State ex rel. Ellis v. Atlantic Coast Line Railroad

53 Fla. 650

Opinion

Whitfield, J.:

The attorney general in mandamus proceedings alleges that the respondent railroad company for more than a year has not performed its duty to the public as a common 'carrier in that its roadbed and track are not' maintained in a safe and suitable condition, its motive power and fiat and box cars are not sufficient in numbers, and the freights accepted are not transported with safety and dispatch, by reason of which great injury has resulted to the public. The alternative writ commands the performance of this duty.

It is contended on motion to quash the alternative writ that the duty therein alleged is not commanded by statute or by the terms of the charters, and that therefore mandamus is not the proper remedy; and further, that the allegations and commands of the writ are so general, vague and uncertain that they cannot be definitely replied to, performed or enforced.

The alternative writ does not require the performance of specific/ acts, but in rather broad terms it commands the respondent to perform certain branches or parts of a general duty it owes to the public in rendering the service of a common carrier. The ' statutes of this state do not enumerate all the duties which a railroad corporation owes to the public. There are, however, certain general duties to the public a railroad company assumes in consideration of its franchises and privileges received from the state, and as a result of its undertaking to render to the public the service of a common carrier. The duty here commanded is implied by law and is binding upon the railroad corporation when it receives and exercises franchises and privileges thát can be held and exercised only by legal authority derived from the sovereign power.

The common law writ of mandamus may be issued to specifically enforce the performance of a duty imposed by law upon a railroad corporation where no other adequate remedy is provided by law. The writ of mandamus does not supersede legal, remedies, but rather supplies the want of a legal remedy, therefore two prerequisites must exist to warrant a court in granting this extraordinary remedy: First, it must appear that the relator has a clear, legal right to the performance of the particular duty by the respondent; and, second, that the law affords no other adequate or specific remedy to secure the performance of the duty which it is sought to coerce. See High on Ex. Legal Rem. sections 1, 10; Merrill on Mandamus, section. 51; People ex rel. Bailey v. Supervisors of Green, 12 Barb. (N. Y.) 217; People ex rel. Township of LaGrange v. State Treasurer, 24 Mich. 468; State ex rel. Hathorn v. United States Express Co., 95 Minn. 442, 104 N. W. Rep. 557; 6 Current Law 499; Ray v. Wilson, 29 Fla. 342, 10 South. Rep. 613, 14 L. R. A. 773; State ex rel. Lamar v. Jacksonville Terminal Co., 41 Fla. 377, 27 South. Rep. 225; 6 Bacon's Ab. 418.

In the case of Loraine v. Pittsburg, J., E. & E. R. Co., 205 Pa. St. 132, 54 Atl. Rep. 580, the court, in awarding mandamus to compel the railroad company to continue to furnish cars that it had been furnishing but had ceased to furnish, said: ” The defendant, under the statute from which it derives it being, is a common carrier and as such has imposed upon it certain public duties, such as to construct its road, to equip it with cars, locomotives and employ hands to. run them for all the public. This is a public duty. If it fail in performing it, it fails to carry out the very purpose of its charter, and the public, without distinction, suffers by the breach of duty. In -such case, both at common law and under our statute of 1893, proceedings should be instituted by the commonwealth at the instance of the attorney general.”

“While the law affords railroad corporations adequate and complete protection in the exercise of their chartered rights, it also holds them to a strict performance of the public duties enjoined upon them as a consideration for the rights and powers thus granted.” Railroad Commissioners v. Portland & O. C. R. R. Co., 63 Me. 269, 18 Am. Rep. 208.

“The object of incorporating railroad companies is to secure to the public increased facilities for transit from point to point, and an improved mode of carrying persons and property. * * * Railroad companies are' creatures of the law, and are intrusted with the exercise of certain powers to promote the public interest, and are therefore bound to conduct their affairs in furtherance of the public objects of their creation.” People ex rel. Cantrell v. St. Louis, A. & T. H. R. Co., 176 Ill. 512. 52 N. E. Rep. 292, 35 L. R. A. 656.

“All jurists and judges will at once agree that chartered companies are obliged fairly and fully to carry out the objects for which they are created, and that they can be compelled by mandamus to do it; and it will not be question that in the case of public highways, whether turnpikes or railroads, they are bound to keep them fit for use, and, in the case of railroads, to keep them furnished with .suitable cars, engines and attendants, without which they cannot be used at all.” State v. Hartford & N. Haven R. R. Co., 29 Conn. 538.

