Atlantic Coast Line R. Co. v. State

• Decision Date: 12 March 1917
• Citation: 74 So. 595,73 Fla. 609
• Parties: ATLANTIC COAST LINE R. CO. et al. v. STATE.
• Court: Florida Supreme Court

74 So. 595

73 Fla. 609

ATLANTIC COAST LINE R. CO. et al. v. STATE.

Florida Supreme Court

March 12, 1917

Rehearing Denied March 17, 1917.

Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.

Action by the Railroad Commissioners, in the name of the State of Florida, against the Atlantic Coast Line Railroad Company and others. Judgment for plaintiff, and defendants bring error. Reversed.

Syllabus by the Court

SYLLABUS

The general rule is that courts will take judicial notice of all general or public domestic statutes, and they need not be specially pleaded, and, where a public statute is applicable to a case, it is sufficient that the pleading of the party who seeks to rely upon the statute shall set forth the facts which bring the case within it; and it is not necessary to recite the title of the act or otherwise designate or even refer to it.

As a general rule, if the allegations of the declaration bring the case within the provisions of the statute, it is not necessary either to plead the statute or to count on it; but where the action is for a penalty, it is necessary, under the common-law system of pleading, both to plead the statute and to declare upon it.

A common-law declaration upon a statute in an action for the recovery of a penalty, imposed under the statute, is bad upon demurrer if it does not in the same count state the circumstances necessary to support the action, and expressly refer to the provision counted on.

'Pleading the statute' is stating the facts which bring the case within it, and 'counting' on it is making express reference to it by apt terms to show the source of right relied on.

The common-law system of pleading is in force in Florida, except where the same has been changed or modified by statute or rule of court. The common-law doctrine as to actions for the recovery of penalties, prior to the adoption of section 12 of chapter 6527 of the Laws of Florida (vol. 1, Acts of 1913, p 412 [Comp. Laws 1914, s 2908]), had not been changed either by statute or rule, but remained in force, though requiring private acts or statutes to be specifically pleaded was abrogated by statute at an early date.

In determining whether a statute is penal in the strict and primary sense, a test is whether the injury sought to be redressed affects the public. If the redress is remedial to an individual and the public is indirectly affected thereby the statute is not regarded as solely and strictly penal in its nature.

Penal laws, strictly and properly, are those imposing a pecuniary or personal punishment for an offense against the state, and which are subject to the pardon power (citing Words and Phrases, Penal Laws).

Section 2908 of the General Statutes of 1906 expressly provides that any fine or penalty imposed by the railroad commissioners under the provisions of such chapter, 'if not promptly paid to the State Treasurer, shall be recovered with interest thereon by an action brought by said commissioners in the name of the state of Florida.' Section 12 of article 4 of the state Constitution, as amended, empowers and authorizes the Governor and other designated state officers constituting the board of pardons to 'remit fines and forfeitures commute punishment,' etc. This language is sufficiently comprehensive to embrace fines imposed by the railroad commissioners; therefore section 2908 of the General Statutes of 1906 is a penal statute.

A penal law must be construed strictly and according to its letter. Nothing is to be regarded as included within it that is not within its letter as well as its spirit; nothing that is not manifestly intended by the Legislature. And where a penal statute contains such an ambiguity as to leave reasonable doubt of its meaning, where it admits of two constructions, that which operates in favor of life or liberty is to be preferred.

In construing legislative enactments, whether penal or remedial, the vital intention of the lawmakers, as gathered from the language and purpose of the acts, is the guiding star; and every portion of an act should be given its proper effect.

Statutes in derogation of the common law and penal statutes are not to be construed so strictly as to defeat the obvious intention of the Legislature as found in the language actually used according to its true and obvious meaning.

The railroad commissioners are statutory officers whose powers are special and limited. They can exercise only such authority as is legally conferred by express provisions of law, or such as is by fair implication and intendment incident to and included in the authority expressly conferred for the purpose of carrying out and accomplishing the purpose for which the offices were established. Any reasonable doubt of the existence in said commissioners of any particular power should be resolved against their exercise of such power.

