market area in which the seller operates,
and to which the purchaser can practicably turn for supplies. In
short, the threatened foreclosure of competition must be in
relation to the market affected. As was said in
Standard Oil
Co. v. United States, supra:
"It is clear, of course, that the 'line of commerce' affected
need not be nationwide, at least where the purchasers cannot, as a
practical matter, turn to suppliers outside their own area.
Although the effect on
Page 365 U. S. 328
competition will be quantitatively the same if a given volume of
the industry's business is assumed to be covered, whether or not
the affected sources of supply are those of the industry as a whole
or only those of a particular region, a purely quantitative measure
of this effect is inadequate, because the narrower the area of
competition, the greater the comparative effect on the area's
competitors. Since it is the preservation of competition which is
at stake, the significant proportion of coverage is that within the
area of effective competition."
At p.
337 U. S. 299,
note 5.
In the
Standard Oil case, the area of effective
competition -- the relevant market -- was found to be where the
seller and some 75 of its competitors sold petroleum products.
Conveniently identified as the Western Area, it included Arizona,
California, Idaho, Nevada, Oregon, Utah and Washington. Similarly,
in
United States v. Columbia Steel Co., 334 U.
S. 495 (1948), a § 1 Sherman Act case, this Court
decided the relevant market to be the competitive area in which
Consolidated marketed its products,
i.e., 11 Western
States. The Court found Consolidated's share of the nationwide
market for the relevant line of commerce, rolled steel products, to
be less than 1/2 of 1%, an "insignificant fraction of the total
market," at p.
334 U. S. 508,
and its share of the more narrow but only relevant market, 3%, was
described as "a small part," at p.
334 U. S. 511,
not sufficient to injure any competitor of United States Steel in
that area or elsewhere.
Third, and last, the competition foreclosed by the
contract must be found to constitute a substantial share of the
relevant market. That is to say, the opportunities for other
traders to enter into or remain in that market must be
significantly limited, as was pointed out in
Standard Oil Co.
v. United States, supra. There, the impact of the requirements
contracts was studied in the setting of the large number of
gasoline stations -- 5,937, or
Page 365 U. S. 329
16% of the retail outlets in the relevant market -- and the
large number of contracts, over 8,000, together with the great
volume of products involved. This combination dictated a finding
that "Standard's use of the contracts [created] just such a
potential clog on competition as it was the purpose of § 3 to
remove" where, as there, the affected proportion of retail sales
was substantial. At p.
337 U. S. 314.
As we noted above, in
United States v. Columbia Steel Co.,
supra, substantiality was judged on a comparative basis,
i.e., Consolidated's use of rolled steel was "a small
part" when weighed against the total volume of that product in the
relevant market.
To determine substantiality in a given case, it is necessary to
weigh the probable effect of the contract on the relevant area of
effective competition, taking into account the relative strength of
the parties, the proportionate volume of commerce involved in
relation to the total volume of commerce in the relevant market
area, and the probable immediate and future effects which
preemption of that share of the market might have on effective
competition therein. It follows that a mere showing that the
contract itself involves a substantial number of dollars is
ordinarily of little consequence.
The Application of § 3 Here.
In applying these considerations to the facts of the case before
us, it appears clear that both the Court of Appeals and the
District Court have not given the required effect to a controlling
factor in the case -- the relevant competitive market area. This
omission, by itself, requires reversal, for, as we have pointed
out, the relevant market is the prime factor in relation to which
the ultimate question, whether the contract forecloses competition
in a substantial share of the line of commerce involved, must be
decided. For the purposes of this case, therefore, we need not
decide two threshold questions pressed by Tampa
Page 365 U. S. 330
Electric. They are whether the contract in fact satisfies the
initial requirement of § 3,
i.e., whether it is truly an
exclusive dealing one, and, secondly, whether the line of commerce
is boiler fuels, including coal, oil and gas, rather than coal
alone. [
Footnote 7] We
therefore, for the purposes of this case, assume, but do not
decide, that the contract is an exclusive dealing arrangement
within the compass of § 3, and that the line of commerce is
bituminous coal.
Relevant Market of Effective Competition.
Neither the Court of Appeals nor the District Court considered
in detail the question of the relevant market. They do seem,
however, to have been satisfied with inquiring only as to
competition within "Peninsular Florida." It was noted that the
total consumption of peninsular Florida was 700,000 tons of coal
per year, about equal to the estimated 1959 requirements of Tampa
Electric. It was also pointed out that coal accounted for less than
6% of the fuel consumed in the entire State. [
Footnote 8] The District Court concluded that,
though the respondents were only one of 700 coal producers who
could serve the same market, peninsular Florida, the contract for a
period of 20 years excluded competitors from a substantial
Page 365 U. S. 331
amount of trade. Respondents contend that the coal tonnage
covered by the contract must be weighed against either the total
consumption of coal in peninsular Florida, or all of Florida, or
the Bituminous Coal Act area comprising peninsular Florida and the
Georgia "finger," or, at most, all of Florida and Georgia. If the
latter area were considered the relevant market, Tampa Electric's
proposed requirements would be 18% of the tonnage sold therein.
