State ex rel. Ellis v. Atlantic Coast Line Railroad

51 Fla. 578

Opinion

Whitfield, J.,

(after stating the facts.) The first two grounds for the demurrer to the alternative writ raises the question of the validity of the- order of the Railroad Commissioners which the relator seeks to have enforced.

The Constitution of Florida in Section 30 of Article 16, ordains that “The Legislature is invested with full power to pass laws for the correction of abuses and to prevent unjust discrimination and excessive charges by persons and corporations engaged as common carriers in transporting persons and property or performing other services of a public nature; and shall provide for enforcing such laws by adequate penalties or forfeitures.”

The statute, Chapter 4700, Laws of 1899, under which the order purports to have been made, is the Railroad Commission Law of the State which contains among its provisions the following:

“Three commissioners shall be elected” and each of them is required to subscribe to an oath that among other things he “will well and faithfully perform the duties of Railroad Commissioner.”

“That if any railroad, railroad company or other common carrier as aforesaid, shall make any unjust discrimination in its rates, or charges of toll, or compensation for the transportation of passengers or freight of any description, or for the use and transportation of any railroad car upon any railroad, or upon any of the branches thereof, or upon any railroad or steamship lines connected therewith, which it has a right, license or permission to operate, use or control within this State, the same shall be guilty of violating the provisions of this act, and upon conviction thereof shall be dealt with as hereinafter provided.”

“That said Commissioners shall make reasonable and just rates of freight and passenger tariff to be observed by all railroads, railroad companies and common carriers doing business in this State over their respective lines or connecting lines; shall make reasonable and just regulations for the observance of the same as to charges at any and all points for the necessary handling and delivery of all kinds of freight and transportation of passengers, and for the prevention of any unjust discrimination in connection therewith; shall make * * * reasonable and just rates of charges for the use and transportation of all kinds of railroad cars conveying all kinds of freight to and from any and all points in this State; * * * and to direct and control all other matters pertaining to railroads that shall be for the good of the public. * * * Said Commissioners shall have full power and authority to require- any railroad, railroad company or common carrier to properly operate its railroad or transportation line and to furnish all the necessary facilities for the convenient and prompt handling, transportation and delivery of all freight offered along its line for transportation and shall provide and prescribe all such x’ules and regulations as may be necessax’y to secuxe such operation and the furnishing of such facilities and the prompt handling, transportation and delivery of all freights offered.”

“That said Commissioners shall make and furnish to each railroad corporation doing business in this State, as soon as practicable, a printed or written schedule of just and reasonable rates and charges for transportation of freights, passengers and cars on its railroad or railroads under its control or management * * the railroad companies affected shall furnish at their own cost and shall put in conspicuous places the schedule rates, sheets, etc., adopted by the Commissioners according to the rules and regulations made by said Commissioners. All the rules and_ regulations made and prescribed by said Commissioners for the transportation of persons and property on the railroads, subject to the provisions of this act, or to prevent unjust discrimination or other abuses by them shall be deemed and held to be prima facie, reasonable, and just and are made prima facie evidence in the same manner the said schedules are made prima facie evidence.”

“Said Commissioners may at their discretion cause to to be instituted in any court of competent jurisidiction in this State by the Attorney General, State Attorney or special counsel in the name of the State proceedings by or for mandamus, injunction, mandatory injunction, prohibition or procedendo, against any such company or common carrier subject to the provisions' of this act, or against any officer or officers, agent or agents thereof to compel the observance of the provisions of this act, or any rule, rate or regulation of the Commissioners made thereunder, or to compel the refunding of any moneys exacted in violation of any of the provisions of this act. And said Commissioners are hereby given and granted’full authority to do and perform any act or thing necessary to be done to effectually carry out and enforce the provisions and objects of this act.” Other provisions of the act need not be quoted.

Under this statute enacted pursuant to the above constitutional provisions the Railroad Commissioners have the power and it is their duty to make reasonable and just rates and regulations for the transportation of passengers and for the convenient and prompt handling, transportation and delivery of all freights offered for transportation to railroad companies doing business in this State as common carriers, and for the prevention of any unjust discrimination in connection therewith. The statute also requires the Railroad Commissioners to make and furnish to each corporation doing business in this State a printed or written schedule of just and reasonable rates and charges Jor transportation of freights, passengers and cars on its railroad or railroads under its control and management.

