State v. Wells

• Decision Date: 27 November 1928
• Parties: STATE ex rel. POSTAL TELEGRAPH-CABLE CO. v. WELLS et al., State R. R. Com'rs.
• Court: Florida Supreme Court

118 So. 731

96 Fla. 591

STATE ex rel. POSTAL TELEGRAPH-CABLE CO. v. WELLS et al., State R. R. Com'rs.

Florida Supreme Court

November 27, 1928

En Banc.

Original mandamus by the State, on the relation of the Postal Telegraph-Cable Company, against A. S. Wells and others, as Railroad Commissioners.

Motion to quash alternative writ granted.

Syllabus by the Court

SYLLABUS

Powers and duties of Railroad Commissioners as applied to terminal companies have reference to public duties of such companies only as common carriers (Acts 1921, c. 8469). The powers and duties of the Railroad Commissioners enumerated in chapter 8469, Acts of 1921, when applied to terminal companies, have reference to the public duties of such companies as common carriers, and not to auxiliary or accessorial services they may render incidentally to their duties as a common carrier but which are not embraced within the latter.

For purposes of public regulation, acts of common carrier in performance of public duties are fundamentally different from those in exercise of private right. For purposes of public regulation, there is a fundamental distinction between the acts of a common carrier in the performance of its public duties as such, and those done in the exercise of its purely private right to manage and control its own property in matters not embraced within its public duties.

Common carrier has no public duty to so use its property that others having no business with it as carrier may profit. There is no public duty upon a common carrier to so use its property that others who have no business with it as a carrier may make profit for themselves.

Terminal company may in good faith regulate concessions not affecting its duties as common carrier. In the management and control of its property in matters unconnected with and beyond the scope of its duties as a common carrier and not affecting its duties as such, the Jacksonville Terminal Company, as an incident to ownership, may grant to some concessions which it denies to others, provided it acts in good faith and its actions in that respect are consistent with the proper performance of its public duties as a common carrier.

Terminal company, granting special privilege of conducting telegraph business unconnected with business as common carrier, need not grant like facilities to another company. Even though the Jacksonville Terminal Company, a common carrier of freight and passengers, grants to the Western Union Telegraph Company, by special contract, the privilege of conducting on the property of the Terminal Company a distinctly commercial telegraph business in the receipt and transmission of messages unconnected with the business of the Terminal Company as a common carrier, the latter company is under no compulsion of law, as a part of its duties as a common carrier, to grant to another telegraph company like facilities for a like purpose.

Terminal company need not afford patrons of commercial telegraph companies facilities for carrying on business unconnected with duties as common carrier. The Jacksonville Terminal Company, a common carrier of freight and passengers, is under no public duty to afford the patrons of a distinctly commercial telegraph company facilities for carrying on their business with the latter company in the receipt and transmission of messages unconnected with the public duties of the Terminal Company as a common carrier, even though the public might derive incidental convenience from such facilities; the receipt and transmission of telegraph messages of that character being beyond the scope of the duties of the Terminal Company as a common carrier.

Grant of exclusive privilege to conduct telegraph business on premises of terminal company as to matters unconnected with duties as common carrier did not create illegal monopoly terminal company's grant of exclusive privilege to telegraph company as to matters unconnected with duties as common carrier was not against public policy; terminal company's grant of exclusive privilege to telegraph company was not in restraint of trade; terminal company's grant of exclusive privilege to telegraph company was not waiver reguiring like waiver as to other companies. The grant by the Jacksonville Terminal Company of an exclusive privilege to the Western Union Telegraph Company for the purpose of conducting upon the premises of the Terminal Company a distinctly commercial telegraph business for the receipt and transmission of messages upon matters unconnected with the public duties of the Terminal Company as a common carrier does not create a monopoly in the odious sense of the word; nor is it against public policy; nor is it in restraint of trade; nor does the granting of such rights to the Western Union amount to a waiver on the part of the Terminal Company so as to require a like waiver as to other telegraph companies.

