79 Fla. 290 | Fla. | 1920
Lead Opinion
(After stating the facts) — The alternative writ of mandamus issued herein commands the Railroad Commossioners to fix just and reasonable rates for passengers on a street railroad in the city of Jacksonville, Florida, or to show cause for not doing so. On a motion to quash the alternative writ, it is in effect contended that under the law the tariff rates of transportation to be charged by the relator are fixed by an ordinance of the city of Jacksonville, and that the statutes of the State do not confer upon the Railroad Commissioners authority to make passenger rates for street railroads. It is appropriate that the city be heard in this proceeding, and its counsel joined in the motion to quash, and participated in the argument and has filed briefs. ' See City of Gainesville v. Gainesville Gas & Electric Power Co., 66 Fla. 404, 62 South. Rep. 919; Southern Public Utilities Co. v. City of Charlotte, - N. C.-, 101 S. E. Rep. 619; State ex rel. Indianapolis Traction Co. v. Lewis,--Ind.-120 N. E. Rep. 129.
When a tribunal refuses to exercise jurisdiction that it clearly possesses and ought to exercise, mandamus is the proper remedy to compel its exercise. State ex rel. Birmingham T. & S. Co. v. Reeves, 44 Fla. 179, 32 South. Rep. 814; Ex Parte Henderson, 6 Fla. 279; Anderson v. Brown, 6 Fla. 299; See also State ex rel. Lamson v. Baker, 25 Fla. 598, 6 South. Rep. 445; State v. Crawford, 28 Fla. 441, 10 South. Rep. 118; State ex rel. Colcord v.
The Railroad Commissioners .are administrative officers having statutory powers and' duties; and when they decline to exercise authority or to perform duties conferred upon them by law, they may by mandamus, in the absence of other adequate remedy afforded by law, be required in proper cases duly presented to proceed with the performance of their duties. In such cases the command is to proceed to exercise their authority and discretion.
Municipalities may exercise only such powers as are clearly conferred upon them by the express or implied provisions of law; and all doubts as to the existence of a power in a municipality is resolved against the city. Malone v. City of Quincy, 66 Fla. 52, 62 South. Rep. 922; State ex rel. Ellis v. Tampa Water Works Co., 56 Fla. 858, 47 South. Rep. 358, 19 L. R. A. (N. S.) 183; 1 Dillon Munc. Corp. (5th Ed.) Sec. 237; 28 Cyc. 265. This rule was applicable to statutes conferring authority upon the Railroad Commissioners until the enactment of Chapter 6527, Acts of 1913, which provides that “the laws relative to the Railroad Commissioners shall be deemed remedial laws to be construed liberally” and that “all doubts as to their jurisdiction and powers shall be-resolved in their favor.” Sec. 2893 Comp. Laws, 1914; State ex rel. Burr v. Jacksonville Terminal Co., 71 Fla. 295, 71 South. Rep. 474; State ex rel. Railroad Com’rs. v. Atlantic Coast Line R. Co., 60 Fla. 465, 54 South. Rep.
“That a city has no power to regulate rates of this character unless it has legislative authority so to do is established, and does not seem to be disputed. Indepently of a right to regulate and control the rates to be charged for public service reserved in a grant of a franchise or right to use the city streets, a city or other municipality has no power to regulate the rates to be charged by public service corporations in the absence of express or plain legislative authority to do so. 3 Dillon on Municipal Corporation (5th Ed.) Sec. 1325. Nor does such authority arise from the power to regulate the opening and use of streets, nor a grant of the general right to control and regulate the right to erect works in the streets of the city. State v. Missouri & K Telephone Co., 189 Mo. 83, 88 S. W. Rep. 41; Jacksonville v. Southern Bell & Tel. Co., 57 Fla., 374, 49 South. Rep. 509; Lewisville Natural Gas Co. v. State, 135 Ind. 49, 34 N. E. Rep. 702, 21 L. R. A. 734; Mills v. Chicago (C. C.) 127 Fed. Rep. 731; State v. Sheboygan, 111 Wis. 23, 86 N. W. Rep. 657.” City of Winchester v. Winchester Water Works Co.,-U. S. -, 40 Sup. Ct. Rep. 123.
Where it is doubtful whether a statute authorizes a municipality to fix rates for a public utility company, such doubt must be resolved against the authority of the city. Milwaukee Electric Ry. & Light Co. v. Railroad Commission of Wisconsin, 238 U. S. 174, 35 Sup. Ct. Rep; 820; Home Telephone & Telegraph Co., v. City of Los Angeles, 211 U. S. 265, text 273, 29 Sup. Ct. Rep.
Even if authority is by statute given to. a municipality to fix rates for a public service corporation operating therein, such authority is .subject to legislative action. Section 30, Article XVI; City of Tampa v. Tampa Water Work Co., 45 Fla. 600, 34 South. Rep. 631, affirmed in 199 U. S. 241, 26 Sup. Ct. Rep. 23. See also Section 8, Article VIII of the Constitution; Gainesville Gas & Electric Power Co. v. City of Gainesville, 63 Fla. 425, 58 South. Rep. 785; City of Manitowoc v. Manitowoc & Northern Traction Co., 145 Wis. 13, 129 N. W. Rep. 925; City of Pawhuska v. Pawhuska Oil & Gas Co. 250 U. S. -, 39 Sup. Ct. Rep. 526.
