The State of Florida, ex rel. The Railroad Commissioners, v. The Atlantic Coast Line Railroad Company and The Seaboard Air Line Railway, 67 Fla. 441

Shackleford, C. J., (after statmg the facts.) — It is admitted by the respective parties litigant that two points are presented by this demurrer: “(

a) The jurisdiction of the Commission, or its authority to issue and enforce upon the Respondent, Seaboard Air Line Railway', the order requiring it to join the defendant, Atlantic Coast Line Railroad Company, in the construction of a union passenger station, when at the time of the making of said order the said Respondent, Seaboard Air Line Railway, was not then operating a line of railroad into the town of Bartow as a common carrier, and had not even constructed its line of railroad into said town.

And that at the time of the issuance of the supplemental Order No. 388 the said Respondent, Seaboard Air Line Railway, was not then operating its line of railroad in the town of Bartow, and the writ fails to show that this respondent has ever operated such line as a common carrier in said town. "(

b) A challenge of the authority of the Relators under the statute and the. Constitution to make or enforce the order.” It is conceded by the respondent that a demurrer to an alternative writ of mandamus stands upon the same footing as a demurrer in any other action at law and is to be treated in the same way, that is as admitting as true all such matters of fact as are sufficiently pleaded. See State ex rel. Kittel v. Jennings, 47 Fla. 307, 35 South. Rep. 986.

We have held that “A d'emurrer to the return to an alternative writ of mandamus admits as true all well-pleaded averments of fact and all fair and pertinent inferences or conclusions of fact in the return that are not inconsistent with or repugnant to accompanying specific detailed averments of facts and circumstances; but it does not admit conclusions of law stated in the return.” State ex rel. Railroad Comm’rs. v. Florida East Coast Railway Co., 64 Fla. 112, 59 South. Rep. 385; State v. Florida East Coast Ry. Co., 65 Fla. 420, 62 South. Rep. 593; State ex rel. Railroad Comm’rs. v. Louisville & N. R.

Co., 62 Fla. 315, 57 South. Rep. 175. This principle applies with like force to an alternative writ of mandamus. We have further held that “In mandamus, certainty of allegation is requisite, but if the alternative writ states the facts on which the demand is based with sufficient precision to express the right of the relator and the duty of the respondent in such a manner that the ordinary mind may easily apprehend them, this is all the certainty required to defeat a demurrer.” State ex rel. Attorney General v. Atlantic Coast Line R. Co., 48 Fla. 114, 37 South. Rep. 652.

It is further true that, in passing upon a demurrer to an alternative writ of mandamus, matters dehors the writ cannot be considered, but only such matters as appears upon the face of the writ. State ex rel. Garrison v. Commissioners of Putnam County, 23 Fla. 632, 3 South. Rep. 164. As we held in O’Brien v. State, 55 Fla. 146, 47 South. Rep. 11, “It is not the province of a demurrer to set out the facts; it involves only such facts as are alleged in the pleading demurred to, and raises only questions of law as to the sufficiency of pleadings which arise on the face thereof.”

Section 2893 of the General Statutes of Florida expressly confers upon the Railroad Commissioners the authority “to require two or more railroads entering the same town or city to erect, operate and maintain a joint passenger terminal or union depot,” &c. ' Tested by the principles laid down in the cases which we have cited, it seems so obvious that the alternative writ is not open to the attack made upon it by the demurrer that any detailed or extended discussion of the points urged hy the respondent would be a work of supererogation.

The matters of fact, if they in truth exist upon which the respondent attempts to rely, constitute an affirmative defense which would have to be set up by plea or answer. It plainly appears that the respondent had ample opportunity afforded it of raising these defensive matters at the hearing before the Railroad Commissioners. If they were so raised, the decision of the Commissioners was adverse to the respondent and such deciion is not so presented to us that we can review such matters. As we held in College Arms Hotel Co. v. Atlantic Coast Line R. Co., 61 Fla. 550, 54 South.

Rep. 459, “The authority given hy the statutes to the Railroad Commissioners clearly includes the right to make a just and reasonable order for the erection of railroad depots in. this State for the convenience of the public.” We further held! therein that “Orders made by the Railroad Commissioners are prima fade reasonable and just, and unless overcome by evidence such orders are enforceable.” It follows that the demurrer must be overruled. The respondent will be allowed until the 9th day of December, 1913, in which to file its answer. Taylor, Cockrell, Hocker and Whitfield, J. J., concur.