State ex rel. Triay v. Burr (79 Fla. 290, 1920)

Whitfield, J.

(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. Young, 31 Fla. 594, 12 South. Rep. 673; State ex rel. Sanchez v. Call, 36 Fla. 305, 18 South. Rep. 771; State ex rel. Duke v. Wills, 49 Fla. 380, 38 South. Rep. 289; State ex rel. McKinnon v. Wolfe, 58 Fla. 523, 50 South. Rep. 511; State ex rel. Carter v. Sheats, 73 Fla. 176, 544, 74 South. Rep. 638, 641. See also 4 A. L. R. 582.

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. 394; State ex rel. Railroad Com’rs. v. Southern Tel. & Const. Co., 65 Fla. 270, 61 South. Rep. 506; State ex rel. Railroad Com’rs. v. Louisville & N. R. Co., 57 Fla. 526, 49 South. Rep. 124.

“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. 50; City of Jacksonville v. Southern Bell Telephone & Telegraph Co., 57 Fla. 374, 49 South. Rep. 509; State Public Utilities Commission v. City of Quincy,- Ill. 125 N. E. Rep. 374; Puget Sound Traction Co. v. Reynolds, 244 U. S. 574, - Sup. Ct. Rep. -; In re. Searport Water Co., - Me.--, 108 Atl. Rep. 452; 248 U. S. 294.

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 to fix rates or even to grant franchises to public .utility corporations, therefore, that statute does not authorize municipalities to fix tariff rates for street railroad's.

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, supra; City of St. Louis v. Public Service Commission of Missouri,-Mo.-, 207 S. W. Rep. 709; City of Memphis v. Enloe, - Tenn. -, 214 S. W. Rep. 71; Robertson v. Wilmington & P. Traction Co., - Del. -, 104 Atl. Rep. 839; Westinghouse Electric & Mfg. Co. v. Binghampton Ry. Co., 255 Fed. Rep. 378; Salt Lake City v. Utah L. & T. Co.,-Utah-, 173 Pac. Rep. 556, P. U. R, 1918F 377, 3 A. L. R. 715 and note; 153 Wis. 592; 168 N. W. 481; 173 Pac. 799; 118 N. E. 531.

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. Platte Ry. Co. v. Englewood, 62 Col. 229, P. U. R. 1916E, 134, 161 Pac. Rep. 151, 4 A. L. R. 956; 4 A. L. R, 730.

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 through any authorized government agency to effectuate its inherent power that is expressly recognized by the provisions of Section 30, Article XW, of the Constitution, as interpreted in the City of Tampa v. Tampa Water Works Co., supra. See also City of Manitowoc v. Manitowoc & Northern Traction Co., supra.

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 U. S.-, 39 Sup. Ct. Rep. 526; Dubuque Electric Co. v. City of Dubuque, 260 Fed. Rep. 353. See also State ex rel. Moodie v. Bryan, 50 Fla. 293, text 358, 39 South. Rep. 929; Boise City v. Boise Artesian Hot & Cold Water Co., 230 U. S. 84, 33 Sup. Ct. Rep. 997; Leiper v. B. & P. R. Co. 262 Pa. 328; 102 Alt. 901, 105 Atl. 209; 104 Atl. 839; 210 S. W. 381; 255 Fed. 295; 224 Mass. 463, 196 U. S. 539; 207 U. S. 161; 108 Atl. 452; 459.

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. 13, 129 N. W. Rep. 925. But the rights of the municipality and of the public under the contract are subject to governmental control; and such rights of the municipality and of the public ma.y be modified or waived or surrendered by law. See City of Pawhuska v. Pawhuska Oil & Gas Co., supra; Dubuque Electric Co. v. City of Dubuque, supra. The constitution protects lawful and valid contract rights of private parties against illegal impairment by legislation; but the organic law, State or Federal, does not forbid legislative control of the rights of the public in the rates to be charged by common carriers, even though such rates may be fixed by contract between the carrier and a municipality. If the contract rights of a public service corporation as to tariff rates are subject to the fair exercise of the police power of the State and Section 30, Article XYI, of the State Constitution, certainly the rights of municipalities and of the public in such rates are subject to the police puwer of the State and to stated organic provisions and to statutes enacted thereunder. See Conery v. New Orleans Water Works Co., 142 U. S. 79, 12 Sup. Ct. Rep. 142; Hunter v. City of Pittsburg, 207 U. S. 161, text 179, 28 Sup. Ct. Rep. 40; City of Worcester v. Worcester Con-sol. St. R. Co., 196 U. S. 539, 25 Sup. Ct. Rep. 327; City of Springfield v. Springfield St. R. Co., 182 Mass. 41, 64 N. E. Rep. 577; Sec. 8 Art. 8, Constitution.

