State ex rel. Lamar v. Jacksonville Terminal Co.

41 Fla. 377

Opinion

Carter, J.

(after stating the facts):

I. First ground of the motion to quash: We perceive no impropriety in naming Benjamin S. Liddon and John M. Barrs,'in their capacity as special counsel for the Railroad Commissioners, along with the Attorney-General, as relators in this proceeding. Section 21 of the railroad commission law expressly authories the commissioners to cause to be instituted by the Attorney-General, State Attorney or special counsel, in the name of the State, proceedings by or for mandamus, &c., and it appears from the allegations of the alternative writ that the commissioners directed the Attorney-General and special counsel to institute the necessary legal proceedings to enforce compliance with the regulation here sought to be enforced, and that these proceedings were instituted by the Attorney-General and' special counsel-in obedience to such directions.

II. Fifteenth ground of the motion to quash: Section 6 of the railroad commission law gives the commissioners power to require the admission into certain passenger terminals by the owner, lessee or operator thereof of any railroad company under circumstances therein stated. The, commissioners have made a regulation requiring the Jacksonville Terminal Company, a Florida corporation, to admit the Atlantic, Valdosta & Western Railway Company to the privileges and benefits of its common passenger station or terminal at Jacksonville. This regulation imposes the specific duty upon the corporation, and not upon any particular officer of that company. The commissioners also found that the facilities of the terminal company were not only sufficient to enable it to accommodate the railways then furnished by it, but also to accommodate the Atlantic, Valdosta & Western Railway Company. The regulation here sought to be enforced is under section 8 of the law to be deemed and held to be prima facie reasonable and just, and under section 21 it may be enforced by mandamus against the terminal company, upon whom the duty to perform the order rests. Under these circumstances it affirmatively appears that the terminal company has power to comply with the regulation, and as the duty devolves upon it as a corporation, and not upon any particular officer thereof, the writ is properly directed to the corporation. Angelí & Ames on Corporations, §718; High’s Ex. Legal Rem. §440; State ex rel. Grady v. Chicago, M. & N. R. R. Co., 79 Wis. 259, 48 N. W. Rep. 243.

