Parkhill, J.
(after stating the facts).—The motion to strike the third subparagraph of the eighth paragraph, beginning with the words, “Respondent further avers that while there has grown up between carriers,” and ending with the words, “as seeking to take the property of this respondent without due process of law,” will be granted.
The matters therein averred are not responsive to the alternative writ. The writ nowhere seeks to compel the service whereby the respondent railroad shall part with its cars, neither does the writ require the service over more than one railroad, but seeks to enforce a rate for a switching movement over the respondent’s own tracks only. This was made clear in the opinion of this court when considering the motion to quash the alternative writ. At that time we pointed out that rule 15A failed to contain the provision that no railroad company shall decline or refuse to transport, switch, or transfer any loaded car from any point on any railroad to any connecting railroad, or to any warehouse, side-track or other point of delivery, or to receive it from any connecting railroad for such purpose. If, as set up in the return, carriers have, by comity not in any respect of legal force or compulsory'operation, permitted their equipment under load to be delivered to connecting lines and waived their legal right to decline to permit their equipment to go off their own lines and to require security for the safe return of the car and for the payment of fair compensation for use by connecting car[239]*239riers, a failure to legislate for the safe return of said equipment, or for the value of the use thereof under a system of rules outside of the law, could not make the said rule 15A objectionable to the provisions of the Fourteenth Amendment to the Constitution of the United States, as seeking to take the property of this respondent without due process of law. It would seem that the system of rules existing by comity of carriers might properly include provisions for the safe return of and fair compensation for the use of said car by connecting carriers.
The motion will be granted to strike the second sub-paragraph of the ninth paragraph of the return, which is as follows:
“And respondent says that in view of the loss which would arise to it and other carriers similarly situated by observing the rate prescribed by rule ISA, it avers that should relators seek by other rules to apply to other points in the State of Florida the benefit of similar discriminatory treatment under like conditions, to like products, that each and every of such rules and regulations would be effective to increase the loss borne by the carriers from performance of the service under such losing rate.”
As set up in the motion to strike, the matters contained in this part of the return are purely hypothetical. We cannot anticipate the future action of the Commissioners, Sufficient unto the day is the evil thereof.
The motion will be granted to strike the 10th paragraph of the return, as follows:
“Bespondent here and now avers that it has not, is not, and does not intend voluntarily to perform at a compensation of two dollars per car the service said to be required by the allegations and prayer of the alternative writ.”
In explanation of the meaning of this paragraph, respondent says in its brief, “Paragraph ten denies generally that such service was performed; it denies that such ser[240]*240vice was customary; it also states affirmatively that respondent will not in the future do such service. The statement that it does not intend in the future to voluntarily perform such service at two dollars per car is simply another way of stating that it is not holding itself out to perform said service at such price.”
•It is nowhere alleged in the alternative writ that respondent is holding itself out to perform said service at two dollars per car. The allegation of the third paragraph of the alternative writ is that for many years planing mills have been established in respondent’s yard limits and' accessible to the tracks therein, to which it was and is usual and customary for the railroad companies to switch cars of rough lumber for the purpose of dressing the same and after dressing to switch the cars to some other point in the yards, without referring to the charge made for said service. In this way the alternative writ sought to establish the service of milling in transit voluntarily entered upon that may be regulated and the charges therefor supervised by the Railroad Commissioners. The allegation in the writ as to the charge of two dollars for said service and its increase to five dollars and the reduction therefrom to two dollars by the Commissioners was not made for the purpose of showing that the respondent is holding itself out to perform the said service, but this allegation was directed to the regulation of the charge for said service.
This paragraph of the return will be stricken as not responsive to the writ.
