Brack v. Carter

• Decision Date: 28 September 1948
• Citation: 160 Fla. 845,37 So.2d 89
• Parties: BRACK v. CARTER et al.
• Court: Florida Supreme Court

37 So.2d 89

160 Fla. 845

BRACK v. CARTER et al.

Florida Supreme Court

September 28, 1948

Rehearing Denied Oct. 28, 1948.

John E Mathews and P. Guy Crews, both of Jacksonville, for petitioner.

Lewis W Petteway, of Tallahassee, for respondents.

D. Byron King and Clifford T. Inglis, both of Jacksonville, for Airline Service, Inc., Intervenor.

PER CURIAM.

The Petitioner, R W. Brack, operating under the name of Airport Limousine Service, between the Municipal Airport of the City of Jacksonville and various points in said city, is under contract with Eastern Airlines, Delta Airlines and Florida Airways, to transport passengers, baggage and personnel of the airlines from the airport to various points in the City of Jacksonville, and from various points in said city to the airport. He had been rendering this service for a number of years, and used limousines of more than seven passenger capacity, excluding the driver.

On March 1, 1948 the Florida Railroad & Public Utilities Commission brought a bill in equity seeking a permanent injunction to prohibit Brack from carrying on his transportation service between the Jacksonville Municipal Airport and points in the city, alleging that he was violating the provisions of Section 323.01 and Section 323.22, Florida Statutes Annotated.

After the original bill of complaint seeking permanent injunction was filed, Airline Service, Inc. intervened in the suit and prayed for a temporary injunction or restraining order. Thereafter the Commission joined with the Airline Service, Inc., and asked for a temporary restraining order.

In due course Brack filed sworn answers to the bill of complaint, and also to the application of Airline Service, Inc. for temporary injunction.

After a hearing upon the joint application for a temporary restraining order, the court entered the following order:

'1. The Clerk of this Court be, and he is hereby, ordered and directed to issue temporary restraining order under the seal of this Court directed to the defendant, R. W. Brack, his agents, servants, drivers, and employees, and each and every of them, enjoining and restraining the said persons from transporting persons or property for compensation to, from and between the Jacksonville Municipal Airport and points within the City of Jacksonville until the further order of this Court.

2. This temporary restraining order being granted upon the motion and application of The Florida Railroad and Public Utilities Commission no bond is required of the plaintiffs herein.'

It is this order which is sought to be reviewed by Certiorari.

Petitioner Brack contends that he is exempt from the jurisdiction and control of the Florida Railroad & Public Utilities Commission by virtue of the provision of Section 323.29, F.S.A. 1941, which we quote:

'* * * There shall be further exempted from the provisions of this chapter and from commission jurisdiction and control, persons operating motor vehicles within the corporation limits of any city or town or the adjoining suburban territory * * * where such business of carriage is regulated by the legislative body of such cities or towns.'

We are of the opinion the record discloses that Brack's service is not such as is contemplated by the above exemption.

It is our view that this exemption was intended to apply to 'persons operating motor vehicles within the corporation limits of any city or town or (within) the adjoining suburban territory * * * where such business of carriage is regulated by the legislative bodies of such cities or towns * * *' when such persons operate within the city or town and as an incident thereto operate within the adjoining suburban territory. If we were to give the words 'or the adjoining suburban territory' their customary and usual meaning we would hold, because of the use of the disjunctive 'or', that this exemption would apply to persons operating vehicles exclusively within suburban territory which adjoins some city or town. Clearly, such was not the intention of the legislature. There would be no legal justification for any city or town to regulate the operation of motor vehicles of this character where such operation was entirely outside of the corporate limits. We must consider said verbiage in connection with the provision 'where such business of carriage is regulated by the legislative body of such cities or towns'. So it is we construe said exemption to mean primary operation within any city or town and casual or incidental operation within adjoining suburban territory. Moreover, we are constrained to the view that the exemption set forth in Section 323.29, F.S.A. contemplates a transportation service for the general public from place to place within a city or town and fortuitously within its adjoining suburban territory.

