State ex rel. Attorney-General v. Pensacola & Atlantic Railroad

27 Fla. 403 | Fla. | 1891

Ratocy, C. J.:

This is a proceeding in mandamus institued before this court in the exercise of its original jurisdiction.

1. Among the rules and regulations prescribed by the Railroad Commission is one adopted September 23d, 1889, and known as Rule 4, which was published as a part of “Circular No. 23,” and went into effect October 15th, 1889, and reads as follows: Each railroad company shall post in a conspicuous place, and keep the same continuously posted, in each of its stations, a copy of the schedule of freight and passenger rates revised and adopted for the use of such company by the Commission; a copy or all the rules and regulations prescribed by the Commission for the government of the transportation of freight and passengers applicable to its line of road, and a copy of the official classification ; also copies of all changes made, whether the same shall be made by such railroad company or by the Commission; also a table of distances between each station.

On the 16th day of December, 1839, the Commission issued a “Circular No. 21,” addressed “To the railroad companies doing business in Florida,” in which it is stated and called to the attention of these compaDies that the Commissioners had lately visited a number of stations and offices, and upon investigation discovered that the above rule had not been fully complied with; that ‘ ‘ at no place were the rules and regulations of the Commission, nor the classification of freights posted as the rules and regulations prescribed by the Commission direct. In fact some of the agents alleged that rules and regulations as embraced in Circular-No. 23 had not been furnished them at all. In most cases, but not all, of the few instances where any effort was made to do so, they were hung on a nail, in a pamphlet form. This last is not a posting, and is not in compliance with the rules. They should be posted as are the freight and passenger schedules in placard or pos^ ter form. (Sec.. 0 Railroad Commission Laws.) The schedule of passenger and freight rates were found to have been posted in very few instances, and then very often not in a conspicuous place as the law directs. In some instances they were said to have been torn down, but there was no evidence of any effort to replace them, and thus to keep them continuously posted.” This Circular 24 also states that the Commission have, instead of multiplying formal orders; adopted it as a means of calling the attention of the railroad companies to especially the posting, and that after January 1, 1890, the Commissioners will visit the different stations and offices of eac.li railroad doing business in the State, and hope to find that this suggestion has prompted tlie careful posting in the manner indicated, ■appropriately in the freight' and ticket offices of the ■several documents referred to in General Rule No. 4.

The complaint, made against, the respondent, who is alleged to have had due notice of such Rule 4, and of the subsequent Circular 24, is as follows :

That at its station at Marianna, the respondent has made no attempt to comply with the requirements of said rule, and at another station, Milton, has not in full complied with tlie requirments of the rule.

That at other important stations, viz : River Junction, Chiplev and DeFuniak Springs, and at all other •stations along the line of its road where much business, passenger and freight, is being done, no pretense is made of complying with the requirements of said Rule 4, but the company has neglected and refused, and still neglects and refuses to post and keep continuously posted, with exceptions stated, in a conspicuous place in each of its stations:

1st. A copy of the schedule of freight and passenger rates revised and adopted for the use of this company;

2d. A copy of all tlie rules and regulations prescribed by the Commission for the government of the transportation of freight and passengers applicable to said line of road;

3d. A copy of the official classification;

4th. Copies of all changes, whether the same shall 'be made by the railroad company or the Commission;

fith. A table of distances between each station.

That in many cases where such posting had been made or attempted, it has been done by hanging in the office at the stations upon anail, in pamphlet form; that such posting should, be done in placard or poster form, for the convenience and information of the public.

The defendant, filed an answer, the purport of which will be given in disposing of the several questions presented for decision. The Attorney-General has moved to strike out the answer, and for a peremptory writ, upon the ground that the same discloses the fact that full compliance has not been made do the alternative writ of mandamus, and that the answer is argumentative, uncertain and insufficient, and does not state facts so that a judgment of the court can be had thereon, which motion is accompanied by a statement at points of objection to the answer.

The deficiencies of the answer are not, nor are the objection stated to it, such as call for the exercise of the power to strike out. The motion to strike in the Drew case, 16 Fla., 1, 59, was as to impertinent and surplus matter in a. return to a peremptory writ. We shall treat the motion for a peremptory writ as a demurrer to the answer, of which it is the equivalent. State ex rel v. Trustees I. I. Fund, 20 Fla., 402.

