State ex rel. West v. Florida Coast Line Canal & Transportation Co. , 73 Fla. 1006 ( 1917 )

Love, Circuit Judge

(after stating the facts).-—-The alternative writ issued by this Court on the relation of the Attorney General alleges that the respondent owns and pretends to -maintain for public use for transporting passengers and property by vessels and other watercraft, a certain canal, composed of artificial and natural waterways, paralleling the East Coast of Florida, and lying wholly within the State of Florida, extending from the St. Johns River on the north to Biscayne Bay on the south.

From its original articles of association, attached to the alternative, writ marked “Exhibit A-i,” upon which Letters Patent issued May 23; 1881, it appears that the respondent company was organized “for the purpose of constructing, maintaining and operating a canal or artificial watercourse for the passage of boats and vessels, with the necessary locks, for public use in the conveyance of persons and property.” No dimensions of the proposed canal then contemplated to connect the Matanzas River with Indian River, were stated in the. company’s charter. Subsequently, other articles of association were executed by the same incorporators appearing in the original articles, and filed in the office, of the Secretary of State on July 23, 1881, upon which'Letters Patent also issued, setting forth substantially the same purpose, with the same objects and between the same navigable waters as to the original Articles, which appear from “Exhibit A-2,” attached to the alternative writ and made a part thereof.

Afterwards, the respondent company, in order to extend its canal, adopted, and on June 27, 1882, filed in the office of the Secretary of State, the following resolution, set out in “Exhibit A-3,” attached to and made a part of the alternative writ, vis: “Resolved, That in accordance with Section Twelve (12) of the Laws of Florida, entitied an Act to provide a general law for the Incorporation of Railroads and Canals, the said canals shall be extended southward from lower end of Indian River through Lake Worth by the. most practical route after survey of the same to the navigable waters of Biscayne Bay in Dade County, a distance of about eighty-four (84) miles, also the said canal be extended northward from St. Augustine on the most practicable route to connect the navigable waters of North River with the navigable waters of Pablo Creek at its junction with the St. Johns River a distance of about .twelve (12) miles, in St. Johns and Duval Counties.

“Resolved further, That it is the true intent and meaning of the Articles of Association of said Corporation for connecting the navigable waters therein and herein mentioned that whenever in the said rivers or creeks and lagoons along said route from the St. Johns River on the north and Biscayne Bay on the south, any shoals, oyster banks or other obstructions to the complete navigation of the waters of the coast between the points above named, to steamers, boats or vessels navigating the same drawing three (3) feet of water or less shall occur interfering with the progress and navigation of the steamers, boats or vessels of the said corporation, that it is a part of the. work in connecting the said canals and approaches and artificial waterways to remove such obstructions as may occur by opening new channels for their own use and profit without interference with the present, or other natural channels that may be formed.”

The, legislature of the State, by Chap. 3166, Acts of 1879, Chap. 3641, Acts of 1885, and Chap. 3995, Acts of 1889, authorized grants of public lands to be made to the respondent Company, to aid it in effecting the purposes for which it is formed, as a result of which said company has received, as is alleged in the alternative writ, over one million acres of land from the State. .

By Sec. 3, Chap. 3995, Acts of 1889, it is provided as follows:

“That the canals and waterways of the said company shall be not less than fifty (50) wide and not less than five (5) feet deep at mean low water for the entire distance between St. Augustine and Biscayne Bay, and so maintained by the company.”

From a reference to the Articles of Association of the respondent company, attached to and made a part of the alternative writ, the statutes of this State, under which the said company was incorporated whereby it was granted certain franchises and privileges such as the right of eminent domain, the right to charge tolls for the use of its canals and waterways, the right to construct and operate its canal as a part of navigable rivers, which can be held and exercised only by legal authority derived from the sovereign power, as well, also as those statutes authorizing grants of land to the company to aid it in effecting'’the purposes for which it was formed, there can be no. question but that the respondent company is a public service corporation, and as it has been granted by the State, and exercises certain rights, franchises and privileges, some of which are the attributes of sovereignty, so there exists correlative duties and obligations to the public, which it should and by appropriate proceedings can be compelled to faithfully and properly discharge.

