Atlantic Coast Line R. Co. v. Railroad Com'n

• Decision Date: 09 January 1942
• Parties: ATLANTIC COAST LINE R. CO. et al. v. RALROAD COMMISSION et al.
• Court: Florida Supreme Court

5 So.2d 708

149 Fla. 245

ATLANTIC COAST LINE R. CO. et al. v. RALROAD COMMISSION et al.

Florida Supreme Court

January 9, 1942

Rehearing Denied Feb. 5, 1942.

BROWN, C J., dissenting.

Certiorari by Atlantic Coast Line Railroad Company to review an order of the Railroad Commission of the State of Florida granting certificate of public convenience and necessity to Flamingo Truck Lines, Incorporated, to haul freight between certain points.

Reuben Ragland, of Jacksonville, for petitioner Atlantic Coast Line R. co.

John M Allison, of Tampa, for petitioner Central Truck Lines Inc.

Oven & Oven, of Tallahassee, for petitioner Seaboard Air Line Ry. Co.

Theo. T. Turnbull, of Tallahassee, for respondent Railroad Commission.

Adair, Kent, Ashby & McNatt, of Jacksonville, for respondent Flamingo Truck Lines, Inc.

BUFORD, Justice.

On petition for certiorari we are asked to review order of the Railroad Commission known as Order No. 1478, docket No. 737. The order of the Railroad Commission is as follows:

'2. Flamingo Truck Lines, Inc., as result of a certain merger agreement filed with the Secretary of State of the State of Florida under the laws of the State of Florida, and approved by this Commission by Order No. 1312, dated June 20, 1940, is the holder and owner of a consolidated Certificate of Public Convenience and Necessity embracing all of the rights and franchises of Certificates of Public Convenience and Necessity Nos. 14, 24, 112, 13, 91, 70, 35 and 37. It filed its present application for a Certificate of Public Convenience and Necessity as a common carrier, of freight by motor vehicle on December 26, 1940. Previous applications were filed by L. & L. Freight Lines, Inc., one of its predecessors, on October 21, 1939, and subsequently withdrawn; refiled on December 27, 1939 and withdrawn, and again refiled on October 30, 1940, and withdrawn on or about December 18, 1940. By the present application Flamingo Truck Lines Inc. desires to operate in intrastate commerce between the Georgia-Florida State Line and Tampa, Florida, and between Jacksonville, Florida, and Marianna, Florida. Schedules over the route between Baldwin and Live Oak to be operated with closed doors.

'3. On February 7, 1936 L. & L. Freight Lines, Inc., one of the predecessors of the present applicant, filed its application with the Interstate Commerce Commission (NO. MC-19190) seeking a Certificate of Public Convenience and Necessity to operate in interstate commerce within the State of Florida between Georgia-Florida State line to Tallahassee; thence to Tampa and from Tallahassee to Live Oak and from Tallahassee to Marianna. It was found by the Interstate Commerce Commission that the L. & L. Freight Lines, Inc., had commenced its operation prior to the effective date of Section 206 of the Federal Motor Carrier Act 1935 [49 U.S.C.A. § 306], and had seasonably filed this application and, therefore, it was permitted to continue its operation in interstate commerce until the further order of that Commission. This application was heard by the Interstate Commerce Commission and on February 7, 1941, a final order was entered authorizing Flamingo Truck Lines, Inc., the successor of L. &amp L. Freight Lines, Inc., to operate in interstate commerce between Griffin, Georgia, and Tampa, Florida, using U. S. Highway No. 19 to Thomasville; thence over U. S. Highway No. 319 to Tallahassee, Florida; thence over Florida Highway No. 500 to Capps, Florida; thence over U. S. Highway No. 19 to Williston; thence over Florida Highway No. 500 to Ocala; thence over Florida Highway No. 16 to junction of U. S. Highway No. 41; thence over U. S. No. 41 to Tampa; and also between Tallahassee, Florida, and Live Oak, Florida, over Florida Highway No. 1. U. S. No. 90, and also between Tallahassee, Florida and Marianna, Florida, using Florida Highway No. 1, U. S. Highway No. 90. Thus it is that the Flamingo Truck Lines, Inc., is now operating in interstate commerce over all of the highways now sought by the present application except beween Jacksonville and Live Oak. It is proposed by Flamingo Truck Lines, Inc., that the operation between Baldwin and Live Oak shall be conducted with closed doors.