The respondent declaring its purpose to have been to comply with Rule 4, says in its answer that shortly after the promulgation of the rule it furnished its agents at its several stations wit'll the ‘ ‘placards, posters and papers” hereinafter mentioned with instructions to post and keep them posted conspicuously at such stations, and that it is informed and believes that they were so posted or placarded at the same time, and at each of said stations except at River Junction, and respondent has believed them to have remained conspicuously posted, as no report or complaint of their absence has ever been made to it. That-feeling and believing that it had complied with the rules of the Commission, it did not in anywise apply to itself tlie very general complaint made by “Circular 24,” .and says it has, with the above exception, complied fully with Rule 4, as it has understood and understands if, and proceeds to show how it has done so.

II. The respondent submits, as in full compliance with Rule 4, á copy of a schedule of the freight rates revised and adopted by the Commission for the use of respondent, the same being in the form of a card or bill ten- by sixteen inches, and copies of five commodity tariff sheets, issued by respondent, and which are stated to be merely the application to particular commodities of the classification and rates fixed by the Commission; copies of which schedule and slieets the answer states have been placarded. The Attorney-General admits that if this schedule is kept conspicuously and continuously posted in the station houses-of respondent, it will be a sufficient compliance with, the rules and regulations of the Commissioners. In view of this admission, and the fact, that no exception is taken to the commodity sheets, nor, we may remark, do they seem to suggest any, the answer must be held sufficient as to posting all freight rates at those stations where such schedule and sheets are in fact kept continuously posted in a conspicuous place.

III. The answer exhibits a copy of “Passenger Rates revised and adopted for the use of respondent by the Commission,” which it is urged to be a compli-. anee with Rule 4, and says it lias been “placarded the front of one copy and the back of a second copy being nailed or posted side by side so as to form one copy.” The answer also states that “in addition thereto, there has been posted a large placard showing the rates from each station on the road of respondent, to every other station thereon, and to every station on the Louisville & Nashville Railroad.”

The Attorney-General suggests that a schedule of passenger rates is a table showing the rate per mile for each full passenger fare, and that to post this there should be a table showing the fare from each station to any other station on the line of road; that the freight schedule, supra, shows the sum total for each haul for each. distance, giving the distance of each, and so should a properly constructed passenger schedule or tariff.

It is true that the schedule of passenger rates does not expressly state the rate per mile for each full passenger fare, but it (to say nothing of the allegations as to the “large placard”) does show the fare or full charge from each station to any other station on the road; and it cannot on these pleadings be pretended that the charges so published do not in amount accord with the passenger rates prescribed or ‘ ‘revised and adopted’ ’ by the Commission for the use of the respondent, or that passenger rates for this company have ever been adopted by the Commissioners in any form than that of the full charge from each station to any other shown by this schedule. Besides this, as we understand the schedule, it does afford through the numbers on the left of the names of stations in the middle column, the means of ascertaining the distance between any two stations on the road, and thereby enables anyone to compute the rate per mile by dividing any given charge from one station to another by the distance between such stations, but ignoring this fact, and the further fact that the freight schedule gives only charges (per hundred pounds, barrel, crate, ton. and carload) for the distance of ten miles or less, and ten miles and over fifteen, and for certain other distances, varying from each other at least five miles, still we neither find, nor have been shown any rule or regulation of the Commission which prescribes that the passenger schedules shall state the charge per mile or give the distance from any one station to the other stations. The schedule presented'is headed “Pensacola and Atlantic Railroad Ticket Rates,” and gives the passenger fare from each station to every other one, states that half rates will be charged for children over five years and under twelve traveling with parent or guardian, and that no charge will be made for children under five years traveling under similar care, the extra charge to be collected when passengers have omitted to purchase tickets, as well as other information as to passenger transportation, not necessary to be noticed here. Even disregarding entirely the data it seems to afford for ascertaining distances, it, considering its contents, is a schedule of passenger rates, which must be held sufficient in the absence of some authoritative definition of law, or a rule or regulation of the Railroad Commission, or some custom having the force of law, requiring that the information it gives shall be in a different form, or making the statement of the rate per mile or the distance between stations a necessary constituent of such schedules. The function of the writ of mandamus is to compel the performance of a clear and specific legal duty, and until some competent authority has made it the clem- duty of the respondent to use a different form of schedule or to incorporate the information under consideration in such schedules, it cannot, in this proceeding, be required to do so. The contents of the schedule before, us constitute in substance a passenger schedule giving the fare from any given station to all other stations, in the only form, so far as the record informs us or we can for the purposes of this hearing know, in which passenger rates have ever been adopted for the defendant by the Commission, and other infor■mation, and being such, the fact that we might think the public interest would be advanced by its being in a different form, or having elements which it has not, does not confer any power upon this court, or change the function of the remedy invoked. Rule 4 requires, it is true, a separate table of distances between each station, but whether this provision of the rule lias been complied with is a point to be considered hereafter.