A canal such, as the. one constructed and operated by the respondent company is a navigable public highway, for the transportation of persons and property. Kennedy v. Indianapolis, 103 U. S. 599, text 604-5; Robinson v. Chamberlain, 34 N. Y. 389, 90 Am. Dec. 713; Barnett v. Johnson, 15 N. J. Eq. 481; Buffalo B. S. C. Co. v. Dow, 63 Tex. 492, 51 Am. Rep. 668. As a public highway it is in this respect like railroad companies, which, as stated in Wisconsin, M. & P. R. Co. v. Jacobson, 179 U. S. 287, 45 L. Ed. 194, 21 Sup. Ct. Rep. 115, “have from' the very outset been regarded as public highways, and the right and duty of the government to regulate in a reasonable and proper manner the conduct and business of railroad corporations have been founded on that fact. Constituting public highways of a most important character, the functions of proper regulation by the government springs from the fact that in relation to all highways the duty of regulation is governmental in its nature. At the present day there is no denial of these propositions.” (Citing cases.)

Canals 'owned and operated by chartered companies with the rights, privileges and franchises, such as are enjoyed by the respondent company, in addition to being public highways, have many of the distinguishing characteristics that make railroad companies quasi public corporations in respect to the authority of the courts and legislature to enforce the public duties enjoined upon them. If not, then what redress has the State or public for a neglect, infringement or violation of these duties?

As a general rule, a canal company is not a common carrier, its business, ordinarily, being that of providing artificial channels or navigable ways for public transportation; and, except in rare instances, its public duties pertain exclusively to the construction and maintenance of its waterways.

This duty may be either expressly required by statute, or implied by law in'conferring or permitting the use of' the franchises and privileges, granted to and exercised by Canal Companies undertaking to serve the public “whether the provision of -the grants be mandatory or merely permissive, and the acceptance or exercise of the rights carries with it the duty of properly rendering the public service undertaken by virtue of the rights conferred or permitted to be exercised.” State ex rel. Ellis v. Atlantic Coast Line R. Co., 53 Fla. 650, 44 South. Rep. 213, text 219.

After the Canal Company has elected to proceed and exercise the rights, privileges and franchises delegated to it by the. sovereign power by constructing its canal, operating it for public use, accepting large grants of land from the State to aid it in effecting the public purposes and objects of its incorporation, then the duty of maintaining its canal and waterways, in a proper manner attached, from the performance of which it can not be released except by .due process of law. Riddle v. Merrimack River Locks and Canals, 7 Mass. 169, 5 Am. Dec. 35.

To subserve the purpose of its construction a canal, thrown open for navigation to all, upon the payment of a fixed toll, should be available at all reasonable times for public use with safety and convenience. If the canal is allowed to shoal or narrow, reducing its proper size and capacity to accommodate the different watercraft for the use of which it was constructed, and if it is permitted so to remain for long periods of time, as is alleged in' the alternative writ has been the condition of the canal and waterways of the respondent company, then the very object and purpose of its construction, which were, to provide a waterway to be used by the public with sáfety and convenience, is defeated, the State deprived of at least a large, part of the consideration for the large, grants of land made to, and the special privileges, franchises and rights conferred upon such company, and the company is thus allowed-to evade and escape its clear and plain duty and obligation imposed upon it by the general law, as well as by the. statutes, the provisions of which, as is alleged in the case of j:he respondent company, it has expressly accepted.

The general rule governing a Canal Company with respect to the operation and maintenance of its waterways in the absence of particular and legally enforceable specifications, it is held, is that it is bound so to maintain and manage the canal that it can be used with reasonable safety and convenience by the public for whose benefit it was constructed. To this end the duty of such company to the public demands the exercise of ordinary and reasonable care. Pennsylvania Canal Company v. Burd, 90 Pa. St. 281, 35 Am. Rep. 659.

In determining the existence and extent of a Canal Company’s privileges and franchises, and of its resultant duties .and obligations therefrom, reference must be had to the particular law or charter creating it and such valid statutory provisions as may relate thereto. State v. Portland General Electric Co., 52 Ore. 502, 95 Pac. Rep. 722; 98 Pac. Rep. 160.

