State ex rel. Ellis v. Atlantic Coast Line Railroad

Hocker, J. (after stating the facts). — It will be observed that the first, second, third, fourth and fifth grounds of demurrer present in various forms of statement the proposition that the alternative writ is bad and insufficient in law, because the recitals of the writ alleging a refusal of the respondent to put into effect the rates on phosphate prescribed by the order of the Railroad Commissioners are wanting in certainty, and amount simply to a conclusion of law. It is insisted that instances of violation should be set forth. This proceeding is instituted at the instance of an .official body, the Railroad Commissioners, to compel the respondent to put into effect and practical operation the schedule of rates and system of rating prescribed in the order, and is not intended to compel the company to carry any particular phosphate for any particular individual. The writ recites that the order became effective on the fifteenth of January, 1904, and that respondent has not put into effect the schedule of rates prescribed therein, but refuses so to do, and in violation and disregard of the prescribed rates, now charges, and since the 15th day of January, 1904, has charged for the transportation of phosphate over its lines of railroad, and railroads under its control and management — 125 — from points in Florida to points in Florida, rates in excess of the rates prescribed in and by said order, and it has refused and still refuses to comply with all and singular the aforesaid, and other commands, and directions of the said order of the Railroad Commissioners made on the 17th day of December, A. D. 1903. We think the recitals clearly import a refusal to comply with the said order in each and all of its directions — in other words, a refusal to comply with the schedule of rates as a system of rates. The allegation that the respondent now charges, and since the 15th day of January, 1904, has charged for the transportation of phosphate rates in excess of the prescribed rates, simply accentuates and points out the particular thing which respondent is alleged to be doing, signifying its refusal to put into effect the prescribed schedule of rates and its violation and disregard thereof. The recitals of this writ thus used to compel the observance of a system or schedule of rates on phosphate are of similar import to those employed by the distinguished pleader who drew the writs in the unreported case of State ex rel. Attorney-General v. Florida Southern Railway Company, which was presented to this court in December, 1888, to compel the observance of the schedule of rates prescribed by the Railroad Commission on oranges. The writ in that case was subjected to the most ingenious and rigorous criticism, but was held good by this court. The argument that if instances of violation were cited in the writ such instances could probably be considered so as to show that such instances did not come under the jurisdiction of the State Railroad Commission, is not constraining. Our opinion is that the question whether this or that case can be used in support of a charge of a total disregard and violation of the order of the commission, is one involving the relevancy, competency and probative force of evidence, and not one of pleading. It is contended on several grounds that the recitals of the eighth paragraph of the writ taken separately, amount to no more than conclusions of law. We think, however, that this — 126 — paragraph is to be considered as a whole, and, being so considered, is not substantially indefinite or uncertain. It is one sentence, the several recitals of which are connected by copulative conjunctions, and each separate allegation is to be construed by its contextural connections. Thus considered it charges a general violation of the duty of the respondent in refusing to put the prescribed rule into practical operation, and by way of re-enforcement of this charge, that it is, and has been charging rates in excess of those prescribed. Certainty of allegation is requisite, but if the alternative' writ states the facts on which the demand is based with sufficient precision to express the right of relator and the duty o.f the respondent in such a manner that the ordinary mind may easily apprehend them, we think this is all the certainty required to defeat a demurrer. Central D. & P. Tel. Co. v. Commonwealth, 114 Pa. St., 592, 7 Atl. Rep. 926; Fisher v. Mayor, etc., of Charleston, 17 West Va. 628; 13 Ency. Pl. & Pr., 674-5 and notes. It is also objected that the writ does not recite the existence of phosphate, nor any tender of the same for transportation, nor refusal to transport any specific tender of phosphate at the prescribed rates. We do not think this is a tenable position on this demurrer. It is true, that generally material facts should be alleged by direct averment, and not by inference, but unequivocal averments will support implications that necessarily result, at least, on general demurrer. 