It is also objected that the schedule is printed in type of too small a size to inform the public, in the hurry incident to. travel, of its contents, and that the passenger rates should be in large type like the copy of the freight schedule. The body of the print is in nonpareil type. The discretion to say in what type the schedule should be has not been vested in us, and until the Railroad Commission shall have prescribed the size of the type and ligares to be used by this or any railroad for the purpose in question, we are powerless to aid them in a proceeding by mandamus, the function of which is to enforce the performance of a prescribed legal duty, but not to prescribe one ; just as w;e are to require the use of a different form of schedule. We cannot assume functions belonging to tha Commission, or other functions or departments of the government.

The objection that the schedule is in two parts, likely to become disengaged, is in itself, in the absence of a requirement that the schedule shall be on a single card or sheet of paper, an untenable objection, for if the two cards are in fact kept posted together in a conspicuous place in eac.li station in sucli manner that the two can he read as if they were one card, it is sufficient. The two thus posted up in a. reasonably secure manner would stand as long as one card, and there is not such likelihood of their becoming disengaged as to make this use of two cards a violation of the rule as it stands. The record does not show that this schedule lias been torn from a pamphlet.

IV. The answer also states that the rules and regulations for the government of the transportation of persons and property on the railroads in Florida, have been “posted in the pamphlet form in which they were caused to be printed by the Commission,” and a copy of the same is annexed to the answer and marked “ C.” “They,” says the answer, “were as to freight, in a large part, also contained in the local classification, of which a copy is hereto attached marked ‘3),’ in which is embodied the practical application of very many of said rules to the classification of freight contained in said exhibit ‘I).’ In fact the said exhibit ‘ D \ in some instances contained modifications by the Commission of the rules contained in said pamphlet, and therefore more correctly sets forth the regulation of the Commission than did the rules themselves.” “The passenger rules were not only posted in said pamphlet ‘C,’ but have been posted in the placard showing ticket rates.”

The exception taken on behalf of the . State to the compliance thus attempted to be shown by respondent is, in short, that the rules and resolutions are, necessarily, and as they explain themselves, applicable to each railroad in the State ; and that they should be printed and posted in placard form, they being few in number and easily printed in good-sized type upon a moderate-sized poster. That the Commission is not required to do more than inform the respondent of the rules and regulations, and any subsequent modification of the same; and that tacking them up in the offices in the pamphlet form in which they were caused to be printed by the Commission, is only a pretence of posting.

The printed pamphlet, “C,” of “ Rules and Regulations governing the transportation of passengers and freights on the railroads in Florida, prescribed by the Railroad Commissioners,” is the entire “Circular hio. 23,” previously referred to in this opinion, and it purports to have been issued September 23d, 1889, by the Railroad Commission, by an order which is as follows : “ The following rules and regulations are prescribed for the government of the transportation of persons and property by the railroad companies doing business wholly or in part within the State of Florida, and all other conflicting therewith being hereby repealed.” It contains thirty-six rules, covering about eleven pages printed in long primer type, and the print occupying on each page an average space of six and a qxiarter inches long, by three and three-qxxarters inches wide, and has a cover xxpon which is printed the words' first quoted in this paragraph.

'File purpose of Rule 4 iu requiring these rules and regulations to be kept posted in a conspicuous place in each station is, that the public may see and read,, and thereby inform themselves of the contents of the-same. The word “post” is defined by Webster as. meaning “to attach to a sign post, or other usual place of affixing; public notices; and he defines the word “poster” as “a large bill posted for advertising.” The meaning of the word “posted,” as used in rule 4,, is that the rules and regulations should be advertised in the form of a poster in the railroad stations; or in other words, that printed in bill or placard form they shall be so attached to something in a conspicuous place in the stations that they can, in the position in which they are placed or without being removed, be read conveniently by the public. This is the usual and ordinary meaning of the term, posted, as we see it manifested daily in the posting of notices like those of sale, or against trespasses, as well as other kinds. No other construction can be given it without straining its ordinarily understood meaning, nor does any other meaning .so well fulfill the purpose and intent of Rule 4, that, those rules and regulations should be exhibited in the place stated, for the information and benefit of the public. We do not think the purpose of the act that these rules and regulations should'be posted, is met by the use of a pamphlet; such a publication does not come up to the idea ordinarily conveyed by the expression of the rule; a pamphlet is not the form in which notices are ordinarily posted. We are satisfied that if a card containing these rules and regulations should be liej)t hung upon a nail in a conspicuous place in the railroad station, and in such position that while so hung up if. could be read with reasonable convenience by the public;, the rule Avould be complied with; but we do not think the fad that •copies! of fhis pamphlet have been nailed to the upper left hand corner in such manner that they are ■accessible to every one, is a compliance with it. This, in our opinion, is the meaning and effect of Rule ■4, independent of the, circular of December 36th, 388.9, ■and of course there is nothing in that paper that can •be construed to deprive the rule of such meaning.