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 •within organic limitations. Chicago, Burlington & Quincy R. R. Co. v. Iowa, 94 U. S. 155; Union Dry Goods Co. v. Georgia Public Service Corporation, 248 U. S. 372,-Sup. Ct.-; Louisville & N. R. Co. v. Mottley, 219 U. S. 467, 31 Sup. Ct. Rep. 265; Producers v. Railroad Com’rs. —— U. S. —, 40 Sup. Ct. Rep. 131. The organic law of this State contemplates the exercise of this power. Sec. 30, Art. XVI, Constitution; 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; Reeder on Validity of Rate Regulations, Sec. 196. See also City of Gainesville v. Gainesville Gas & Electric Power Co., 65 Fla. 404, 62 South. Rep. 919.

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 Works Co. v. Tampa, 199 U. S. 241, 26 Sup. Ct. Rep. 23; City of Tampa v. Tampa Water Works Co., 45 Fla. 600, 34 South. Rep. 631; Sioux City St. Ry. Co. v. Sioux City, supra; San Antonio Traction Co. v. Algelt, 200 U. S. 304, 26 Sup. Ct. Rep. 261; Puget Sound Traction, Light & Power Co. v. Reynolds, 244 U. S. 574, - Sup. Ct. Rep.; Knoxville Water Co. v. Knoxville, 189 U. S. 434, 23 Sup. Ct. Rep. 531.) the State, in the exercise of its police powei’, may reduce or increase the rates without reference to and Independently of. and notwithstanding the ordinance contract or rights thereunder claimed by the company or by the municipality or the public, when justice and the general welfare demands it. See Union Dry Goods Co. v. Georgia Public Service Corporation, 248 U. S. 372, - Sup. Ct. Rep. -; State ex rel. Indianapolis Traction & Terminal Co. v. Lewis,-Ind. -, 120 N. E. Rep. 129; Southern Public Utilities Co. v. City of Charlotte,-N. C.-, 101 S. E. Rep. 619; Salt Lake City v. Utah L. & T. Co., - Utah -, P. U. R, 1918F, 377, 173 Pac. Rep. 556, 3 A. L. R. 715 and Note; United States v. Uncle Sam Oil Co., 234 U. S. 548, 34 Sup. Ct. Rep. 956; Reader on Rate Regulations, Sec. 196, p. 340.

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., 65 Fla. 404, 62 South. Rep. 919; Brooks S. Co. v. Railroad Commissioners, - U. S. -, 40 Sup. Ct. Rep. -, March 1, 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. 429; Norfolk & W. R. Co. v. Attorney General of State of West Virginia, 236 U. S. 605, 35 Sup. Ct. Rep. 437) ; therefore, it is clearly within the legislative power and duty to enact regulations by which a reasonable return for service rendered by common carriers may be effectuated as well as.to enact regulations by which excessive charges and unjust discriminations by common carriers may be prevented and redressed. See Southern Public Utilities Co. v. City of Charlotte, supra; State ex rel. Indianapolis Traction & T. Co. v. Lewis, -Ind.-, 120 N. E. Rep. 129.

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 railroad unless required by the context.’ ” Omaha & G. B. St. R. Co. v. Interstate Commerce Commission, 230 U. S. 324, text 335, 33 Sup. Ct. Rep. 890.

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, that tlie original interstate commerce act of 1887 made by its terms applicable “to any common carrier or carriers engaged in the transportation of passengers or property wholly by railroad,” in foreign or interstate commerce, did not embrace .street railroads “even though they carry passengers across the State line.” The interstate commerce act contemplated the regulation of transportation by railroads that were regarded as the usual “channels of interstate commerce.’’

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. See also Miami Gas Co. v. Highleyman, 77 Fla. 523, 81 So. Rep. 775.

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 apply to all railroad corporations and railroad companies engaged in this State in the transportation of passengers or property by railroads therein from any point within this State to any point within this State * and the provisions of this Act shall apply to all persons, firms and companies, and to all associations of persons, whether incorporated or otherwise, that shall do business as common carriers upon any of the lines of railroads in this State (street railroads excepted) the same as to railroad corporations herein before mentioned.”

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.

Where an amendment is enacted, it must he assumed that a change in the existing law to the extent indicated by the nature of the amendment was intended unless a contrary intent appears from all of the enactments on the subject; and courts should give appropriate effect to the amendment. See 36 Cyc. 1165; 25 R. C. L. 1067.

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 be held to be limited by the grants of specific powers,” and “to prescribe all rules and regulations appropriate for the execution of- any of the powers conferred upon them by law either in express terms, or by implication,” and that “all doubts as to their jurisdiction and powers, shall be resolved in their favor, it being intended that the laws relative to the Railroad' Commissioners shall be deemed remedial laws to be construed liberally to further the legislative intent to regulate and control public carriers in the public interest.” Chapter 4700 omitted the exception of “street railroads” contained in Chapter 4549.

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