If there is a general law conferring upon municipalities authority to fix rates for street railroads and also a special law conferring a similar power upon a particular city, being inconsistent with the general law, the special or local law prevails as to the city to which it applies. Sec. 24, Art. Ill Const.; Sanders v. Howell, 73 Fla. 563, 74 South. Rep. 802; Ferguson v. McDonald, 66 Fla. 494, 63 South. Rep. 915.
The provisions of Chapter 4052, Laws of Florida, a general law entitled “An Act providing for the forfeiture of franchises,” etc., re-enacted as Sections 1024-8, General Statutes of 1906, relate to forfeitures of franchises and do not purport to confer upon municipalities authority
Chapter 4859, Acts of 1899, Section 1016, General Statutes of 1906, limits to 30 years the “term” for which a municipality may grant a franchise or right to use the streets of the municipality for stated purposes, and it does not expressly or by implication confer a right to fix street car fares.
By its charter the city of Jacksonville is given the “power by ordinance * to grant the right of way through the streets, avenues and squares of said city for the purpose of street or other railroads.” Sec. 4, Chap. 3775, Acts 1887, pp. 166-7.
The provisions of Chapter 5347, Acts of 1903, amending the charter of the city of Jacksonville, do not confer upon the city authority to fix rates: of fares for street railroads, though it doe's confer power with reference to the use of the streets and viaducts by street railroads.
Any contract ordinance passed' by the city with statutory authority fixing by agreement street car fares, as an incident to the granting of franchises to a street railroad company, 'is subject to legislative control. City of Tampa v. Tampa Water Works Co., supra. See also State ex rel. Ellis v. Atlantic Coast Line R. R. Co., 52 Fla. 646, 662, 41 South. Rep. 705, 12 L. R. A. (N. S.) 506; Southern Public Utilities Co. v. City of Charlotte, supra; Producers Transportation Co. v. Railroad Commission of the State of California, --U. S.-,-Sup. Ct. Rep. -, L. R. A. (Ed. Feb’y 1st, 1920, p. 166); State ex rel. Indianapolis Traction & Terminal Co. v. Lewis,
All regulations and contracts relative to transportation rates for common carriers, whether made by legislative authority or otherwise, are subject to a proper exercise of the police power of the State, under which power such rates may from time to time be increased or reduced or otherwise regulated as the interests- of the public and the organic property? rights ¡of the carriers may require. The inherent and reserved power of the State cannot be abrogated by legislative enactment. State Pub. Util. Comm. v. City of Quincy,- Ill. -, 125 N. E. Rep. 374; Union Dry Goods Co. v. Georgia Public Service Corp. 248 U. S. 372,- Sup. Ct. Rep. ——. See also Chicago & A. R. Co. v. Tranbarger, 238 U. S. 67, 35 Sup. Ct. Rep. 678; Mill Creek Coal & Coke Co. v. Public Service Corp., - W. Va. ——, 100 S. E. Rep. 557; Black v. New Orleans Ry. & Light Co., —— La.-, 82 South. Rep. 81; Atlantic Coast Line R. Co. v. City of Goldsboro, North Carolina, 232 U. S. 548, 34 Sup. Ct. Rep. 364; Portland Ry., Light & Power Co. v. Railroad Commission of Oregon, 229 U. S. 397, 33 Sup. Ct. Rep. 820; Chicago & A. R. Co. v. Tranbarger, 238 U. S. 67, 35 Sup. Ct. Rep. 678; Manigault v. Springs, 199 U. S. 473, 26 Sup. Ct. Rep. 127; 6 R. C. L. p. 190; Denver & South.
Section 30, Article XVI of the State Constitution, expressly recognizes and does not limit the power of the Legislature to' enact laws for the regulation and control of rates charged by common' carriers; and the power may be exercised notwithstanding statutory or municipal regulations or private contracts that may have been made with reference to such rates. State ex rel. Railroad Com’rs. v. Florida East Coast R. Co., 57 Fla. 522, 49 South. Rep. 43; City of Tampa v. Tampa Water Works Co., 45 Fla. 600, 34 South. Rep. 631, affirmed in 199 U. S. 241, 26 Sup. Ct. Rep. 23; State ex rel. Lamar v. Jacksonville Terminal Co., 41 Fla. 377, 27 South. Rep. 225.
Under Section 8, Article VIII of the Constitution, set out in the statement, the jurisdiction and powers conferred by statute upon municipalities may be altered or amended at any time by the Legislature.
The alternative writ alleges, and the motion to quash admits, that “the Jacksonville Traction Company is operating its lines of railway within the City of Jacksonville under and by virtue of the provisions of an ordinance No. 1-67, passed by the City Council of the City of Jacksonville on the 15th day of January, 1907, and approved on the 26th day thereof, and that, among other things, it is provided in Section five (5) of said ordinance that the fare to be charged by it for a continuous passage from any point within the city limits to any other point within the city limits, on the lines of its said railways, shall not exceed five cents.”
This ordinance, if otherwise effective as between the parties, is not controlling as against the State acting
The question here presented is not whether under Section 30, Article XVI, of the Constitution, the Legislature may authorize a municipality to prescribe rates for a public utility service in disregard of the rights of the company in rates that had been fixed by contract between a public utility company and a municipality, as in City of Tampa v. Tampa Water Works Co., 45 Fla. 600, 34 South. Rep. 631, affirmed an 199 U. S. 241, 26 Sup. Ct. Rep. 23.