III. Second ground of the motion to quash: It is not claimed that mandamus, would not ordinarily be an appropriate remedy to coerce the regulation here sought to be enforced, but it is contended that the last clause of section 30, Art. XVI of the constitution, “and shall provide for enforcing such laws by adequate penalties or forfeitures,” by implication forbids the use of mandamus and other remedies for enforcing duties imposed by laws passed to accomplish the purposes specified in the first clause of the section. The argument is that the section grants a power and prescribes the mode of exercising it, and that the use of the words “penalties or forfeitures” implies the exclusion of other remedies, upon the maxim expressio unius ést exclusio alterius. The constitution of 1885 is a revision of that of 1868, and the section invoked is a new one, first introduced in the 1885 constitution. The authorities are practically uniform that under constitutions like ours of .1868 and 1885, the clause “The legislative authority of this State shall be vested in” a designated body — the legislature — vests in the legislative department full and complete legislative power, subject only to the limitations or restrictions contained in the constitution or in the. constitution of the United States. This principle is distinctly asserted in many of the cases cited by the defendant in error, and is elementary. Cooley Const. Lim., p. 104; Cotten v. County Commissioners of Leon County, 6 Fla. 610; State ex rel. Attorney-General v. Covington, 29 Ohio St. 102; State ex rel. George v. Aiken, 42 S. C. 222, 20 S. E. Rep. 221. The power to provide remedies, and to prescribe penalties or forfeitures, for violation of laws which the legislature is competent to enact, or to enforce or punish the failure to perform duties created by such laws, is certainly a legislative power, and is therefore necessarily embraced in the general grant of legislative power quoted. Under the same clause in the constitution of 1868 there can be no' doubt that the legislature might have authorized the writ of mandamus to enforce the lawful orders of a Board of Railroad Commissioners created by a valid law, and the constitution of 1885 being a revision of that of 1868, and continuing in force the general grant of legislative power, should not be held to limit or abridge that power unless there is something in the latter evidencing an intention so to do. There is nothing in the language of section 30, Art. XVI, to indicate an intention that the laws referred to should be enforced only by the imposition of penalties or forfeitures, or that the legislature should not provide other methods or remedies for enforcing duties arising under such laws. There is no inconsistency between the power here mentioned, viz: to impose penalties or forfeitures, as a means of enforcing laws, and the power to prescribe or authorize civil remedies to enforce duties created by such laws. Even if the section be construed as a grant of power, the language of the first clause would necessarily carry the power to provide remedies and to prescribe penalties as a means of enforcing the laws to pass which “full power” is by the section declared to be in the legislature; and to give the last clause the effect contended for by defendant in error, would not only detract materially from the “full power” mentioned in the same section as being vested in the legislature, but would be to impose a limitation upon the preceding clause, although the last clause does not purport to limit, but to declare something additional to that mentioned in the first. Where the constitution makes a general grant of all the legislative power, other provisions in that instrument are not, generally speaking, grants of power to the legislature, but are inserted either as limitations upon that power or for some other purpose. While constitutional prohibitions upon the legislature need not always be express, but may arise from implication, yet the implied prohibition must result from the insertion of some express provision, as mere silence of the constitution can not be construed as a prohibition. The rule is that nothing shall be regarded as prohibited which is not so either expressly or by fair and reasonable implication. Lowrey v. Gridley, 30 Conn. 450; Morrison v. Springer, 15 Iowa, 304; Bushnell v. Beloit, 10 Wis. 195; Town of Bennington v. Park, 50 Vt. 178; State ex rel. Attorney-General v. Covington, 29 Ohio St. 102; Prouty v. Stover, 11 Kan. 235; Field v. People, 2 Scam. (Ill.) 79. If we construe this section as a grant of power, and apply the rules contended for by defendant in error, it would follow that the legislature could not enact laws in regard to- persons and corporations engaged as common carriers in transporting persons and property or performing other services of a public nature, except to correct abuses, prevent unjust discrimination or excessive charges, and they would be wholly relieved from the operation of many wholesome laws passed under the general police power of the State to which other persons would be subject. Penalties or forfeitures could not be enforced against them for violation of any .law of the State other than those passed in pursuance of the power conferred by the section, and even as to laws passed in pursuance of the powers there granted, neither the public nor individuals could be given remedies to enforce the laws, or to recover damages for injuries caused by a breach of duty imposed by such laws, except to recover a penalty or to enforce a forfeiture. It would be doing violence to' the intelligence of the convention who framed and to the people who adopted, the constitution to suppose that such result was intended. The rules of interpretation invoked by the defendant in error are correct and should be adhered to in all cases where applicable, but they are not to be applied indiscriminately to every