While the words 'rule,' 'regulation,' and 'order' are frequently used as synonyms, they do not always mean the same thing and are not interchangeable at will. In determining their exact meaning when used in a statute, much depends upon the context.

Section 2908 of the General Statutes of 1906, which authorizes the imposition of a penalty by the railroad commissioners upon 'any railroad, railroad company or other common carrier doing business in this state,' for 'a violation or disregard of any rate, schedule, rule or regulation provided or prescribed by said commission,' does not authorize the commissioners to impose a penalty upon railroad companies for failure to comply with an order for the erection of a union depot, on or by a fixed date.

COUNSEL Sparkman & Carter and Knight, Thompson & Turner, all of Tampa, for plaintiffs in error.

D. C. McMullen, of Tallahassee, for the State.

OPINION

SHACKLEFORD, J.

In November, 1911, an action at law was brought in the circuit court in and for Hillsborough county by the special counsel for the railroad commissioners in the name of the state of Florida against the Atlantic Coast Line Railroad Company, a corporation, the Seaboard Air Line Railway, a corporation and the Tampa Northern Railroad Company, a corporation, to recover the amount of a fine or penalty imposed by the railroad commissioners upon the defendants for the violation of an order of such railroad commissioners. The declaration filed in the case is as follows:

'The state of Florida, by F. M. Hudson, special counsel for the railroad commissioners of the said state, by them directed to sue in this behalf, sues the Atlantic Coast Line Railroad Company, a corporation under the laws of Virginia, the Seaboard Air Line Railway, a corporation under the laws of Virginia, and the Tampa Northern Railroad Company, a corporation under the laws of Florida.

'For that the defendants are and were prior to the institution of this action and have been since, to wit, on the 12th day of November, 1909, railroad companies and common carriers operating their respective lines of railroad wholly or partly within the state of Florida for the transportation of goods and passengers for hire and running into and doing business in Hillsborough county aforesaid, and having each of them stations or depots in the city of Tampa in said county.

'On, to wit, the 30th day of November, 1909, the railroad commissioners of the state of Florida did hold in the courthouse in the city of Tampa in the said state a meeting for the purpose of hearing and considering whether or not the said commissioners ought to require the Atlantic Coast Line Railroad Company, the Seaboard Air Line Railway, the Tampa Northern Railroad Company, and the Florida & West Coast Railroad Company to erect, operate, and maintain a union passenger depot in the said city, and at said meeting the said four companies, having had more than ten days' notice in writing of the said meeting, were present by their agents and counsel and were fully heard in the premises.

'And thereafter, on, to wit, the 21st day of December, 1909, the said railroad commissioners did make and enter an order, hereinafter called order No. 282, in words and figures following, to wit:

"Order No. 282. Before the Railroad Commissioners of the State of Florida.

"In the Matter of the Erection, Operation and Maintenance of a Union Passenger Depot in the City of Tampa.

"This matter came on for hearing in the courthouse in the city of Tampa on November 30, 1909, at 10 o'clock a. m., after due notice of the time and place of such meeting given in writing to both the petitioners and the railroad companies hereinafter named; when and where the petitioners appeared, that is to say: The mayor and the city council of the city of Tampa, by W. R. Rowland, city attorney, and the Board of Trade of Tampa, the Chamber of Commerce of Tampa and the board of county commissioners of Hillsborough county, by their counsel, Robert W. Davis, F. M. Simonton, D. C. McMullen, M. B. Macfarlane, H. C. Gordon, H. S. Hampton and Robert McNamee; and the Atlantic Coast Line Railroad Company appeared by W. A. Carter, its division counsel, the Seaboard Air Line Railway by George P. Raney, its division counsel, the Tampa Northern Railroad Company by W. B. Denham, its general superintendent, and the Florida & West Coast Railroad Company by C. H. Brown, its president. And on the said November 30, and on December 1, 1909, the said parties, both petitioners and respondents, were fully heard in the premises by production of evidence and otherwise, when it appeared that the Florida & West Coast Railroad Company was not a railroad entering the city of Tampa, and the commissioners then announced, without objection, that this proceeding as to it would be dismissed, and the rest of the matters involved in this proceeding were taken

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