“A railroad company is a quasi public corporation, and all its rights and powers are conferred upon it not merely for the benefit of the corporation itself, but also in trust for the benefit of the public; and whenever it neglects or fails to perfom any of its corporate duties, it may generally be compelled to perform the same by an action of mandamus. The duty resting upon a railroad corporation to perform whatever has been legally enjoined upon it by legal and proper authority, is a duty resulting from a public trust, and is also a duty resulting from a public station, and the public may through the attorney general enforce the performance of such duty by mand'amus, whenever no other plain and adequate remedy exists.” State v. Missouri Pac. Ry. Co., 33 Kan. 176, 5 Pac. Rep. 772.

“The duty of a railroad company to carry and charge only reasonable compensation are incidents to its occupation as a common carrier. * * * It is the duty of a common carrier to receive and carry whatever is properly offered to it for carriage. * * * The safety of human life and the good of every public interest require of railroads the soundest condition, the fullest equipment, and most skillful and careful operation; and it is the province of the court to enforce, when properly called upon, the law which imposes these entirely proper and indispensable demands.” Pensacola & A. R. Co. v. State, 25 Fla. 310, 324, 325, 326, 5 South. Rep. 833, 839, 840, 3 L. R. A. 661.

“It must also be remembered that railways are public corporations organized for public purposes, granted valuable franchises and privileges, among which the right to take the private property of a- citizen in inmtum is not the le'ast, Cherokee Nation v. Southern Kansas Railway Co., 135 U. S. 641, 657; that many of them are the donees of large tracts of public lands and of gifts of money by municipal corporations, and that they all primarily owe duties to the public of a higher nature even than that of earning large dividends for their shareholders.” United States v. Trans-Missouri Freight Ass’n., 166 U. S. 290, text 332, 17 Sup. Ct. Rep. 540; North Carolina Corporation Commission v. Atlantic Coast Line R. Co., 137 N. C. 1, 49 S. E. Rep. 191.

“It is a well settled doctrine that a corporation may be compelled by a writ of mandamus to perform a duty imposed by statute. The duty need not be express; it may' be implied. Clearly, when it appears by fair implication from the terms' of the charter,-it is as imperative as if the obligation were expressed. But as .to corporations quasi-public in character, such for example as those chartered for the carriage of passengers and freight, there are decisions which hold that they owe certain duties. to the public which they may be compelled to perform, although not enjoined by their charters, either in express terms or by specific implication.” San Antonio St. Ry. Co. v. State, 90 Texas 520, text 523, 39 S. W. Rep. 926.

“No better general rule can be laid down upon this subject than that where the charter of a corporation, or the general statute in force and applicable to the subject, imposes a specific duty, either in terms or by fair and-reasonable construction and implication, and there is no other specfic or adequate remedy, the writ of mandamus will be awarded.” 1 Redfield on Railways (5th ed.) 678.

“The duty to keep- in proper repair a portion of the public highway is a duty to the public and of a quasi-official character; and that duty is one that the law itself makes incumbent upon the defendants, and it is for the benefit of the public at large and for the general welfare; and we think it is wholly- immaterial that the. duty is imposed by a rule of common law, and is not created by some positive and express provisions- of a statute, or secured to the public through chartered privileges.” Haines v. People, 19 Ill. App. 354.

“A railroad company is bound at common law, independently of any statute, to use at least ordinary diligence in procuring a sufficiency of cars to carry all the freight tendered it, and certainly all that is accepted by it for shipment.” Branch v. W. & W. R. Co., 77 N. C. 347.

“There can be no- doubt of the duty of a railway company to keep its road in a reasonable state -of repair and in a safe condition; nor is there any doubt of its duty to so operate it as to afford adequate facilities for the transaction of such business as may be offered it, or at least lea-sonably be expected. This is equally true with respect to passengers and freight. As to the extent or sufficiency of these facilities-, including the number and frequency of trains, that is to be judged of and governed chiefly by the amount of business on the line of the road. The company, however, is given, as it should be, a very large discretion in determining all questions relating to the equipment and operation of its road.” Ohio & M. Ry. Co., v. People, 120 Ill. 200, 11 N. E. Rep. 347, 30 Am. & Eng. Ry. Cases 509.