Referring then to the Charters of the respondent company and to the statutes relating to its public duties and obligations, it is clear that said company is charged with the duty of exercising ordinary and reasonable care to keep and maintain its canal and the. waterways operated and controlled by it according to the dimensions and of the capacity required by its Charter and by Chapter 3995, Acts of 1889, the latter prescribing particular specifications for part of the canal, and the performance of such duty'may be enforced by mandamus, in a proper case, upon the relation of the Attorney General, when the allegations of the writ are sufficiently specific and there is no other adequate remedy afforded by law. State ex rel. Ellis v. Atlantic Coast Line R. Co., 53 Fla. 650, 44 South. Rep. 213, text 220. The policy of the law is to require by mandatory process the performance by public utility corporations of their duties to the public. State ex rel. Ellis v. Tampa Water Works Co., 57 Fla. 533, 48 South. Rep. 639.

While the duty of the Canal Company .with respect to the maintenance of the waterways operated and controlled by it, is as above stated, yet it is contended by respondent that in the event it should be held that mandamus is the appropriate remedy in this case to require the Canal Company to restore its waterways to the dimensions provided by statute or the .Charter of the Company,' should it appear that it has failed so to do, yet it is beyond the province of such a remedy to require the company “to hereafter at all times and at all points along said canal and •waterway from St. Johns River "to Biscayne Bay maintaining said canal and waterway” in accordance with such requirements as is commanded in the writ.

On the other hand, relator contends that this question has been definitely determined and settled by this court in the case of State ex rel. Ellis v. Atlantic Coast Line R. Co., 53 Fla. 650, 44 South. Rep. 213.

An examination of this case develops that in the discussion of the duty of a railroad4as a common carrier, the court states, that it is the duty of such a railroad to provide a reasonably safe and sufficient roadbed, track, equipment and facilities and of maintaining and operating the property in a proper condition for rendering safe, prompt and adequate service, and that such duty might be enforced in a proper case by mandamus, yet the court did not there expressly decide that mandamus would issue to require the performance of a series of continuous acts, prolonged indefinitely. That such was not the holding of the court, as expressed in the judgment, is apparent from an examination of the writ then being considered, and the scope and nature of the remedy sought. The writ in that case mentioned specific defects in the roadbed and track of the respondent railroad company, and commanded said respondent “to forthwith repair and put in reasonably safe and suitable condition your roadbed and track over and along the line of railroad” at certain definitely designated sections of the railroad. It will be noted that the specific duty contemplated being enforced by the writ, was that of repairing and putting-in reasonably safe and suitable condition the roadbed and track of the railroad, not of keeping it so at all times thereafter.

Further the court in its opinion indicates, that the duty enjoined upon the railroad company had reference to certain definite and determinable acts, the completion .and performance of which might'be ascertained within some definite time, for it is stated in the- opinion that -“the roadbed and track of a railroad have the elements of stability and fixedness, and it can readily be ascertained when they are put in the condition required by specific allegations and commands.” If the court had decided that the railroad could be compelled by mandamus to keep and maintain its track and roadbed in a safe and suitable condition at all times after the issuance of the writ, how could it readily be ascertained when the commands of the writ had been obeyed? In the subsequent case of State ex rel. Ellis v. Atlantic Coast Line R. Co., 53 Fla. 689, 44 South. Rep. 223, the alternative writ was amended, and it appears that the mandatory part did command the respondent company “to forthwith repair and. put in reasonably safe and suitable condition, and maintain the same in such condition, your roadbed and track,” etc. ; but it does not appear that this part of the. writ was there challenged by respondent or that the court considered it in the light of requiring the railroad company to perpetually maintain its roadbed in the condition to which it was required to restore it.

Neither do we consider the case of State ex rel. Luning v. Johnson, 71 Fla. 363, 72 South. Rep. 477, an authority sustaining this contention óf relator. While the alternative writ considered in that case required the Tax Collector to discharge his statutory duty by remitting to the State Treasurer fifteen per cent, of the amount of certain taxes collected for the month of February, 1916, “and for each succeeding month hereafter,” no question as to that part of the writ was raised by.demurrer or otherwise, nor was such question considered or determined by the court in its decision of this case.

