Burr v. Florida East Coast Ry. Co.

• Decision Date: 18 March 1919
• Citation: 77 Fla. 259,81 So. 464
• Parties: BURR et al., Railroad Com'rs v. FLORIDA EAST COAST RY. CO.
• Court: Florida Supreme Court

81 So. 464

77 Fla. 259

BURR et al., Railroad Com'rs v. FLORIDA EAST COAST RY. CO.

Florida Supreme Court

March 18, 1919

Appeal from Circuit Court, Leon County; E. C. Love, Judge.

Bill by the Florida East Coast Railway Company against R. Hudson Burr and others, as Railroad Commissioners of the State of Florida. Demurrer to bill overruled, and defendants directed to answer, and they appeal. Affirmed.

See also, 69 Fla. 491, 68 So. 761, L. R. A. 1918A, 158.

Syllabus by the Court

SYLLABUS

In determining the legality and effect of a statutory regulation, the court should ascertain the legislative intent; and, if the ascertained intent will permit, the enactment should be construed and effectuated so as to make it conform to, rather than violate, applicable provisions and principles of the state and federal Constitutions, since it must be assumed that the Legislature intended the enactment to comport with the fundamental law.

A statute must be so construed, if fairly possible, as to avoid, not only the conclusion that it is unconstitutional but also grave doubts upon that score.

Chapter 7320, Acts of 1917, construed with reference to controlling provisions of organic law, does not require a railroad common carrier to render for the line haul charge an extra and added service for switching in receiving or in delivering cars on its line or any side track or spur track connected therewith when such extra or added service costs more than the ordinary or substituted service rendered to the public generally and is rendered under special circumstances. not applicable to other patrons, and the cost of the extra service is not included in the charge for the line haul.

COUNSEL Dozier A. De Vane, of Tallahassee, for appellants.

W. A Blount, of Pensacola, for appellee.

OPINION

WHITFIELD J.

The railroad company filed in the circuit court for Leon county the following bill of complaint:

'(1) That the complainant is, and has been for more than twenty years, a corporation, chartered, organized and doing business under the laws of and in the state of Florida.

'(2) That the defendants are residents of the county of Leon in the state of Florida, are the members of and constitute the Railroad Commission of the State of Florida, with the powers and duties validly conferred upon them by the Constitution and laws of the said state, and by the said Constitution are required to keep their offices at the seat of government of said state, to wit. in the city of Tallahassee, in the said county of Leon.

'(3) That the complainant is a railroad corporation, having and operating a main line of railway from Jacksonville to Key West, in said state, and several extensions thereof, all in said state, and in said operation transports, and has transported for more than 20 years, for hire, passengers and freight from point to point in said state, and passengers and freight in interstate commerce between points in said state and points in divers other states of the United States, and in foreign commerce between points in said state and in other states and points in foreign countries.

'(4) That in the conduct of the said business, both intrastate and interstate, it is, and has been for more than 20 years, necessary for the complainant to deliver to consignees along its line loaded cars for unloading by consignees and removal by complainant, and to shippers along its line, empty cars to be loaded by the shipper and removed by the complainant, and for the purpose of making delivery and removal of said cars, loaded and empty, the complainant has, at all the points where such delivery and removal are required, constructed and has, and has had, in use and operation for more than 20 years, public team or delivery tracks, upon which it places cars for loading and unloading, as aforesaid, without any charge for such service, other than that embraced in the charge for the line haul of such cars, and without discrimination in any respect between the persons receiving such delivery and removal.

'(5) That, however, at divers of said points, more than 70 in number, shippers and consignees have, for their own convenience, and the saving of cost to themselves, of draying carloads of freight to and from complainant's public team tracks, required and received a service from the complainant distinct from and additional to that of ordinary delivery at and removal from the said delivery or public team tracks. This service is and has been at all times rendered by the complainant at the request of the various shippers and consignees in three distinct ways, to wit:

'(a) An industry at some distance from the complainant's line may request the complainant to construct a spur or side track directly from the main line to the industry's yard. The complainant thereupon, and upon the customer's executing a contract in writing with complainant, constructs the track. The shipper or consignee (both herein called the customer, unless a distinction be required to be made between them), bearing the cost of the roadbed, ballast, and ties, including labor, and the complainant paying for the rails and the cost of laying them, the customer, prior to the construction of such track and the use and operation thereof, agreeing by said contract, in addition to pay a specified annual rental representing the estimated annual cost to the complainant of maintaining the private track. In most instances the land on which the private track is laid belongs to the complainant, but the rental is charged even if the track is constructed on land owned by the customer. Although the said contract usually containes a clause providing for the joint use of the spur by the customer and the complainant, this is inserted only to meet the complainant's possible emergencies, and the practical effect of the contract is, and has always been, to give the customer the exclusive use of the spur, or of that part of it adjoining his land. If several industries are on the same spur, each has the exclusive use of the portion of the track adjoining its own loading or unloading platform; the maintenance cost being equitably apportioned among them. In addition to the rental above mentioned, the customer, by the contract aforesaid, agrees to pay a further rental of $2 for each loaded car in or out for said customer at said location, this charge being carried in the complainant's tariff filed with the Interestate Commerce Commission with other rates and charges for services performed. and the said charge has been at all times intended and agreed upon between the complainant and the customer, as compensation for the switching or spotting service included in and constituting the delivery and removal aforesaid.

'(b) A customer may desire to construct a warehouse or other structure on property immediately adjoining the private spur already constructed for other customers. Usually he finds it necessary to build at least his loading platform on the complainant's right of way. A contract similar to the one above mentioned is entered into by the customer and the complainand, whereby the latter 'leases' to the former such land as the customer may need, together with the right to use that portion of the spur which adjoins his loading platform. In this case, the customer pays no part of the original cost of constructing the track, but is required to pay a nominal rental, usually $10. As further rental, he agrees by said contract, entered into between him and the complainant, to pay the spotting charge of $2 per car.

'(c) A customer may desire to construct a warehouse or other structure on the property immediately adjoining one of the complainant's public team or delivery tracks, with the privilege of constructing its loading or unloading platform on the complainant's right of way. In this instance, it is not practicable, because of the public nature of the track, to give the customer the exclusive use of any portion of it. He is, however, given the right to demand, upon payment of the $2 charge, that cars be spotted directly in front of his loading or unloading platform. This service differs from the ordinary team track delivery, where the complainant switches cars upon a team track in any way that best suits its convenience. without paying particular attention to their exact location. The complainant may be, and frequently is, inconvenienced by the necessity of keepint a car spotted at a particular location. While such a car is being loaded or unloaded, there may be other cars on either side of it which must be removed, and several switching operations are necessary to remove them, after which the spotted car must be returned to the exact location from which it was taken. The customer whose warehouse or other building is thus located on property immediately adjoining the public team or delivery track, pays no rental for the use of the track and no part of the cost of maintaining it, but he must pay the spotting charges, and if his warehouse or platform is constructed on the complainant's land, or encroaches on the complainant's right of way, he must pay for his occupancy a rental that is nominal in amount, except where land values are high.

'The classes of service mentioned above are and have always been, for 20 years or more, performed under contract between the complainant and the customer. and said contracts embrace, and always have, for the time aforesaid, embraced, the payment by the customer of the charges aforesaid. The said private tracks are in all instances within the switching limits of the complainant, its switching limits being fixed by rule of the defendants as not less than three miles.

'(6) That the cost to the complainant is greater for the service mentioned than for an ordinary delivery to and...