“The road, once constructed, is, instanter, and by mere force of the grant and law, embodied in the governmental agencies of the state and dedicated to public use. All and singular its cars, engines, rights of way and property of every description, real, personal and mixed, are but a trust fund for the political power, like the functions of a public office. The judicial personage, the corporation, created by the sovereign power expressly for this sole purpose and for no other, is, in the most strict, technical and qualified sense, but its trustee. This is the primary and sole legal, political motive for its creation. The incidental interest and profits of individuals are accidents, both in theory and practice. Every farthing of its toils is first to be devoted to paying the public tax, and' to the continuance of the road, its ample equipment and regular operation as the interests of the community, not those of the shareholders, demand. No matter that a dividend is never paid, that the private investment is sunk and worthless, that the interest upon its bonds is not met, and that all its creditors go unpaid, every dollar of its earnings must nevertheless be applied to keep up its maximum efficiency, as required by the political power in the law which created it. The neglect of the smallest of these duties in which the community is interested will be enforced by the public writ of mandamus.” Talcott v. Township of Pine Grove, 1 Flippin, 120, text 144.

The writ of mandamus may be granted to enforce the performance of a duty to the public imposed by law upon a common carrier railroad corporation whether such duty be prescribed by statute or charter in express terms or is raised by implication of law from the nature of the public duty authorized by law to be performed and which is being performed by such corporation. See People ex rel. Walker v. Louisville & N. R. Co., 120 Ill. 48, 10 N. E. Rep. 657; People v. N. Y. C. & H. R. R. R. Co., 28 Hun. 543; State v. Hartford & N. Haven R. R. Co., 29 Conn. 538; State v. San Antonio St. Ry. Co., 10 Tex. Civ. App. 12, 30 S. W. Rep. 266; State ex rel. Grinsfelder v. Spokane St. Ry. Co., 19 Wash. 518, 53 Pac. Rep. 719, 41 L. R. A. 515; State v. Republican Valley R. Co., 17 Neb. 647, 24 N. W. Rep. 329; Haines v. People, 19 Ill. App. 354; Tapping on Mandamus, 11; 23 Am. & Eng. Ency. Law (2nd ed.) See, also, cases cited 37 Am. St. Rep. 318; 2 Bailey on Jurisdiction, section 803.

The service rendered by a common carrier directly and vitally affects the public. To have such service properly rendered is a beneficial right which the public are entitled to enjoy. If the service is not properly rendered it causes loss and inconvenience to the public and perhaps endangers the lives and property of all those to whom it is extended; • therefore, it is a fundamental duty of the state to rigidly require a proper rendering of this useful public service.

In order to legally and properly render the service incumbent upon a public common carrier, it is essential that it shall have and exercise certain rights, powers, franchises and privileges not possessed by individuals, but which can be conferred upon it by law. These rights, powers, franchises and privileges, when granted and accepted or exercised, by implication of law impose upon the common carrier obligations and duties commensurate Avith the character and extent of the grants of power to it and the purposes for which they are made.

Common carrier railroad, corporations are created by law, and among the rights, powers, franchises and privileges granted to them are, to exist as a corporate entity, and as such to make contracts and to render service to the public for compensation, with limted liability of its shareholders, to own and use property, to construct its lines and to operate them, to take private property for use in the public service it renders upon payment of just compensation therefor, to engage in the business of a public common carrier and to demand and receive reasonable compensation for the service rendered. Other rights and powers are often conferred by law, and in this case large and valuable donations of lands are alleged to have been made by the state to aid the defendant carrier in 'equipping itself for the purpose of procuring a suitable and sufficient service to the public. When a state confers or permits the exercise of these and other rights, poAvers, franchises and privileges, the law imposes upon the railroad corporation receiving or exercising them the duty of rendering to the public a service adequate to meet all reasonable requirements. In order to render to the public an adequate service such a corporation must provide and maintain safe and convenient roadbed, track, motive power, rolling stock, equipment, appliances, facilities, operation, control^ direction and management adequate to meet the reasonable demands of the sendee it undertakes to render iso as to best serve the reasonable requirements of the public. The duty is implied by law in conferring the franchises and privileges or in permitting their use, whether the provisions of the grants be mandatory or merely permissive, and the acceptance or exercise of the rights carries with it the duty of properly rendering the public service undertaken by virtue of the rights conferred or permitted to be exercised.

