The State of Florida, ex rel. W. H. Ellis, Attorney General, Relator, v. The Atlantic Coast Line Railroad Company, a Corporation, Respondent, 52 Fla. 646

Whitfield, J. (after stating the facts) : The return of the respondent, briefly stated, is that it is transporting and delivering between stations on its line, men, wire, poles, etc., for the Western Union Telegraph Company, as alleged in the alternative writ, and is refusing to perform a like service for all other telegraph and telephone companies, but avers that it is not guilty of discrimination thereby, nor subject to any order of the Commission in regard thereto, by reason of the fact that the respondent has never held itself out, and does noi hold itself out, as a common carrier in respect to the particular service performed for the Western Union Telegraph Company and refused for others; that such service forms no part of the duty of a common carrier and is solely a subject of contract ; that in pursuance of its legal rights the respondent on October 14, 1902, entered into an agreement still existing with the Western Union Telegraph Company to perform the mentioned service for certain mutual considerations and mutual benefits to the contracting parties set out in an attached contract, by virtue of which contract the relation of respondent to the Western Union Telegraph Company is not the relation of carrier to shipper, but wholly contractual, and of such nature that the Postal Telegraph-Cable Company could not give the same consideration or the same equivalent to respondent that it is receiving from the Western Union Telegraph Company for the mutual services stated in and performed under the said contract; that the enforcement of the order of the Railroad Commissioners would result in violating the contractual rights of respondent and in depriving respondent of its property without due process of law, and of the equal protection of the laws, contrary to- the guarantees of the Constitution of the United States and the amendments thereof; that respondent has always been willing and is now ready and oilers to transport and carry like employes and material tor the Postal Telegraph-Cable Company at and for respondent’s regular local rates for the employes, articles or commodities shipped from and to any regular stations on respondent’s line of railroad in the State of Florida that may be offered in the ordinary and usual way in which passengers and shipments are tendered; that respondent has a right to contract as it has done, and that-said contract does not contravene or violate -any of the laws of the State of Florida, and that the setting aside and making void said contract is not within the power of the Railroad Commission of the State of Florida, and not within the scope or contemplation of the act of the Legislature creating said Commission.

The demurrer raises the question of the sufficiency of the return as a defense to the writ. In the opinion on the demurrer to the alternative writ in this case, 51 Fla. 543, 41 South. Rep. 529, we said: “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 he 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.” We understand from the admissions in the return of the respondent that it has been for some years past and is now, with, trains and cars operated by it, voluntarily transporting and delivering along its railroad line, between the stations thereon, the employes and the poles, wires, etc., of the Western Union Telegraph Company, and that it refuses to render similar service for others.

Such service is that of a common carrier, and the fact that it is performed under a particular contract does not affect the character of the service even though the consideration of the contract cannot be furnished by another company demanding similar service, since the same service should be performed for all for a reasonable compensation, and there is no question as to the reasonableness of the compensation fixed under the law for this service.

The facts admitted in the return as to the service being rendered by the respondent for the Western Union Telegraph Company and refused to other companies under like circumstances, show that such service is rendered as a common carrier, and the averment in the return that the service is being rendered under a contract and not as a common carrier cannot avail the respondent as a defense to the writ.

There is no showing that the service being rendered for the Western Union Telegraph Company is different from that rendered to other shippers of the same subjects of transportation except that delivery is made between stations on the respondent’s line of road. The respondent offers to transport the employes, poles-, wire, etc., of the Postal Telegraph-Cable Company, from and to regular stations, at its local rates, thereby admitting them to be proper subjects of transportation.

The respondent, a common carrier, admits that it is voluntarily transporting and delivering -between stations on its line, employes and freight for one incorporated public telegraph company to maintain lines of wire along the railroad line, and that it refuses similar services to others, without giving sufficient excuse for such refusal, thereby admitting that it is guilty of unjust discrimination as found by the Railroad Commissioners.

Under these circumstances the respondent may be compelled to perform like services, for a reasonable compensation, for another incorporated public telegraph company to enable it to lawfully establish and maintain its lines of wire along the railroad line.

The respondent cannot refuse to render the service to the Postal Telegraph-Cable Company on the ground that the service rendered to the Western Union Telegraph Company is under a contract and that the service is not rendered as a common carrier, when it is not shown that such service differs from that rendered other shippers except as to delivery between stations. See State v. Jacksonville Terminal Co., 41 Fla. 377, 27 South. Rep. 225; Chicago and Northwestern Ry. Co. v. People, 56 Ill. 365, S. C. 8 Am. Rep. 690; Messenger v. Penn. Ry. Co., 37 N. J. L. 531, S. C. 18 Am.

