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seventeen-hundredths of one per cent. per annum upon the actual cost of the road and its equipment; and the cost of the actual and necessary repairs and current employment largely exceeded said ostensible excess of $52,662.50.

(c.) For the year ending June 30th, 1887, the excess of the operating expenses (not including taxes) over the income from all sources, was $4,234.52. The taxes were $17,069 15, and with said excess aggregate $21,303.67.

(d.) For the period from June 30th, 1887, to March 1st, 1881 (and thereafter in like proportion), the excess of the operating expenses of the road over income from all sources has been $15,834.87.

(e.) That West Florida, through which the road runs, has only eight inhabitants to the square mile. That along the entire route from Pensacola, a city of 12,000 or 15,000 inhabitants, to River Junction, there are but two towns exceeding 1,000 inhabitants, and but three which exceed 250 inhabitants. The main staple for shipment is lumber, for the transportation of which numerous streams vie with the company at a rate much cheaper than it can afford.

(f.) That the rates of freight and passage over the line of the road from points off to points on, and from points on to points off, are fixed and determined by competition upon a basis much lower than those fixed by the Commissioners, and cannot be increased by the defendant.

(g.) That at the beginning of the partial operation of the road, viz: from August 5th, 1883, to February 1st, 1885, the local rates were as follows:

Agents 1st class rates 42 cents per mile.
Agents-2d class rates 32 cents per mile.
Conductors-1st class rates 5 cents per mile.
Conductors-2d class rates 4 cents per mile.
Round trip rate 7 cents per mile.

During the existence of these rates nearly 90 per cent. of the passengers traveled on the 31⁄2 cent rate. The above rates were found to be entirely unremunerative, and the 32 and 4 cents rates were abolished on February 1st, 1885. That this change did not result, and has not resulted, in the decrease in the number of local passengers, but immediately upon such change the gross income from the transportation of such passengers, which had prior thereto been not only unremunerative, but practically of unvarying amount, increased fifteen per cent. for the ensuing year, which increase has been maintained with uniformity since that time.

(h.) That at the beginning of the completed operation of the road, defendant established rates of local freight at a rate deemed by it to be remunerative, which continued in force till

January 1st, 1885, when, to induce transportation, defendant reduced the rates upon the commodities constituting more than three-fourths of the freight, to a point much below the former rates, although above the rates fixed by the Commissioners, but this reduction did not cause, and has not caused any increase in the quantity of freight transported, or in the gross income therefrom, but the income decreased, and has remained less than it was before the reduction.

There are also assertions in the plea to the effect that "in all human probability" the deficits indicated in the first four paragraphs of the plea will continue for some years to come, as the completion of roads having a shorter distance to operate between desirable points to be reached over defendant's road must and will prevent, in a large measure, any increase of through business or through business rates; and that the sparceness of the population and the meagerness of the products to be shipped by rail through the country through which the road runs prevents, and will prevent, any increase in the value of the local business which might otherwise result from a reduced rate; and that a reduction of rates to those prescribed by the Commissioners would compel defendant to forego any possibility of earning any interest on its investment or any income from the operation of the road, and to continue the operation of it at an irretrievable loss, and render the line valuless for purposes of either operation or sale. These assertions are, however, rather the expression of opinions and apprehensions than facts admitted by the demurrer.

An admission by the State, or even by the Commissioners, of the facts stated in this plea, is not an admission that the rates prescribed by the latter would not be remunerative. As was said by Judge Woods, in the Tilley case, a reduction of rates is not always followed by a reduction of income, either gross or net. It can soon be settled which is right-the railroad company's officers or the Railroad Commission-in their view of the effect of the latter's tariff rates, by allowing the tariff to go into operation. 2 Woods, p. 452. A different management from that now controlling the appellant company might agree with the Railroad Commissioners and adopt the tariff proposed by them, and yet another management might put in force rates distinct from either. The Railroad Commissioners must be presumed by the courts to understand railroad business, and to have in careful keeping the real interests of the railroads. The intricacy of the subject of tariff and freight rates, the importance of the interests involved, and the difficulty of courts dealing efficiently with the matter in ordinary suits, even considering merely the time that would be consumed, has led to the establishment and maintenance of Commissioners at the expense of the people. Their mission is to do justice as

between the people and the railroad companies; they are not expected or presumed to place any restrictions upon a railroad except those clearly necessary to effect the purposes of the Constitution and the legislation under it. 70 Ga., 694. Where a tariff has been fixed by a Commission it must be tested by experiment, unless it is shown or appears upon its face to be destructive of the railroad's interests Neither the courts nor the railroad company can substitute its judgment for, that of the Commission where there is room for difference of intelligent opinion. A different rule from this would install a presumption that the Commission neither knew their duty nor desired to do it. Like all officers, they will be presumed to know and do their duty until the contrary is shown. Under circumstances which admit of no difference of opinion, or when it is admitted upon the record, as in the case of the third plea considered above, that the Commission rates are unremunerative, their enforcement becomes a wrong, for which there may be no remedy but in the courts; but where there is room for honest judgment as to whether or not such rates will prove remunerative, the judiciary should not interfere. Avery vs. Fox, 1 Abbott's U. S. C. C. Reports, 246.

When the above case of C., B. & Q. Railroad Company vs. Dey et al. came again before Judge Brewer last February, upon supplemental bill, the facts as presented by the new pleading showed that the effect of the tariff of rates fixed by the Commissioners was doubtful, with a seeming probability, however, of their proving compensatory, and the amount of business to be effected was small, he held that the result should be left to the test of experience, and refused a preliminary injunction, and dissolved the restraining order previously made. 5 Railway and Corporation Law Journal, 203.

This is not a good plea.

III. The first plea is that the rate charged for the transportation of the passengers was a reasonable, and the second plea, that the one fixed by the Commission was less than a reasonable

rate.

These pleas speak not as to the unreasonableness of the tariffs prescribed by the Commissioners, considered as an entirety, but simply as to the passenger rate. The case of State vs. C., M. and St. P. Railroad Company, supra, decided by the Supreme Court of Minnesota, is somewhat in point as applicable to these pleas.

As between the railroad company and a passenger, or the former and the State, we do not think that the company can question before the courts a particular tariff, on the simple ground that it is in its judgment unreasonable, or can invoke the interference of the court as against the judgment of the Commissioners

that it is unreasonable. The courts have no power to make freight and passenger tariffs. In C., B. and Q. Railroad Company vs. Dey et al., 5 R. and C. L. J., 203, Judge Brewer, in speaking of his former decision in the same case, says (p. 204): in the injunction which was issued there was no assumption of power to prescribe rates, and no pretense of interfering with the Commissioners in the discharge of any duties imposed on them by the statute.

IV. In view of the conclusion announced as to the third plea, the judgment in each of the cases mentioned in the first paragraph of this opinion must be reversed, and a new trial granted. Judgments will be entered accordingly.

OFFICE OF THE

CLERK OF THE SUPREME Court,
STATE OF FLORIDA.

I, JAMES B. WHITEFIELD, Clerk of the Supreme Court of the State of Florida, do hereby certify that the foregoing is a true copy of the opinion of said Supreme Court in the cases (six) of the Pensacola and Atlantic Railroad Company, appellant, vs. The State of Florida, appellee, as filed in my office on the first day of May, A. D. 1889.

IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the Seal of said Supreme Court, at Tallahas[L. s.] see, this, the third day of May, Anno Domini, Eighteen Hundred and Eighty-nine.

JAMES B. WHITEFIELD,

Clerk of the Supreme Court of Florida.

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