There is also imposed by law upon a common carrier railroad company the duty to receive and transport in a reasonably prompt, safe and convenient manner, and without unjust discrimination, all passengers and freight properly offered to it for carriage.

When a corporation is clothed with the rights, powers and franchises of a common carrier it becomes in law subject to governmental regulation and supervision; and it assumes; the burden of providing all proper means, appliances and facilities for rendering the public service that it has been assigned to do and that it has undertaken to do, and of maintaining and operating all the property devoted to such use, in a safe, convenient and efficient condition, adequate to meet all reasonable requirements of the public service.

Where a railroad corporation undertakes to render to the public the service of a common carrier it is in law primarily and essentially charged with, the duty and burden of ¡providing reasqtoabjly adequate and ^proper roadbed, track, motive power, equipment and facilities for the service required, and of maintaining and operating its property so as to render to the public without unjust discrimination a reasonably safe and adequate service. See state ex rel. Lamar v. Jacksonville Terminal Co., 41 Fla. 377, text 411, 27 South Rep. 225; Munn v. Illinois, 94 U. S. 113; City of Bridgton v. Bridgton & M. Traction Co., 62 N. J. L. 592, 43 Atl. Rep. 715. 45 L. R. A. 837; Branch v. Wilmington & Weldon Ry. Co., 77 N. C. 347; Chicago & Alton R. R. Co. v. People , 67 Ill. 11.

The power and duty of a state to require the propeiiy of a common carrier corporation devoted to the public service within its borders to be maintained in a reasonably safe and adequate condition, and to be properly operated for rendering the public service to which the property is devoted by its corporate owner, are inherent and reserved in the state for the necessary protection and benefit of the lives and property within its territory.

Whether or not the property devoted by a common carrier railroad corporation to the public .service which it is authorized to perform is adequate, and is being operated in a reasonably safe and convenient manner for the proper rendering of such public service, may be determined by the courts when the question is duly presented by the state through its proper official representatives; and in determining the question, any legal method of ascertaining the material and essential facts may be adopted which is best suited to the case.

In determining whether or not the roadbed, track, rolling stock and other equipment of a common carrier railroad corporation is reasonably sufficient and is being maintained and operated in a reasonably safe and adequate condition, and is being managed for the proper rendering of the public service that the corporation has undertaken to perform, the conditions under which the service is being rendered, the character and extent of the service, its reasonable requinnents, and the means, facilities and methods best suited to such service in common use will be considered by the court, together with any other material and pertinent matters available.

While the management of a common carrier railroad corporation is entitled to exercise a reasonable and liona ficle discretion in providing and operating the property used in the discharge of its duty to the public, yet such discretion must be confined to legal purposes and to the public good; and when the discretion is so exercised that it results in an abuse of the public service the corporation is permitted to render, by the needless jeopardy of life or property, because of the lack of adequate facilities, and because of the failure to keep its roadbed, track, rolling stock and other equipment in reasonably safe and adequate repair and condition, and by the constant and long continued failure to promptly, safely and adequately perform the duties of a common carrier as is alleged in this case, the courts may intervene by mandamus at the instance of the attorney general to enforce the rendering of the public service in a reasonably safe, prompt and adequate manner, when the allegations of the writ are sufficiently specific and there is no other adequate remedy afforded by law. See People ex rel. Hunt v. Chicago & A. R. Co., 130 Ill. 175, 22 E. Rep. 857; Railroad Commissioners v. Portland & O. C. R. R. Co., 63 Me. 269, S. C. 18 Am. Rep. 208.

The duty of providing a reasonably safe and sufficient roadbed, track, equipment and facilities and of maintaining and operating the property in a proper condition for rendering safe, proppt and adequate service, and of actually rendering to the public such service without unjust discrimination, being required for the public good and contemplated by law and imposed upon a common carrier railroad corporation in permitting the exercise by it of the franchise and privileges of a common carrier, the performance of this duty may be enforced by mandamus in a proper case upon the relation of the attorney general where no other adequate remedy is provided by law.

