State ex rel. Burr v. Atlantic Coast Line Railroad

Parki-iill, J.

(after stating the facts.)—As interesting and important as it is, the question whether the effect of the enforcement of Rule 15-A would be to deprive the respondent of its property without due process of law, and therefore in contravention of the Fourteenth Amendment of the Constitution of the United States, bécause it requires, as argued, that railroads shall part with their cars or make connections with other railroads without due process of law does not confront us. This rule does not seek to compel a service, but merely to fix a rate therefor: “The charge for switching cars of rough lumber * * * to any planing mill in the Jacksonville yards and thence, if the lumber is dressed, to any point in the same yards, shall not be more than two dollars per car * * *” • It is true that the Rule further provides “that when the said switching movement is over the tracks of more than one railroad a charge of not more than three dollars may be made,” but such rule nowhere requires or compels the service over more than one railroad, and the alternative writ herein complains that the respondent only “has * * * refused to charge and put into effect the rate prescribed in and by said Rule 15-A, but has charged and received * * * and is still charging and receiving the sum of five dollars for switching cars of rough lumber consigned to and arriving at the City of Jacksonville from points in this State, to a planing mill in the Jacksonville yards and thence, after the lumber is dressed, to a point in the same yards when the said switching movement is over its own tracks only, for which service under the said Rule 15-A it is entitled to charge and receive the sum of two dollars.” And the command of the writ is that the respondent forthwith “observe the rate prescribed in Rule 15-A of the ‘Rules Governing the Transportation of Freight’ by our Railroad Commissioners for switching cars of lumber over your oton tracks only in the Jacksonville yards; that is to say, to charge and receive no more than the sum of two dollars per car for switching cars of rough lumber consigned to and arriving at the City of Jacksonville from points in this State, to any planing mill in the Jacksonville yards and thence, after lumber is dressed to any points in the same yards, when the switching movement is over your own tracks only.”

It is also true that Rule 15, in prescribing a rate for transporting, switching or transferring a loaded car from any point on any railroad to any connecting railroad, or to any warehouse, sidetrack, or any other point of delivery that may be designated by the consignee within a distance of three miles from the point of starting, provides- that no railroad company shall decline or refuse to so transport, switch or transfer any car, or to receive it from any con-connecting railroad for such purpose; but the service here, contemplated is entirely distinct from that of switching cars of rough lumber to a planing mill and thence if the lumber is dressed to any point in the same yards, as provided by Rule 15-A.

The service contemplated by Rule 15-A, the stopping of a commodity in transit for the purpose of treatment, is said to be in the nature of a special privilege which the carrier may concede, but which the shipper cannot, in the present state of the law, demand as a matter of lawful right. Diamond Mills v. Boston & M. R. R. Co., 9 I. C. C. Rep. 311. Whether the carrier is or is not under obligations to permit the interruption of the transit, the rule merely seeks to regulate the charge for such service when rendered. Whether intentionally or not, Rule 15-A seems not to have determined that question as far as the Commission may determine it, for it fails to contain the provision that no railroad company shall decline or refuse to transport, switch or transfer any such car, or the further provision that no railroad shall refuse to receive such car from any connecting railroad for such purposes, while these provisions are made a part of Rule 15, which provides a rate for transporting, switching or transferring a loaded car from any' point on a railroad to any connecting railroad or to any warehouse, sidetrack, &c., not stopping the commodity for the purpose of treatment,

As the rule plainly avoids the difficulties that have been suggested in the second ground of the motion to quash we will not undertake to consider them. So understanding the two rules, 15 and 15-A, and taking them together, we do not think them so inconsistent and uncertain as to be incapable of enforcement, as is suggested in the fourth ground of the motion to quash.