The demurrer to the 1st subparagraph of the 9th paragraph of the return will be sustained. The part of the return here referred to is as follows:
“9. This respondent further answering said alternative writ of mandamus, avers that there are, and for many years past have been, lumber planing mills within the rail[241]*241road yards of this respondent and other railroads, at cities and places in the State of Florida elsewhere than in or near the city of Jacksonville, which railroad yards are similar in condition, position and circumstances to the railroad yards of this respondent and other railroad carriers in and near the city of Jacksonville, and that such other planing mills at other cities and places in said State manufacture, treat or plane rough lumber brought to such planing mills by rail from other points in Florida, and for a long time past have done so, and that the manufactured or planed lumber so produced by such planing mill is and has been shipped from such planing mills to other points in the railroad yards where said planing mills are respectively situated, and that such planing mills are similarly situated and in like conditions, positions and relations in respect to the receipt, manufacture and treatment of rough lumber received from points in said State, and with respect to the shipment and transportation of the dressed or plain lumber made from such rough lumber, as the' lumber mills in the yards of this respondent and other railroad carriers in and near said city of Jacksonville; but that said railroad commissioners of the State of Florida have never by any rate, rule or regulation extended or applied to any place, point or railroad yards in said State, or planing mills therein, other than in said city of Jacksonville and the railroad yards thereof, the rights and privileges conferred or created, or attempted to be conferred and created, or the rates or charges fixed by said Rule 15-A, nor have said Railroad Commissioners fixed or regulated or attempted to fix or regulate by any order, rate or rule the charge or rate for the service prescribed or mentioned in said Rule 15-A, or any similar service, as to any other place or railroad yards in Florida than the said city of Jacksonville, or in respect to any commodity [242]
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Parkhill, J.
(after stating the facts).—The motion to strike the third subparagraph of the eighth paragraph, beginning with the words, “Respondent further avers that while there has grown up between carriers,” and ending with the words, “as seeking to take the property of this respondent without due process of law,” will be granted.
The matters therein averred are not responsive to the alternative writ. The writ nowhere seeks to compel the service whereby the respondent railroad shall part with its cars, neither does the writ require the service over more than one railroad, but seeks to enforce a rate for a switching movement over the respondent’s own tracks only. This was made clear in the opinion of this court when considering the motion to quash the alternative writ. At that time we pointed out that rule 15A failed to contain the provision that no railroad company shall decline or refuse to transport, switch, or transfer any loaded car from any point on any railroad to any connecting railroad, or to any warehouse, side-track or other point of delivery, or to receive it from any connecting railroad for such purpose. If, as set up in the return, carriers have, by comity not in any respect of legal force or compulsory'operation, permitted their equipment under load to be delivered to connecting lines and waived their legal right to decline to permit their equipment to go off their own lines and to require security for the safe return of the car and for the payment of fair compensation for use by connecting car[239]*239riers, a failure to legislate for the safe return of said equipment, or for the value of the use thereof under a system of rules outside of the law, could not make the said rule 15A objectionable to the provisions of the Fourteenth Amendment to the Constitution of the United States, as seeking to take the property of this respondent without due process of law. It would seem that the system of rules existing by comity of carriers might properly include provisions for the safe return of and fair compensation for the use of said car by connecting carriers.
The motion will be granted to strike the second sub-paragraph of the ninth paragraph of the return, which is as follows:
“And respondent says that in view of the loss which would arise to it and other carriers similarly situated by observing the rate prescribed by rule ISA, it avers that should relators seek by other rules to apply to other points in the State of Florida the benefit of similar discriminatory treatment under like conditions, to like products, that each and every of such rules and regulations would be effective to increase the loss borne by the carriers from performance of the service under such losing rate.”
As set up in the motion to strike, the matters contained in this part of the return are purely hypothetical. We cannot anticipate the future action of the Commissioners, Sufficient unto the day is the evil thereof.
The motion will be granted to strike the 10th paragraph of the return, as follows:
“Bespondent here and now avers that it has not, is not, and does not intend voluntarily to perform at a compensation of two dollars per car the service said to be required by the allegations and prayer of the alternative writ.”
In explanation of the meaning of this paragraph, respondent says in its brief, “Paragraph ten denies generally that such service was performed; it denies that such ser[240]*240vice was customary; it also states affirmatively that respondent will not in the future do such service. The statement that it does not intend in the future to voluntarily perform such service at two dollars per car is simply another way of stating that it is not holding itself out to perform said service at such price.”
