State v. Atlantic Coast Line R. Co.

• Decision Date: 28 June 1904
• Citation: 37 So. 652,48 Fla. 114
• Parties: STATE ex rel. ELLIS, Atty. Gen., et al. SAME v. ATLANTIC COAST LINE R. CO. SAME v. SEABOARD AIR LINE RY. SAME v. JACKSONVILLE & S.W. R. CO.
• Court: Florida Supreme Court

37 So. 652

48 Fla. 114

STATE ex rel. ELLIS, Atty. Gen., et al. SAME v. ATLANTIC COAST LINE R. CO. SAME v. SEABOARD AIR LINE RY. SAME v. JACKSONVILLE & S.W. R. CO.

Florida Supreme Court, Division A.

June 28, 1904

Application by the state, on the relation of W. H. Ellis, Attorney General, and another, for writs of mandamus to the Atlantic Coast Line Railroad Company, to the Seaboard Air Line Railway, and to the Jacksonville & Southwestern Railroad Company. Demurrers to the petition. Overruled.

Syllabus by the Court

SYLLABUS

1. When the recitals and allegations of an alternative writ of mandamus construed together charge a general violation of the duty of respondent railroad company to put into practical operation a system or schedule of rates for the transportation of phosphate prescribed by the Railroad Commissioners, the writ is not demurrable because it does not allege a specific instance of the violation of such schedule of rates.

2. When an alternative writ charges a general and total violation of the order of the Railroad Commissioners fixing a schedule of rates on phosphates by a railroad company in refusing to put such schedule or system of rates into operation, as required by the order of the Railroad Commissioners, specific instances of the violation of such order involve questions of the relevancy, competency, and probative force of evidence and not questions of pleading.

3. In mandamus certainty of allegation is requisite, but, if the alternative writ states the facts on which the demand is based with sufficient precision to express the right of the relator and the duty of the respondent in such a manner that the ordinary mind may easily apprehend them, this is all the certainty required to defeat a demurrer.

4. As a general rule, material facts should be alleged by direct averment, and not by inference; but unequivocal averments will support implications that necessarily result from the facts alleged on general demurrer.

5. This court takes judicial notice of the fact that phosphate is mined in some portions of the state of Florida, and is an article of transportation.

6. The word 'charge' and the phrase 'put into effect,' as used in the alternative writ, are not indefinite or undeterminate in their meaning. To 'put into effect' a rate is to charge and receive that rate when the article to which it applies is transported; in other words, to give it practical operation. To charge a freight rate is to fix, or demand such rate for the required service.

7. Railroad companies are inhibited by chapter 4700, p. 76, Laws 1899, from making unjust discriminations in rates, but there is nothing in the said act which limits the discretionary powers of the Railroad Commissioners to make reasonable and just rates, and it does not necessarily follow that in prescribing a particular rate lower than a general one the commission have violated their authority. Circumstances may justify such lower rate, and the act itself makes the rates and regulations prescribed by the commission prima facie reasonable and just.

8. Mandamus will lie to enforce a continuing duty, and is an appropriate remedy to compel the observance of a valied regulation of the Railroad Commissioners imposing specific public duties upon railroad companies.

COUNSEL W. H. Ellis, Atty. Gen., and J. M. Barrs, for plaintiff.

John E Hartridge, for defendant Atlantic Coast Line R. Co.

Geo. P Raney, for defendant Seaboard Air Line Ry. Co.

E. J L'Engle, for defendant Jacksonville & S.W. R. Co.

The above-mentioned three cases against three separate corporations are founded upon alternative writs and demurrers thereto, in the same language and terms, and the opinion in the first case will be considered as applying to each of them.

Upon the petition of the relators an alternative writ of mandamus issued out of this court on March 7, 1904, alleging, in substance: (1) The incorporation of the respondent, and that since the 8th of October, A. D. 1903, it has controlled and operated as a common carrier divers lines of railroad wholly or in part within the state of Florida, and has been engaged in the transportation of freight and passengers over its lines from points in Florida to points in Florida.