But the question here is whether the Railroad' Commissioners, a governmental agency, if authorized by statute to do so, may, at the instance of a public utility compcmy, be required to proceed with the exercise of their authority dn prescribing rates for the company’s public service in disregard of a rate that has been fixed by contract between a municipality and the public utility company. Can the State waive or surrender the rights of a municipality and of the public in rates for service rendered by a public utility company, where such rates have been fixed by an ordinance in granting franchises to the public utility company ? The State in its sovereignty authoritatively represents the public and it controls its municipalities; therefore the rights of the public and' of municipalities in rates charged by. public utility corporations are subject to control and disposition by the governing power of the State. See Note 3 A. L. R. 730, 742; City of Pawhuska v. Pawhuska Oil & Gas Co., 250
Unless the State by constitutional provision (as is the case in this State) or by other reservation duly made, retains the right to change rates for public service fairly and reasonably made by a duly authorized and valid contract between a public utility company, and a municipality, the obligation of the contract cannot in general be lawfully impaired by subsequent legislation in so far as it injures contract rights of the company that have not been waived or in any way terminated. See Detroit United Railway v. City of Detroit, 242 U. S. 238, - Sup. Ct. Rep.-; Vicksburg v. Vicksburg Water Works Co., 206 U. S. 496, 27 Sup. Ct. Rep. 762; Home Telephone & Telegraph Co. v. City of Los Angeles, 211 U. S. 265, 29 Sup. Ct. Rep. 50; Cleveland v. Cleveland City R. Co., 194 U. S. 517, 24 Sup. Ct. Rep. 756. See also Von Hoffman v. City of Quincy, 4 Wallace (U. S.) 535; Vicksburg v. Vicksburg Water Works Co. 202 U. S. 453, 26 Sup. Ct. Rep. 660; Sioux City St. Ry. Co. v. Sioux City, 132 U. S. 98, 11 Sup. Ct. Rep. 226. As to the rights of the city and of the public, in contract rates, where .the State has not interposed its authortity, see Columbus Railway, Power & Light Co. v. City of Columbus, 249 U. S. 399, —— Sup. Ct. Rep. -; Miami Gas Co. v. Highleyman, 77 Fla. 523, 81. South. Rep. 775; City of Manitowoc v. Manitowoc & Northern Traction Co., 145 Wis.
In the absence of express organic limitations, 'the police power of the State may be exercised in making just and reasonable rates to be charged by common carriers for the transportation of passengers and property; and all private contracts for such transportation in so far as they affect public rights, are in law made subject to a proper exercise of the police power of the State
Where full legislative authority is clearly conferred and there is no reservation of power in the organic law, and pursuant thereto a municipality enters into a reasonable and valid contract with a public utility company for the rendering of service to the public at stated rates, such contract rates may be secured to the company under organic law against violation by the State. Minneapolis v. Minneapolis St. R. Co., 215 U. S. 417, 30 Sup. Ct. Rep. 118; Vicksburg v. Vicksburg Water Works Co., 206 U. S. 496, text 508, 27 Sup. Ct. Rep. 762. See also City of Owensboro v. Cumberland Telephone & Telegraph Co., 230 U. S. 58, 33 Sup. Ct. Rep. 988. But where the city does not have full and clearly conferred authority to make a binding contract with a public utility company as to rates charged, the public, (Rogers Park Water Co. v. Fergus, 180 U. S. 624, 21 Sup. Ct. Rep. 490; City of Jacksonville v. Southern Bell Telephone & Telegraph Co., 57 Fla. 374, 49 South. Rep. 509), or where the organic law reserves to the State the right at any time to regulate rates charged by public utilities (Tampa Water
A continuance of adequate, efficient service by public utilities, particularly by street railroads in a growing city, vitally affects the public welfare. In granting to corporations franchises to- engage in the business of common carriers, the law contemplates a continuance of the public service, unless otherwise provided; and the law also contemplates an adequate and efficient service and that a reasonable compensation therefor shall be allowed, to- comport with organic property rights- (City of Gainesville v. Gainesville Gas & Electric Power Co.,
In the exercise of the power expressly recognized in Section 30, Article XYI, of the Constitution, to pass laws upon the subject, the Legislature enacted statutes as shown by the titles “to provide for the regulation of * passenger tariffs,” “to prohibit railroad companies, corporations, persons and all common carriers in this State from charging other ~ than just and reasonable rates,” and “relating to the Railroad Commissioners and the regulation o.f common carriers.” See Chap. 4549, Laws of Florida, Acts of 1897; Chap. 4700, Acts of 1899; Secs. 2882 et seq. Gen. Stats. 1900; Chap. 6527, Acts of 1913; Secs. 2882 et seq. Comp. Laws, 1914.
“While there is a similarity between railroads and street-railroads, there is also a difference. Some courts, emphasizing the similarity, hold that in statutes the word ‘railroad’ includes street railroad, unless the con-, trary is required by the context. Others, emphasizing the similarity, hold that ‘railroad does not include street
This court, observing the similiarity between a railroad and' a street railroad, has construed statutes that in terms refer to- “railroads” to include street railroads.
The terms “manager of any railroad company or receiver of any railroad,” as used in Chapter 4115, Acts of 1893, were held to apply to a street railroad, pursuant to an application of the principles of law that “the word railroad, in its broadest signication, includes a street railroad. When the word is used in a statute there is no definite rule of construction as to whether it includes street railroads. It may, or it may not, include them. The meaning of the word must depend upon the context and the general intent of the statute in which it is used.” Bloxham v. Consumers’ Electric Light & St. R. Co., 36 Fla. 519, 18 South. Rep. 444, 22 R. C. L. 745; Arends v. Grand Rapids R. Co., 172 Mich. 448, 138 N. W. Rep. 195.
