"It is undoubtedly true — and allusion is made to it in the opinion [in Munn v. Illinois] — that the public right in one's property or serv ices, being dependent upon the fact of the holding out of the property or the services to the public, may be terminated by a withdrawal of the property from an offer of public use . . . but this [right of withdrawal] is obviously subject to the qualification that one cannot abruptly, and without reasonable opportunity to the public to change their own affairs accordingly, termi nate his relations with the public. . . . Applying this qualification to the Pennsylvania coal min ing, it is apparent that the relations between the owners of the coal mines and the coal mines themselves, on the one hand, and the inhabitants of the United States, on the other hand, have been of such slow growth and have become so intimate, and have reached so far down toward the very roots of the existence of modern society in the United States in its present form, and involve such an infinite number of details of distributive shipping by land and water and wholesale and retail distribution to the ultimate consumers, that from this point of view alone the owners of the Pennsylvania coal mines, if they could by any means free themselves from the public easement, could do so only after granting years of full notice and of opportunity to the public to arrange the fabric of modern society upon a basis other than that of Pennsylvania anthracite coal." Coming to the question of procedure, Mr. Chaplin maintains that at least three practical remedies lie open, namely, a bill in equity, praying for the appointment of a receiver, a writ of mandamus, and a suit under the Sherman Act. The first of these remedies is, in his opinion, the most effective. If a suit in equity be brought, " the question of the choice of tribunals, as between a State court and a United States court, in respect to any given suit, would have to be determined for the particular suit according to various con siderations; but in case of any general concerted movement on the part of the public to enforce their right to an immediate supply of coal, and at a proper price, the controversy would prob ably find itself ultimately centered in a Circuit Court of the United States sitting within the State of Pennsylvania." Theoretically the proper
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persons to bring suits — outside of proceedings by public law officers — would be "the whole class of consumers or would-be consumers " of coal; but under a familiar rule of procedure " a small number of representative persons of a class may bring suit in.their own names, in behalf of the whole class." "There is, however, another method available which might perhaps appeal to the public as more convenient or desirable. There are many forms in which present legal representatives of the public might take action. The United States Government and the various States of the Union, and all subordinate governing bodies, such as counties, cities and towns, school boards, hospi tal, almshouse, and prison trustees, or boards, are not only political corporations or bodies but large consumers of coal, and almost all of them, from the United States Government down, have power to contract for coal and to buy coal, and, in case they cannot get coal, through unlawful action or inaction of others, power to enforce their right to coal. It needs no statute or new authorization of any kind for any of these bodies, or the offi cial law officers of such of them as have official law officers, to initiate proceedings such as are suggested above. It is, therefore, open to the public of the country, — if and in so far as they, in considerable numbers, in any locality, desire to force this matter to an issue, — to set the ball rolling through their existing public representa tives; and it is in the power of those public representatives, of their own motion, if they feel that public sentiment so desires, at once to in stitute proceedings. The President of the United States may direct the Attorney General to have the United States, in its capacity of a consumer of coal, file a bill in equity asking for a receiver ship, in order that the United States may have coal, — not as a sovereign, but as a purchaser, — to warm the White House and the Capitol and the Federal buildings scattered throughout the country. The Attorney General of a State, or the official law officer of any political subdivision of a State, may so proceed, and any city, town, county, school board, prison board, or almshouse beard which may not have a formal and regularly employed law officer, but employs counsel from time to time as it has need, may employ such counsel and itself proceed to enforce its supply of coal."