case; for the grant of one power by the constitution is not necessarily exclusive of another, and the expression of one thing does not necessarily exclude another. Ex parte Henderson, 6 Fla. 279; Barber v. State, 13 Fla. 675; Ex parte Bell, 19 Fla. 608; 1 Story on the Constitution, §448; State ex rel. Florida Publishing Co. v. Hocker, 35 Fla. 19, 16 South. Rep. 614. “In order to ascertain how an affirmative or negative provision excludes or multiplies others, we must look to the nature of the provision, the subject-matter — the objects and scope of the instrument. These and these only can properly determine the rule of construction.” Ex parte Henderson, supra. In construing constitutions as well as statutes the object is to ascertain the true intention or meaning expressed in thg instrument. Where the language is plain and umambiguous, there is nothing to construe' — the meaning conveyed by plain and unambiguous language must not be changed or distorted by the application of any technical rule of construction. There does not appear to be any ambiguity in the language used in this section. It does not purport to confer a power, or to point out the manner in which a power shall be exercised. The section was inserted in response to a popular demand for some provision upon the subject It does not grant the legislature a power. It expressly recognizes a power and declares that it does exist. The provision is a specific declaration that the power exists in the legislature to be exercised at any time, and because of its importance, and possibly to guard against the misinterpretation of other provisions to impair or deny the power, it was specifically mentioned and declared in the constitution. This, it seems to us, is clearly the effect of the first clause. The last clause does not purport to confer any power to provide for imposing penalties or forfeitures. It requires the legislature to provide for enforcing the laws by adequate penalties or forfeitures but it does not confer the power to do so, for without that clause the legislature would have had ample power to do. precisely the same thing. The use of the words “penalties or forfeitures” conveys the idea of punishment for violation of the laws to be made, and for the reasons stated in Pensacola & Atlantic Railroad Co. v. State, 25 Fla. 310, text 313, 5 South. Rep. 833, it was deemed best to leave no discretion with the legislature as to whether it should provide for penalties or forfeitures, hence the mandatory command “and shall provide for enforcing such laws by adequate penalties or forfeitures.” In short, this clause imposes a duty, but grants no power. The imposition of a duty is not ordinarily to be construed as a limitation upon power. Curryer v. Merrill, 25 Minn. 1, S. C. 33 Am. Rep. 450. The command to provide for enforcing the laws by penalties and forfeitures leaves no discretion with the legislature upon that subject, but the clause being silent as to other remedies for enforcing duties growing- out of those laws, it rests in the legislative discretion to provide such as it may see fit or for the courts to apply such of the ordinary remedies as may be applicable. It is argued that when the constitution directs how a thing shall be done, that is in effect á prohibition to its being done in any other way, and we are referred to the case of State ex rel. Murphy v. Barnes, 24 Fla. 29, 3 South. Rep. 433, announcing that rule of construction. The rule is recognized as correct, and was unquestionably properly applied in that case. It is evident from a reading of the clause of the constitution there under consideration that the manner there prescribed was intended to be exclusive. But there is nothing in the section we are now considering which conveys an intent to exclude other remedies, and if it was intended to deny the power of the legislature to provide them, or of the courts to apply those granted them by the constitution, some language would have been used from which that intent could be legitimately inferred. The prohibition to exercise a proper legislative power must be either expressed or fairly and reasonably implied, and there is nothing in this section which can be reasonably construed as an express or implied prohibition. . The legislature of 1887 and several subsequent ones have passed legislation upon the subjects mentioned in this section of the constitution. All or nearly all of those laws, in addition to imposing penalties have given to individuals rights of action for damages sustained in consequence of the violation of those laws. So that the legislative construction accords with that which we have placed upon this section. Moreover, this court in 1888-9 entertained jurisdiction of a proceeding by mandamus upon relation of the Attorney-General against the Florida Southern Railway Co. to compel it to transport oranges at the rates established by the commissioners appointed under the railroad commission law of 1887. The defendant moved to quash the alternative writ, and also interposed a demurrer. The motion, to quash was denied and the demurrer overruled. The defendant thereupon filed its return, to the effect that in obedience to the command of the alternative writ it had abandoned its own rates upon oranges and adopted those prescribed by the commissioners. As nothing but a memorandum opinion was ever prepared, it was not published in the reports, but we have ascertained the foregoing facts from the records of the court. See, also, State ex rel. Attorney-General v. Pensacola & Atlantic Railroad Company, 27 Fla. 403, 9 South. Rep. 89, where this court entertained jurisdiction of mandamus to enforce compliance with certain regulations made by the same board of Railroad Commissioners. It is hardly probable that in these cases the court and counsel would have overlooked so important a matter as a constitutional prohibition against the use of mandamus in such cases.