•It is nowhere alleged in the alternative writ that respondent is holding itself out to perform said service at two dollars per car. The allegation of the third paragraph of the alternative writ is that for many years planing mills have been established in respondent’s yard limits and' accessible to the tracks therein, to which it was and is usual and customary for the railroad companies to switch cars of rough lumber for the purpose of dressing the same and after dressing to switch the cars to some other point in the yards, without referring to the charge made for said service. In this way the alternative writ sought to establish the service of milling in transit voluntarily entered upon that may be regulated and the charges therefor supervised by the Railroad Commissioners. The allegation in the writ as to the charge of two dollars for said service and its increase to five dollars and the reduction therefrom to two dollars by the Commissioners was not made for the purpose of showing that the respondent is holding itself out to perform the said service, but this allegation was directed to the regulation of the charge for said service.
This paragraph of the return will be stricken as not responsive to the writ.
The demurrer to the 1st subparagraph of the 9th paragraph of the return will be sustained. The part of the return here referred to is as follows:
“9. This respondent further answering said alternative writ of mandamus, avers that there are, and for many years past have been, lumber planing mills within the rail[241]*241road yards of this respondent and other railroads, at cities and places in the State of Florida elsewhere than in or near the city of Jacksonville, which railroad yards are similar in condition, position and circumstances to the railroad yards of this respondent and other railroad carriers in and near the city of Jacksonville, and that such other planing mills at other cities and places in said State manufacture, treat or plane rough lumber brought to such planing mills by rail from other points in Florida, and for a long time past have done so, and that the manufactured or planed lumber so produced by such planing mill is and has been shipped from such planing mills to other points in the railroad yards where said planing mills are respectively situated, and that such planing mills are similarly situated and in like conditions, positions and relations in respect to the receipt, manufacture and treatment of rough lumber received from points in said State, and with respect to the shipment and transportation of the dressed or plain lumber made from such rough lumber, as the' lumber mills in the yards of this respondent and other railroad carriers in and near said city of Jacksonville; but that said railroad commissioners of the State of Florida have never by any rate, rule or regulation extended or applied to any place, point or railroad yards in said State, or planing mills therein, other than in said city of Jacksonville and the railroad yards thereof, the rights and privileges conferred or created, or attempted to be conferred and created, or the rates or charges fixed by said Rule 15-A, nor have said Railroad Commissioners fixed or regulated or attempted to fix or regulate by any order, rate or rule the charge or rate for the service prescribed or mentioned in said Rule 15-A, or any similar service, as to any other place or railroad yards in Florida than the said city of Jacksonville, or in respect to any commodity [242]*242■whatsoever except rough lumber arriving at said city of Jacksonville, and that said Railroad Commissioners have not in and by any rate, rule or regulation extended to any other commodity than rough lumber arriving at the city of Jacksonville from points in said State of Florida the rate or charge fixed by said Rule 15-A, or any similar rate or charge for the service mentioned in said Rule or any similar service, although other commodities than rough lumber are shipped into said city of Jacksonville, and other places in said State from other points in the State of Florida, to be treated, milled and manufactured into different commodities or products thereof, which other commodities, after being milled, manufactured or treated as aforesaid, are shipped or transported to a point or points in the same railroad yards of such cities, towns or places in said State; and no such rates or charges as those attempted to be fixed or prescribed by said Rule 15-A exist at any place or anywhere in said State by custom or usage of any railroad or other carrier by any other method, system or means or any form; and so it is that said Rule 15-A unreasonably and unlawfully discriminates in favor of the shippers of rough lumber into said city of Jacksonville from points of said State and deprives this respondent of the equal protection of the laws and of due process of law, in violation of the Constitution of the State of Florida and of the Fourteenth Amendment of the Constitution of the United States.”
It will not avail the respondent to say that the Railroad Commissioners have never extended or applied the rights and privileges conferred or created, or attempted to be conferred or created, or the rates or charges fixed by Rule 15-A to any place, point or railroad yards or planing mills therein other than in the city of Jacksonville.