Tampa Electric says that both courts and respondents are in error,
because the "700 coal producers who could serve" it, as recognized
by the trial court and admitted by respondents, operated in the
Appalachian coal area, and that its contract requirements were less
than 1% of the total marketed production of these producers; that
the relevant effective area of competition was the area in which
these producers operated, and in which they were willing to compete
for the consumer potential.
We are persuaded that, on the record in this case, neither
peninsular Florida, nor the entire State of Florida, nor Florida
and Georgia combined constituted the relevant market of effective
competition. We do not believe that the pie will slice so thinly.
By far the bulk of the overwhelming tonnage marketed from the same
producing area as serves Tampa is sold outside of Georgia and
Florida, and the producers were "eager" to sell more coal in those
States. [
Footnote 9] While the
relevant competitive market is not ordinarily susceptible to a
"metes and bounds" definition,
cf. Times-Picayune Pub. Co. v.
United States, 345 U. S. 594,
345 U. S. 611,
it is, of course, the area in which respondents
Page 365 U. S. 332
and the other 700 producers effectively compete.
Standard
Oil Co. v. United States, supra. The record shows that, like
the respondents, they sold bituminous coal "suitable for [Tampa's]
requirements," mined in parts of Pennsylvania, Virginia, West
Virginia, Kentucky, Tennessee, Alabama, Ohio and Illinois. We take
notice of the fact that the approximate total bituminous coal (and
lignite) product in the year 1954 from the districts in which these
700 producers are located was 359,289,000 tons, of which some
290,567,000 tons were sold on the open market. [
Footnote 10] Of the latter amount, some
78,716,000 tons were sold to electric utilities. [
Footnote 11] We also note that, in 1954,
Florida and Georgia combined consumed at least 2,304,000 tons,
1,100,000 of which were used by electric utilities, and the sources
of which were mines located in no less than seven States. [
Footnote 12] We take further notice
that the production and marketing of bituminous coal (and lignite)
from the same districts, and assumedly equally available to Tampa
on a commercially feasible basis, is currently on a par with prior
years. [
Footnote 13] In
point of statistical fact, coal consumption in the combined
Florida-Georgia area has increased significantly since 1954. In
1959, more than 3,775,000 tons were there consumed, 2,913,000 being
used by electric utilities, including, presumably, the coal used by
the petitioner. [
Footnote
14]
Page 365 U. S. 333
The coal continued to come from at least seven States. [
Footnote 15] From these statistics,
it clearly appears that the proportionate volume of the total
relevant coal product as to which the challenged contract preempted
competition, less than 1%, is, conservatively speaking, quite
insubstantial. A more accurate figure, even assuming preemption to
the extent of the maximum anticipated total requirements, 2,250,000
tons a year, would be .77%.
Effect on Competition in the Relevant Market.
It may well be that, in the context of antitrust legislation,
protracted requirements contracts are suspect, but they have not
been declared illegal
per se. Even though a single
contract between single traders may fall within the initial broad
proscription of the section, it must also suffer the qualifying
disability, tendency to work a substantial -- not remote --
lessening of competition in the relevant competitive market. It is
urged that the present contract preempts competition to the extent
of purchases worth perhaps $128,000,000, [
Footnote 16] and that this
Page 365 U. S. 334
"is, of course, not insignificant or insubstantial." While
$128,000,000 is a considerable sum of money, even in these days,
the dollar volume, by itself, is not the test, as we have already
pointed out.
The remaining determination, therefore, is whether the
preemption of competition to the extent of the tonnage involved
tends to substantially foreclose competition in the relevant coal
market. We think not. That market sees an annual trade in excess of
250,000,000 tons of coal and over a billion dollars -- multiplied
by 20 years, it runs into astronomical figures. There is here
neither a seller with a dominant position in the market, as in
Standard Fashions, supra, nor myriad outlets with
substantial sales volume, coupled with an industry-wide practice of
relying upon exclusive contracts, as in
Standard Oil,
supra, nor a plainly restrictive tying arrangement, as in
International Salt, supra. On the contrary, we seem to
have only that type of contract which "may well be of economic
advantage to buyers, as well as to sellers."
Standard Oil Co.
v. United States, supra, at p.
337 U. S. 306.
In the case of the buyer, it "may assure supply," while, on the
part of the seller, it
"may make possible the substantial reduction of selling
expenses, give protection against price fluctuations, and . . .
offer the possibility of a predictable market."
Id. at
337 U. S.
306-307. The 20-year period of the contract is singled
out as the principal vice, but, at least in the case of public
utilities, the assurance of a steady and ample supply of fuel is
necessary in the public interest. Otherwise, consumers are left
unprotected against service failures owing to shutdowns, and
increasingly unjustified costs might result in more burdensome rate
structures, eventually to be reflected in the consumer's bill. The
compelling validity of such considerations has been recognized
fully in the natural gas public utility field. This is not to say
that utilities are immunized from Clayton Act proscriptions, but
merely that, in judging the term
Page 365 U. S. 335
of a requirements contract in relation to the substantiality of
the foreclosure of competition, particularized considerations of
the parties' operations are not irrelevant. In weighing the various
factors, we have decided that, in the competitive bituminous coal
marketing area involved here, the contract sued upon does not tend
to foreclose a substantial volume of competition.