IV. Twelfth ground of the motion to quash: Under the powers conferred by section 6 of the railroad commission law the commissioners have prescribed a rule or regulation, and therein fixed rates for the uses and privileges of the passenger terminal of defendant in error by the Atlantic, Valdosta & Western Railway Company. Under section 8 this rule or regulation is to “be deemed and held to be prima facie reasonable and just.” This being true, it was not necessary to allege that the amount so fixed was not less than the amounts paid by other patrons of the defendant in error for a like enjoyment of such facilities and service. As the statute requires that the rule or regulation here sought to be enforced be deemed and held to be prima facie reasonable and just, it is unnecessary to allege in the alternative writ any fact tending to show that it is reasonable and just. Storrs v. Pensacola & Atlantic R. R. Co., 29 Fla. 617, 11 South. Rep. 226.

V. Fourteenth ground of the motion to quash: This ground fails to point out any other remedy by which the Atlantic, Valdosta & Western Railway Company can be admitted into the passenger terminal of the defendant in error in pursuance of the regulation of the Railroad Commission, and the briefs upon this hearing do not attempt to do so. The argument under this ground is that there is no remedy whatever whereby the defendant in error can be compelled to admit the Atlantic, Valdosta & Western Railway Company to the uses of its terminal station, as to do so would be to' take the private property of the terminal company for the private use of the railroad company. We shall consider this branch of the case under other grounds of the motion to quash. If it is meant to assert that an action for damages, or proceedings to enforce the penalty denounced by the statute for failure to comply with the regulation of the commission, will preclude the use of mandamus, then we have no hesitancy in overruling this contention, because these remedies are inadequate, and neither of them are adapted to secure a performance of the duty to the public here sought to be enforced. High’s Ex. Legal Rem. §§17, 18, 35; Ray v. Wilson, 29 Fla. 342, 10 South. Rep. 613.

VI. Third and sixth grounds of the motion to quash: There is nothing in this record to show that the commissioners in determining the propriety of the regulation made by them were actuated by considerations of public interest and convenience other than as such public interest and convenience were involved in the transportation of persons and freight from points in Florida to points in Florida. We have no information from this record as to how many miles of road the Atlantic, Valdosta & Western Railway Company has in this State, nor what proportion of its business is local to this State. As the regulation must be presumed to be reasonable and just, we must assume that the local business is sufficient to justify the regulation in the absence of some showing that the commission did in fact take into consideration interstate business. Jacobson v. Wisconsin, Minnesota & Pacific R. R. Co., 71 Minn. 519, 74 N. W. Rep. 893, S. C. 40 L. R. A. 389. It is true that the regulation requires the admission of all the passenger engines and trains of the Atlantic, Valdosta & Western Railway Company, and as the road extends into the State of Georgia, it is possible that some of these trains may at times, carry no passengers bound from points within to points within the State of Florida. The defendant in error is a domestic corporation, engaged in furnishing terminal facilities for railroad common carriers entering the city of Jacksonville. It is not engaged in interstate business. Its business is purely local. The Atlantic, Valdosta & Western Railway Company, though a part of its business may be interstate, desires to enter the terminal station, and makes no contention that the order permitting it to do so interferes with its interstate business. The commissioners find that it is essential to the best interest and convenience of the public that the terminal facilities of the common passenger station be furnished the railway company. The station is located in a city and it may be that the public safety as well as the public convenience requires that the ter-. minal company accommodate the railway company. The regulation in question is not in itself unreasonable; it has appropriate relation to the public safety and convenience, does not go beyond the necessities of the case, and is not directed against interstate commerce. While it may be true that some of the trains of the railway company may carry no passengers bound from points within to points within the State, yet it was not improper for the commissioners to take into consideration all the circumstances affecting passenger travel within the limits of the State, and as far as practicable make such regulations as were just to all who might pass over the Atlantic, Valdosta & Western Railway. They could consider the convenience of the public who might travel from one point to another in, the State on domestic trains, and they were not bound to ignore the safety and convenience of the public desiring to travel from places within to places without, or from places without to places within the State, at least in so far as those matters were involved in furnishing proper terminal facilities located wholly within the State by a domestic corporation. This regulation is not directed against, but is in aid of, interstate commerce; it affects it only incidentally. It is not subject to the objection that it is an unconstitutional interference with interstate commerce. Lake Shore & Michigan Southern Railway Co. v. Ohio, 173 U. S. 285, 19 Sup. Ct. Rep. 465, and authorities therein cited; Munn v. Illinois, 94 U. S. 113; Budd v. New York, 143 U. S. 517, 12 Sup. Ct. Rep. 468; Brass v. North Dakota ex rel. Stoeser, 153 U. S. 391, 14 Sup. Ct. Rep. 857; Jacobson v. Wisconsin, Minnesota & Pacific R. R. Co., supra.