Rule 15-A does not confer or create, or attempt to confer or create any rights or privileges. As we have said before, [243]*243“whether the carrier is or is. not under obligations to permit the interruption of the transit, the rule merely seeks to regulate the charge for such service when rendered.” State v. Atlantic Coast Line R. Co., 59 Fla., 612, 52 South. Rep., 4. As there pointed out, the service contemplated by Rule 15-A, the stopping of a commodity in transit for the purpose of treatment, is in the nature of a special privilege which the carrier may concede, but which the shipper cannot in the present state of the law demand as a matter of lawful right. The rule does not attempt to create or confer this privilege or right, neither does it seek to compel a service, but merely to fix a rate therefor.
We have also- held, and it has become the law of this case, that it is not essential to the validity of this rule that it should prescribe or fix one rate for the service of milling in transit to be rendered in all markets and localities of the State. The circumstances of each road and each market or locality must determine the rates of toll to be properly allowed for this service. State v. Atlantic Coast Line R. Co., supra.
Neither does it avail respondent to say, nor have said Railroad Commissioners fixed or regulated or attempted to fix or regulate the charge or rate' for the service prescribed or mentioned in Rule 15-A, or any similar service, as to any other place or railroad yards in Florida than the city of Jacksonville.
Section 2893 of the General Statutes of Florida authorizes the commissioners to make reasonable and just rates of freight tariffs to be observed by railroads and common carriers, and to 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 freight and for the prevention of unjust discrimination therewith. And so, in Storrs v. Pensacola & A. R. Co., 29 Fla., 617, text 631, 11 South. Rep., 226, this court said: “The statute [244]*244directs the commissioners to make for each of the railroads doing business in this State a schedule of just and reasonable rates of charges for the transportation of passengers and freights over each road. Under this statute each road is entitled to have a just and reasonable rate, but a rate reasonable and just in itself for one road may not be so for another, though they connect with each other.”
■—-As we took occasion to say, on the motion to quash the alternative writ, (59 Fla., 612, 52 South. Rep., 4) “the circumstances of each road and each market or locality must determine the rates of toll to be properly allowed for this service. The carrier is entitled to receive some compensation beyond the. mere cost of this service, and the cost thereof may be greater or less in one city than in another.” A uniform rate is not essential to the legality of this rule; neither is it essential to its validity that the commissioners should have regulated or attempted to regulate the charge or rate for this service in other places or railroad yards than the city of Jacksonville. It may be that the railroad companies have been charging lower or reasonable rates for this service at such other points. It may be that the railroad companies at such other places are performing this service for a rate acquiesced in by the public and the Commissioners as a reasonable and just one, and that the occasion has not arisen for the regulation of the rate by the Commissioners in the exercise of its supervisory power.
Neither, is it a good defense to say that the Commissioners have not extended to any other commodity than rough lumber arriving at Jacksonville the rate or charge fixed by Rule 15-A, although other commodities than rough lumber are shipped into said city of Jacksonville to be treated and thence shipped to a point or points in the same railroad yard, as alleged in this paragraph of the [245]*245return, aside from the contention that there is here no averment that the conditions are alike, or that the other commodities are such as ought to take the same or a similar rate. As we said in King Lumber & Mfg. Co. v. Atlantic Coast Line R. Co., 58 Fla., 292, 50 South. Rep., 509: “Whether or not other subjects of transportation are regulated is immaterial in considering the validity of regulations of particular subjects. The validity of one legislative regulation is not affected by the mere failure to regulate other matters within the legislative power. The choice of subjects of regulation is for the Legislature within its powers.”
Even if the demurrer may not be addressed to a fragmentary part of the 9th paragraph of the return, yet tne 'other fragment thereof has been stricken upon motion, leaving the demurrer to apply to the whole paragraph as it remains.
As the 9th paragraph goes out, it will be unnecessary to consider the motion to compulsorily amend the same.
The parties not having requested leave to amend further, and the cause being at issue, it is ordered that the same be set for trial on the 11th day of' October, 1910, upon which day the parties are required to produce their testimony before the court. In the meantime, if either party so desires it may take depositions of witnesses, upon commission issued by the Clerk of this court, or before a justice of the peace in accordance with the statutes of the State and the rules governing circuit courts in the matter of depositions; and the Clerk of this court is directed to issue commissions for the taking of such depositions as may be duly applied for by either party in accordance with such statutes and rules, or the parties by agreement may take testimony before some one authorized to administer oaths.
All concur.