I am unable to concur in the opinion as prepared by Mr. Justice BUFORD but am in accord with the judgment of reversal. A study of the record and briefs of counsel, coupled with an independent search of the applicable authorities, leads to the conclusion that one of the rules of statutory construction recognized by this Court and cited with approval
by the Supreme Court of the United States is determinative of this controversy.
Pertinent portions of Section 356.02, Fla. Stats. 1941 (FSA), are viz: "and there shall be such crossings and stock guards constructed on all railroads passing through farms at such places as may be reasonably requested by the owners or their agents." We held in Smith v. Chase, 91 Fla. 1044, 109 So. 94, that a statute may be invalid as applied to one state of facts and yet valid as applied to another. This rule has been cited with approval in many cases. See Ex Parte Wisc. 141 Fla. 222,192 So. 872; City of Miami Beach v. The Texas Co., 141 Fla. 616,194 So. 368; In re: Seven Barrels of Wine, 79 Fla. 1,83 So. 627; Dutton Phosphate Co. v. Priest, 67 Fla. 370,65 So. 282. This rule has been cited with approval in Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 66 L.Ed. 239,42 S. Ct. 106; Kansas City Sou. Ry. Co. v. Anderson, 233 U.S. 325,58 L.Ed. 983, 34 S.Ct. 599.
Counsel have placed different constructions on our holding in the case of Atlantic Coast Line R.R. Co. v. Ivey, 148 Fla. 680,5 So.2d 244. In this case we held that because of the peculiar facts involved, the cited statutes could not be enforced without depriving the railroad company of the equal protection of the law. Our holding was limited to the facts presented on the record in that cause. We did not hold the application of the statutes unenforceable for all purposes. We have on this record a different set of facts from the facts presented in the Ivey case, supra. It is settled that a statute may be invalid as applied to one state of facts and yet valid as to another.
BROWN, J., concurs.