The duty of the common carrier to the public here alleged, is to accept, receive, transport and deliver with reasonable safety and dispatch all freights properly offered to it, to furnish ample facilities for receiving, transporting and delivering freight, and to transport with reasonable safety and dispatch all passengers, and to provide reasonably safe and convenient facilities therefor. The breaches of this duty alleged are, that the respondent has since October 1st, 1905, failed, and is now, January, 1907, failing in the performance of its public duty over and along certain specified sections of its lines of railroad to perform the public trusts conferred upon it and accepted by it, to the wrong, injury and great inconvenience of the public, in that it has failed and is fhiling to supply and furnish flat and box cars in sufficient numbers to load the freights actually offered and being offered to it for transportation, although it has been repeatedly requested and urged to do so by divers persons owning and being interested in and having large quantities of freight to be transported over said lines, and such failure to supply and furnish such flat and box cars has resulted and is resulting in great pecuniary loss and damage to the owners of freight and property offered for transportation as aforesaid, and in great injury to the industries of the country and to the wrong and injury of the public generally; that it has failed and is failing to transport and carry with reasonable dispatch and safety freights which have been received by it for transportation over said lines of railroad after the same have been actually received by respondent for transportation over said lines of railroad and such failure has resulted in great pecuniary loss and damage to the owners of the freight and property so received for transportation and in great injury to the industries of the country and to the wrong and injury of the public generally; that it has failed and is failing to deliver at the proper destination and with reasonable dispatch and safety, freights which have been received and accepted by it for transportation over said lines, and to provide adequate and sufficient terminals for forwarding and delivering such freights to connecting lines of railroad and common carriers, and by such failure respondent has been and is now evading and shirking the duties it owes to the state and the general public, is subjecting the public to great inconvenience and annoyance, is injuring and destroying the industries of the country and is defeating the purposes and objects of its own creation; that it has carelessly and negligently and in violation of its duty to the state and the public, failed and is failing to keep its roadbed and track in good repair and in fit and suitable condition for the proper transportation of freight over its said lines of railroad and the safe movement of its equipment thereon; that it has allowed and is allowing its roadbed and track to run down and become unfit and unsuitable for the proper movement of its equipment thereon and the transportation of freight thereover; that said track in its present condition is a danger and a menace to the lives and limbs of the passengers on said railroad; that said roadbed and track contain heavy grades and great curvatures on the main lines; that the rails are light and insufficient in size and weight, a large percentage of the crossties under said rails are rotten and wholly incapable of supporting the rails with the weight of an empty car theron; that at divers places along said lines and for great distances the iron spikes which are driven into the crossties to support the rails, can be lifted from the crossties with the naked hand; that many of the angle bars or plates on the main line and bolts used in same are broken, and that on account of the unsafe, dangerous and bad condition of the track as aforesaid numerous casualties have recently occurred upon said lines of railroad, resulting in the destruction of human life and great waste and damage to property; that it has carelessly and negligently and in violation of its duty to the state and the public failed and is failing to provide sufficient motive power for the proper handling of its cars and freights and passenger traffic over said lines of railroad; that it has failed and' is failing to provide sufficient shop and round-house facilities for the proper overhauling and repairment of its cars and locomotive engines and other equipment used upon said lines of railroad; that it has negligently failed and is failing to employ a sufficient number of machinists and carpenters to keep the track and equipment in good repair and suitable and fit condition; that it retains in its service many employees and servants who are incapable and negligent of their duties, so that the yards at junctional and terminal points along the lines of railroad aforementioned have become and remain congested and the movement of cars containing freights received by it at other places for delivery within the state of Florida, and upon the lines of railroad mentioned, is greatly hindered and delayed, and the business and industry of the country greatly injured and impaired; all of which failures and omissions on the part of said railroad company have resulted and are resulting in great confusion, inconveniences, hindrances, delay® and injury to the public generally in the state of Florida.