The channel of a canal, such as the one now under consideration, extending for hundreds of miles through artificial and natural watercourses, varies and shifts in width and depth from time to time as the result of floods, freshets, storms, tides and other natural causes incident to such property, beyond the control of its owners. Thereby shoals and sandbars are formed, which narrow and fill the channel and form other obstructions, rendering it humanly impossible for the command in the alternative writ “hereafter at all times” to be strictly obeyed. Every temporary shoaling or narrowing of the canal, however trivial or transitory, would subject respondent to be brought before this court on charges of ^contempt, involving the necessity of frequent investigations by this court as to the causes, seriousness, extent, character and permanency of Such obstructions; whether the Canal Company was exercising due diligence in preventing or removing such obstructions; and various related matters, in effect rendering this court a supervising and managerial body as to the operation and conduct of the canal. Such a condition is not within the province of a writ of mandamus to create, nor is it practical for the courts by mandamus to enforce a series of continuous acts, required to be performed as long as the, canal continued to be operated.

• It would be out of the question to keep this case open for all.time, or even for an indefinite number of years, to superintend the, continuous performance of these duties by the respondent. There would be no end to the number of occasions when this Court might be called upon to determine whether the respondent had performed the duties in question faithfully and efficiently, or so negligently and, unskilfully as to justify it being arraigned for contempt for a violation of the mandate of this court. Iron Age Pub. Co. v. Western Union Tel. Co., 83 Ala. 498, 3 South. Rep. 449.

The, ordinary! office of the writ of mandamus is to coerce the performance of single acts of specific and imperative duty. The court will not undertake to compel the pérformance of a series of continuous acts, as it is impossible to furnish that superintendence, without which the court’s' mandate becomes nugatory. State ex rel. City of Mobile v. Board of Revenue & Road Commissioners, 180 Ala. 489, 61 South. Rep. 368; Diamond Match Co. v. Powers, 91 Mich. 145, 16 N. W. Rep. 314; State ex rel. Rosenfield v. Einstein, 46 N. J. L. 479.

Appropriate to the facts under consideration, and as a correct statement of the law here involved is the language of. the Supreme Court of Washington, in the case of State ex rel. Hawes v. Brewer, 39 Wash. 65, 80 Pac. Rep. 1001, 109 Am. St. Rep. 858: “Mandamus will not lie to compel a general course of official conduct, as it is impossible for a court to oversee the performance of such duties. 13 Ency. Pl. & Pr. 497. It will be seen in this case that the remedy sought was entirely too general to be at all practical. It is true that we decided in State v. Spokane. St. R. Co., 19 Wash. 518, 67 Am, St. Rep. 739, 53 Pac. 719, that mandamus would lie to compel a street railway company to resume the operation of a line it had discontinued. But there was one specific thing the railroad company was required to do, which involved the entire, controversy; but here there is a general course of official conduct sought to be compelled.”

In connection with this feature of the iqandatory part of the alternative writ, we are confrdnted with another and practical difficulty. The commands of a peremptory writ of mandamus must strictly follow and conform to those of the alternative writ, and unless it does so, such peremptory writ will not be enforced. State v. Gibbs, 13 Fla. 55, 7 Am. Rep. 233; State v. Call, 39 Fla. 165, 22 South. Rep. 266.

The peremptory writ being issued, is to be obeyed,' and a certificate, showing obedience is required to be filed. State v. McLin, 16 Fla. 17; State v. Board of County Canvassers of Alachua County, 17 Fla. 9.

Such being the requirements in mandamus proceedings, how could a certificate showing obedience to a writ requiring the respondent “hereafter at all times” to maintain its canal and waterways according to the required standard ? This would be impracticable and can not consistently be required.

It is contended by respondent that the mandatory clause of the. alternative writ is broader than its recitals will properly support or the statutes and its charter will require. By the pnandate of the writ, respondent is commanded, in the performance of its public duty “to restore said canal and waterway to its original dimensions, according to the specifications prescribed by law, that is to say of a width of not less than fifty feet and of a depth of not less than five feet, at mean .low water mark, for the entire length of its said canal and waterway from the St. Johns River on the north to Biscayne Bay on the south,” and further “to hereafter at all times and at all points along said waterway from St. Johns River to Biscayne Bay, maintain said canal and waterway * * * at a width of not less than 50 feet and a depth of not less than 5 feet at mean low water.”