Rep. 754; Cumberland Telephone & Telegraph Co. v. Morgan’s L. & T. R. Co., 51 La. Ann. 29, 24 South. Rep. 803, S. C. 72 Am. St. Rep. 442; Mercantile Trust Co. v. Atlantic & P. R. Co., 63 Fed. Rep. 910; 5 Am. & Eng. Ency. Law (2nd ed.) 177; 6 Cyc. 372. Under

Section 30 of

Article 16 of the Constitution "the Legislature is invested with full power to pass laws * * * to prevent unjust discrimination * * * by persons and corporations engaged as common carriers in transporting persons and property or performing other services of a public nature.”

Chapter 4700, Acts of 1899, provides that the Railroad Commissioners shall make reasonable and just regulations for the observance of rates fixed by them "as to charges at any and all points for the neeoessary handling and delivery of all kinds of freight and transportation of passengers, and for the prevention of any unjust discrimination in connection therewith * * and to direct and control all other matters pertaining to railroads that shall be for the good of the public.

Said commissioners shall have full power and authority to require any railroad, railroad company or common carrier to properly operate its railroad or transportation line and to furnish all the necessary facilities for the convenient and prompt handling, transportation and delivery of all freights offered along its line for transportation, and shall provide and prescribe all such rules and regulations as may be necessary to secure such operation and the furnishing of such facilities and the prompt handling, transportation and delivery of all freights offered.” It is clear that where a railroád company in its capacity as a common carrier renders services to one corporation so as to enable it to serve the public, and, without sufficient excuse, refuses similar services to another corporation lawfully authorized to likewise serve the public, It is an unjust discrimination; and the Railroad Commissioners have the power under the Constitution and Laws of this State to make just and reasonable rules and regulations to prevent such unjust discrimination.

See State v. Jacksonville Terminal Co., 41 Fla. 377, 27 South. Rep. 225; State ex rel. Cumberland Telephone and Telegraph Co. v. Texas & P. Ry. Co., 52 La. Ann. 1850, 28 South. Rep. 284; State ex rel. Attorney General v. Atlantic Coast Line R. Co., 51 Fla. 543, 41 South. Rep. 529. See, also, Augusta Brokerage Co. v. Central of Georgia R. Co., 121 Ga. 48, 48 S. E. Rep. 714; Tift v. Southern Ry. Co., 123 Fed. Rep. 789; Agee & Co. v. Louisville & N. R. Co., 142 Ala. 344, 37 South. Rep. 680. The power of the Railroad Commissioners to make the order here sought to be enforced is fully established.

The statute provides that “all the rules and regulations made and prescribed by said Commissioners * * * to prevent unjust discriminations or other abuses * * shall be deemed and held to be prima facie reasonable and just.” The respondent did not appear to be heard in response to the notice served on it of the hearing before the Railroad Commissioners when the order here sought to be enforced was made, and it does not claim that the order is an unreasonable and unjust regulation; nor is the rate of compensation claimed to be unjust and unreasonable; so it cannot be said that the enforcement of the order will be a taking of the property of the respondent without due process of law, or will reprive it of the equal protection of the laws.

See State v. Jacksonville Terminal Co., 41 Fla. 337, 27 South. Rep. 225. The rights of the respondent under the contract which was made in 1902, are subject to the constitutional and statutory provisions above quoted, and the enforcement of the order of the Railroad Commissioners will not violate valid contractual rights of the respondent. City of Tampa v. Tampa Water Works Company, 45 Fla. 600, 34 South. Rep. 631, affirmed in 199 U. S. 241.

The respondent rests its defense upon its claim that in rendering the stated service to the Western Union Telegraph Company it is not acting as a common carrier, and therefore it is not required by law to render a similar service to other telegraph companies; bul, as we have seen, the facts as to the character of the service admitted in the return constitute the service that of a common earner, and this service being voluntarily performed for one gives others under like conditions a right to demand it for theml selves.

Tbe demurrer to tbe return is sustained, tbe return is held to be insufficient, and the peremptory writ is awarded. Shackleford, C. J., and Taylor, Cockrell, Hocker and Parkhill, JJ., concur.