We cannot see, from anything in the alternative writ, wherein Rule 15-A is discriminatory against Jacksonville, or against localities other than that city, or against commodities and dealers therein, other than rough lumber, or against the respondent and other railroad companies and common carriers at Jacksonville and at other points in this State, as is contended for in the fifth, sixth and seventh grounds of the motion to quash. In regard to these matters and contentions we must confine ourselves to the allegations of the alternative writ. Matters stated in the motion to quash or in respondents brief cannot be considered, if not found in the alternative writ. State ex rel. Romano v. Yakey, 43 Wash. 15, 85, 85 Pac. Rep. 990.

There is nothing in the alternative writ to show that there are any planing mills within railroad yards in localities or lumber markets other than Jacksonville, or that railroad companies in these other localities either do not, or are compelled, to render the service of transfer to or from the mill if there be one, or that other commodities are shipped to Jacksonville or other localities for stoppage at mills of any kind for treatment, or that the charge made by other railroads for like service at other places is unreasonable or excessive. In fact, there is nothing on the face of the alternative writ to sustain the charge of unjust discrimination made in the motion to quash. We cannot see in the allegations of the alternative writ that Rule 15-A provides a lesser rate for manufacturers of dressed lumber at Jacksonville than it does for other manufacturers and shippers of other products at Jacksonville, and manufacturers, shippers and consignees of the same and other products at other points in this State. Undoubtedly carriers may not discriminate between markets nor between individuals in the granting of such privileges as are contemplated by Rule 15-A (Southern Railway Company v. St. Louis Hay & Grain Company, 214 U. S. 297) and the Commissioners likewise in regulating such privileges may not unjustly discriminate; but such discrimination, if it exists, should be set up by a return to the alternative writ. It cannot be made so to appear by motion, to quash or in the form of a speaking demurrer, where there is nothing in the record as made by the alternative writ to evidence any such discrimination.

The alternative writ does not show that the rate fixed by the Commission in Rule 15-A is unreasonable, unjust or exorbitant or unjustly discriminatory in amount against any other locality or person. If the rate is so illegal and unjust it may be made to appear by return to the alternative writ; but for aught that appears the same rate may prevail for other markets, by virtue of other rules. There may be sub-divisions of Rule 15 for every letter of the alphabet dealing with other places, markets and commodities. It is not essential to. the validity of Rule 15-A that it should prescribe or fix one rate for the service to be rendered in all markets and localities of the State. A uniform rate is not essential to its legality. The circumstances of each road and each market or locality must determine the rates of toll to be properly allowed for this service. The carrier is entitled to receive some compensation beyond mere cost of this service; and the cost thereof may be greater or less in one city than in another. The fact that the rate fixed in Rule 15-A for Jacksonville is different from the uniform rate fixed by Rule 15, does not show an unreasonable discrimination, for the service contemplated by the two rules is entirely different. There is a sphere of operation for both rules, and the rateN prescribed for the service by one rule may be different from the rate fixed by the other rule and yet both rates may be reasonable and just. Cincinnati, N. O. & T. P. R. R. Co. v. Interstate Commerce Commission, 162 U. S. 184, 16 Sup. Ct. Rep. 700; Texas & P. R. Co. v. Interstate Commerce Commission, 162 U. S. 197, 16 Sup. Ct. Rep. 666; Interstate Commerce Commission v. Alabama Midland R. Co., 168 U. S. 144, 18 Sup. Ct. Rep. 45.

In State ex rel. Attorney General v. Atlantic Coast Line Ry 52 Fla. 646, 41 South. Rep. 705, this court held that the rules and regulations made by the Railroad Commissioners to prevent unjust discriminations or other abuses by railroad companies are by law deemed and held to be prima facie reasonable and just, and, in the absence of a showing of unreasonableness, the enforcement of such rules and regulations against a railroad company will not, of itself, be a taking of property without due process of law, or deprive such railroad company of the equal protections of the laws. Whether the rate is in fact an unreasonable and unjust one must be determined upon answer or return and proof. See the note to City of Madison et al. v. Madison G. & E. Co. et al., 129 Wis. 249, 9 Ann. Cas. 819, 823.

