State v. Georgia Southern & F. Ry. Co.

• Decision Date: 07 July 1939
• Citation: 139 Fla. 115,190 So. 527
• Court: Florida Supreme Court
• Parties: STATE v. GEORGIA SOUTHERN & F. RY. CO.

190 So. 527

139 Fla. 115

STATE v. GEORGIA SOUTHERN & F. RY. CO.

Florida Supreme Court

July 7, 1939

Rehearing Denied July 29, 1939.

En Banc.

Suit by the State of Florida against the Georgia Southern & Florida Railway Company to enjoin defendant from discontinuing minimum statutory train service over a certain route. From an adverse judgment, the State of Florida appeals.

Reversed with directions. Appeal from Circuit Court, Duval County; DeWitt T. Gray, judge.

COUNSEL

Theo T Turnbull, Wm. P. Simmons, Jr., and J. J. Cannon, all of Tallahassee, for the State.

Adair Cooper, Osborne & Copp, of Jacksonville, and J. E. Hall, of Macon, Ga., for appellee.

OPINION

WHITFIELD P.J.

Chapter 4108, Acts of 1891, conferred upon 'the Georgia Southern & Florida Railroad Company, a corporation existing under the laws of the State of Georgia' 'all the rights, privileges, powers and grants, that are by the general laws of the State of Florida and amendments thereto, conferred upon railroads incorporated thereunder,' and also authorized and empowered the said Georgia Southern & Florida Railroad Company 'To own, control and operate its line of railroad in the State of Florida extending from the line dividing the states of Georgia and Florida, through the counties of Hamilton, Columbia, Bradford, Clay and Putnam, to the city of Palatka, in said county of Putnam, and to own and possess all such property, real or personal, as may be necessary in the proper operation of its said railroad'; and further enacted 'that nothing herein contained shall be so construed as to relieve the said railroad company from any of the duties or burdens placed upon it by the laws of this State and; Provided, That said railroad company shall at all times keep within the jurisdiction of the courts of this State some person or agent upon whom legal process may be served.'

The preamble of the Act stated that:

'Said road was built in the State of Florida by virtue of a charter granted by the State of Florida to the Macon & Florida Air Line Railroad Company, which company was by the act of the stockholders consolidated with the said, The Georgia Southern & Florida Railroad Company, before the construction of its said railroad by the said The Georgia Southern & Florida Railroad Company'.

See charters and other Articles on file in office of Secretary of State at Tallahassee.

The Macon & Florida Air Line Railroad Company was incorporated August 3, 1886, under Chapter 1987, Laws of 1874; charter on file in the office of the Secretary of State.

There is also owned and operated by the present Georgia Southern & Florida Railway Company, as a part of its railroad system, a line of railroad extending from Valdosta, Georgia, to Jacksonville, Florida. This line, except as it is a part of the Company's entire system of railroads, is not in issue here. It was acquired and made a part of the system of roads of the Georgia Southern & Florida Railway Company after the line to Palatka, Florida was constructed.

Chapter 6527, Acts of 1913, enacts that: 'Every railroad company shall operate over every part of its line not less than one passenger and one freight train each way daily except Sunday, unless the Railroad Commissioners shall determine that the public need does not require a greater service than one mixed train each way daily except Sunday, and if they shall so determine, such service will be deemed sufficient until the Commissioners otherwise order.' Sec. 6707 (4621), C.G.L.

In accepting and operating its line of railroad in this State under the provisions of Chapter 4108, Acts of 1891, the Georgia Southern & Florida Railroad Company, as also its successor, the Georgia Southern & Florida Railway Company, obligated itself not to be relieved 'from any of the duties or burdens placed upon it by the laws of this State.' This is in its nature a contractual obligation and extends to the statutory duty above quoted from the Acts of 1913 relative to train service that is applicable to the line of the company's railroad extending from the Georgia line south to Palatka, Florida, which line of railroad is stated by counsel for the appellee company 'to be a part of the original main line of the railroad.'

A common carrier railroad company owned by private parties must be by statute expressly authorized to operate as such carrier in the State; and, when so duly authorized, is given special privileges, including the right of eminent domain, in consideration of which the private property is dedicated to the authorized public use, subject to lawful regulation, for the primary purpose of rendering to the public the authorized service, in rendering which service it is protected by the laws of the State and allowed to receive for service rendered reasonable compensation to be determined by due course of law; but the State does not guarantee reasonable compensation for all service rendered, if the small volume of business or other controlling economic or legal conditions prevent the earning of reasonable compensation for all or any part of the public service duly undertaken and required to be rendered.