VII. Fifth ground of the motion to quash: In view of the express language used in section 6, and the definition of railroad company and other provisions in section 5 of the railroad commission law, there is no room to contend that the Atlantic, Valdosta & Western Railway Company is not subject to the regulation, supervision and control of the Railroad Commissioners in so far as its line of road is located in this State, and in so far as its business is confined to State traffic. It has invoked the jurisdiction of the commissioners over the defendant in error which is ample to enable them to make the regulation sought to be enforced, and has voluntarily complied with the requirements of such regulation. There is no ground, therefore, for the defendant in error to contend that the commission had no authority over the railway company.

VIII. Seventh ground of the motion to quash: What we have said in the sixth paragraph of this opinion is applicable to the seventh ground of the motion to quash. Although this ground does not deny that the commissioners have power to consider the best interest and convenience of the public in regard to transportation of persons and property wholly within the State, the argument upon this ground of the motion is that section 30, Art. XVI of the constitution, prohibits the legislature from authorizing the commissioners to consider the best interest and convenience of the public, in discharging their duties. The public safety, interest and convenience are clearly embraced within the legislative power of the State. Louisville & Nashville R. R. Co. v. Kentucky, 161 U. S. 677, 16 Sup. Ct. Rep. 714; Gladson v. Minnesota, 166 U. S. 427, 17 Sup. Ct. Rep. 627; Lake Shore & Michigan Southern Railway Co. v. Ohio, 173 , 19 Sup. Ct. Rep. 465; Lake Shore & Michigan Southern Ry. Co. v. Smith, 173 U. S. 684, 19 Sup. Ct. Rep. 565; Charlotte, Columbia & Augusta R. R. Co. v. Gibbes, 142 U. S. 386, 12 Sup. Ct. Rep. 255. It is absolutely necessary to take into consideration the public interest, comfort, safety and convenience in determining what is an abuse or an unjust discrimination, oían excessive charge — not that these matters are to be determined solely with reference to' the public interest, comfort, safety and convenience, but some or all of them necessarily enter into the inquiry. Indeed, it is the public nature of the services being performed, or the public nature of the business engaged in by common carriers and others, which justifies the State in controlling and regulating them for the public welfare, and the section of the constitution invoked, instead of prohibiting consideration of the public interest and convenience, ex-préssly recognizes them as proper considerations in determining what is an abuse, an unjust discrimination oían excessive charge.

IX. Fourth ground of the motion to quash: Without stopping to inquire whether in this proceeding more errors of the commissioners can be reviewed, it is sufficient to say that neither this ground of the motion nor the briefs point out wherein the commissioners erred in making the regulation sought to be enforced, upon the petition of the Atlantic, Valdosta & Western Railway Company. As will be shown hereinafter, the commissioners had jurisdiction to make the regulation, they acted only after notice to the parties, an answer to the petition, after hearing evidence, argument of counsel and after having viewed the premises in person and investigated the business of the defendant in error. The regulation made by them is by the statute declared to be prima facie just and reasonable, and there is nothing whatever to show any error on their part,

