State ex rel. Railroad Commissioners v. Live Oak, Perry & Gulf Railroad

Per Curiam

A petition was filed for a rehearing by Bespondent upon the following grounds:

“1. This Honorable Court inadvertently failed to consider and decide one of the chief questions presented by respondent’s answer to- the alternative writ and insisted upon in respondent’s brief, to-wit': the right of relators to discriminate, against respondent in favor of other short roads where the same or identical service is to he performed under similar conditions.

“2, This Honorable Court failed to draw the distinction between a railroad’s being entitled to a net profit from every mile, section or part unto which the road might be divided, and a net profit for a set-vice rendered, the question of service only being involved in this case.”

The opinion as filed in this case recites in substance the averments of the Respondent’s answer and quotes the language of the answer as it refers to the alleged discrimination made by Relators between the Respondent and other short roads. The averment of the answer that Relators had no evidence before them which justifies the alleged discrimination we consider was not an issuable averment of fact. If there was any evidence whatever before the Relators on the subject the presumption of reasonableness and justness which obtains in favor of the order, would be supported. The averment of the answer was a mere conclusion of the pleader. He should have stated the facts in his answer sufficient to overcome the presumption of- reasonableness which obtains in favor of the order or have averred .an absence of any evidence whatever upon the subject if it was designed to present the question which the petition alleges we failed to consider.

As to the second point the opinion distinctly states that it is not necessary to the validity of the order that a profit- should be assured. from every -mile, section or other part into which the road might be divided.

An order of the Railroad Commissioners affecting the transporation of a -class of commodities in carload lots cannot be attacked by segergafing one item of the commodities included in the order, or computing the costs incurred and revenue derived from hauling a particular commodity a certain distance and showing that the particular service is unprofitable. The entire traffic in the particular class over the entire line to which the order applies must be considered in order to determine whether the order as made was within the power of the Commissioners.

It is unlike the case where a particular service is required by the order to be performed. The petition for rehearing is, therefore, denied.