The term “railroad company,” as used in Section 3148, General Statutes of 1906, Chapter 4071, Acts of 1891, includes a street railroad company. See Consumers Electric Light & St. R. Co. v. Prior, 44 Fla. 354, 32 South. Rep. 797; Tampa Electric Co. v. Bourquardez, 72 Fla. 161, 72 South. Rep. 668. See also Shreveport Traction Co. v. Kansas City S. & G. Ry. Co., 119 La. 758, 44 South. Rep. 457.
Ordinarily street railroads are engaged in local and intrastate transportation and not in interstate commerce; and it was with much reason held in Omaha & C. B. St. R. Co. v. Interstate Commerce Commission, supra,
In Board of Railroad Com’rs. v. Market St. Ry. Co., 132 Cal. 677, 64 Pac. Rep. 1065, a statutory regulation for examining the books and records of a common carrier corporation, was declared to be not applicable to street railroad companies under a constitutional provision giving railroad commissioners power to establish, rates for “railroad and other transportation companies.” But in that case the statute expressly excepted street railroads from its operation, and the court in effect held that this was not a violation of the Constitution.
In City of Barre v. Barre & M. Power & Traction Co., 88 Vt. 304, 92 Atl. Rep. 237, it was held that particular statutes conferring powers upon railroad commissioners with reference to railroads did not apply to street railroads, there being other provisions of law regulatirig street railroads.
The case of Interurban Railway & Terminal Co. v. Public Utilities Commission, 98 Ohio St. 287, 120 N. E. Rep. 831, P. U. R. 1919B, 212, 3 A. L. R. 696, was controlled by the provisions of the State Constitution as to powers of a municipality. See Notes, 3 A. L. R. 730, 736. In Columbus R. & P. Co. v. Columbus, 249 U. S. 399, the power of the State to alter the contract rate was not asserted.
The intent of a valid statute is the law, and this is ascertained by a consideration of the language and purpose of the enactment. Where the legislative intent is clearly' manifest by the language used, considered in its ordinary and grammatical sense, rules of construction are unnecessary and inapplicable. Where there is ambiguity or uncertainty of meaning in. the words employed in a statute, the legislative intent should be ascertained by a consideration of the entiré act and of others in pari materia; and in doing so appropriate effect should, if possible, be given to all the material portions of the law so as to carry out and effectuate in the fullest degree the intention of the lawmakers. See 25 R. C. L. 1004. Where a rule of construction is contained in the statute itself, that rule should be .applied if it is necessary to use any rules of construction in determining the meaning of effect of the law. 25 R. C. L. 1049. The statute conferring upon the Railroad Commissioners authority to regulate the tariff rates of “all railroads, railroad companies and common carriers,” must be interpreted by its own terms, and must be considered as a whole in determining whether it applies to street railroads.
When a valid statute confers a power or imposes a duty upon designated officials, a failure to exercise the power or to perform the duty does not affect the existence of the power or duty or curtail the right to require performance in a proper case. Chicago, Burlington & Quincy R. R. Co. v. Iowa, 94 U. S. 155, text 162.
Section 5 of Chapter 4549, Acts .of 1897, enacted that “the provisions of this Chapter, shall apply to the transportation, of passengers and property, * and shall ap
Section 5 of Chapter 1700, Acts of 1899, entitled “An Act to revise and amend” Chapter 1519, Acts of 1897, etc., enacts that, “The provisions of this Chapter shall apply to the transportation of persons and property, * and shall apply to all railroads, railroad companies and common carriers engaged in this State in the transportation of passengers or property by the railroads, or common carriers therein, from any point within this State to any point within this State.”
The portion of Section 5, Chapter 1519, which expressly excepted “street railroads” from “the provisions of the Act” was omitted from the amending and revising Act, Chap. 1700, Acts. 1899. The quoted provision from Section 5, Chapter 1700, was re-enacted as Section 2890 of the General Statutes of 1906; and is embraced in the amending Act of 1913, Chapter 6527, Laws of Florida, and includes “common carriers” where they were not included in the Act of 1897.
The changes made in the statute shown by the italicized words, and the omission of the exception of “street railroads,” contained in Chapter 1519, are material and significant, particularly in view of other substantial amendments and changes made by the Act of 1913.
Chapter 6527, Acts of 1913, amending stated Sections of the General Statutes of 1906, that constituted Chapter 4700, Acts of 1899, provides that “The provisions of this Chapter shall apply to the transportation of passengers and property * and shall apply to all railroads, railroad companies and common carriers engaged in this State in the transportation of passengers or property by railroads or common carriers therein from any point within this State to any point within this State; and defines the terms “railroad corporation” or “railroad company” to mean all corporations * now owning or operating * any railroad in whole or in part in this State.” Chapter 4700, Acts of 1899, Section 2892, General Statutes of 1906,, Compiled Laws of 1914, defines the term “common carrier” to mean “all companies * owning and operating railroads wholly or in part in this State.” Chapter 6527, Acts of 1913, provides that “it shall be the duty of said commissioners to make reasonable and just rates of freight and passenger tariffs to be observed by all railroads, railroad companies and common carriers doing business in this State over thei'r respective lines;” and that said Commissioners “shall have power to regulate all other matters pertaining to the receiving, handling, care, transportation and delivery of property, and to the safety, care, comfort, convenience, proper accommodation and transportation of passengers that shall be for the good of the public. The operation of this general grant or of any other general grant of power in this chapter shall not
The changes made in the statute enlarge the jurisdiction and powers of the Railroad Commissioners, and it is expressly enacted that the laws shall “be construed liberally to further the legislative intent to regulate and control public carriers in the public interest.”