It will be noted that this mandatory clause in part requires the entire canal and waterway from the St. Johns River to Biscayne Bay, as a whole, to be. restored to the‘ stated dimensions and so kept and maintained at all times hereafter.

The allegations of the writ, charging the default of respondent, are that the. respondent has failed to maintain its canal and waterway as required by law, “that practically nothing is .being done, particularly on the southern portion of said canal, in the way of maintenance, and for months at a time great stretches of said waterway are neglected and practically abandoned by said respondents, and permitted to remain at less than 50 feet in width, and 5 feet in depth at mean low water.”

“That, measured from St. Augustine and beginning at the southern terminus of said canal, indicated by check marks in red ink on the blue print hereto attached, the said canal and waterway has been permitted to shoal and partially fill up and become narrow and at the following points is now and has for months been permitted to remain at less than five feet deep at mean low water and less than fifty feet wide, namely,” then follows the designation of certain points along the course of the said canal and waterway.

“That at said points and various ■ and sundry other points, easily ascertainable by examination, measurement and test, along said canal and waterway, and for great stretches of said waterway, it is only 3 to 3J4 feet in depth and is only from 30 to 40 feet in width, particularly on the southern portion of said canal and waterway from Miami in a northerly direction to where said canal and waterway enters the navigable waters of Indian River, and from the canal connecting Indian River with Mosquito Lagoon in a northerly direction to the town of Ormond. That the work proposed to be done, by said respondent by way of restoration and maintenance of said canal and waterway is wholly inadequate and will be of practically no value or benefit to said respondent or to the public.”

It is well settled that 'great care, particularity and certainty is required in the mandatory part of the alternative writ, and that it must conform to the case made by the recitals in the writ, and must not require more to be done than is justified by the. recitals. Florida Cent. & Pen. R. Co. v. State, 31 Fla. 482, 13 South. Rep. 103.

A careful consideration of the quoted recitals of said writ, in connection with the blue print and map attached to, and made a part of said writ, ■ develops that nowhere is it charged particularly and certainly, that the canal between St. Johns River and St. Augustine, and between St. Augustine and the forty-first mile post along said canal, south of the latter place, or that any part of the said waterway along the - Indian River, between Goat Creek and Jupiter Inlet, does not conform to the standard of requirements to which relator urges, it is the duty of respondent to maintain such waterway.

The allegations of the writ do not amount to a charge that the respondent company'has totally failed to properly maintain and keep in repair its waterway along its entire course, for the general allegation in the first paragraph of Section XII of the writ, to the effect that said respondent has not maintained its said canal and waterway according to said specifications and as required by law must be construed and held to be limited by the particular defaults alleged at and between definite points along said waterways Generalibus speciala derogant. It is a/ well settled rule of pleading that where both general and specific allegations are made respecting the. same subject-matter, the latter control. 31 Cyc. 85.

The allegations in the recitals of the writ as to the specific default and breach of duty on the part of respondent, must be. held to be confined to only the designated parts of said waterway, while the mandatory part of the writ applies to the waterway as a whole, thus violating the rule of pleading above stated.

It is further contended by respondent that the dimensions of that portion of its waterway between the St. Johns River and St. Augustine, are not prescribed by any statute of this State; that the particular specifications as to width and depth of such canal and waterways prescribed by Chapter 3995, Acts of'1889, specifically refer to and ar'e confined as to their application to the canal and waterways of the said company between St. Augustine and Biscayne Bay; that any requirement that the part of said canal between St. Augustine and the St. Johns River should be not less than fifty feet wide and five feet deep rests solely upon the terms of its contract with the Trustees of the Internal Improvement Fund, bearing date December 1st, 1906, wherein it is provided that “the portion of said canal between St. Augustine and the St. Johns River shall be governed by and conform to the same requirements as to width, depth of water and construction as is provided^oy statutes for the canal south of St. Augustine,” a copy of said contract being attached to the alternative writ, marked “Exhibit F,” and made part thereof.; that in the event it owes any public duty with reference to that part of its canal north of St. Augustine, subject to enforcement by mandamus, such duty is to be determined solely from the provisions of its Charter, because, as respondent contends, mandamus will not lie to enforce the terms of a contract.