X. Eighth, tenth, thirteenth and seventeenth grounds of the motion to quash: We think the proper construction of that part of section 6 of the railroad commission act referring specially to passenger terminals requires us to hold that the power thereby conferred upon the commissioners to require the admission therein of railroad companies desiring or required by the commissioners to enter, has no reference to a terminal station owned and used exclusively for its own traffic by any common carrier or railroad company, but applies to those passenger terminals owned or operated by a terminal company or individual or by a railroad company in connection with its main line, where such terminal company, individual or railroad company undertakes to furnish terminal facilities to or permits the use of such terminal and its privileges by one ©r more railroad common carriers. This intention, we think, is clearly manifest from the use of the terms passenger terminal companies, “whether owned or operated by any railroad company in connection with its main line or by a separate company organized for that purpose;” and when the act speaks of compelling the person or company operating said terminal “to furnish to the railroad entering the same fair and equal participation in all the rights, privileges, connections, interchanges of traffic and other benefits of such terminal.” We do not mean to say that the commissioners are given no powers over terminal stations owned and used by a railroad company exclusively for its own traffic, for they have certain powers relating thereto derived from other provisions of the statute, and because such terminals are part and parcel o.f the main line over which certain powers are given, but as to such terminals the commissioners have no authority to require the admission of another company and to fix the rate of compensation therefor. According to the pleadings in this case we have a passenger terminal designated in the regulation of the commissioners a “common passenger station,” owned and operated by a terminal company, not to accommodate its own traffic, or as a part of its main line of railroad to facilitate its own work as a carrier, but devoted to the purpose of furnishing terminal facilities to and for railroad companies entering Jacksonville, with sufficient capacity to accommodate another road desiring to be furnished with similar facilities and which it is essential to the best interest and convenience of the public it should furnish. There can be no doubt that the defendant in error is subject to the authority of the Railroad Commissioners, and that the latter are given power under the statute to make the regulation sought to be enforced, unless the powers attempted to- be conferred are prohibited by the constitution of this State or that of the United States. We shall in the next succeeding paragraph consider the question as to whether the power here exerted amounts to a taking or appropriation of the property of the defendant in error under the power of eminent domain, and shall here consider all other constitutional questions presented. It is contended that the exercise of the power conferred by this statute deprives the defendant in error of its liberty and property without due process of law; that it is a private corporation engaged in a private business, devoting its property to- private uses, receiving no franchise or privilege from the State and performing no governmental functions; that under these circumstances it can not be compelled to devote its property to the use of another private corporation, but that it has a right to permit or decline to- permit the use of its property by whomsoever it pleases. But these contentions proceed from a wholly mistaken view of the nature and character of the business and property employed therein of defendant in error, as we shall proceed to' show. The defendant in error according to the allegations of the pleadings is a corporation whose right to exist and to carry on the business in which it is engaged are derived from the State, and when engaged in such business its passenger terminal is a part and parcel of the public highways of the State represented by the railroads entering therein and in operating such terminal defendant in error is to a certain extent performing a function of government. It is engaged in a business affected with a public interest, for it performs for the public duties which devolve upon and which are required to be performed by the railroad common carriers entering its terminal. Indianapolis Union Railway Co. v. Cooper, 6 Ind. App. 202, 33 N. E. Rep. 219. While its property is private, it has devoted it to a public use by undertaking to furnish terminal facilities to' railroad common carriers, and the public are not simply invited to use the property, but they have a legal right to resort thereto for terminal facilities incident to travel upon the railroads served by it. The State does not undertake to compel the defendant in error to devote its property to a public use, but it has voluntarily dedicated it to> that purpose by undertaking to do for the public and the railroad common carriers entering its terminal that which such carriers are required by law to do for the public, vis: to furnish suitable terminal facilities for the proper accommodation and transportation of the public as passengers upon the railroads. Its property while so devoted by it is necessarily and essentially an instrumentality employed in the common carriers’ business and is affected by a public interest as much so as the carriers’ property. By undertaking to permit the use of this property by and to furnish facilities for one or more railroad common carriers, it dedicates it to a use that is essentially public, and to the extent that the public has an interest in that use, it must submit to' be controlled by the public for the common good. The legislature may, therefore, for the common good require it to admit all railroad common carriers to the extent of its capacity which the public interest may demand, and to limit its charges for the uses and privileges of its terminal to reasonable compensation; for where the public interest and convenience require that the Atlantic, Valdosta & Western Railway should be admitted to the uses and privileges of the passenger terminal of defendant in error, it is an abuse, and an unjust discrimination against the public and the passengers of that road, as well as against the road itself, not to accord that use and those facilities; and an excessive charge against that road for terminal facilities is in effect an excessive charge which the public will have to pay in the increased rate of fare caused by such excessive charge. We have no doubt that property devoted to the uses to which the pleadings show this terminal is devoted, is affected with a public interest and that the State has power to regulate such use by requiring the owner to serve equally and fairly all railroad common carriers which the public welfare may require, and to confine its charges therefor to' reasonable rates or compensation, and that the exercise of this power does not deprive the defendant in error of its liberty or property without due process of law under the constitution of this State or of the United States. Ryan v. Louisville & Nashville Terminal Co. (Tenn.) 50 S. W. Rep. 744; Brass v. North Dakota ex rel. Stoeser, 153 U. S. 391, 14 Sup. Ct. Rep. 857; Budd v. N. Y., 143 U. S. 517, 12 Sup. Ct. Rep. 468; Munn v. Illinois, 94 U. S. 113; Jacobson v. Wisconsin, Minnesota & Pacific R. R. Co., 71 Minn. 519, 74 N. W. Rep. 893, S. C. 40 L. R. A. 389; Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct. Rep. 418; Lake Shore & Michigan Southern Ry. Co. v. Smith, 173 U. S. 684, 19 Supt. Ct. Rep. 565; Pensacola & Atlantic R. R. Co. v. State, 25 Fla. 310, 5 South. Rep. 833. It is contended that this doctrine first announced by the Supreme Court of the United States in Munn v. Illinois has been subjected to severe criticism by text-, writers, that it has always been maintained by a divided court, and that the dissenting opinions in cases where it has been adhered to show clearly that the doctrine is unsound. Counsel seem to forget that the general principles maintained in these decisions, to' the extent that they affirm “full power” in the legislature “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,” are imbedded in section 30, Art. XVI of our constitution, and we are not at liberty to depart from them unless they are violative of the constitution of the United States. Under the rulings of the Supreme Court of the United States, the principles are still sustained and held not violative of that instrument, as applied to railroad common carriers and others engaged in business affected with a public interest, and we have no doubt that defendant in error is “performing services of a public nature” within the meaning of our constitution, and that its business and property is “affected with a public interest,” so as to subject it to the regulation here imposed without violating the “due process” clause of the Federal constitution. It is further contended that defendant in error has not been given power to condemn private property for its use, therefore its property is not affected with a public interest. Unquestionably if it could lawfully condemn private property for its use its business would be affected with a public interest, but this is not the exclusive test, for a railroad company transporting persons and property for the public would be no less a common carrier and its business and property affected with a public interest, though its charter required it to acquire by private purchase all of its right of way and property used in its business, and it would be equally subject to State regulation and control as other common carriers. It is also' contended that the railroad commission law embraces more than one subject and matter properly connected therewith, in violation of section 16, Art. Ill of the constitution. This contention was disposed of by our adverse decision on the motion to quash the writ of error in this case. See the opinion then filed, 41 Fla. -, 27 South. Rep. 225. Also, as sustaining the conclusions there reached, Holten v. State, 28 Fla. 303, 9 South. Rep. 716; State ex rel. Turner v. Hocker, 36 Fla. 358, 18 South. Rep. 767. It is further contended that the provisions of the sixth section of the railroad commission law relating to the admission into terminals and the fixing of rates for the uses and privileges thereof, apply only to such terminals as are owned by corporations, and therefore, discriminate between corporations and individuals who^ may be engaged in the same character of business. But we think this contention is not correct. The provisions apply to the “owner, lessee, or operator” of passenger terminals and the “person or company” operating the same. These terms include corporations, associations and individuals, and the legislation, therefore, does not discriminate between owners or operators of terminals.