The quoted and other provisions’ of the statute indicate an intent to extend the powers and duties of the Railroad Commissioners to the making of just and reasonable intrastate tariff rates for aU common carrier railroads that operate in this State, which comprehensive terms embrace street railroads; and an intent to exclude street railroads does not appear from a consideration of all the related enactments.
The statute expressly states that powers are conferred upon the railroad Commissioners “by law either in express terms or by implication” It is specifically enacted that the provisions of the law “shall apply to all railroads, railroad companies aná common carriers engaged in the transportation of passengers or property by railroads or common carriers therein from <my point within this State to any point within this State.” This is an enlargement
A street railroad is a public carrier” to be “regulated and controlled in the public interest” and “for the good of the public;” and the statutes of the State provide no other authority .for such regulation. A street railroad is a railroad; it is a common carrier; and it transports passengers from points to points within this State, though all the points may be in or near only one city, and though there be no stations or depots, or even no regular or designated or customary stops at which persons systematically enter or leave the cars. Transportation from point to point does not necessarily mean from an established station to an established station.
The alternative writ .alleges, and the motion to quash admits, that the relator company “is. a railroad company and common carrier of passengers,” operating in the City of Jacksonville “and territory contiguous thereto;” and that under its franchise rights, the corporation is engaged in transporting passengers in cars over “a standard guage railroad track” from points to points within the city limits, “on the lines of its said railways.”
As the statute expressly provides that powers are conferred upon the Railroad Commissioners “by law either in express terms or by implication,” that the law shall be “construed liberally,” and that “all doubts as to their jurisdiction and powers shall be resolved in favor” of the existence of the jurisdiction and power of the Railroad Commissioners, a “point” to “point” transportation by a railroad common carrier as used in the statutes may well mean a transportation between the stops of a street rail
The fact that some of the powers conferred by the statrde are not applicable to street railroads is not controlling. All of the powers conferred may not be appropriate to the conditions of some railroads; but the powers are potentially applicable to all common carriers by railroad, and come into operation when conditions warrant it. Some railroads may not cross others or have joint depots or connect with other railroads or with steamboat carriers, or operate dining or parlor or sleeping or refrigerator cars.
Some of the provisions of the statute are not appropriate to terminal companies, union depot companies, sleeping car companies, steamship companies, steamboat companies or express companies, to all of which companies the statute is expressly made applicable. The statute makes no distinction between steam and other railroads. ‘ •
In enacting that the statute “shall apply to all railroads, railroad companies and common carriers,” it was not necessary to speeiffically mention street railroads, as they are ordinarily included in the terms “all railroads,” “all railroad companies” and “all common carriers;” and the provision of the Act of 1897 excluding “street railroads” was omitted by the “amending and revising Act of 1899. Previous statutes relating to railroad companies had been judicially, held to include street
In making Chapter 4549, Acts of 1897, applicable to “all railroad corporations and railroad companies,” and to all corporations “that shall do business as common carriers upon any of the lines of railroads in this State (street railroads excepted),” the Legislature deemed the language used broad enough to include street railroads, and not intending that they should be included, expressly excepted them. Chapter 4700, Acts of 1899, enacted “to revise and amend” Chapter 4549, made the law applicable “to all railroad corporations, railroad companies <md common carriers,” and eliminated the exception of street railroads. If in using the words “upon any of the lines of railroads i'n this State,” in the Act of 1897, it was necessary to except therefrom street railroads to keep them from being included in the terms used, then the broader and more 'comprehensive'terms used in the revising and amending Act of 1899, with the express exception of “street railroads” .omitted therefrom, show an intent to enlarge the subjects or objects to which the law is made applicable, so as to make “all railroad corporations, railroad companies and common carriers” include street railroads, as such terms ordinarily and grammatically do. This conclusion seems to be inevitable under Chapter 6527, Acts of 1913, amending the law in certain Sections “relative to the Railroad Commissioners, and the regulation of common carriers,” which makes the law applicable to “all railroads, railroad companies and
The word “jurisdiction” relates to the subjects or objects over which authority may be exercised, as well as to the nature and extent of the authority to be exercised over the subjects or objects.
Even if the city has special statutory authority to regulate the physical operation of street railroads within its territory, this would not affect the authority of the Railroad Commissioners as to tariff rates' in the absence of statutory authority clearly conferred upon the city to regulate tariff rates to the exclusion of the State tribunal.
. The. opinions of counsel for the Railroad Commissioners and for a street railroad company, shown in the briefs of counsel for the respondents, indicate that in 1909 a doubt was entertained as to whether the authority of the Railroad Commissioners extended to street railroads, and that perhaps in view of the rule of construction then applied, the doubt was resolved against the existence of the authority. But since then Chapter 6527,. Acts of 1913,- enacts “that the laws relative to the Railroad Commissioners shall be deemed remedial laws to be construed liberally,” and that “all doubts as to their jurisdiction and powers shall be resolved in their favor.”
While the quoted provisions of Chapter 6527, as to a liberal construction of the Act, and as to resolving doubts as to jurisdiction and powers have no application when there is no statutory basis for an asserted power;
The authority of the Railroad Commissioners here discussed is more general and comprehensive than that considered in the case last above cited.
