State Ex Rel. Burr v. Seaboard Air Line Railway Co.

This case is here for disposal the second time. In the former opinion reported in ___ Fla. ___, 104 So.2d Rep. 602, the motion for peremptory writ was denied because respondents jointly were commanded by the alternative writ to erect and maintain in connection with the south side of their joint passenger terminal station at Lake City, Florida, 350 feet of umbrella shed with hard surfaced platform, and in connection with the north side of said joint passenger terminal station 100 feet of umbrella shed with hard surfaced platform. It being made to appear by the facts exhibited that the duty was on each respondent separately to erect and maintain the said upbrella shed along its particular road, if it in law was proper to be required, and that there was no joint duty in such erection.

Relators amended their original order and on petition the alternative writ was amended to conform to the views of this Court expressed in the opinion on the former hearing. Respondent, Seaboard Air Line Rairoad Company confessed the facts alleged in the amended alternative writ and withdrew all objection to the requirements as to it in the amended order, so the cause is now before us on the resistance of the respondent Georgia Southern Florida Railroad Company to the amended order which in effect required the Seaboard Air Line Railroad Company to construct that portion of the umbrella shed ordered to be constructed adjacent to its track, and likewise required the Georgia Southern Florida Railway Company to construct that portion of the umbrella shed ordered to be constructed adjacent to its track.

The former opinion in this case was filed May 25, 1925, and on June 17, following, relators promulgated their amended order. The respondent Georgia Southern Florida Railway Company resists compliance with the amended order because, (1) said amended order amounted to a change in substance and not form only, and was made without notice to respondents; (2) the alternative writ and return thereto shows that on the original hearing relators did not consider the erection by each respondent of separate sheds, the possible abandonment by respondent Georgia Southern Florida Railroad Company of part of its main track, the resulting burdens on interstate commerce or the necessity of respondent Georgia Southern Florida Railway Company issuing bonds to comply with the amended order, and (3) misjoinder of parties respondent.

The law is well settled that administrative orders, quasi-judicial in character, are void if a hearing was denied, or if granted on an inadequate or unfair hearing, or if the finding was contrary to the "indisputable character of the evidence." Interstate Commerce Commission v. Louisville N. R. Co., 227 U.S. 88, 33 Sup. Ct. Rep. 185; Louisville N. R. Co. v. Sloss-Sheffield Steel Iron Co., Supreme Court Rep. Dec. 15, 1925, page 73.

The law is also well settled that the Railroad Commission, like a Court, may of its own motion or by request correct or amend any order still under its control without notice and hearing to parties interested, provided such parties cannot suffer by reason of the correction or amendment, or if the matters corrected and amended were embraced in testimony taken at a previous hearing. Interstate Commerce Commission v. Louisville N. R. Co., supra.

The contention of respondent that the change in the amended order was one of substance and not form only is not well grounded. The sole purport of the amendment was to change the order of the Railroad Commission from a joint to a several order, which in this case amounted to a change in form only. Inspection of the amended writ discloses that the evidence taken at the original hearing was reconsidered and neither the protest nor the return on the part of respondent makes it appear that it will suffer any undue hardship by reason of the amended order or that its burden has been in anywise enlarged or made more grievous thereby.

The power of the Railroad Commission to require such improvements or betterments as are involved in this litigation was fully covered in our former opinion in this case. It was there in effect held that such power was plenary if the requirement imposed no undue burden on interstate commerce. It was shown at the former hearing that the total cost of the umbrella shed ordered constructed on the part of the respondent Georgia Southern Florida Railway Company would amount to not exceeding $3,600.00. It is not shown here that this amount would be increased under the amended order; nor is it shown or alleged that the expenditure of this amount would impose a burden on interstate commerce or that respondent would be compelled to issue bonds or other evidences of indebtedness to be approved by the Interstate Commerce Commission for the purpose of complying with the amended order.

In cases of this kind the Court will not disturb the findings of fact on the part of the Railroad Commission even when based on conflicting testimony. The credibility of the witnesses and the conflicts in the testimony must be reconciled by the Commission. The Court will, however, on presentation of a justiciable question determine the legal effect of the evidence, whether the order as made deprives the respondent of a constitutional or statutory right, or for any reason is contrary to law, and whether or not the hearing incident to making the order was fair and adequate. Interstate Commerce Commission v. Louisville N. R. Co.,supra.

It is last contended that the Seaboard Air Line Railway Company and the Georgia Southern Florida Railway Company are improperly joined as parties respondent.

Under the common law where the performance of a series of acts by different parties was necessary to the ultimate object of the writ of mandamus it was proper to make them all parties respondent; but aside from the common law rule, we think Section 4661, Revised General Statutes of Florida, 1920, is broad enough to warrant the inclusion of different parties in the same writ where such inclusion is necessary to require performance of orders of the Railroad Commissioners legally made under circumstances shown in this case. The respondent Seaboard Air Line Railway Company having acquiesced in the order, the command of the alternative writ is now in effect addressed to the remaining respondent.

The amended order complained of being one of form only, and it not being made to appear that respondent is harmed thereby, or that it directly or indirectly imposes a burden on interstate commerce, the motion for peremptory writ will be and is hereby granted.

ELLIS, C. J., AND WHITFIELD, STRUM, BROWN AND BUFORD, J. J., concur.