It is further contended by respondent that the mandate of the writ should not apply to the waterway along Indian River, between Goat’s Island and Jupiter Inlet, because by the provisions of Chapter 4283 of the Acts of 1883, it has been released from any obligation to maintain such part of the said waterway; that the conditions for such release imposed by statute., vis, the surrender and release to the United States by the Canal Company of such portion of said .waterway, and the assumption and control thereof by the United States, have been full}'- complied with, and that,the United States has assumed the jurisdiction, authority and control over such portion of said waterway, as is evidenced by certain statutes of the United States, making appropriations for improving that part of Indian River; and further, that as Indian River is a navigable waterway, the Canal Company is prohibited from excavating therein or in any manner altering or modifying, the course, condition or capacity thereof, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of State, under the provisions of Section 10, Chapter 425 of the A.ct of Congress of March 3, 1899; and that the rule, that mandamus will not issue to enforce a right which is contingent upon the further act of a third person, or which is beyond the power of the respondent to perform, is applicable and controls. While these contentions may not be .without weight and merit, under a state of facts involving their application, yet it is unnecessary and improper at this time to pass upon them, in view of our construction that.the allegations of the writ as to the default and breach of duty on the part of respondent, do not charge, that such sections of the canal and waterway are not of the dimensions required by law, or that they are not in good order and open for the safe and convenient use of the public.

That portion of the mandatory part of the writ requiring the respondent to restore to certain stated dimensions its canal and waterways “at various arid sundry other points easily ascertainable by examination, measurement and test along said canal and waterway,” is objectionable in that it violates another well settled rule, applicable to mandamus, to the effect that the respondent should not be required to look beyond the writ to ascertain the. precise acts which he is commanded to perform. In other words, “that the r^nge of action required of the respondent can not be left to' indiscriminate outside ascertainment, nor can he be required to look dehors the writ to ascertain his duty. Florida Cent. & P. R. Co. v. State, 31 Fla. 482, 13 South. Rep. 103; Howell v. State, 54 Fla. 199, 45 South. Rep. 453.

In the last case this court cites approvingly the holding in Clayton v. McWilliams, 49 Miss. 311, to the effect that when anything remains to be done, or fact to be ascertained, relief can not be. granted by mandamus.

The last quoted clause in the mandatory part of the writ, leaves the precise acts to be done thereunder in a more or le.ss indefinite and uncertain state, contingent upon the result of an “examination, measurement and test” to be conducted by some indefinite person or agent and which may be more or less thorough, careful, and efficient.

This construction is not at variance with the views expressed by this court in State ex rel. Ellis v. Atlantic Coast Line R. Co., 53 Fla. 689, 44 South. Rep. 223, to the effect that the duty to maintain its roadbed and track in a proper condition, requires a railroad company .to have a more or less detailed knowledge of every portion of its roadbed and track, and therefore more specific allegations than were made in the. alternative writ in that case, as to the points at which and the particulars in which .the breaches of duty occurred were not required. In thaF case the recitals of the writ alleged the, condition of the roadbed and track to be such “that the main line of the railroad as a whole must be .in an unfit and unsuitable state for the public service in which it is used.”

Such a broad construction can not be given to the allegations of the writ in the present case, as hereinbefore pointed out.

As the alternative writ in mandamus proceedings stands as the pleadings on the part of the relator, if too much is asked, the Respondent may show this as a sufficient cause for not complying with the mandate of the writ. The mandate of the writ must be enforced as a whole, and where a motion to quash the alternative writ is made, and it appears from the face of such writ that relator is not entitled to have the order enforced as a whole, the motion to quash should be granted with leave to relator to amend such writ if it should be so advised. Merchants Broom Co. v. Butler, 70 Fla. 397, 70 South. Rep. 383.

An order will be entered that, unless the Attorney General shall within twenty days amend the alternative writ so as to conform to the principles announced in this opinion, the motion to quash the alternative writ will be granted.

Browne,, C. J., and Taylor, Shackleford and Whitfield, JJ.,-concur. Ellis, J., disqualified.