We need not discuss the respondents' further contention that the
contract also violates § 1 and § 2 of the Sherman Act, for, if it
does not fall within the broader proscription of § 3 of the Clayton
Act, it follows that it is not forbidden by those of the former.
Times-Picayune Pub. Co. v. United States, supra, at pp.
345 U. S.
608-609.
The judgment is reversed, and the case remanded to the District
Court for further proceedings not inconsistent with this
opinion.
It is so ordered.
MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS are of the opinion
that the District Court and the Court of Appeals correctly decided
this case, and would therefore affirm their judgments.
[
Footnote 1]
"It shall be unlawful for any person engaged in commerce, in the
course of such commerce, to lease or make a sale or contract for
sale of goods . . . for use, consumption, or resale within the
United States . . . on the condition, agreement, or understanding
that the lessee or purchaser thereof shall not use or deal in the
goods . . . of a competitor or competitors of the . . . seller,
where the effect of such lease, sale, or contract for sale or such
condition, agreement, or understanding may be to substantially
lessen competition or tend to create a monopoly in any line of
commerce."
15 U.S.C. § 14.
[
Footnote 2]
In addition to their claim under § 3 of the Clayton Act,
respondents argue the contract is illegal under the Sherman Act, 15
U.S.C. §§ 1, 2.
[
Footnote 3]
The original contract was with Potter Towing Company, and, by
subsequent agreements with Tampa Electric, responsibility
thereunder was assumed by respondent West Kentucky Coal
Company.
[
Footnote 4]
Cf. Kelly v. Kosuga, 358 U. S. 516.
[
Footnote 5]
For discussion of previous cases,
see Standard Oil Co. v.
United States, 337 U. S. 293,
337 U. S.
300-305.
[
Footnote 6]
See International Boxing Club of New York, Inc. v. United
States, 358 U. S. 242.
[
Footnote 7]
In support of these contentions, petitioner urges us to consider
that it remains free to convert existing oil-burning units at its
other plants to coal-burning units, the fuel for which it would be
free to purchase from any seller in the market; also, that just as
it is permitted to use oil at its other plants, so, too, it may
construct all future Gannon units as oil burners; and that, in any
event, it is free to draw a maximum of 15% of its Gannon fuel
requirements from by-products of local customers. Petitioner
further argues that its novel reliance upon coal in fact created
new fuel competition in an area that theretofore relied almost
exclusively upon oil and, to a lesser extent, upon natural gas.
[
Footnote 8]
Oil and, to a lesser extent, natural gas are the primary fuels
consumed in Florida.
[
Footnote 9]
Peabody Coal Company offered to supply petitioner with coal from
its mines in western Kentucky, for use in the units at another of
its Florida stations, and that offer prompted a renegotiation of
the price petitioner was paying for the oil then being consumed at
that station.
[
Footnote 10]
U.S. Bureau of the Census. I U.S. Census of Mineral Industries:
1954, Series: MI-12B, p. 4 (1957).
[
Footnote 11]
Id. at 12B-6.
[
Footnote 12]
1,569,000 tons from counties in West Virginia, Virginia,
Kentucky, Tennessee and North Carolina; 412,000 tons from counties
in Alabama, Georgia and Tennessee; the balance was produced in
other counties in West Virginia, Virginia and western Kentucky.
Id. at 12B-10.
[
Footnote 13]
United States Dept. of Interior, Bureau of Mines, II Minerals
Yearbook (Fuels), 1959.
[
Footnote 14]
United States Dept. of Interior, Bureau of Mines, Mineral Market
Report, M.M.S. No. 3035, p. 23 (1960). These statistics were taken
from sources cited by respondents.
[
Footnote 15]
1,787,000 tons from certain counties in West Virginia, Virginia,
Kentucky, Tennessee and North Carolina; 1,321,000 tons from
counties in Alabama, Georgia and elsewhere in Tennessee; 665,000
tons from the western Kentucky fields; 2,000 tons from other
counties in West Virginia and Virginia.
Ibid.
[
Footnote 16]
In this connection, we note incidentally that, in
Appalachian Coals, Inc. v. United States, 288 U.
S. 344,
288 U. S. 369
(1933), cited by respondents, Chief Justice Hughes quoted testimony
showing that, in 1932, it was nothing those days "for one interest
or one concern to buy several million tons of coal." At note 7. The
findings of the District Court,
1 F. Supp.
339, showed that one utility consumed 2,485,000 tons of coal a
year. Other concerns had requirements running from 30,000 to
250,000 tons annually, while a textile manufacturer used 600,000
tons. At p.
288 U. S. 370,
note 8. The Chief Justice also stated in his opinion that, within
24 counties in Kentucky, Tennessee (in both of which respondents
operate) and their competitive States of Virginia and West
Virginia, "there are over 1,620,000 acres of coal bearing land,
containing approximately 9,000,000,000 net tons of recoverable
coal. . . ." At.
288 U. S.
369.