On Petition for Rehearing.
Per Curiam.The following petition for rehearing was filed:
“Come now the relators in the above entitled cause, by their undersigned attorney, and respectfully suggest that the court erred in rendering its decision and judgment herein, and particularly in pronouncing the order quashing the alternative writ heretofore issued in said cause, for the following reasons:
“1. That in deciding said cause said court failed to consider that corporate charters of common carriers are controlled by the provisions of the statutes of the State which grant to the Railroad Commission authority to make rules and regulations for the correction of abuses, prevention of unjust discrimination and the regulation of all matters pertaining to the receipt, handling, carrying, transportation and delivery of property, and the care, comfort, convenience and accommodation of passengers for the good of the public; and that the order in question, made by the Railroad Commission, was made and promulgated for the convenience of passengers in the reception and identification of baggage, and that therefore the mailing of said order was within the power and jurisdiction of the commission as conferred by the statutes of this State.
*271“2. That it is no defense to the enforcement of a rule or regulation of the Railroad Commission supervision and regulating common carriers that the charter of the carrier does not expressly authorize the performance of the act required by the order or the performance of the act in the manner required by the order.
“3. That all common carriers subject to the supervision and regulation of the Railroad Commission must perform the duties prescribed by the Railroad Commission regardless of their express corporate charter power; and all provisions of the statutes of the State and consequently all orders of the Railroad Commission duly made thereunder are implied in law as corporate charter powers.
“4. That every carrier corporation has inherent and implied power in addition to the express powers provided for in its charter to do and perform all acts required by orders of the Railroad Commission duly made under the statutes of the State of Florida.
“5. That the court in pronouncing judgment herein tested the sufficiency of the alternative writ by absence therefrom of an allegation that the Terminal Company, as the agent of the several railroads entering the terminal depot, is authorized to check baggage to its destination; and therein the court erred, for the reason that Section 4618 of the Revised General Statutes of 1920, (now incorporated in Chapter 8469, Acts of 1921), provides that ‘every rule, regulation, schedule or order heretofore or hereafter made by the 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 *272on 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.’ If the Terminal Company, as the agent of the several railroads entering the terminal depot, is not authorized to check baggage to destination, this fact would constitute defensive matter of pleading and proof and as such should be pleaded by the defendant and the contrary need not be averred by the pleader in the alternative writ.
“6. That it is a matter of common knowledge that the Terminal Company, by consent of, or arrangement with the carriers using the terminal depot at Jacksonville, Florida, for years has received and checked to its destination the baggage of passengers traveling by railroad from that city; and there is a presumption of law growing out of that practice that the Terminal Company is authorized to do that which said carriers, by themselves or through their agents and servants, are bound by law to do for the convenience of the traveling public. In testing the sufficiency of the .alternative writ the court inadvertently omitted to give consideration to this feature of the case; and by the terms of its opinion rendered herein called for a showing of facts the existence of which was judicially known to the court and ought so to have been considered.
£ £ 7. That the judgment giveh herein seems to have been based upon the reasoning that since there was no affirmative showing that the Terminal Cóínpany, by its charter, was empowered to issue baggage claim checks for the purpose of identification, the Railroad Commission was without authority to compel it to do so; but this reasoning apparently ignores the essential and underlying consideration that pervades every field of corporate enterprise and by which must be determined on the one hand that which *273may lawfully be done under a grant of corporate powers, and on the other, that which simply relates to the method, means or expediency of executing those powers, express or implied, and carrying them into effect.
“8. That the court, in pronouncing judgment herein, adhered to the strict rules of pleading ordinarily applicable in mandamus proceedings, giving every intendment against the relators and resolving every presumption, by omission of allegation or otherwise, against the demands of the alternative writ; whereas Chapter 8469, Acts of 1921, (and Section 4518 of the Revised General Statutes of 1920, which was superseded by said Chapter 8469), provides that where the powers and jurisdiction of the Railroad Commission are called into question, or the validity of any order promulgated by them is in doubt, the promulgations and doubts in every such case shall be resolved in favor of said commission, and in support of their jurisdiction, the regularity of their proceedings and the reasonableness and justness of the orders made by them.
“9. That the order to issue claim checks to all transfer agents does require the Terminal Company to issue such checks to all transfer agents on identically the same terms and conditions.
“10. That it does not appear by said alternative writ that said Terminal Company is issuing baggage claim checks to any transfer agent and not to others.
“Wherefore, in consideration of the premise's, relators pray that said cause be ordered to reheáring, and that upon rehearing thereof before the court counsel for the respective parties shall be allowed the privilege of oral argument; that said order quashing the alternative writ herein be vacated and set aside, and that the respondents *274be ruled to answer said writ and show cause by their return thereto why said relators should not have the relief therein prayed.
Respectfully submitted,
JAMES E. CALKINS,
Attorney for Relators.
There is nothing in the titles or contents of the statutes prescribing the powers and duties of the Railroad Commissioners, that indicates a legislative intent to authorize the Railroad Commissioners to add to or vary the charter powers of common carrier corporations, even if such an intent would be operative as law in view of constitutional provisions and limitations.
The provisions of the statute that “every rule, regulation, etc., made by the Commissioners shall be deemed and held to be within their jurisdiction and powers,” etc., has reference to the authority of the Railroad Commissioners and not to the corporate powers of chartered companies, and the provision does not purport to dispense with a proper showing that the corporate act required of a common carrier by the Railroad Commission is within the corporate authority of the common carrier when such authority is not contained in a statute and does not appear to be a necessary incident to corporate powers that do appear. The statutes of the State do not authorize the respondent company to issue baggage claim checks to persons and companies doing a baggage transfer business, and there is nothing in the writ to indicate that the Terminal Company has such corporate power. The issuance of such cheeks is not a necessary incident to the powers of a terminal company.; and for aught that appears the powers of' the respondent company may be .specifically limited. If the com*275pany has no corporate power to issue the baggage claim checks to persons doing a baggage transfer business, the Eailroad Commissioners cannot confer such power, and there is then no semblance of authority upon which a presumption in favor of the jurisdiction of the Eailroad Commission to make the order can be predicated under the statute. If the statutes or the respondent company’s charter rights do not authorize it to issue the baggage claim checks, a mandatory writ requiring such checks to be issued would command an unauthorized function to be performed by the corporation; and courts do not by mandamus enforce unauthorized corporate acts.
If the court can take judicial notice of the practice of a particular corporation, it does not follow that the practice is authorized by the corporate charter.
If the terminal company has corporate power to issue baggage claim cheeks to persons and companies doing a transfer business, and this is duly made to appear, then the presumption of jurisdiction and propriety of the Eailroad Commission’s order should be indulged under the statute. Similar considerations affect the question of checking baggage to destination beyond the limits of the terminal company’s activities, with added propositions as to agency and parties defendant. In prior mandamus cases against common carriers the functions sought to be enforced were obviously within the corporate powers of the carriers.
Eehearing denied.
Browne, C. J., and Taylor and Whitfield, J. J., concur. Ellis and West, J. J., dissent.