XI. Ninth and eleventh grounds of the motion to quash: The regulation made by the commissioners, under the power conferred upon them, in this case is in no sense an “appropriation” of any private property or right of way within the meaning of section 29, Art. XVI of the constitution, so as to require the compensation therefor to be ascertained by a jury of twelve men. The defendant in error, as we have seen, had devoted its property to a use essentially public, is performing services of a public nature, and is subject to be controlled by the public for the public welfare. That use to which it has voluntarily devoted its property is to furnish passenger terminal facilities to railroad common carriers. It is discriminating among the railroads that it will serve, and the commissioners under power granted them by the legislature have determined that such discrimination as against a particular railroad is unjust and contrary to the best interest and convenience of the public. It has, therefore, made a regulation that this railroad be admitted to the facilities which the defendant in error is furnishing other railroad common carriers upon payment of reasonable compensation. It is no more an appropriation of the property of the terminal company than is the law which requires common carriers to transport all persons at a reasonable rate of compensation, or the law which requires an innkeeper to furnish accommodations to all who apply, and at reasonable rates if fixed by the legislature. While it would seem that the one was as much an appropriation of property as another, it surely will not be contended that a passenger or a traveler must condemn his way into a railroad passenger car or hotel in order to secure the transportation of the lodging to which he is by the law entitled. There is a very clear distinction between a taking or an appropriation of property for a public use, and regulating the use of property devoted to a use in which the public has an interest. The latter is an exercise of the police power, as it is called; the former of the power of eminent domain. The State in the former case compels the dedication of the property or some interest therein to a public use, or, if already dedicated to one public use, then to another. In the latter, the owner has voluntarily or in pursuance of the provisions of its charter, dedicated the property to a use in which the public has an interest, and the use of that property so dedicated is merely regulated and controlled for the public welfare. In this case the regulation complained of does not compel the defendant in error to dedicate its property to the public use, or to a different public use. It has already voluntarily and presumably in pursuance of its charter powers devoted its property to a public use by undertaking to furnish for railroad common carriers and the public served by them terminal facilities to aid and enable these public agencies to perform their obligations to the public and to assist them in such performance. The State regulates this use of the property by requiring that the charges for such uses and privileges shall be reasonable, and by requiring the terminal company in performing the services and conducting the business which it has so voluntarily assumed, to perform such services and conduct such business impartially and without discrimination wherever the public interests require them to be so performed and conducted. The regulation complained of does not appropriate property; it merely prevents abuses, prohibits unjust discrimination and excessive charges, and is, therefore, valid. Of course if the regulation sought to be enforced is valid, its enforcement by mandamus can not be construed as a taking or appropriation of property under the power of eminent domain, or as a deprivation of property without due process of law.