We come now to the first contention made by the mo lion to quash, “No power is conferred by law upon' the Florida Eailroad Commissioners to make and enforce the rule set forth in said alternative writ as ‘Eule 15-A,’ of the Eules Governing the Transportation of Freight.”

Section 30 of Article 16 of the constitution invests the legislature with “full power to pass laws for the correction of abuses and to prevent unjust discrimination and excessive charges by persons and corporations engaged as common carriers in transporting persons and property, or performing other services of a public nature.'’ The legislature, by section 2893 of the General Statutes, authoiúzed and required the Eailroad Commissioners to make reasonable and just rates of freight tariffs to be observed by all railroads,'railroad companies and common carriers doing business in this State over their respective lines or connecting lines, and to make reasonable and just regulations for the observance of the same as to charges at any and all points for the necessary handling and delivery of all kinds of freight,.and for the prevention of any unjust discrimination in connection therewith; also to regulate charges for storage, wharfage, and demurrage, refrigerator cars, fruit boxes, icing, etc. in transit, and to direct and control all other matters pertaining to railroads that shall be for the good of the public. Matter of Tr. Village of Saratoga Springs v. Saratoga G. E. L. & P. Co., 191 N. Y., 123, 14 Ann. Cas. 606, 614.

Section 2896 of the General Statutes gives the Commissioners full power and authority to require any railroad, railroad company or common carrier to properly operate its road or transportation line, and to furnish all the necessary facilities for the convenient and prompt handling, transportation and delivery of all freight offered along its line for transportation, and requires the Commissioners to provide and prescribe all such rules and regulations as may be necessary to secure such operation and the furnishing of such facilities and the prompt handling and delivery of all freights offered; and, by section 2891, the term “railroad,” as úsed in the provisions already stated, is defined to include all the road in use t>y any corporation or other person operating a railroad. In section 2921 of the General Statutes the Commissioners are given and granted full authority to do and perform any act or thing necessary to be done to effectually carry out and enforce the provisions and objects of the chapter dealing with this subject.

Whether the Railroad Commissioners have express statutory authority to require the performance of the duties or the granting of the privileges contemplated by Rule 15-A or not, it is made to appear by the allegations of the alternative writ that long before and at the time of the adoption of Rule 15-A by the Railroad Commissioners, “the said railroad yards in the city of Jacksonville or a portion thereof have been maintained and operated for many years past by the railroads entering that city, and as far back at least as the year 1891 planing mills have been established within the said yard limits and accessible to the tracks therein, to which it was and is usual and customary for the railroads companies to switch, upon order of the consignees, cars of rough lumber shipped to and arriving at the City of Jacksonville from other points in this State, for the purpose of dressing the same, and after dressing to switch the said cars of lumber to some other point in the yards designated by the said consignees.”

In performing this service the railroad companies were “doing business over their respective lines or connecting lines” and section 2893 of the General Statutes authorized and required the Commissioners “to make reasonable and just rates of freight tariffs to be observed by such railroads and common carriers, and to make reasonable'and just regulations for the observance of the same as to charges at any and all points for the necessary handling and delivery of freight and for the prevention of unjust discrimination in connection therewith.”

This was a service, too, or matters pertaining to railroads for the good of the public, or, as the constitution expressed it, “services of a public nature,” and the statute authorizes the Commissioners to direct and control all such matters.

It is settled law that the duties of a common carrier may arise out of usage as well as from statutory enactments, and when once established the obligation of such carriers to perform them is as binding in the one case as in the other. State ex rel. Attorney General v. Atlantic Coast Line R. R. Co., 51 Fla. 543, 41 South. Rep. 529; State ex rel. Attorney General v. Atlantic Coast Line R. R. Co., 52 Fla. 646, 41 South. Rep. 705; Norfolk & P. Belt Line R. Co. v. Commonwealth, 103 Va. 289, 49 S. E. Rep. 39. In other words, whenever a duty has been imposed either by usage or by statute the courts may be called on to give it effect. Memphis & L. R. R. Co. v. Southern Exp. Co., 117 U. S. 1, 6 Sup. Ct. Rep. 542, 29 L. Ed. 791.