The allegations of the atlernative writ show that for more than a year the respondent railroad company has neglected its duty to the public in permitting its. roadbed and track to be and remain in a most unreasonably bad and unsafe condition, by allowing the roadbed to run down and become unfit and unsuitable for railroad use, by allowing a large percentage of its crossties, that are rotten and wholly incapable of supporting the rails and empty cars and incapable of holding the iron spikes driven in them to keep the rails in place, to remain unreplaced by proper and suitable ties, by using rails that are light and insufficient in size and weight, and by allowing broken angle bars or plates and bolts used in connection with the rails to remain on the track, and that in consequence of such neglect of duty numerous casualties have recently occurred upon said lines of railroad resulting in the needless destruction of human life and great waste of property; that for the same period of time the respondent has failed and is now failing to provide sufficient motive power and flat and box cars and other facilities for' the handling of freight actually offered and being offered for transportation; and that the respondent has failed and is failing to transport and deliver with reasonable dispatch and safety freights which have been accepted by it for transportation, to the great injury of the public. These and other allegations of the alternative writ state a most flagrant disregard and violation of the duty which the respondent owes to the public, by allowing its roadbed and track to most unreasonably become and remain in a condition palpably unsafe and unsuitable for the service the respondent has undertaken to render to the public, and by failing to furnish adequate motive power, cars and other facilities, and to transport and deliver with reasonable safety and dispatch freights accepted by it for transportation. Such gross neglect of duty is an abuse of the rights and privileges received from' the state and exercised by the respondent in its undertaking by permission of the state to render the service of a common carrier, and the state has a clear right to correct such abuse and to enforce the performance of an adequate and proper service. While a discretion is allowed a common carrier corporation in the means and manner of the discharge of the duty it owes to the public, such discretion must be exercised in .good faith and with reasonable regard for the requirements of the public service. When all the necessary facilities are furnished and operated so as to reasonably meet the just requirements of the public service the law in that regard is satisfied.

The mandate commands “the Atlantic Coast Line Railroad Company to forthwith repair and put in reasonably safe and suitable condition the roadbed and track over and along the lines of railroad” ■ specifically designated, within the ¡state of Florida, “to accommodate and transport with reasonable safety and dispatch the traffic offered and being offered * * * over and along said lines of railroad, * * * to furnish for use upon said lines of railroad flat and box cars in sufficient numbers to receive and load the freights now being offered * * * for transportation, * * * to furnish, locomotive engines in sufficient number, capacity and condition to transport and move the freight and passenger cars to be used along said railroad, ' * to receive, transport and deliver with reasonable safety and 'dispatch all freights offered for transportation along said lines of railroad proper to be carried by railroad corporations in this state and to deliver with reasonable dispatch the freight accepted by you for transpsortation over said lines of railroad.”

The mandatory part of the writ of mandamus should conform to the allegations of the writ. In this case the writ mentions certain defects in the roadbed and track, and commands the respondent to repair and put in reasonably safe and suitable condition the roadbed and track over and along the lines of railroad designated, so as to accommodate and transport with reasonable safety and dispatch the traffic offered. This command is broader and more general than the allegation of the writ, in that it requires the roadbed and track to be put in a reasonable safe and suitable condition, which may include defects not alleged in the writ. The commands as to furnishing sufficient locomotive engines and flat and box cars, and as to transporting and delivering freights accepted for transportation, are general, and there are no allegations to aid the mandatory clause.

The duty alleged is one due to the public, and the breaches of it stated in the alternative writ, are peculiarly within the knowledge of the respondent. The manner of the performance of the duty is left to the proper discretion of the respondent, subject to the supervision the state is entitled to exercise.

The allegations of the alternative writ may he sufficiently certain to enable the respondent to reply to them, and the commands of the writ sufficiently definite to be performed when the respondent has a discretion in such performance; but the mandate of the writ, taken with -its allegations as to'the breaches of duty, is not so definite and specific as that its performance can be readily enforced by the court in this proceeding; and this is particularly so when differences are likely to arise as to the manner of performance. As was said in the case of People ex rel. Hunt v. Chicago & A. R. Co., 130 Ill. 175, “When it io sought by mandamus to compel a railroad company to do any act in relation to the equipment and operation of the road, the courts, as a general rule, will no't interfere with its management of its railway in these respects, except whei’e the act sought to be enforced is specific.” People ex rel. Cantrell v. St. Louis, A. & T. H. R. Co., 176 Ill. 512, 52 N. E. Rep. 292, 35 L. R. A. 556; Ohio & M. Ry. Co. v. People, 120 Ill. 200, 11 N. E. Rep. 347, 30 Am. & Eng. R. Cases 509.