The alternative writ of mandamus in this case sets out “Order No. 79” of the Railroad Commission, which states that upon complaint after due notice, hearing and consideration the Railroad Commissioners find that the Atlantic Coast Line Railroad Company, in particulars mentioned, is guilty of discriminating against the Postal Telegraph-Cable Company in violation of Chapter 4700, Laws of Florida, and orders that such unjust discrimination be discontinued, and that the service refused be rendered; and further orders “that the said Atlantic Coast Line Railroad Company for such service performed and rendered for the said Postal Telegraph-Cable Company may charge the current tariff rates from the point of shipment to the first regular station next beyond the last intermediate place where .any such material is to he unloaded, and the consignor shall furnish all labor necessary to effect such distribution, and shall pay full first-class fare for all men whom they send with said cars to effect such distribution. For the extra service and hazard of stopping such cars and engines between stations, as above indicated, the railroad company may charge and collect ten ($10.00) dollars per car in addition to the current tariff rate.”

Counsel for the respondent admits the power of the Railroad Commissioners to make freight rates as between the several stations in the State, but contends that a freight rate so made must be upon articles named, and from station to station, and to apply equally to all shippers whether individuals or- corporations, and insists that there is no power in the Railroad Commissioners to make a specific rate for a specific company for a specific purpose ; that its powers are confined to making rates to bear upon and be applicable to all products of like character and for all shippers of every product; and that the Commissioners cannot make a rate for a particular individual or corporation to the exclusion of others under like conditions. Under the first and second grounds of the demurrer it is contended that a portion of the order sought to be enforced is invalid in that it undertakes to fix a rate upon particular subjects of transportation, for a particular and designated corporation and for a particular purpose.

When the Railroad Commissioners make a valid order for the prevention of unjust discrimination and for the observance of rates of freight and passenger tariff made and promulgated by them, it is the duty of the railroad company or other common carrier to obey such order and to promptly, faithfully and completely comply with all its legal requirements, and such duty will be enforced by mandamus. State ex rel Attorney Gen’l v. Atlantic Coast Line R R Co. et al., 48 Fla. 114, 37 South. Rep. 652; State ex rel. Atty Gen’l v. Jacksonville Term’l Co., 41 Fla. 377, 27 South. Rep. 225.

The Railroad Commissioners of Florida are statutory officers whose powers are those and only those which are conferred upon them expressly or impliedly by the statutes of the State.

When mandanlus is brought to enforce an order of the Railroad Commissioners, such order should appear on its face to be within the power and authority of the Railroad Commissioners to make; and if the order contains a material and mandatory provision which does not appear from the terms of the alternative writ to be within the power of the Railroad Commissioners to make, and the alternative writ commands the respondent to “forthwith comply with the said order” or show cause for not doing so, a demurrer to the alternative writ will be sustained, since the order must be enforced as a whole if at all. See Florida C. & P. Ry. Co. v. Town of Tavares, 31 Fla. 482, 13 South. Rep. 103; State ex rel. Edwards v. County Commissioners, 22 Fla. 1; State ex rel. Oliver v. Grubb, 85 Ind. 213; Tapping on Mandamus side pages 16, 327.

The power and duty to make and promulgate reasonable and just rates or charges for transportation of passengers and for the handling, transportation and delivery of freights confei*red upon the Railroad Commissioners by Chapter 4700 of the Acts of 1899, relate to rates to be made upon the subjects of transportation and not to rates to be made for particular persons or corporations. Such rates or charges should be made general in their nature and applicable alike to all persons and corporations under like circumstances, and should not in terms or in effect be made applicable to only one person or corporation to the exclusion of other persons or corporations under like circumstances. Rates or charges made general in their terms may be applicable to only one person or corporation because no other person or corporation is in like circumstances, and this would not make the rates or charges special; but even in such cases the rates or charges should be made general in their terms and should not in terms be made applicable to a particular or designated person or corporation. The Railroad Commission Law, Chapter 4700, is designed to prevent unjust discriminations, and to this end it provides for the making and enforcing of rates or charges upon subjects of transportation applicable alike to all persons or corporations in like circumstances, and for preventing the giving of different rates to different persons under like circumstances.

Counsel for the State contends in the brief that whatever is done by a railroad company for one in the discharge of its duty as a common carrier, it must do for all; but practically admits that the rate stated in the order sought to be enforced has not been fixed on the subjects of transportation mentioned so as to be 'applicable to all persons or corporations under like conditions, since it is urged that the rate given in the order is general because as a matter of common knowledge and so far as the Railroad Commissioners were advised, the Postal Telegraph-Cable Company, is the only one, except the Western Union Telegraph Company, in like situation. If this be so, the rate should by its terms be general so as to apply to the Postal Telegraph-Cable Company and the Western Union Telegraph Company, and all other Telegraph Companies that may offer like goods for carriage under like circumstances and conditions. It is not within the judicial knowledge of the court that there ax-e only two telegraph companies who could demand like service, and there is no such allegation in the alternative writ. The recox’ds of this court disclose litigation by Telegraph Companies other than the two above mentioned. Besides, it is a matter of common knowledge that much the same subjects of transportation as those referred to in the alternative writ, and the uses made of them, are common to telephone companies as well as to telegraph companies.