If this may be said to be a drayage service it is not a private drayage service, as suggested by respondent, but a public drayage business. Where does the company get authority to do a private drayage business ? As the court said, in Munn v. Ill., 94 U. S. 113, text 125, 24 L. Ed. 77, “property becomes clothed with a public interest when used in a manner to make it of public consequence and effect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he in effect grants to the public an interest in that use, and must submit to be controlled by the public for the common good to the extent of the interest he has ’ created.” See also, Southern Indiana Ry Co. et al. v. Railroad Commission of Indiana, .. Ind. ..., 87 N. E. Rep. 966; State ex rel. Star Pub. Co. v. Associated Press, 159 Mo. 410, 60 S. W. Rep. 91, 51 L. R. A. 151, 81 Am. St. Rep. 368; Jacobson v. Wisconsin, M. & P. R. Co., 71 Minn. 519, 74 N. W. Rep. 893; State v. Wabash, St. Louis & Pac. Ry Co. 83 Mo. 144; Allnutt v. Inglis, 12 East 527.

We think it may be also said that the service in question is cognate to and so intimately connected with the public service involved in the carriage and delivery of freight by the railroad company as to constitute a part of such service and consequently subject to governmental control.

The allegations of the writ show that the respondent maintains and operates extensive terminals, railroad yards and switching facilities for the reception, handling, transportation and delivery of freight or property transported by it, and these terminal and switching facilities are all connected together by transfer tracks and switches.- The respondent has connected these spur tracks or switches with and made them a part of its railway system and devoted them to the purposes of traffic. That is a public use. Such being the case they are not private tracks. While the respondent is entitled to compensation, a reasonable profit, for the extra service rendered and the privilege extended of stopping cars loaded with lumber at the planing mills for treatment and then transporting and delivering them to the place of destination, it is subject to the same obligation and public control as to these switches and spur tracks and the service over them as to its main line. State ex rel. Railroad & Warehouse Commission v. Wilmar & S. F. R. Co., 88 Minn. 448, 93 N. W. Rep. 112; Chicago, B. & N. R. Co. v. Porter, 43 Minn. 527, 46 N. W. Rep. 75; Barre R. Co. v. Montpelier & W. R. R. Co., 61 Vt. 1, 17 Atl. Rep. 923.

By section 2891 of the General Statutes, the term railroad is defined to mean “all the road in use by any corporation &c.” As was said by the court in Missouri Pac. Ry Co. v. Whichita Wholesale Grocery Co., 55 Kan. 525, 40 Pac. Rep. 899, “a railroad transporting a car load of freight one mile, using a switch engine for motive power, is just as much a common carrier as if the distance were a thousand miles by regular freight train.” See also, Louisville & Nashville R. Co. v. Central Stock Yards Co., 30 Ky. L. 18, 97 S. W. Rep. 778.

These tracks in the railroad yards in Jacksonville, then, are not mere private ways, outside of the principal road. They connect with it, are used as a part of it, conferring the same rights upon the company and imposing the same obligations as the main line. The people who have occasion for the transportation of rough lumber over them are interested in them. The public enjoy a beneficial use of them.

We conclude, therefore, that, whether the service contemplated by Rule 15-A may or may not be enforced as a duty, yet when voluntarily entered upon as the writ shows is the case here, it may be regulated, and the charges therefor supervised by the Railroad Commissioners.

The motion to quash the alternative writ is overruled, and the respondent is required to answer within 20 days from the filing of this opinion.

All concur except Taylor, J., absent on account of illness.