The local classification, exhibit “D,” mentioned in this connection, is also in pamphlet form, and for the same reason is insufficient, in so far as it is relied upon as a posting of any part or modification of the rules and regulations.

Very many of the rules prescribed by the Commission, for example Passenger Rule 0, Freight Rule 8, Freight Rule 31, etc., etc., says'the answer, are mere restrictions upon railroads, and in the opinion of the respondent, are not required to he posted, but leaving them for respondent to determine what are applicable to it, the respondent submits that before it can be held to be in fault in anywise, the particular rule to be posted should be in fault in anywise, the particular rale to be posted should be specified by the Commission or the court.

We fail to see tliat etiher Passenger Rule 6 or Freight Rules 3.and 11 are not required to be posted. They are as follows :

Rule 6. A railroad company shall not be prevented from the free carriage of destitute or homeless persons transported by charitable societies, and the necessary agents employed in such transportation ; or from the issuance of mileage, excursion, commutation or round trip passenger tickets; or from giving reduced rates to ministers' of religion ; or from giving free carriage to their own officers and employes; or to prevent the principal officers of any railroad company or companies from exchanging passes or tickets with other railroad companies for their officers and employes; or free carriage or reduced rates to persons in charge of live stock shipped, fom the point of shipment to destination and return ; or from issuing second-class tickets, for the holders of which second-class tickets so issued, second-class accommodations shall be furnished; or from granting reduced rates to immigrants, or immigration agents, or persons going to or returning from anyplace of meeting within this State, of any agricultural, mechanical, industrial, educational, religious or fruit and vegetable growers’ association or convention, who are directly connected with or interested in the objects of said association or convention.

Rule 3. The rates specified or hereafter to be allowed for common brick, bone, lumber, shingles, laths, staves, rough stone, empty barrels, corn in the ear, melons by the car-load, straw, shucks, fodder, tan bark, saw dust, household goods, moss, palmetto leaves and heads, are maximum rates, but the railroads are left free to reduce the same at discretion, and all such rates are exempt from the operation of rule 2. Any complaint as to such rates will, upon presentation, be considered. No rates have been prescribed for articles in the classification designated by the letter S. 'Such articles are subject to special contract. The Commission will entertain complaints of excessive charges for the transportation of such articles in all cases except where the price charged was according to contract between shipper and carrier.

Rule .11. Railroad companies shall not be prevented from the carriage, storage, or the hauling of property, free, or at reduced rates, for charitable purposes, or to or from fairs and expositions for exhibition thereat.

In view of the Commission’s order of September 23rd, 1889, adopting the rules, it certainly cannot be said of any one of these rules that it has not been specified by the Commission as “applicable” to respondent, nor do we perceive that either of them is not “applicable” to the respondent, or is of a character that its publication does not materially concern the public-. No other ride is designated by the respondent as inapplicable to it, and until such designation is attempted, we must presume that the Commissioners have not burdened the respondent with something in which it can have no concern whatever.

Y. Exhibit “D,” referred to above, is, in form, a pamphlet of ten pages, and it is entitled, “Louisville and Nashville Eailread Co. Local Classification (S. E. & S. S. Association, with exceptions as noted.) No. Staking effect November 10, 1890. Superseding Classification No. 4, and supplement.” The answer also designates this as the official classification adopted by the Commission, and avers that this classification has been approved by the Commission and adopted by the respondent; and that there have been no changes made by the Commission or by the respondent in the rates set forth in this exhibit applicable to the whole line of respondent’s road; and that the copies of this pamphlet have been nailed to the upper left hand corner in such manner as to be accessible to everyone.

In view of the allegations of the answer as to this exhibit, which allegations have to be taken as admitted by the State on this hearing, such exhibit must be recognized as being the admitted or proper official classification to be posted by defendant under Rule 4, as we have heretofore defined the term, which definition is not met by nailing up this pamphlet. The fact that the exhibit was approved by the Commission does not relieve the respondent from posting it. This allegation as to approval is to be taken as meaning merely the approval of the actual classification of freight as represented by the schedule, and not of the exhibit as a form for posting under Rule 4. The language of the answer is not broad enough to cover the latter idea or to set up an estoppel against the Commission.

