State v. Live Oak, P. & G.R. Co.

• Citation: 70 Fla. 564,70 So. 550
• Parties: STATE v. LIVE OAK, P. & G. R. CO.
• Decision Date: 16 December 1915
• Court: United States State Supreme Court of Florida

70 So. 550

70 Fla. 564

STATE v. LIVE OAK, P. & G. R. CO.

Florida Supreme Court

December 16, 1915

Original certiorari by the State, to review judgment and proceedings in an action brought in circuit court by the State against the Live Oak, Perry & Gulf Railroad Company. Judgment of circuit court quashed.

Syllabus by the Court

SYLLABUS

Certiorari is a common-law writ which issues in the sound judicial discretion of the court to an inferior court, not to take the place of a writ of error or an appeal, but to cause the entire record of the inferior court to be brought up by certified copy for inspection, in order that the superior court may determine from the face of the record whether the inferior court has exceeded its jurisdiction, or has not proceeded according to the essential requirements of the law in cases where no direct appellate proceedings are provided by law.

On certiorari the court issuing the writ considers only the face of the record of the inferior court. Matters in pais are not within the purview of the writ.

A petition for a writ of certiorari to review the proceedings and judgment of a court should make it appear that an illegal proceeding appears by the face of the record complained of.

Where a judgment of the circuit court affirming a judgment of the county judge's court, considered with reference to the pleadings and record proper in the county judge's court is not in accordance with the essential requirements of law the judgment of affirmance may be quashed on certiorari.

COUNSEL D. C. McMullen and Thomas S. Trantham, both of Tallahassee, for the state.

John F. Harrell, of Live Oak, for defendant.

OPINION

WHITFIELD J.

Upon a petition filed in the name of the state of Florida by the railroad commissioners, this court issued a writ of certiorari, requiring that a full and complete copy and transcript of the judgment and all proceedings of the circuit court for Suwannee county, in the case of the State of Florida v. The Live Oak, Perry & Gulf Railroad Company be sent here. By such transcript it appears that there was filed in the court of the county judge for Suwannee county the following declaration:

'In the Court of the County Judge, Suwannee County, Florida.

'The State of Florida, Plaintiff, v. The Live Oak Perry & Gulf Railroad Company, Defendant.

'Suwannee County, to wit:

'The state of Florida, plaintiff, by F. M. Hudson, special counsel for the railroad commissioners of the said state, by them directed to sue in this behalf, sues the Live Oak Perry & Gulf Railroad Company, a corporation under the laws of the state of Florida, the defendant.

'For that the said Live Oak Perry & Gulf Railroad Company was, prior to the institution of this action, and is now, a railroad and common carrier operating its line of railroad within the state of Florida for the transportation of goods and passengers for hire, and running into and doing business in Suwannee county aforesaid.

'That prior to the institution of this action, on, to wit, the 7th day of September, 1912, the said Live Oak Perry & Gulf Railroad Company was charged before the railroad commissioners of the state of Florida with having, within twelve months then last past, violated or disregarded chapter 5895 of the laws of Florida, Acts of 1909.

'In that the said Live Oak Perry & Gulf Railroad Company did issue to one E. A. Hodge a free pass, thereby providing the said Hodge with free transportation over its line of railroad.

'And after 10 days notice of the said charge, the said defendant had an opportunity to be heard and was heard by the said Railroad Commissioners on the said charge.

'And thereafter, on, to wit, the 27th day of January, 1913, the said railroad commissioners having duly tried the said railroad commissioners charge, in accordance with law, by their order duly entered, adjudged the said defendant guilty of violating and disregarding the said chapter 5895 of the Laws of Florida, Acts of 1909, as aforesaid, and in accordance with law the said commissioners duly fixed and imposed upon the said defendant a penalty for the said offense in the sum of fifty ($50.00) dollars, a copy of which judgment and order is hereto attached and made a part hereof.

'That by reason of the premises, and according to the statutes in such cases made and provided, the defendant became liable to pay to the state treasurer the sum of fifty ($50.00) dollars, with interest thereon from the 27th day of January, 1913, at the rate of eight per cent. per annum. * * * Yet the defendant has not paid the damage of the plaintiff.

'And the plaintiff claims ninety-nine ($99.00) dollars.

'F. M. Hudson, Attorney for Plaintiff.

'Order No. 386. File No. 3334.

' In the Matter of the Violation by the Live Oak Perry & Gulf Railroad Company of Chapter 5895 of the Laws of Florida, Acts of 1909, by Issuing a Free Pass to E. A. Hodge.

'Whereas, charges were made against the Live Oak Perry & Gulf Railroad Company of having violated or disregarded chapter 5895 of the Laws of Florida, Acts of 1909, by issuing a free pass to one E. A. Hodge;

'And whereas, the said Live Oak Perry & Gulf Railroad Company had due and lawful notice of said charges, in that written notice was served upon said Live Oak Perry & Gulf Railroad Company under date of September 17, 1912, that the railroad commissioners of the state of Florida would be in session on the 30th day of September, 1912, at ten o'clock in the morning, to hear and consider the said charges and to determine the truth thereof, and also to hear and consider what penalty, if any, should be imposed upon said company in case it should be found guilty of the said charges;

'And, whereas, the said Live Oak Perry & Gulf Railroad Company duly appeared, pursuant to said notice, by its attorneys McCollum & Harrell, and the said matter was then taken under advisement:

'Now on this day, upon further consideration of the said matter, we, the said railroad commissioners of the state of Florida, do find that the said Live Oak Perry & Gulf Railroad Company did within twelve months last past issue a free pass to the said E. A. Hodge; and the said E. A. Hodge was not at the time of the issuance of the said pass an officer of said company nor an employé, pensioner, or disabled employé of said company, nor traveling to accept or leave the employment of said company, nor was he a member of the immediate family of any such person dependent upon him; that the said E. A. Hodge was not the physician or surgeon or the salaried attorney at law of said company; nor was he employed on sleeping, parlor, dining or express cars hauled by said company; nor was he a baggage soliciting agent for said company, nor a newsboy on duty; that the said E. A. Hodge was not a minister of religion engaged in general mission work, nor a traveling secretary of any Railroad Young Men's Christian Association, nor a Confederate soldier going to the State Home for Confederate Soldiers to become an inmate thereof, or returning after discharge; nor was he an indigent, homeless or destitute person transported by charity or an agent employed in such transportation, nor was he exclusively engaged in charitable or eleemosynary work; nor was he a person injured in wreck, nor the physician, surgeon, relative or friend of any such injured person; nor was he engaged in providing relief in cases of general epidemic, pestilence or other calamitous visitations in this state; nor was he an officer or employé or member of the immediate family or surgeon or salaried attorney or a member of the immediate family dependent on such physician, surgeon or salaried attorney, of any other common carrier; nor was he the sheriff of the state; but that the said pass was issued by the Live Oak Perry & Gulf Railroad Company and accepted by the said Hodge under a mistake of law as to the right to issue and receive the said pass:

'And therefore, we, the railroad commissioners of the state of Florida, being fully advised in the premises, do find and adjudge that the Live Oak Perry & Gulf Railroad Company is guilty as charged of violating or disregarding the said chapter 5895 of the Laws of Florida, Acts of 1909, entitled 'An act to amend section 2919 of the General Statutes of Florida as to the allowance of free or reduced rates of transportation by common carriers,' by the issuance of free pass to the said E. A. Hodge, as aforesaid and under the circumstances aforesaid; and that the said Live Oak Perry & Gulf Railroad Company has thereby incurred

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