Under the statute the imposition of a fine by the Railroad Commissioners for a violation of a Railroad Commission rule or order by a railroad company, constitutes prima facie a liability in an action brought by the commission in the name of the State to recover the fine imposed. Sec. 4645, Rev. Gen. Stats. The statute also provides that every rule, regulation, schedule or order made by the Railroad Commissioners "shall be deemed and held to be within their jurisdiction and powers and to be reasonable and just and such as ought to have been made in the premises and to have been properly made and arrived at in due form of procedure and such as can and ought to be executed, unless the contrary plainly appears on the face thereof or be made to appear by clear and satisfactory evidence, and shall not be set aside or held invalid unless the contrary so appears." Sec. 4618, Par. 13.
The statute does not purport to give to an order of the Railroad Commission imposing a fine for violation of a rule or order of the commission, the effect of a judgment or decree of a court, but it expressly provides for a judicial *Page 127 action to recover a fine so imposed. Under the statute the declaration states the order imposing a fine, with an averment that the defendant is indebted to the plaintiff State in the amount of the penalty imposed with interest. The statute provides that there shall be no "general issues," but the pleas shall specifically set forth the particular defenses to the action; and no defense which existed prior to the day of hearing before the commissioners, and which was not made before them, shall be permitted in the action. This contemplates a judicial trial of issues made on particular defenses that were presented at the hearing before the commissioners or on other permissible issues, to determine the validity of the order imposing the fine.
The declaration alleges that the defendant company was charged by the Railroad Commissioners with having violated Rule No. 24, Section 3, Rules and Regulations of the Railroad Commissioners, in that the defendant company in September, 1924, "abolished and removed its depot at Beresford, Florida, without authority granted by said Railroad Commissioners;" that on notice and hearing the commission adjudged that the defendant company in September, 1924, "closed, abolished and removed its depot at Beresford, Florida, without first having secured permission so to do from the Railroad Commissioners" as provided by said Rule, and therefore imposed the fine under the statute, which is section 4645, Revised General Statutes. Exhibit "B" made a part of the declaration states that at the hearing before the Railroad Commissioners, the defendant company in its response, set up among other defenses the following:
"(b) That the Atlantic Coast Line Railroad Company denies it has done any act in connection with the situation at Beresford, Florida, in any way infringing upon the provisions of Section 4645, of the Revised General Statutes, of the State of Florida." The defendant company's fourth *Page 128 plea "denies that during the month of September, 1924, or at any other time, that it closed, abolished and removed its depot at Beresford, Florida." In view of the statutory burden cast upon the defendant company to make it "appear by clear and satisfactory evidence," that the order imposing the fine that is sued on, is not "such as ought to have been made in the premises," and in view of the allegations of the declaration, the fourth plea was in effect an averment that the defendant company had not during the month of September, 1924, or at any other time, closed, abolished and removed its depot at Beresford, Florida, as alleged by the commissioners at the hearing. This is not a "general issue," but is a specific averment of a particular defense to the action, and is in accord with one of the defenses that the plaintiff alleges was interposed by the defendant at the hearing before the Railroad Commission. "The particular defense" that is "specifically set forth" in the plea negatives an essential element to the validity of the order imposing the fine that is sued on. If the defendant company had not "closed, abolished and removed its depot at Beresford, Florida," as alleged, it had a right to so "make it to appear by clear and satisfactory evidence;" and as a predicate for the proof the plea has "specifically set forth the particular defense to the action," that is brought to recover the fine imposed.
The demurrer admits the averments of the plea and such admission for the purposes of the pleading is sufficient to make it appear that the order imposing the fine was not "such as ought to have been made in the premises" and was not "properly made and arrived at in due form of procedure." Clearly the demurrer to the fourth plea should have been overruled.
Rehearing denied. *Page 129
WHITFIELD, P. J., AND TERRELL AND BUFORD, J. J., concur.
ELLIS, C. J., AND STRUM AND BROWN, J. J., concur in the opinion.