(2) That the State Railroad Commissioners, pursuant to notice of their intention to adopt a freight rate of one cent per ton per mile on phosphate from points within Florida to points within Florida (except points where the proposed rate would raise the rates then in force, and that to such points the rates then in force should remain the same), met in the city of Jacksonville on November 16, 1903, at which place and time the respondent and other railroads, pursuant to said notice were given an opportunity to show cause, if any then had, why the proposed rate should not be adopted.

(3) That at the said time and place respondent and other railroads filed answers, and by their request were given until November 28, 1903, to file their briefs and supplemental briefs, which briefs were filed and considered by the Railroad Commissioners, and afterwards, on December 17, 1903, the said commissioners, in session at Tallahassee Fla., being satisfied that some of the then existing freight rates on phosphate from points in Florida to points within the said state were unreasonably high, and should be reduced, and based upon a mileage rate, ordered that the rate to be charged by all the railroads and common carriers doing business wholly or in part within the state of Florida for the transportation of phosphate from points in Florida to points within said state should not exceed one cent per ton per mile, provided that, where the rate of one cent per ton per mile would raise any rate then in operation, said rate of one cent per ton per mile should not be effective, but that the rate as then charged by said railroad companies was then and there adopted in and by said order of the said Railroad Commissioners as their rate between such points.

(4) That the said Railroad Commissioners then further ordered that where a shipment of phosphate should pass over two or more railroads in reaching its destination within the state of Florida the initial line might charge one and a half cents per ton per mile for the first ten miles which said phosphate should be hauled.

(5) That the Railroad Commissioners then further ordered that where a shipment of phosphate from points in Florida to points in Florida should pass over two or more roads in reaching its destination within the state of Florida the provisions of rule 19, governing joint rates, are modified so that the initial road should have the right to deliver shipments to the delivering road at such junctional point within the state of Florida as it might desire, provided, however, that the rate charged for such shipment should be based upon the shortest mileage between the points of shipment and the point of destination.

(6) That the said Railroad Commissioners then further ordered that the said rate therein prescribed should be effective on and after the 15th day of January, A. D. 1904. Copies of the order and of rule 19 are attached as parts of the writ, and marked Exhibits 'A' and 'B.'

(7) That the Railroad Commissioners, prior to the 15th day of January, A. D. 1904, furnished all railroads doing business within the state with notice of the changes and revisions adopted by the said order, stating the time when the said changes and revisions would go into effect.

(8) That although the Atlantic Coast Line Railroad Company was furnished with notice of the changes of phosphate rates as aforesaid, it has not obeyed said order, and has not put into effect the schedule of rates prescribed in and by said order, but refuses so to do, and in violation and disregard of the rate prescribed in and by said order, and contrary to the laws of Florida, now charges, and since the 15th day of January, A. D. 1904, has charged, for the transportation of phosphate over its said lines of railroads, and railroads under its control or management, from points in Florida to points in Florida, rates in excess of the rates prescribed in and by said order; and the said Atlantic Coast Line Railroad Company has refused, and still refuses, to otherwise comply with all and singular the aforesaid and other commands and directions of the said order of the said Railroad Commissioners made on the 17th day of December, A. D. 1903.

(9) This (the ninth) paragraph concludes: 'Now, therefore we, being willing that full and speedy justice should be done in the premises, do command you, the Atlantic Coast Line Railroad Company, to forthwith put into operation and effect over all your lines of railroads, and all railroads which arc under your management or control, which are wholly or in part within the state of Florida, the rate prescribed in and by said order of the said Railroad Commissioners on the 17th day of December, A. D. 1903, to be charged by all the railroads and common carriers doing business wholly or in part within the state of Florida, for the transportation of phosphate from points in the state of Florida to points within said state, and do command you to further comply with all the commands and directions of said order of the said Railroad Commissioners, as contained in a duly certified copy of said order, which is hereto attached, and marked 'Exhibit A,' and made a part hereof, to the same extent as if fully set out herein; and that you continue to comply with all the commands and directions of said order as long as the same shall be in force, or that you appear before the Justices of our Supreme Court sitting within and for the state of Florida at the courtroom in the city of Tallahassee on the 29th day of March, 1904, at ten o'clock a....