State v. Apalachicola Northern R. Co.

• Decision Date: 25 March 1921
• Citation: 81 Fla. 383,87 So. 909
• Parties: STATE ex rel. WOLYN v. APALACHICOLA NORTHERN R. CO. et al.
• Court: Florida Supreme Court

87 So. 909

81 Fla. 383

STATE ex rel. WOLYN v. APALACHICOLA NORTHERN R. CO. et al.

Florida Supreme Court

March 25, 1921

Application by the State, on the relation of A. H. Wolyn, for a writ of mandamus against the Apalachicola Northern Railroad Company and others.

On demurrer to writ. Demurrer overruled.

Syllabus by the Court

SYLLABUS

Court should dispose of case without passing on constitutionality of statute if possible. Courts will not anticipate questions of constitutional law in advance of the necessity of deciding them, and where a case can be properly and effectually disposed of by a court without passing upon the constitutionality of a statute involved, it is the duty of the court to do so.

Alternative writ takes place of declaration at law, and demurrer admits as true all facts sufficiently pleaded. In mandamus proceedings the alternative writ takes the place of a declaration at law, and a demurrer to the alternative writ admits as true all such matters of fact as are sufficiently pleaded.

When orders of State Plant Board defining disease plant areas effectual stated. To be effectual orders of the State Plant Board and public notices given pursuant thereto defining areas from which infected plants may not be shipped must be based upon facts sufficient to support them, brought to the attention of the State Plant Board in some proper manner, and without such basis in fact such orders are not authorized and are not enforceable.

Orders of State Plant Board defining quarantine areas must be based on sufficient evidence. Rules and orders of the State Plant Board and public notices given pursuant thereto defining quarantine areas from which infected plants may not be shipped must be based upon evidence which warrants the making of such rules and orders, and when made without any evidence will be deemed to be made without authority of law.

COUNSEL

Wm. W. Flournoy, of De Funiak Springs, for relator.

W. J Oven, of Tallahassee, for respondent Apalachicola Northern R Co.

Rivers H. Buford, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen for respondent State Plant Board.

OPINION

WEST J.

By mandamus relator seeks to require the respondent railroad company to place a car upon its siding at Vilas, a station on its railroad in Liberty county, for the purpose of receiving from relator a shipment of Japanese seed cane to be shipped to Crestview, a station of a connecting common carrier in Okaloosa county.

So much of the allegations of the alternative writ as are necessary to present the decisive question in the case as now presented are, in substance, that relator owns a farm at Deerhunt in Liberty county, a place on the line of road owned and operated by the respondent railroad company, a corporation under the laws of the state of Florida; that respondent railroad company is a common carrier operating a line of road from River Junction, Fla., to Port St. Joe, Fla., through the station Vilas near the farm of relator, and that the individual respondents are the members and secretary respectively of the State Plant Board and the State Board of Control, and the State Plant Commissioner; that relator has produced at said farm and has for sale there five carloads of Japanese seed cane of the value of $1,500 and now has an opportunity to sell the same; that he has requested the respondent railroad company to place a car at Vilas, the said station on its railroad, in which he may ship a carload of said Japanese seed cane from his farm near said station to Crestview, Fla., the placing of which car the said railroad company is required by law to do, yet it has, in violation of its duty and obligation to do so, refused and still refuses to so place said car or any car or cars at said station for said relator for the purpose of making said shipment; that it is now the season of the year for planting Japanese seed cane, and unless said shipment is made immediately the opportunity to ship the same will be lost and relator will lose the sale thereof and will thereby suffer irreparable damages; that the purchaser will lose the opportunity of planting the said cane and the profits incident thereto, which damage can be avoided only by the issuance of the writ prayed for; that the Japanese seed cane desired by relator to be shipped is of a variety that is immune, and the same is immune, from the disease known as mosaic disease; that said cane is not now infected by mosaic disease or any other disease; that relator prior to his request to said railroad company for a car to make shipment of said seed cane had never received any notice from any one and never heard of any claim by any one that said seed cane was infected or likely to be infected by mosaic disease or otherwise; that relator is informed by the said railroad company that its refusal to so place a car for the shipment is due to the order and public notice of the State Plant Board and its chairman and said State Plant Commissioner to the effect that a quarantine against the shipment of Japanese seed cane has been made against the county of Liberty in which the farm of relator is located, and that said order is applicable to and effective against the Japanese seed cane of relator located on said farm, said board and said Commissioner alleging their action to be pursuant to the provisions of chapter 6885, Acts of 1915, Laws of Florida, and the rules and regulations of said board thereunder, which rules and regulations, known as Circular No. 40, published January 1, 1921, are attached as an exhibit to the writ; but it is alleged that the action of said railroad company in refusing to so place said car for said shipment is without warrant in law for the reasons: (1) That the said Japanese seed cane of relator is not now and never has been infected by mosaic disease or any other disease; (2) that prior to the request by relator to said railroad company for the placing of a car for such shipment no notice was ever given or claim made by any person or persons to the relator or to any person in his behalf that the seed cane of relator at said place was infected or likely to be infected by mosaic disease or otherwise; (3) that the alleged quarantine order was made by the State Plant Board upon the recommendation of the State Plant Commissioner and the public notice given declaring certain areas in Florida to be infected with the disease of sugar cane known as mosaic disease was passed by said board upon the recommendation of the said State Plant Commissioner without any knowledge, facts, or evidence whatsoever then or at any time prior thereto submitted to said board by said State Plant Commissioner or otherwise to warrant the issuance of said order or public notice.

The notice as contained in the alternative writ is as follows:

'Public Notice.

'Declaring Certain Areas in Florida to be Infected with the Disease of Sugar Cane Known as Mosaic, Yellow Striping or Mottling.

'Under the provisions of the Florida Plant Act of 1915, chapter 6885 of the Laws of Florida, the State Plant Board, in session at Tallahassee, Florida, this 13th day of December, 1920, and in accordance with section 12 of said act, does declare and give public notice that the following counties and areas in which sugar cane is likely to be infected with the Mosaic disease of sugar cane:

'Escambia county. Gadsden county. Franklin county. Leon county. Jackson county. Liberty county. All that portion of Palm Beach county lying within townships 41 S., and 42 S., R. 38 E. and township 41 S., R. 37 E., and all of T. 42 S., R. 37 E. Except Kroamer Island in Lake Okeechobee.'

It is further alleged that neither at the time of making said order and giving said public notice nor at any time prior thereto had the State Plant Commissioner or the said State Plant Board any knowledge, facts, or evidence whatsoever that the Japanese seed cane of relator at said place was infected or likely to be infected by mosaic disease or otherwise, or that said cane was in or near any dangerous zone so as to give said State Plant Commissioner or said State Plant Board the right to issue any order preventing the shipment by relator of his said cane, and that the said order and said public notice are arbitrary and oppressive, without warrant in law and void; that there is not now and never has been any mosaic disease in the Japanese seed cane of relator at said farm nor within several miles, if at all, distant therefrom so...