The State of Florida ex rel., The Railroad Commissioners, Relators, v. Atlantic Coast Line Railroad Company. Respondent, 60 Fla. 465

Whitfield, C.

J., (after stating the facts.)—In effect the alternative writ issued by this court herein recites that Rule 12 of the Rules Governing the transportation of passengers prescribed by the Railroad Commissioners and set out in the alternative writ, requiring written application to the Railroad Commissioners for their consent to discontinue running any regular train carrying passengers to be made at least ten days before the discontinuance, was duly adopted and prescribed and ordered to take effect January 1, 1909, of which respondent had due notice; that since the Rule took effect the respondent has discontinued some of its regular trains carrying passengers and running wholly within the State of Florida, without the consent of the Railroad Commissioners previously obtained, and without making any application for such consent, but neglects and refuses to obtain such consent or to make application therefor, and that the respondent denies the right of the Railroad Commissioners to prescribe the said Rule 12.

The command of the alternative writ is that the respondent do forthwith observe the provisions and requirements of Rule 12 so far as respondent is required thereby to make written application to the Railroad Commissioners for their consent to discontinue running any regular train carrying passengers, either wholly or in part, at least ten days before the date for the proposed discontinuance, unless the said Railroad Commissioners in their discretion shorten the time of application for good cause shown, or show cause &c.

The command of the writ is only that the respondent make written application to the Railroad Commissioners for their consent before discontinuing the running of any regular train carrying passengers. The motion to quash-the alternative writ questions the power of the Railroad Commissioners to adopt Rule 12. The Railroad Commissioners have such powers only as are expressly or impliedly conferred upon them by statute. State ex rel. Ellis v. Atlantic Coast Line R. Co., 51 Fla., 578, 41 South. Rep. 705; State ex rel. Railroad Com’rs v. Louisville & N. R. Co., 57 Fla., 526, 49 South. Rep. 39.

Authority that is indispensable or useful to the valid purposes of a remedial law may be inferred or implied from authority expressly given. Where lawful authority to the Railroad Commissioners is clearly conferred or fairly implied, and it is consistent with the general statutory duties of the Commissioners, a wide discretion is accorded to them in the exercise of such authority. The right of the State to regulate the transportation by common carriers within the State extends to every phase of the service and to every act of the carrier that affects the service. State v. Atlantic Coast Line R.

Co., 56 Fla. 617, 47 South. Rep. 969.

Under the statute prescribing regulations as “to the transportation of passengers and property” the Railroad Commissioners have “full power and authority to require any railroad company or common carrier to properly operate its railroad or transportation line * * * , and shall provide and prescribe all such rules and regulations as may be necessary to secure such operation. * * * to do or perform any act or thing necessary to be done to effectually carry out and enforce the provisions and objects of” the Railroad Commission Law, “and to direct and control all other matters pertaining to railroads that shall be for the good of the public.” §§2890, 2893, 2896, and 2921 General Statutes of 1906.

As these provisions were re-enacted in the General Statutes the sufficiency of the title to the original act is of no consequence here.

Authority to require railroad companies engaged in operating trains carrying passengers between points wholly within this State to make written application to the Railroad Commissioners for their consent to discontinue running any regular train carrying passengers, is included within the authority given by the above quotations from the statutes, if not also given by other portions of the statutes; and such authority is not only consistent with the purposes of the Railroad Commission Law, but it is apparently a useful if not a necessary authority for the Commissioners to have and exercise in order to make effective and complete their lawful supervision and regulation of the duties of railroad companies in the operation of passenger trains in this State.

Without information as to a proposed discontinuance of a regular train carrying passengers the Commissioners could not give to the transportation of passengers that supervision and regulation required of them by the statutes. • The authority of the Commissioners to supervise the operation and discontinuance of regular trains carrying passengers is not confined or limited to the correction of abuses between connecting carriers.

The purpose of the authority given the commissioners is by lawful supervision and regulation to secure adequate service under all conditions within the powers and duties conferred upon the Commissioners, and to perform the legislative duty recognized in the constitution to correct abuses and to prevent unjust discrimination by common carriers. The authority of the Railroad Commissioners is to supervise and regulate the duties of railroads to the public, and not to arbitrarily control and manage the property of railroad companies. State ex rel. Railroad Comm’rs v. Florida East Coast Ry.

Co., 58 Fla., 524, 50 South. Rep. 425. The provision of Rule 12 here sought to be enforced is not an attempted exercise of arbitrary control and management of the respondent’s railroad in rendering the public service; nor does it unduly interfere with the initial discretion of the railroad officials in the operation of trains. It is merely a regulation in aid of lawful efficient supervision within the authority and duty of the Commissioners; and the provision in question is apparently reasonable.

While the initial discretion as to the operation of trains is in those charged with the management of the railroad operations, such discretion is subject to lawful governmental regulation. State ex rel. Railroad Comm’rs v. Florida East Coast Ry. Co., 57 Fla., 522, 49 South. Rep. 43.