If a railroad company which has undertaken the duty ..of „a. common carrier wholly fails to perform its duty to the public without sufficient excuse, it may by mandamus be forced to perform it, when there is no other adequate remedy provided by law. When a railroad company permits its roadbed and track to become and remain so palpably unfit for use in rendering the service of a common carrier that it endangers the lives and property of the public to whom the service is extended, and the law provides no other adequate remedy, the company may by mandamus upon proper allegations be compelled to put and keep its roadbed and track in a condition reasonably sufficient to- meet the requirements of the public service it engages to perform. The writ of mandamus may also be used to.compel the furnishing of reasonably sufficient motive power -and cars in proper cases, and to compel the reasonably prompt, safe -and convenient transportation of freight and passengers in instances sufficiently specific for the application of .the writ, when there is no other, adequate remedy given by law.

The roadbed and track of a railroad have the elements of stability and fixedness, and' it can be readily ascertained when -they are put in condition required by specific allegations and commands. But in the nature of things there can be no. fixed standard of the number of engines and cars that will be sufficient to move traffic along the sevéral lines of railroad mentioned in the writ, as the requirements of the service may greatly and rapidly fluctuate from time to time. A large discretion in such cases must be left to the management of the road, and the supervision of the state tribunal specially charged with that duty.

Chapter 1700 of the laws of Florida, known as the rail-. road commission law,’contains the following provisions: The railroad commission “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 freights offered along its line for transportation, and shall provide and prescribe all.such rules and regulations as may be necessary to secure such operation and the furnishing of such facilities and the prompt handling, transportation and delivery of all freights offered. * * * 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 jyrima facie reasonable and just and are made prima facie evidence. * * * Said commissioners may at their discretion cause to be instituted in any court of competent jurisdiction 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.”

Sections 6, 8 and 21, chapter 4700-, acts of 1899; sections 2896, 2903 and 2921, General Statutes of 1906.

Under these statutory provisions there is a speedy and convenient remedy for any breach of the particular duties mentioned therein, in any individual or special case as it may arise. For any failure on the part of the railroad company to furnish reasonably sufficient and proper motive power, cars or other facilities, or to transport and deliver with reasonable safety and dispatch freights properly offered to or received by it for transportation, there can upon complaint and notice in the individual case he prompt and authoritative ascertainments of the facts, and appropriate orders can be made thereon, by a state tribunal peculiarly adapted to such proceedings. The orders, rules and regulations made by such tribunal are prima fade reasonable and just, and they may, under the statute quoted, be speedily enforced by proper judicial proceedings in each individual case as it may arise.

As the statute above quoted affords a remedy which appears to be adequate to enforce the duty of the respondent as to furnishing sufficient motive power and cars and as to transporting freight, this court will not in .this proceeding undertake at this time to enforce the mandate of the alternative writ as to furnishing engines and cars, and as to transporting and delivering freights. If made sufficiently definite the mandate as to repairing the roadbed and track may be enforced in this proceeding, as thei’e does not appear to be another adequate remedy provided by law for failure to perform such duty.

The proceeding by mandamus can only be resorted to where there is no other adequate legal remedy to accomplish the purposes sought thereby. State ex rel. Proseus v. Craft, 17 Fla. 722; State ex rel. Burbridge v. Call, 41 Fla. 450, text 456, 26 South. Rep. 1016; State ex rel. Bradley. v. Cone, 40 Fla. 409, 25 South. Rep. 279; State ex rel. Sunday v. Richards, 50 Fla. 284, 39 South. Rep. 152. Where the court will not enforce the mandate of the alternative writ as it is framed, a peremptory writ will not issue thereon, since the writ must be enforced as a whole if at all. State ex rel. Bloxham v. Gibbs, 13 Fla. 55, text 75; State ex rel. Attorney General v. Atlantic Coast Line Ry. Co., 51 Fla. 578, 41 South. Rep. 529.

An alternative writ may be amended. County Commissioners of Columbia County v. King, 13 Fla. 451, text 481.

An order will be entered that unless the attorney géneral shall within ten days amend the alternative writ so as to conform to the principles announced in this opinion the motion to quash the alternative writ will be granted. •

Shackleford, O. J., and Taylor, Cockrell, Hocker and Pairkhill, JJ., concur.