The alternative writ of mandamus issued herein alleges in substance, that the relator, E. J. Triay, by appointment of the United States Court, is the duly appointed receiver of the Jacksonville Traction Company, a railroad company and common carrier corporation under the laws of Massachusetts, and is operating a system of street railways consisting of over 64 miles of standard guage railroad track, in the city of Jacksonville, County of Duval, State of Florida, and territory contiguous .thereto; that the line of railway is, and has been for years, operated as a common carrier of passengers; that three per cent of the gross earnings of all the street railway lines in Jacksonville is paid to
Taxes .................................................................................... 93,268.41
Interest Charges .......................-.............,................. 174,965.80
Bond Sinking Fund ............................................. 24,271.66 •
Thus making a loss for the year 1919 of one hundred and three thousand, eight, hundred .and fifty-three and 98/100 dollars ($103,853.98), without any provision for depreciation, upkeep, or obsolescence, or without any return whatever to the owners of the property for the money invested in the same; that the tracks and the construction thereof, and the power houses, poles, -lines, rolling-stock, machinery, and equipment of the Jacksonville Traction Company, are, and have been, of the best, and that no more modern machinery or equipment can be .purchased or installed for the purpose of having a more economical operation of affairs; that the examinaiton by the relator of the operations of the company for the past two years is such as that he avers that the operations of the company have been carried on as economically as possible; and that he is satisfied, from his examination of the situation, and from the operations of the company since he has had charge of it as an officer of the United States Court, that it is utterly impossible to operate the same upon a five cents fare; that by authority and direction of the United 'States Court * the relator did, on the 19th day of January, 1920, apply, in the City of Tallahassee, to the Honorable Railroad Commissioners of the State of Florida for the necessary relief; that the Railroad Commissioners upon a hearing on the petition filed with .them, -to-wit, on. the 19th day of January, 19.20, apply, in the City of Tallahassee, to the Honorable Railroad Commissioners; of the- State of Florida for the necessary relief;, that the. Railroad Commissioners upon a hearing on the petition filed with
These and Other allegations of the alternative writ show a right of the relator to apply for such relief as the law affords in the premises. See Brooks S. Co. v. Railroad Commissioners,-- U. S. -, 40 Sup. Ct. Rep. 183, Feb’y 2, 1920; Minneapolis, St. P. & S. S. M. R. Co. v. State of North Dakota ex rel. McCue, 236 U. S. 585, 35 Sup. Ct. Rep. 129; Norfolk & W. R. Co. v. Attorney General of State of West Virginia, 236 U. S. 605, 35 Sup. Ct. Rep. 437; Munn v. Illinois, 91 U. S. 113, text 126; Pensacola & A. R. Co. v. State, 25 Fla. 310, 5 South. Rep. 833; Union Dry Goods Co. v. Georgia Public Service Corp., 248 U. S. 372,-- Sup. Ct.-.
The State has the power to reduce or increase or otherwise regulate the transportation fares charged by the Jacksonville Traction Company; and such, power is not affected by any authority conferred upon the City of Jacksonville or by the ordinance of the city limiting the fares to five cents. And the power of the State in the premises may properly be exerted through the Railroad Commissioners, an administrative tribunal of the State, under appropriate authority conferred by statute.
When “construed liberally” Avith “all doubts as to the jurisdiction and poAvers of the Railroad Commissioners resolved in their favor,” as is expressly required by the act, the statute confers upon the Railroad Commissioners, a State tribunal, the authority and duty “to make reasonable .and just rates of passenger tariffs to be observed by” the relator, which authority and duty, under Section 30, of Article XVI of the Constitution, if not indepeml
The motion to quash the alternative writ is denied.
Concurrence Opinion
concurring.
I concur fully in the opinion of Mr. Justice WHITFIELD except insofar as it might be construed as recognizing any right of the State under the doctrine of the police power to impair the obligation of the contract between the city and the Traction Company.
The ordinance under which the Traction Company is operating is a contract within the meaning of Section 17 of the Declaration of Right of the Florida Constitution. Trustees of Dartmouth College v. Woodward, 4 Wheat. 518.
There is no recognition in that opinion of any right in the State to impair the obligation of contracts when necessary to protect or preserve the public morals or public safety.
If there were nothing in our constitution controlling on this subject, we would have today, in the language of Mr. Chief Justice MARSHALL, in the Dartmouth College cáse, “On the judges of this court, then, is imposed the high and solemn duty of protecting^ from even legislative violation, those contracts which the Constitution of our country has placed beyond legislative
Sec. 30, Art. XYI, Florida Constitution, provides “The Legislature is invested with full power to pass laws for the correction of abuses and iio prevent u^rjustj discriminations and excessive charges by persons and corporations, engaged as common carriers in transporting persons and property or performing other services of a public nature; and shall provide for enforcing such laws by adequate penalties or forfeitures.”
This part of the organic law is of equal solemnity to any other portion, and is an exception to the limitation imposed by Sec. 17 of the Declaration of Rights. All conracts, therefore^ coming Avithin the purvieAV of the purposes of Sec. 30, Art. XYI, afe subject to this clause and limited by it. •
This is the doctrine of the case of Tampa v. Tampa Water Works Company, 45 Fla. 600.
Without this 'Clause of - our constitution, I think the State -Avo-uld. be precluded from changing the contract rates agreed upon by the city and the Traction Company, for I cannot accept the doctrine that the police power is a Super-constitution, before which the constitutional inhibition against the Legislature passing “any laAV impairing the obligation of contracts” must yield.
Concurrence Opinion
concurring.