XII. Sixteenth ground of the motion to quash: We shall here consider the only other point, suggested or contention raised in the arguments and briefs of counsel, not considered in previous paragraphs of this opinion. It is contended that the railroad commission law prescribes no method whereby to arrive at what is a proper compensation for the use of the terminal facilities of the defendant in error. Under sections 8, 10, 17, 18, and the last clause of 21, ample provision is made to' enable the commissioners to proceed to' ascertain the facts necessary to be known in order to make the regulation complained of. The defendant in error had notice of the things the commissioners were asked to compel it to do, it filed its answer, testimony was taken, and arguments were heard. The commissioners had power to pass upon the subject-matter, they accorded the defendant a hearing as required by the statute, they heard evidence as they were authorized to do by the statute and made the regulation upon that hearing. Upon this record there is no room for contention that the.property or business of the defendant in error was interfered with arbitrarily or without a full hearing and investigation of all the facts necessary to enable the commissioners to make the regulation sought to be enforced.

XIII. This disposes of all the grounds of the motion to quash, and of every contention made by defendant in error under these grounds, and we are of opinion that the alternative writ states a prima facie case and ought not to have been quashed. It may be that the clause in the regulation which undertakes to relieve the defendant in error from liability for negligence is outside of the powers granted to the commissioners, but if so it could not affect the result, and as the parties have not argued the question we do not decide it. It is certain that in other respects the regulation is prima facie valid and capable of being enforced by mandamus. State v. Fremont, E. & M. V. R. R. Co., 22 Neb. 313, 35 N. W. Rep. 118.

The judgment of the Circuit Court is reversed with directions to overrule the motion to quash, and for further proceedings according to law.