Under section 30, Article XVI of the Florida constitution of 1885, all services of a public nature performed under statutory authority by a common carrier and the rates charged therefor are subject to duly authorized and properly exercised governmental regulation, to correct abuses and to prevent unjust discrimination and excessive charges; and such governmental regulation may be as provided by statute, evidentiary burdens being placed upon the carriers, and all being subject to applicable limitations under the State and Federal constitutions. See Munn v. Illinois, 94 U.S. 113, 24 L.Ed. 77; Chicago, B. & Q. R. Co. v. Cutts, 94 U.S. 155, 24 L.Ed. 94; McWhorter v. Pensacola & A. R. Co., 24 Fla. 417, 5 So. 129, 2 L.R.A. 504, 12 Am.St.Rep. 220; Pensacola & A. R. Co. v. State, 25 Fla. 310, 5 So. 833, 3 L.R.A. 661; State v. Atlantic Coast Line R. Co., 56 Fla. 617, 47 So. 969, 32 A.L.R.,N.S., 639; State ex rel. Railroad Com'rs v. Atlantic Coast Line R. Co., 60 Fla. 465, 54 So. 394; Louisville & N. R. Co. v. Railroad Com'rs, 63 Fla. 491, 58 So. 543, 44 L.R.A.,N.S., 189; State ex rel. Railroad Com'rs v. Florida East Coast R. Co., 69 Fla. 473, 68 So. 727; State ex rel. Triay v. Burr, 79 Fla. 290, 84 So. 61; State ex rel. Burr v. Seaboard Air Line R. Co., 89 Fla. 419, 104 So. 602, 39 A.L.R. 1362; State ex rel. Burr v. Jacksonville Terminal Co., 90 Fla. 721, 106 So. 576; State v. Seaboard Air Line R. Co., 92 Fla. 1139, 111 So. 281, 735.

'Even though a particular duty of a railroad company if enforced would be in itself unremunerative and burdensome, such a result would be an incident to the service voluntarily undertaken, in consideration of the franchises permitted to be used for the public good, and the property rights of the carrier would not thereby the unlawfully invaded, if the particular service is reasonably necessary for the public convenience, and the burden to the carrier has some fair relation to the benefits accruing to the public, and the burden of the particular service, considered with reference to the entire business of the carrier, does not in reality amount to a denial to the carrier of a reasonable compensation for the service rendered by it as an entirety.

'Where it appears that a particular service is a duty vitally necessary to the public, and its performance is essential in adequately rendering a general public service as a common carrier, the fact that the performance of the particular duty will be unremunerative will not in view of the nature of the duty to the public excuse nonperformance.

'If the performance of a particular useful but nonessential duty will as a part of a general public service contribute to the public convenience, the fact that the particular service must be rendered at a loss does not, in view of the nature of the duty required, excuse nonperformance; but the loss occasioned by the performance of a particular duty may be considered in determining the reasonableness of the order requiring the particular service to be rendered.' State ex rel. Railroad Com'rs v. Louisville & N. R. Co., 62 Fla. 315, 57 So. 175. See State ex rel. Railroad Com'rs v. Florida East Coast R. Co., 67 Fla. 83, 64 So. 443; State ex rel. Railroad Com'rs v. Florida East Coast R. Co., 69 Fla. 165, 67 So. 906.

It appears that for several years, by permission of the State Railroad Commissioners, the Georgia Southern & Florida Railway Company has been operating the minimum service prescribed by the statute, of one mixed passenger and freight train each way every day except Sunday, over the company's line from Valdosta, Georgia, to Palatka, Florida, a distance of about 133 miles. The Company presented a petition to the Railroad Commission to allow a lesser train service, 'consisting of a Southbound train on Mondays, Wednesday and Fridays, and a Northbound train on Tuesday, Thursdays and Saturdays, and proposed to institute that service upon a schedule set forth in the petition, averred that there were other railroads at many of the points on the line and that any seasonal shipments requiring extra service would receive such service, stated the exact volume of (local) business at each station on the line, averred that the mail service would be adequately handled by a Star Route Service, averred the existence of bus and truck lines paralleling the railroad line and that they had substantially destroyed the traffic'.

The request for such lesser train service is predicated upon allegations as to the financial net losses sustained in rendering the present particular service. The Railroad Commission denied the petition; and upon being notified that the service...