THE STATE OF FLORIDA, EX REL., THE RAILROAD COMMISSIONERS,

v.

THE ATLANTIC COAST LINE RAILROAD COMPANY, A CORPORATION, AND THE SEABOARD AIR LINE RAILWAY, A CORPORATION

Shackleford, C. J.,

(after stating the facts). — It is obvious that we were of the opinion that the relators made a prima facie showing in their petition, else we would not have ordered the issuance of the alternative writ. When the Seaboard Air Line Railway, one of the respondents, tested the sufficiency of the writ by a demurrer, upon the hearing thereof, after due consideration, aided by the arguments of the counsel for the respective parties, we held that the writ was not open to the attack so made upon it. State v. Atlantic Coast Line R. R. Co., 63 South. Rep.

729. We shall not repeat what was there said. In substance we held that, if the allegations in the writ were true, the relators were entitled to the relief sought. The respondent has filed its return to the writ in which it seeks to justify the course it has pursued, the sufficiency of which is now called in question by the demurrer interposed by the relators. Reading the writ and the return together, it appears that the material allegations in the writ are admitted to be true by the respondent. In other words, as we said upon the former hearing, “It plainly appears that the respondent had ample opportunity afforded it of raising these defensive matters at the hearing before the Railroad Commissioners.” It now further appears that they were so raised and decided adversely to' the respondent. It further appears that at such hearing the “Mayor of the town of Bartow, the President of the City Council, the President of the Board of Trade, and other citizens” were also present and afforded an opportunity of making any statements and presenting any evidence or arguments they deemed advisable. Afterwards the order was made, which is set forth in full in the writ, for the erection of a joint passenger station, as therein directed.

Under the statute, as we also stated in our former opinion, this' order is prima facie reasonable and just, and, unless overcome by evidence, is enforceable. I-t further appears that, upon due notice to both respondents, the relators made another order, extending the time for the completion of such joint passenger station. While the respondent, the Seaboard Air Line Railway, had not completed the laying of its track into the corporate limits of the town of Bartow, at the date of the first order, it was proceeding to do so, and subsequently did so construct its track into the corporate limits of such town. It further appears that, notwithstanding such two orders made by the relators, which were and are prima facie reasonable and just, the respondent, the Seaboard Air Line Raihvay, failed and refused to comply with the same, but saw fit to stand and rely upon their contention that such orders were arbitrary, unreasonable and unjust, and, in the face of such orders, proceeded to construct a separate depo,t in such town. It is plain, we think, that in pursuing such course the respondent must be deemed to have assumed the risk and to have acted at its peril. If it has gone to the unnecessary expense of constructing a separate passenger station, it has deliberately put itself in such plight and must suffer the consequence of its own act. In addition to what we said in our former opinion in this cause, we would refer to the opinion which was rendered subsequently thereto in State v. Florida East Coast Ry. Co., 64 South. Rep.

443. It is of such recent date that we shall not copy anything that we said therein. Applying the principles enunciated in these two opinions, we are clear that the showing made by the respondent in its return is insufficient. Apparently it has not only disregarded the orders of the, relators but has actually defied them. We cannot be expected to lend our sanction to any such course, but must express our strong disapproval of it. Giving the most favorable construction permissible to the return of the respondent, it has not justified the course it has pursued in the premises. The demurrer to the return is sustained, therefore it becomes unnecessary to consider the motion to strike certain portions of the return.

A paper, entitled “Bill of Intervention,” has been presented to us by counsel on behalf of the City of Bartow. It is sufficient to say that the City of Bartow has no locus standi in this proceeding. We have no statute authorizing it, and, as is stated in High’s Extraordinary Remedies (3rd ed.) Section 450-a, “The Right of third persons not parties to the action to interplead in proceedings in mandamus rests wholly upon statute, no such rights existing at common law.”

The Atlantic Coast Line Railroad Company, the other respondent, filed its answer to the writ, which, after admitting the material allegations therein, contains the following:

“11. Answering the eleventh paragraph, this Respondent, Atlantic Coast Line Railroad Company, respectfully says that while there has been a failure on its part to submit to the Railroad Commissioners-of the State of Florida plans for said joint, station building, sheds,, platforms and other facilities, as required in and by said Order No. 368, same arose because of the position taken by its corespondent, the Seaboard Air Line Railway; for that the Atlantic Coast Line Railroad Company, while not admitting the power to reside in the Railroad Commission, as claimed by them, and also feeling that the order for a joiiit passenger station at Bartow should not have been made, yet, concluding to make no objections thereto, has been and is still willing to abide by.and perform the Order. Necessarily performance can only be made in co-operation with the Seaboard Air Line Railway, without whose concurrence the Atlantic Coast Line Railroad Company cannot take any steps to comply with said Order. WHEREFORE this respondent says that insofar as Atlantic Coast Line Railroad Company is concerned, it is not opposing the Order of.the Florida Railroad Commissioners mentioned, but submits that until the Seaboard Air Line Railway announces itself in a position to join this defendant in the preparation of plans for the construction of these facilities, to be erected at the joint expense of both, this Respondent is not legally in default.”

A peremptory writ will issue against the two respondents. The costs of this proceeding will be taxed against the Seaboard Air Line Railway.

Taylor, Cockrell, Hocker and Whitfield, J. J., concur.