(specially concurring).
I enter this special concurrence to make clear that in my view of the case there is no basis for any intimation or ruling at the present time other than that the plaintiff upon the showing made is entitled to an injunction prohibiting the Florida Railroad and Public Utilities Commission and its members from proceeding to enforce any penalties provided by Florida law because of any violation by the plaintiff of m or’der of such Commission.
The complaint originally named the Governor and the Attorney General of Florida as parties to the suit. However, upon the hearing the plaintiff moved the dismissal of these two officers. Thus the proceeding remained only as against the Railroad and Public Utilities Commission and the members thereof. There was no prayer for any declaratory adjudication. Injunction, tern-*588porary and permanent, only was sought, and this for the reason that the plaintiff could not disregard the order of the Commission without becoming subject to a possible penalty of $5,000.00 for each violation of the Commission’s order as provided by Florida statutes of 1941, section 350.28, F.S.A., by proceedings instituted under Florida statutes of 1941, section 350.36, F.S.A. In other words, the plaintiff submitted its case to the Court upon the showing that there was no public need for the passenger service, that the Commission should have permitted a reduction of such service, and that it was entitled upon the showing made to an injunction to restrain any attempt to enforce the penalties referred to. No other prospective or contingent liability was asserted or relied upon, and our opinion and any injunction issued should be clearly restricted to the precise question at issue. In view of the undisputed showing of no actual need for the passenger service provided by the trains in question, and the very substantial loss incurred in their operation, there is no doubt that upon applicable legal principles referred to by the majority, the order of the Florida Railroad and Public Utilities Commission denying the plaintiff’s application and finding “that daily service is necessary to meet the public need,” because of the opinion that the plaintiff “failed to sustain the burden of showing that daily service is not necessary along the route of its trains/’ is unreasonable and unsupported by any evidence before us. We must, therefore, hold the order ineffective, so that any proceeding to recover the penalties provided by the statute for violation of the order would result in subjecting the plaintiff unlawfully to such penalties because predicated upon a finding which in legal effect constitutes an unconstitutional requirement. Under the record here it is clear that as concerns the Commission’s order requiring daily service the plaintiff should not be subjected to proceedings for its violation, and that any such proceeding should be enjoined.
On the other hand, other questions lurk in the proper construction and application of the statute of Florida referred to in the opinion requiring daily passenger service. This statute is referred to in the complaint and it is argued here that if it be applied so as to authorize the order complained of, it would be likewise unconstitutional. Since, as I view the matter, in the posture of the present litigation, we do not reach the question of the full effect of the statute, we have no occasion to consider its applicability other than as to the extent involved in the precise point of the present case, that it does not authorize the issuance of an order by the Commission which is unconstitutional in its requirements. It is not clear how the determination of the Commission affects the statute. Sufficient it is that the Commission did not rely upon the statute and placed its action squarely upon what it determined to be required by the public need along the branch line in question. It is not necessary to even attempt to consider the effect of the statute upon the plaintiff’s proposed plan of reduced service, nor upon issues which might be hereafter presented to this or another Court based upon other and different proceedings and facts presented in support thereof. However, since I am in no doubt as to the invalidity of the order of the Commission here under attack, I join in that portion of the opinion and in the injunction directed to issue restraining the enforcement of the order and any imposition of penalties for its violation.