State ex rel. Ellis v. Atlantic Coast Line Railroad

| Fla. | Jan 15, 1906

Hocker, J.,

(after stating the facts.) We do not think it necessary to repeat what is contained in the opinion in the previous case decided at his term between the same parties as to the powers of the Eailroad Commissioners to correct abuses and prevent unjust discriminations by persons and corporations engaged as common carriers in transporting persons and property or perform • ing other services of a public nature. The demurrer admits the allegations of the alternative writ, and those allegations in our opinion clearly show that the respondent has violated the general order of the Railroad Commissioners requiring it to perform for any and all telegraph and telephone companies a service, in effect, similar to that which it has performed as a common carrier for the Western Union Telegraph Company, by refusing the same service to the Postal Telegraph-Cable Company. For we think it is clear that a railroad' company where it acts as a common carrier is bound to serve all the members of the public alike, who apply for service, under like conditions.

• • The contention that the general order of the Railroad Commissioners is unauthorized by law inasmuch as it applies only to the respondent, we' think is unfounded. In the very nature of things such an order could not be made to apply to another railroad company which had not voluntarily performed for some patron, the service described in these proceedings, which is in some respects peculiar, in that it involves the delivery of poles, wires, &c., between stations. But the respondent having voluntarily performed this service for the Western Union Telegraph Company may not deny it to another company applying for similar service under like conditions. / The order of the Railroad Commissioners is a general order, and we think fully authorized by the constitution and Chapter 4700, acts of 1899. Nor is this duty affected by the fact that the service was performed for the Western Union Telegraph Company under an agreement or contract. The rates prescribed in this general order for the services to be rendered are general in their nature, and apply to all telegraph, and telephone companies which seek to have the services performed and are not challenged on the ground of unreasonableness. The order, therefore, is in conformity with the views of this court as expressed in the opinion heretofore rendered at this term between the same parties. We refer to the authorities therein cited.

The demurrer is overruled and the respondent is required to answer the alternative writ within fourteen days from the filing of this opinion.

Shackleford, O. J., Cockrell, Whitfield, Taylor and Parkhill, JJ., concur.