Brack's operation is not within the city limits and incidentally within the adjoining suburban territory. His vehicles do not pick up passengers and take them to different points within the city, nor do they collect passengers and transport them to different points within the adjoining suburban territory. He does not serve the people living along his routes but operates under contract on a fixed schedule between various points within the city and the municipal airport. Counsel for both petitioner and respondents recognize that said municipal airport is located about three-quarters of a mile north of the city limits of the City of Jacksonville. Indeed, the lower court should, and may, have taken judicial notice of the fact that an area within three-quarters of a mile of the city limits of a city the size of Jacksonville, and adjacent to a broad, heavily traveled, through throughfare, is adjoining suburban territory. Everybody in Duval County where this case was heard knows the foregoing fact. The Court is presumed to know what everyone knows. Counsel for the respondents do not contend seriously, nor could they, that the municipal airport is not located within 'adjoining suburban territory'. Furthermore, the sworn answer filed by R. W. Brack alleges the airport to be located in an area which 'is suburban territory adjoining the said City of Jacksonville'.

It is unnecessary to return this case to the lower court for the purpose of determining whether the municipal airport is situated within area which is adjoining suburban territory. Regardless of the fact that the municipal airport is located within area which is adjoining suburban territory, the petitioner still does not come within the exemption set forth in Section 323.29, F.S.A. The record fails to disclose any assumption of jurisdiction on the part of the city over the adjoining suburban territory or any effective municipal regulation of the petitioner's operations within the adjoining suburban territory for the benefit of the traveling public, nor can we envisage any such regulation in any case with a factual situation similar to that presented by this record. The Railroad & Public Utilities Commission of the State of Florida has jurisdiction to regulate the operations of the petitioner. Tampa Transit Lines, Inc., et al. v. Matthews et al., 158 Fla. 875, 27 So.2d 377.

The petition for writ of certiorari should be, and is, denied.

THOMAS, C. J., and TERRELL, ADAMS, SEBRING, BARNS and HOBSON, JJ., concur.

CHAPMAN, J dissents.

CHAPMAN, Justice (dissenting).

The Florida Railroad and Public Utilities Commission filed its bill of complaint in the Circuit Court of Duval County, Florida, against R. W. Brack under the provisions of Section 323.24, F.S.A., and alleged the defendant, R. W. Brack, is an auto transportation company within the meaning of the term as defined by Section 323.01, F.S.A., but does not hold a certificate or permit from the plaintiff commission authorizing the transportation of persons and property for compensation over the public highways of Florida as required by Section 323.02, F.S.A.

The defendant, Brack, it is alleged, is engaged in the transportation of passengers for hire in motor vehicle limousines of a passenger carrying capacity of from seven to nine persons over the public highways of Florida between the Jacksonville, Florida, Municipal Airport and the City of Jacksonville without appropriate authority from the Commission and contrary to the provisions of Section 323.02, supra. The area and territory, it is alleged, between the Municipal Airport and the City of Jacksonville and the operations thereon by the defendant are subject to the jurisdiction of the Florida Railroad and Public Utilities Commission.

The defendant Brack, as an auto transportation company within the meaning of Section 323.01, F.S.A., is now, and for sometime past has been, engaged unlawfully as a common carrier of passengers for hire between the Jacksonville Municipal Airport and the City of Jacksonville in that he operates between fixed termini and on regular schedule between said points, contrary to Section 323.02 and 323.03, supra. The defendant has operated said motor limousines over the highways of Florida for hire without registration with the plaintiff Commission and without displaying number plates or stickers as required by Section 323.22, F.S.A. The defendant has not paid to the State of Florida a mileage tax for the operation of motor vehicles over the highways of Florida as prescribed by Section 323.15, F.S.A. He has failed to obtain public liability and property damage insurance as required by Section 323.06, F.S.A. The plaintiff Florida Railroad and Utilities Commission prayed for an injunction, both temporary and permanent, from transporting persons or property for hire over the highways of Florida in violation of the provisions of Sections 323.01, 323.02, 323.03, 323.06, 323.15, and 323.22, F.S.A.

On March 25, 1948 an...