Alterman Transport Line v. Carter
| Decision Date | 11 February 1955 |
| Citation | 88 So.2d 594 |
| Court | Florida Supreme Court |
| Parties | ALTERMAN TRANSPORT LINE, Overseas Transportation Company, Great Southern Trucking Company & Central Truck Lines, Petitioners, v. Jerry W. CARTER, Wilbur C. King & Richard A. Mack, as members of and constituting Florida Railroad and Public Utilities Commission, Respondents. |
Rodgers & Kirkland, J. B. Rodgers, Jr., Thomas E. Kirkland and Howard J. Clifton, Orlando, for petitioners.
Lewis W. Petteway and Guyte P. McCord, Jr., Tallahassee, for respondents.
Minnet & Allsworth, Ft. Lauderdale, for intervenor.
A petition for writ of certiorari has been filed by a common carrier, a protestant in proceedings whereby another common carrier sought a certificate to operate in territory or on a line already served by the protestant, as provided for by Subsection (3) of Section 323.03, F.S., F.S.A. The particular section under which the application for a certificate was filed is as follows:
'When application is made by an auto transportation company for a certificate to operate as a common carrier in a territory or on a line already served by a certificate holder, the commission shall grant same only when the existing certificate holder or holders serving such territory fail to provide service and facilities which may reasonably be required by the commission.' (Emphasis supplied.)
The examiner appointed by the respondents took voluminous testimony and in his recommended order found, among other things, as follows:
'* * * None of them [witnesses for applicant] had any serious complaint as to the service rendered by the protestants who appear to have the necessary authority, facilities, willingness and ability to render the service desired by the applicant's witnesses.
'Under the circumstances, there does not appear to have been made a sufficient showing of public convenience and necessity to require the granting of the desired certificate.'
In consideration of the matter, the respondents overruled or denied the recommendation of the examiner that the application not be granted and found:
'1. Protestants have failed to adequately serve the needs of the shippers in the area here involved for the type of transportation which applicant seeks authority to perform.
* * *
* * *
Upon a mere examination of the paragraph of Subsection (3) of Section 323.03, F.S., F.S.A., it will be noted that when a common carrier makes application for certificate to operate in a territory on a line already served by the certificate holder, the commission shall grant such application only when the existing certificate holder, or holders, serving such territory fail to provide service and facilities which may reasonably be required by the commission. It is important to note that the failure to provide service and facilities does not refer to service and facilities which may suit the fancy or whims of particular individuals but it is the service and facilities which 'may reasonably be required by the commission.'
The finding of the commission is that the protestants have failed to adequately serve the needs of the shippers in the area here involved for the type of transportation which applicant seeks authority to perform. There is no finding by the commission that the facilities in question have been required by it or that the protestant has failed to provide any facilities or equipment or service required by the commission. Even though the protestant may not have served a particular shipper at a particular time with the service required by the shipper would not give the commission jurisdiction to grant the application unless the commission, in the exercise of its authority, had required the protestant to provide for the particular service and facilities as requested by the shipper.
The territory in question was already being served by a common carrier holding a certificate from the commission and the mere finding of the commission that public convenience and necessity require the issuance of a new certificate to another common carrier is unauthorized unless the commission first determines that the service being rendered by the existing certificate holder (in this case, protestant) has failed to provide service and facilities which have reasonably been required by the commission.
In the recent case of Redwing Carriers v. Mack, Fla., 73 So.2d 416, 420, this Court held:
'It is our conclusion that as suggested, if not decided, in our opinion in Jack's Cookie Co. v. Florida Railroad and Public Utilities Commission, supra [Fla., 54 So.2d 695], it is the intent of our statute to give existing carriers a reasonable opportunity to provide equipment and, if necessary, trained personnel, before the Commission grants a new certificate to another carrier. * * *'
The existing carrier was given no opportunity 'to provide equipment and, if necessary, trained personnel,' before the commission attempted to grant a new certificate to another carrier. The record fails to disclose that the respondents at any time gave the protestant any instructions with reference to service or any notice that it was required to do anything more than it was doing.
Sections 323.03 and 323.08, F.S., F.S.A., provide for a certificate holder to maintain a time schedule with the Commission and then provide that time schedules filed with the Commission shall not be changed by the auto transportation company 'without an order of the commission sanctioning the same.' Prior to the hearing the petitioners could not have rendered the specialized service desired by the shippers without violating the law as to time schedules without an order from the respondents sanctioning the same. No such order by respondent Commission was shown to exist.
The petition for writ of certiorari should be and is hereby granted, and the order of the respondents complained of should be and is hereby quashed.
Although I am fully cognizant of the language of subsection (3) of section 323.03, F.S., F.S.A., I am of the view that Mr. Justice MATHEWS' construction thereof is too narrow and restricted. Said section does not specifically provide when, or the manner in which, the...
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