It is said that the Commission has never ruled that a nailing or hanging up of this classification in book form was a posting; but on the contrary (Circular 24) that it was not a posting; but that they have said that if it was thus placed in a conspicuous place, and kept there in each station, they would consider it a compliance with the spirit of the law, and would not interfere unless complaint was made, in which event they would insist upon the placard form. Whether or not there would haye been a waiver by the Commission of the recpiirement of Rule 4, if the railroad company had accordingly kept this pamphlet so placed in a conspicuous place in its station, it is unnecessary for us to decide, as the record fails to show that it has done so. In the presence of Rule 4, and the exposition of it made by the circular of December 16th, 1889, we could hardly enforce a compliance by the company with what it seems the Commissioners would in the absence of complaint, have regarded as a compliance with the spirit of the law.

Respondent claims, under Freight Rule 3, the right to make at its discretion special rates, reduced below Commission rates, for particular persons and places for temporary use, which special rates it says have in almost every instance related to lumber. These special rates, the answer admits, have not been posted, and for the reason the respondent has not believed that the rale required them to be. No question is made by the State as tj the right of the respondent to make the special rates it may have in fact made, and assuming, as such rule 3 seems to concede, that the respondent has, as to the articles named in that rule, the right to make at its discretion, special rates for particular persons and places for temporary use, we do not perceive that their publication or posting falls within rule 4,. which requires the posting of only the schedules of freight and passenger rates “revised and adopted for the use of such company by the Commission.”

VI. To the complaint, that no proper table of distance's has been posted in obedience to the requirement of the rule for the posting of a table of distances, the passenger rate schedule', discussed in the third subdivisiem of this opinion, is offered by the respondent as a full compliance with such requirement. This schedule eloes not of itself, or upon its, face, give the distances botweem any two statiems, and this is sufficient reason for holding it not to bee a table of distances. Though it furnishes data from which these elistances, as we understand such data, may be computed, the distances, are not stated in the schedule. It is not in itself a. table- of distances.

What has been said above as to the size of the type- or print of this schedule, is equally as applicable to the same objection when made to it as a table,of distances.

VII. Considering the conclusions announced above, as to posting, it is hardly necessary for us to say that binding the papers, posters and placards together and placing them “ conspicuously upon a conspicuo us shelf desk,” as has been done in the Marianna station, is, not a posting within the meaning and intent of the rule, even though it be, as alleged in the answer, the desk in the station agent’s office where all persons must come who have business with the defendant company, and all such persons and the public have and exercise full and free access to such papers without the intervention of the agent or any other person connected with the defendant, unless such intervention be requested by the person desirous of making ail investigation of rates or other matters.

VIII. Of the statement in the answer that it would cause great expense to defendant to require all the papers submitted with the answer to be put into placard form and placarded, and necessitate in many cases an increase of wall space on which to placard them and the poster required for business in connection with roads out of the State of Florida, and would serve no good purpose to the public, we need only say that the conclusion as to the purpose to be served by such posting is but the expression of an opinion, and the general statement that the posting in placard form will cause .great expense or necessitate an increase in wall space, cannot be regarded as sufficient to put in question the reasonableness of the rule requiring such posting.

IX. Of course the duty of the defendant under rule 4 is not only to post m a conspicuous place in each sta tion, everything within the requirements of the rule, but also to “keep the same continuously posted.” There can be no misunderstanding as to the effect of this requirement, or where the obligation of performanee rests, and a return which should show' no further compliance by a railroad company with this feature of' the rule than a delivery to the station agents of posters, even of the most satisfactory form, with instructions to post and keep them continuously posted in a conspicuous place in the stations, and that it is informed and believes that they vrere so placarded and posted at the same time, would necessarily be insufficient. It is the duty of the company both to post and to keep them .continuously posted, and the answer fails to show' a performance of this duty at any station, even waiving in this connection the deficiencies in the form of some of the papers.

The relator is entitled to a peremptory writ, and judgment will now be entered accordingly ; but as the respondent has expressly declared in its answer its purpose io comply with our views as soon as they shall be indicated, no peremptory writ wrill be issued by the clerk on such judgment except and until the relators, by the Attomey-G-eneral, or other authorized attorney, shall file a prcecipe requiring 'it, whereupon it shall be issued by the clerk without, further order.