I concur fully in the opinion of Mr. Justice WHITFIELD in this case, as to the poAver of the Railroad Commissioners over the regulation of rates for that particular class of railroads popularly known, as-street railroads.- • ■ --; . . -•
By the provisions of Section 5 of Chapter 4549, approved May 8th, 1897, the Legislature that enacted that Chapter, after using broad language descriptive of the class of common carriers intended to be included in the act evidently thought that the terms used were broad enough to include street railroads and that an express exception of such roads was necessary to exclude them from its provisions, and in said Section 5 of that Act they did expressly except them.
The next session of the Legislature, that of the year 1899, enacted Chapter 4700, by which they revised and amended said Chapter 4549 passed at the next preceding session of 1897, and by Section 5 of said Chapter 4700, after using general terms and language still more broadly and comprehensively including street railroads within its provisions than did the previous Act, omitted the express exception of street railroads that was contained in the same section of the previous Act of which it was a revision and amendment.
This was tantamount to the Legislature saying in effect we have used terms and language entirely broad' and comprehensive enough to include street railroads, and we did not wish to except them, but intend to include them, therefore, we have amended the previous Act by striking out and omitting the express exception of such roads contained in the previous Act.
Concurrence Opinion
concurring.
The Jacksonville Traction Company, a corporation under the laws of the State of Massachusetts, operates a
The property of the corporation consists of about sixty-four miles of standard gauge railroad track, power stations, cars, equipment and appurtenances. It also operates a line of railway about five miles in length as lessee, in the city of Jacksonville and in territory contiguous thereto. The physical properties of the company, so ir is alleged, is worth an amount greatly in excess of its indebtedness, stock and securities.
The Traction Company has been operating its lines of railway within the city of Jacksonville under an ordinance which provides that it shall -charge a fare of five cents for a continuous passage from any point within the city limits to any point within the city limits on the lines of its railways, and that free transfer tickets shall be given to passengers paying a- five cents fare and accepted for carriage at intersecting points of the lines of the street railway or any other lines of street railway for the purpose of enabling them to make one continuous passage over the most direct route or routes.
The company has applied to this court for a writ of mandamus against the Railroad Commissioners of the State of Florida commanding them without delay to fix reasonable and just rates for the carriage of passengers on the company’s railway lines.' An alternative writ of mandamus was issued by this -court upon the company’s petitioif, which writ alleges that the company is unable to operate its lines except at a great loss to its stockholders upon the fare prescribed by the ordinance of
The Railroad Commissioners by their Special Counsel and the City Attorney for the city of Jacksonville have moved to quash the alternative writ of mandamus upon the grounds, vis: That .no jurisdiction over the subject-matter set forth in the alternative writ of mandamus . has been either expressly or impliedly conferred -upon the Railroad Commissioners of the State of Florida; that the writ fails to show a clear prima» facie case in the rélator that entitled him to the relief prayed.
The alternative writ presents in behalf of the Receiver of the Jacksonville .Traction Company a most serious situation. A street railway company operating its properties as a common carrier of passengers serves the people in the city of Jacksonville and continguous territory. It is a matter of common knowledge- of which this court
This situation undoubtedly forecasts the ultimate abandonment of the service to many thousands of people, the dismemberment of the properties, the abandonment of the enterprise and great loss to investors.
Notwithstanding this situation the electors of the city of Jacksonville refused to ratify a city ordinance providing for relief to the company in an increase of passenger rates commensurate with the increase in the cost of operating the property. Under the provisions of the charter of the city of Jacksonville such an ordinance required the approval of the electors of the city to give it validity. In this predicament application was made by the Receiver of the company to. the Railroad Commissioners for relief and they reply that they are without jurisdiction; that the power to grant the relief asked for has not been conferred' upon them either expressly or impliedly.
This power in nowise depends upon Section 30 of Article 16, of the Constitution, which invests the Legislature with full power to pass laws for the correction of abuses and to prevent unjust discrimination and excessive charges by persons and corporations engaged' as common carriers in transporting persons and property or performing other services of a public nature. The power is inherent in the State to be exercised by the legislative authority to establish regulations that are reasonably necessary to secure the health, safety, good order, comfort or general welfare of the community. The power can neither be abdicated nor bargained away, and is inalienable even by express grant, and all contracts and property rights are held subject to its fair exercise.
In the making or establishing of just and reasonable rates of charge or tolls to be charged by one engaged, in a public sendee the State exercises its police power in the interest of the community. The general good of the public may not always consist in a reduction of tolls or rates charged for a public sendee. The convenience, ne; cessitv and comfort of the community must be considered when the State is about the business of establishing reasonable rates for such a service. It would most assuredly not be in the public interest and for the common welfare to permit an industry which supplies to a large number of people water, lights, electricity, transportation or other commodities or service in which the public is interested, to become inoperative for lack of sufficient compensation to pay operating expenses, because the Legislature refuses to exercise the poAver to establish a reasonable rate of charge for the service.