As regards regulation, public is not concerned with selection of particular agency by common carrier in case service is adequate. So long as the service furnished by a common carrier in the discharge of its public duties is adequate to the public needs, the public is not concerned with the selection of the particular agency through which such service is supplied.

COUNSEL

Marks, Marks & Holt, of Jacksonville, for relator.

T. T. Turnbull, of Monticello, John E. & Julian Hartridge, of Jacksonville, and Loftin, Stokes & Calkins, of Miami, for respondents.

OPINION

STRUM J.

The Postal Telegraph-Cable Company, joined by divers individuals who are patrons of said company, petitioned the Railroad Commissioners for an order requiring the Jacksonville Terminal Company to admit the Postal Company to the Union Terminal Station in Jacksonville as a tenant for the purpose of operating in said station a branch telegraph office, and to prevent discrimination against messengers of the Postal Company attempting to deliver messages aboard trains at said terminal station. In its petition to the Railroad Commissioners, the Postal Company asserted, amongst other things, that its only competitor in the southeast, the Western Union Telegraph Company, had been accorded by the Terminal Company the same privileges and facilities sought by the Postal Company; that the refusal of the Terminal Company to admit the Postal Company to its station on equal terms with the Western Union was an unjust and unlawful discrimination against the former and its patrons; that the Postal Company maintains offices in many localities not served by the Western Union and that the establishment by the Postal Company of an office in said Union Station would materially improve the service rendered by the Postal Company to the public in connection with those stations and others that the facilities for sending commercial telegraph messages afforded the traveling public by the Western Union in the Union Terminal Station are inadequate to the public needs; and that it is therefore essential to the comfort, safety, care, accommodation, and convenience of the public that the Postal Company should be permitted to establish an office in said station for the transaction of its telegraph business; and that its messengers be permitted to deliver messages in said Union Station under the same conditions as those of the Western Union.

After a hearing which was confined solely to the question of the jurisdiction of the Railroad Commissioners to entertain the petition, the Railroad Commissioners dismissed the petition and declined to proceed further upon the ground that the commissioners were without jurisdiction to grant the relief sought.

The Postal Company and its copetitioners now seek by mandamus to complel the Railroad Commissioners to take jurisdiction and proceed with a consideration of the petition above referred to, upon its merits. The cause comes before us upon a motion to quash the alternative writ of mandamus directed to the Railroad Commissioners, heretofore issued by this court in the exercise of its original jurisdiction.

The Postal Company relies upon section 4618, Rev. Gen. Stats. 1920, as amended by chapter 8469, Acts of 1921, as vesting the Railroad Commissioners with jurisdiction to regulate the business of the Terminal Company in the respects in controversy.

The pertinent provisions of the statute are:

'It shall be the duty of [the Railroad] Commissioners * * * to make reasonable and just rules and regulations for the prevention of any unjust discrimination against persons or localities in charges or in furnishing facilities. And they shall have power * * * to designate the location and require the erection of such * * * passenger depots, * * * with all necessary conveniences as the safety, convenience and comfort of passengers * * * may require; to supervise, regulate and control all stations, depots; * * * to regulate, supervise and control all passenger, terminal or Union Depot Companies, whether owned or operated by any railroad in connection with its main line or by separate company organized for that purpose; * * * to regulate all other matters pertaining to the receiving, handling, care, transportation and delivery of property, and to the safety, care, comfort, convenience, proper accommodation and transportation of passengers that shall be for the good of the public. * * *'

Petitioners rely upon the following cases, amongst others, to support their contention that under the statute just mentioned the jurisdiction of the Railroad Commissioners extends to the matters here in controversy: Atchison, T. & S. F. Ry. Co v. State, 23 Okl. 210, 100 P. 11, 21 L. R. A. (N. S.) 908; State v. Missouri Pac. Ry. Co., 100 Neb. 700, 161 N.W. 270, L. R. A. 1918E, 346; Coeur D'Alene, etc., Co. v. Ferrell, 22 Idaho, 752, 128 P. 565, 43 L....