6 Ency. Pl. & Pr., 269; State ex rel. Attorney-General v. Johnson, 35 Fla. 2. Special demurrers which at common law reached defects of formal statement, are abolished in this State. This court, like other courts, will take judicial notice of matters of common knowledge, and, therefore, knows that phosphate is produced in some portions of Florida, and is, an article of transportation. The allegation that excessive charges are made for the transportation of phosphate necessarily implies that phosphate is tendered for transportation, and is transported, for if it were not actually tendered and offered for transportation, it could not be transported. — 127 — It is objected that the phrase “put into effect” and the word “charge,” used in the eighth paragraph, and the mandatory clause, are indefinite, and indeterminate in their meaning. To put a rate into effect is to charge and receive that rate when the article to which it applies is transported; in other words, to give it practical operation. To charge is to. “lay on,” or “impose” as a load, tax or burden, to fix or demand a price for a thing or service. The phrase and word are of the most common use, and we fail to see how there can be any substantial difficulty in discovering their meaning. We might close the opinion at this point, but the discussion both orally and in the briefs has taken a wider range than is indicated in any ground of the demurrer. It is insisted that the order of the Railroad Commissioners is void, because it prescribes a less rate than one cent a ton per mile, where at the date of the order, a less rate was-then being charged, which in effect amounts to a discrimination in favor of certain individuals, classes or communities and which is prohibited by the Railroad Commission act, Chapter 4700, laws of 1899. We discover nothing in the act or the order, properly construed, which sustains this contention. Railroads and common carriers, it is true, are inhibited from making unjust discriminations in rates (sec. 4), but we discover nothing in the act which limits the discretionary powers of the Railroad Commission to make reasonable and just rates. It does not necessarily follow that in prescribing a particular rate lower than the general one, the commission have violated their authority. There may be circumstances which would justify such lower rates, and the act itself (sec. 8) makes the rates and regulations prescribed by the commission prima facie reasonable and just. The proviso of the order properly construed applies only to general rates to the public, and not to special rates given by railroad companies to individuals, if any such were given, as contended by the defendant. It is further contended in argument that mandamus does not lie to enforce a continuing duty. We do not think this a — 128 — sound contention. In the case above cited, as also in the case of State ex rel. Attorney-General v. Pensacola & A. R. Co., 27 Fla. 403, 9 South. Rep. 89, and State ex rel. Attorney-General v. Jacksonville Terminal Company, 41 Fla. 377, 27 South. Rep. 225, some portions of the duties enforced by mandamus were of a continuing nature. See, also, Attorney-General v. City of Boston, 123 Mass. 460; People ex rel. Jackson v. Suburban R. Co., 178 Ill. 574, 53 N. E. Rep. 349; People v. New York Central and Hudson River R. R. Co., 28 Hun. 543, and particularly Goodell v. Woodbury, 71 N. H. 378, — Atl. Rep. —; Town of Mason v. Railroad Co., 51 West Va. 183, — S. E. Rep. —. And there is no doubt that mandamus is an appropriate remedy to compel observance of a valid regulation of the Railroad Commissioners imposing specific public duties upon railroad companies. 2 Elliot on Railroads, sec. 697 et seq; State v. Fremont, E. & M. V. R. Co., 22 Neb, 313, 35 N. W. Rep. 118; City of Potwin Place v. Topeka Ry. Co., 51 Kan. 609, 33 Pac. Rep. 309. See, also, State ex rel. City of Bridgeton v. Bridgeton & M. Traction Co., 62 N. J. L. 592, 43 Atl. Rep. 715. It is contended that the mandatory clause of the writ is broader in its terms'and meaning than its recitals will support. We do not regard this as a sound contention. We deem it proper to say here, in order to prevent misapprehension, that we regard the recitals and mandatory part of the writ as embracing but one subject and purpose, viz; as reciting a total violation in each and all its directions of the order of the Railroad Commissioners, and as seeking to compel respondent to observe and put said order into effect and practical operation as a totality. Upon, a proper issue joined if the relator does not show that respondent was and is violating and refusing to observe the several rates which make up the whole schedule, the question would arise whether a peremptory writ could be issued. State ex rel. Moody v. Call, 39 Fla. 165, 22 South. Rep. 266; Florida C. & P. R. Co. v. State ex rel. Town of Tavares, 31 Fla. 482, 13 South. Rep. 103; Tapping on Mandamus, top page 369, — 129 — (marg. *324) ; Haskins v. Board of Supervisors of Scott Co., 51 Miss. 406; Fisher v. Mayor, etc., of the City of Charleston, 17 West Va. 628. The demurrer is overruled and the respondent is required to file its return showing obedience to the mandate of the alternative writ, or cause why it is not obeyed, on or before the 12th day of July, A. D. 1904. Taylor, C. J., and Cockrell, J., concur. Carter, P. J., and Shackleford and Whitfield, JJ., concur in the opinion.