If the regulation here commanded to be observed were an unreasonable burden that in effect unjustly deprived the respondent of property rights, it would be in conflict with the provisions of the State Constitution securing private rights as well as with the Fourteenth Amendment to the Federal Constitution; but the Fifth Amendment to the Federal Constitution is not a limitation upon State authority. Talton v. Mayes, 163 U. S. 376, text 382, 16 Sup. Ct. Rep. 986; Spies v. State of Illinois, 123 U. S. 131, 8 Sup. Ct. Rep. 21, 22; Pittman v. State, 51 Fla. 94, 41 South. Rep. 385, 8 L. R. A. (N. S.) 509.

It is apparent, however, that the particular regulation sought to be enforced by this writ is within the authority conferred upon the-Commissioners by the Statute, and that its enforcement in a lawful manner will not deprive the respondent of any constitutional right. The burden of just and reasonable regulation is under the law an incident to the service undertaken by the common carrier, and such burden is not a denial or deprivation of property rights secured by the. State and Federal Constitutions. State ex rel. Railroad Commr’s v. Florida East Coast Ry. Co., 57 Fla. 522, 49 South. Rep. 43.

No question of interstate transportation is involved here. No unjust ór arbitrary classification of those affected by the regulation sought to be enforced is made to appear. The provision of the Fourteenth Amendment to the Federal Constitution that no State shall deny to any person within its jurisdiction the equal protection- of the laws, does not restrain the normal exercise of State authority, but only the abuse of such authority.

A wide scope of discretion' is accorded to the State in selecting the subjects of regulation and in classifying the persons affected by a regulation, the limitations imposed by the equal protection of the laws clause of the Federal Constitution being only that such classifications shall have some practical relation to actual conditions, and shall not be palpably unjust discrimination or merely arbitrary. See Louisville & N. R. Co. v. Melton, 218 U. S. 36, 30 Sup. Ct. Rep. 676; Mobile, Jackson & K. C. R. R. Co. v. Turnipseed, 219 U. S. 35, 31 Sup. Ct. Rep. 136; affirming Mobile, Jackson & K. C. R. R. Co. v.

Hicks, 91 Miss. 273, 46 South. Rep. 360; King Lumber & Mfg. Co. v. Atlantic Coast Line R. R. Co., 58 Fla. 292, 50 South. Rep. 509. This writ is brought by the Railroad Commissioners to enforce one of their regulations, and not by the Attorney General; and it undertakes to enforce only the portion of Rule 12 of the Railroad Commissioners that requires a written application for consent to discontinue running any regular train carrying passengers between points wholly within this State.

The portion of the rule requiring the consent of the Railroad Commissioners to be obtained before a regular train carrying passengers shall be discontinued is not involved in this action. Rule 12 as set out in the alternative writ approaches dangerously near the sphere of management and control accorded to the railroad officials as distinguished from the. supervision and regulation conferred by statutes upon the Railroad Commissioners.

In acting under the rule the Commissioners should zealously avoid any action that is not within their authority an'd that is not reasonable and just under the circumstances as they may actually exist. The application for consent offers an opportunity for a useful discussion between the railroad officials and the Commissioners of the conditions that suggest the discontinuance of a train, tending to prevent arbitrary action and to secure governmental recognition of the discontinuance of a train in which the traveling public have an interest.

The provision of the rule requiring Avritten application to be made to the Railroad Commissioners before any regular train carrying passengers between points wholly within this State is discontinued, imposes a continuing specific duty on railroad companies in this State; and being lawfully imposed such continuing duty may be enforced by mandamus where it has been violated and. is disregarded and its binding effect is challenged by a railroad company subject to the regulation and it appears that the enforcement of the regulation is just and practicable Avithin lawful limitations.

The alternative Avrit states that the respondent has violated the provision of the rule involved here by discontinuing some of its regular trains carrying passengers Avithont applying for consent, and that the respondent neglects and refuses to make application for consent, and denies the right of the Commissioners to prescribe the rule.

This being admitted by the motion to quash, shoAvs a present disregard of a specific duty enforceable by mandamus; and the Avrit here does not present a moot question or an unimportant delict, especially when the respondent contends that the regulation deprives it of property rights secured by the Federal Constitution.

The number of regular trains required for passenger service in this State may vary with the seasons; and while the discontinuing of a regular train carrying passengers is a matter primarily for the determination of the railroad officials, it is subject to laAvful governmental supervision and regulation to prevent abuses and arbitrary action by the carrier that Avould be detrimental to the public service.

There is no uncertainty or undue generality in the allegations of the alternative writ that the respondent has discontinued some of its regular trains carrying passengers Avithout making application for consent to do so, and neglects and refuses to make application for such consent, and denies the validity of the rule requiring application for consent.

The allegation as made is a sufficient basis for this writ, to enforce not a general course of conduct, but the performance of the continuing specific duty to make application for consent before discontinuing any regular train carrying passengers as occasion may arise. State ex rel. Ellis v. Jacksonville & S. W. R. Co., 48 Fla. 114, 37 South Rep. 652; Sec. 2921 General Statutes of 1906. The motion to quash the alternative writ is overruled with leave to the respondent to take such further and proper action herein as it may be advised by the fourth Tuesday in January, 1911. Shackleford and Cockrell, J.

J., concur; Taylor, Hocker and Parkhill, J. J., concur in the opinion.