In view of the terms of the order here sought to be enforced, it cannot be presumed that the rate therein mentioned had been fixed and made applicable to all shippers under like circumstances. The order refers to current rates and adds thereto further charges for certain services to be rendered to the Postal Telegrapli-Cable Company by the respondent as a common carrier in the handling, transportation and delivery of the subjects of transportation to which the mentioned current reates apply, and thex’e is nothing in the alterantive writ to indicate that such additions to the current rutes had been fixed for such service in coxxnection with these subjects of transportation and xxxade applicable to all shippers in like circumstances.

The rate contained in this order is by its terrors confined to the Postal Telegraph-Cable Company and should it be different from the rate applied to others in like circumstances it might result in an unjust discrimination for which a penalty would be imposed on the respondent under the railroad commission law. •

Where a rute of charges has been duly made upon the subjects of transportation and for the service here demanded, applicable alike to all persons and corporations under like conditions, the Railroad Commissioners may by proper proceedings make an order requiring such service to be rendered to any particular person or corporation upon the payment of the rates or charges so prescribed, and such order should be obeyed and will be enforced ; but where as in this case the order in terms provides “that the said Atlantic Coast Line Railroad Company for such service performed and rendered for the Postal Telegraph-Cable Company may charge,” etc., and there is nothing in the alternative writ to indicate that the rates and charges made by the order for the Postal Telegraph-Cable Company are the rates and charges made by the Railroad Commissioners for all persons or corporations demanding like service under like circumstances, there is no presumption that, the rate stated in the order has been made applicable to all shippers in like circumstances, and the rate so made is not a valid and enforceabel one. There is no question here as to the reasonableness of the rates or charges, the sole question being the validity of the order making the rates and charges in terms “for the Postal Telegraph-Cable Company” individually on subjects of transportation offered by it alone to a common carrier.

The two orders made by the Railroad Commissioners of Georgia and Tennessee in cases similar to this one set forth by counsel for the State in the brief do not infringe the principle herein announced, since the order in the Georgia case in terms provides that the service required shall be rendered “upon the same terms and conditions as the same are transported for other telegraph and cable companies engaged in like business without discrimination for or against either of said companies” and the general rate fixed .for such, service is set out therein as rule 37; and in the Tennessee case the service is required to be rendered “upon the payment of such reasonable compensation as may be agreed upon between said Postal Telegraph-Cable Company, and the said Mobile & Ohio R. R. Co.”

In the case at bar the order makes the rate given therein in terms applicable only to the Postal Telegraph-Cable Company, and there is nothing to indicate that such rate has been made applicable to any other person or corporation in like circumstances, and the order is, therefore, in itself a discrimination either against or in favor of said company, to prevent which discrimination is one of the chief purposes of the Railroad Commission Law.

I't follows that the portion of the order required to be obeyed which undertakes to make a rate of charges for the subjects of transportation mentioned in the order applicable in terms only to the Postal Telegraph-Cable Company is not in compliance with the law authorizing the Railroad Commissioners to make and promulgate rates of charges for the transportation of passengers and for the handling, transportation and delivery of freight, and it cannot be enforced. It also follows under the authorities above cited that as the order cannot be enforced in its entirety it cannot in view of the terms of the command in the alternative writ be enforced at all.

The alternative writ alleges that the respondent as a common carrier has rendered and is rendering for the Western Union Telegraph Company similar service to that which the State here seeks to require of the respondent for the Postal Telegraph-Cable Company, and this is admitted by the demurrer.

If a railroad company undertakes to render particular services as a common carrier to one corporation it cannot lawfully refuse to render similar services to other corporations under like circumstances upon the payment of like compensation; and if-it does so refuse it may be compelled by mandamus to render to all under like circumstances the same service in the same manner and for the same compensation. See State ex rel. Attorny General v. Jacksonville Terminal Co., 41 Fla. 377, 27 South. Rep. 225; Cumb. Tel. Co. v. M. L. & T. 51 La. Ann. 29, 24 South. Rep. 803, 72 Am. St. 442; 5 Am. & Eng. Enc. Law (2nd. ed.) 177; 6 Cyc. 372; State ex rel. Cumb. Telephone & Telegraph Company v. Texas & P. Ry. Co., 52 La. Ann. 1850, 28 South. Rep. 284.

The demurrer is sustained, and the alternative writ is quashed.

Shackleford, C. J., Taylor, Cockrell, Hocker and Parkhill, JJ., concur.