'4. The applicant produced a number of witnesses in the territory and along the line it proposes to serve who testified in support of its application. Most of these witnesses called attention to the fact that there is no motor carrier truck line operating in common carriage between Jacksonville and Marianna and between Tampa and Tallahassee, although in all other sections of Florida there are from two to four truck lines giving service. It was contended by these witnesses that they should be furnished the services of a common carrier truck line in this territory so that they might be able to compete with distribution centers such as Savannah, Birmingham, Atlanta, New Orleans and Mobile which now have access by motor carrier freight service in interstate commerce into Tallahassee and Marianna, and that by reason of this lack of common carrier truck service they had not only been unable to expand and reach new territory and new customers in this particular territory but that they had actually lost business.

'It was also shown that the First Class rate from Atlanta, Georgia to Tallahassee, Florida is $1.34; from Birmingham to Tallahassee $1.39; and from Savannah Georgia to Tallahassee $1.21--while from Tampa to Tallahassee the First Class rate is $1.44. By reason of these differences in rates Tampa wholesalers are shut out of this territory. It is true that the applicant can handle Tampa tonnage into Tallahassee over its present interstate route but it would be necessary for the tonnage to move through Jacksonville, Waycross, Thomasville and thence into Tallahassee, and freight shipped from Tampa over this circuitous interstate route would have to lay over in Jacksonville and would not be delivered in Tallahassee until early the second morning out of Tampa.

'The mileage over the applicant's interstate route from Tampa to Tallahassee is 456 miles while the proposed intrastate route mileage would be 254 miles--a saving of 202 miles. On account of this difference in mileage, if the present application is granted, the applicant proposes a schedule that would leave Tampa at 6:00 P.M. and arrive Tallahassee 2:40 A.M., the same night or early the next morning. Shippers out of Tampa and Jacksonville have a similar difficulty in reaching points between Tallahassee and Marianna and between Tallahassee and Live Oak as all of these shipments are routed via the circuitous interstate route. Not only does this delay the arrival of the goods but requires a higher rate.

'It is shown by applicant's Exhibit No. 40 that in the event this application is granted savings would result to all of the shippers now using its service. For instance, taking a few representative points, the savings per hundred pounds of First Class freight would result as follows:

'Between Arcadia and Marianna 20 cents

'Between Gainesville and Tallahassee 13 cents

'Between Ocala and Marianna 17 cents

'Between Ocala and Tallahassee 17 cents

'Between Sarasota and Greenville 20 cents

'Between Tampa and Marianna 18 cents

'Between Tampa and Tallahassee 19 cents

'5. It was further shown by the applicant that between August 1, 1938 and July 31, 1939 practically three million pounds of freight originated in Florida, largely in Jacksonville, and was hauled by the applicant through Thomasville, Georgia to Tallahassee, Florida, and twenty-six other destination points including Live Oak, Madison, Perry, Quincy, Marianna and points west of Marianna. It also shows that from August 1, 1939, to December 31, 1940, a total of 3,545,159 pounds of freight was handled in the same way. About half of this traffic moved to Tallahassee proper and the balance went to other West Florida points. The applicant contended that the movement of this more then Six Million pounds of freight from Jacksonville to Tallahassee and other points in Florida was an indication that shippers desired truck service into these points and that a more direct route resulting in saving of mileage and saving in rates would be in the interest of the public.

'6. Protestants to the granting of this application also produced a number of witnesses who testified as to the adequacy of the present facilities. Central Truck Lines, Inc., produced witnesses who testified that its service between Tampa, Brooksville and Inverness was adequate and that there was not sufficient tonnage along this line to warrant another truck line. Further testimony was presented to show that Central Truck Lines, Inc., also served Ocala, and that through its connection with the University City Transfer Company could serve all points between Ocala and Cross City. This was vitally interested in the proposed service between Jacksonville and Live Oak and between Tampa and Ocala.

'The rail lines and Railway Express Agency also produced evidence as to their operations, and read into the record the schedule of their companies between various points, and claimed that they were able, ready and willing to furnish all service necessary. They also produced witnesses living in the territory and along the line proposed to be served who testified that they had used this service, were satisfied with it and felt no additional service was necessary.

'K. & L Transportation Company operates a daily over-night truck service between Jacksonville and Tallahassee via Thomasville in interstate commerce. The tonnage it transports moves directly from Jacksonville to Tallahassee, and it claims its service is entirely adequate so far as Tallahassee is concerned, and that it would be seriously injured if this application is...