It is not a question of the guardianship of public service corporations, but a question of convenience, health, safety and general good of the community. The Legislature is not inhibited by any provision in the constitution from establishing just and reasonable rates of charge or tolls for a public service, and this power may be delegated to a Railroad Commission, which is a mere legislative method.of making such rates to meet at all times, whether the Legislature is in session or not, the exigencies as they arise, to the end that the convenience, safety and general welfare of the State may be promoted or secured. And this power to make just and reasonable rates implies the power to prevent overcharges, abuses and discriminations by any persons or corporations engaged
In the case of Portland Ry., Light & Power Co. v. Railroad Commission of Oregon, 229 U. S. 397, 57 L. Ed. 1248, 33 Sup. Ct. Rep. 820, Mr. Justice DAY, speaking for the court, said: “The authority of the States to control by appropriate legislation the rates of fare to be' charged by street railway companies and other common carriers wholly within their border® and subject to their laws, is unquestionable.” It is immaterial whether the power to make reasonable and just rates of fare to be charged by common carriers, grows out of the power to prevent unlawful discriminations or unjust charges, or whether the latter power is incident to the former. The State has the inherent power by appropriate legislation to control the rates to be charged by common carriers for transportation of freight or passengers over public highways, because of the duty and power of the State to enact such laws as áre necessary for the promotion of the peace, health, safety, comfort and general welfare of the community. See Milwaukee Electric Ry. & Light Co. v. Railroad Commission of Wisconsin,
The State may authorize its municipal corporations to establish by contract the rates to be charged by a public ■service corporation, but if such power is claimed by the municipality to the exclusion of the State’s power to prescribe reasonable rates during the term of the contract, the existence of the power and the authority to make such a contract must clearly and unmistakably appear, and all doubts must be resolved in favor of the' State’s superior power to prescribe reasonable rates. See State ex rel. Webster v. Superior Court for King County, 67 Wash. 37, 120 Pac. Rep. 861, L. R. A. 1915C 287, and authorities therein cited; Salt Lake City v. Utah Light & Traction Co., - Utah —-, P. U. R. 1918 F 377, 173 Pac. Rep. 556, 3 A. L. R. 715; Freeport Water Co. v. City of Freeport, 180 U. S. 587, 21 Sup. Ct. Rep. 493.
Chapter 3775 Acts of 1887, establishing the municipality of Jacksonville and providing for its government and prescribing its jurisdiction and powers, vested in the mayor and city council the power to “grant the right of way through the streets, avenues and squares of said city for the purpose of street or other railroads.” ■It is alleged in the alternative writ that the Jacksonville Traction Company is operating Its lines of railway within the city of Jacksonville under an ordinance passed by the city council in January, 1907, prescribing a rate for transportation of passengers of an amount not to exceed five cents for one passage. There is no provision in the charter of the city of Jacksonville which grants to the city the power to make rates for the transporta
In granting a franchise to the Traction Company, therefore, the city merely exercised a power to contract with the company in a matter in which the city acted in its corporate rather than in a governmental character. See Keggin v. Hillsborough County, 71 Fla. 356, 71 South. Rep. 372. This being true no contract exists between the city and the Traction Company, the obligation of which could be considered to be impaired, if the State in the exercise of its police power by appropriate measures disregarded the rate fixed by the city ordinance and established another which should be deemed to be reasonable. Because where rights are subject to State regulation they cannot be removed from the power of the State by making a contract about them. “The contract will carry with it the infirmity of the subject matter.” See Hudson County Water Co. v. McCarter, 209 U. S. 349, 28 Sup. Ct. Rep. 529; City of Dawson v. Dawson Tel. Co., 137 Ga. 62, 72 S. E. Rep. 508; City of Manitowoc v. Manitowoc & Northern Traction Co., 145 Wis. 13, 129 N. W. Rep. 925; Turtle Creek Borough v. Pennsylvania Water Co., 243 Pa. 415, 90 Atl. Rep. 199; Bellevue Vorough v. Ohio Valley Water Co., 245 Pa. 114, 91 Atl. Rep. 236.
Under the constitution of 1885 municipalities are the creatures of and subordinate to the will of the Legislature, which provides for their government and prescribes their jurisdiction and powers, and may alter or amend the same at any time. Art. 8 Sec. 8, Const, 1885.
Chapter 4052, Acts of 1891, providing for the forfeiture of grants, rights, privileges, licenses and immunities in certain cases contains no language indicating a .purpose upon the part of the Legislature to set in operation a power or agency over which it has no control and to which it surrendered or abdicated the sovereignty of the State.
I agree with counsel for the city of Jacksonville and with the counsel for the Railroad Commissioners, therefore, that the decision of this case depends upon the extent of the jurisdiction conferred upon the Railroad Commissioners. Whether the power conferred is broad enough to include street railroads in the public utilities over Which the Commissioners are vested with control. In construing the Railroad Commission Act, Chapter 4700, Acts of 1899, the task is not made difficult by the possibility that the city of Jacksonville had power under any act of the Legislature to abrogate by ordinance or contract the sovereign power of the State to regulate the rates of the Traction Company. In enacting the law the Legislature was not embarrassed by any consideration that such power had been vested or attempted to be vested in any agency of the State or municipality therein. It was free and untrammelled to write into the law full and complete power to the Commissioners over the common carriers doing intrastate business in this State. The pur
The word railroad .in its broadest signification includes a street railroad. There is no definite rule' of . construe
Chapter 4549, Acts of 1897, providing for the regulation of the Railroad Schedules, and which was amended by Chapter 4700, Acts of 1899, expressly excepted street railroads from the provisions of the Chapter which, in Section five, defined the terms “Railroad Coporation” or “Railroad Company” to mean all corporations or individuals then owning or that may hereafter own or operate any railroad in whole or in part in the State and to all persons, firms and companies who shall do business as common carriers upon any of the lines of railroads in this State, “street railroads excepted.” Chapter 4700, Acts of 1899, in defining the same terms uses broader language in that the terms are made to include not only those who do business as common carriers upon any of the lines of railroads in, the State, but those who own or operate any traim or car service on any railroad in the State, and eliminates the words “®reet railroads excepted.”
The former Act in Section' 5 provided that the provisions of the Chapter should apply to “all railroad cor
I am, therefore, of the opinion that the motion to quash the alternative writ should be denied.
