Butler v. Carter

• Decision Date: 21 September 1960
• Citation: 123 So.2d 313
• Parties: J. Turner BUTLER and William A. Hallowes, as Trustees of the property of Florida East Coast Railway Company, Petitioners, v. Jerry W. CARTER, Wilbur C. King and Edwin L. Mason, as and constituting the Florida Railroad and Public Utilities Commission, Respondents.
• Court: Florida Supreme Court

Page 313

123 So.2d 313

J. Turner BUTLER and William A. Hallowes, as Trustees of the property of Florida East Coast Railway Company, Petitioners, v. Jerry W. CARTER, Wilbur C. King and Edwin L. Mason, as and constituting the Florida Railroad and Public Utilities Commission, Respondents.

Supreme Court of Florida.

Sept. 21, 1960.

Rehearing Denied Oct. 17, 1960.

Harold B. Wahl and L. Page Haddock, Jacksonville, for petitioners.

Lewis W. Petteway and James L. Graham, Jr., Tallahassee, for respondents.

Fred M. Conway, Ormond Beach, and Frederick B. Karl, Daytona Beach, for protestants.

HOBSON, Justice.

The petitioners seek to reverse an order of the Florida Railroad and Public Utilities Commission which denied the application of the Florida East Coast Railway Company and the Railway Express Agency, Inc. to discontinue their agencies at Ormond Beach, Florida.

The facts of the case are as follows: On October 29, 1958 the petitioners filed their application for authority to discontinue their agencies at Ormond Beach Florida and to handle the business through the Daytona Beach Agency five and one-half miles away. Public hearings on said application were held before an Examiner appointed by the Commission on March 25, 1959 and April 7, 1959.

The Examiner filed his proposed order with the Commission in which he recommended that the applicants be granted permission to discontinue their agencies. Said order reads in part:

'The Ormond Beach Agency maintains only one employee who acts in the dual capacity of agent for both applicants. Only local passenger tickets are sold at the Ormond Beach agency. Train conductors will continue to sell local tickets to passengers boarding trains at Ormond. There will be no change in passenger train service should the agency be closed.

'The Daytona Beach agency of both applicants is more than able to handle the business of the Ormond Beach agency. Discontinuance of the Ormond Beach agencies will not affect LCL ¹ shipments except that non-deliverable freight and express will be offered for delivery at the Daytona Beach agency instead of at the Ormond Beach agencies. Local telephone service exists between Ormond Beach and Daytona Beach. Paper work of carload freight will be handled at the Daytona Beach agency, but cars will be spotted in the Ormond Beach area for delivery.

'The elimination of the Ormond Beach agencies will result in efficiency and economy for the applicants without appreciable inconvenience to the public. The continuance of the agencies at Ormond Beach is not necessary in the public interest and under the evidence presented would impose an unnecessary and undue burden on the applicants.'

The full Commission agreed with the Examiner that the passenger service at Ormond Beach was practically non-existent and that carload lot shipments to and from Ormond Beach would continue to be handled in much the same manner, except that the paper work involved would be carried on at the Daytona Beach station. However, the full Commission went on to say:

'It is evident that there is here involved a situation in which the applicants have attempted to show that they can effect a savings or avoid an economic waste by closing this station and absorbing its functions in their agencies at Daytona Beach. The extent of such savings was not proved conclusively, but there is no dispute about the fact that the Ormand Beach Agency operation is a profitable one. ² The applicants are not requesting the closing of an agency operated at a loss, but are trying to accomplish a savings by centralizing their operations. The only direct savings accruing to the Florida East Coast Railway was claimed to be at least $7,500 annually which is a relatively insignificant amount when it is considered that the potential gross revenue of the agency is in excess of one quarter of a million dollars annually. The issue of whether the applicants should be authorized to discontinue this service will depend upon a determination of whether the savings which might accrue to the applicants is outweighed by the benefit and convenience, if any, that might be derived by the public from the continuance of the agency.' (Emphasis supplied.)

Finally the Commission found that public convenience and necessity would better be served by the continuance of the agency at Ormound Beach 'even though some savings might thereby be realized by the applicants'.

Commissioner Boyd dissented on the ground that the Railroad's petition for discontinuance met the standards set by the NARUC formula applicable to cases involving discontinuance of railroad station agencies and that since the Commission had previously adopted said formula for use in Florida the application should have been granted.

By its brief the petitioners assert that they have conclusively established a right to the discontinuance. In support of this allegation the petitioners point to the following items which they consider significant: (1) The Commission's admission that the passenger business from this agency was 'practically non-existent', (2) the fact that none of the 'principal' shippers in the area testified in opposition to the discontinuance, (3) the proximity of the Daytona Beach station and its accessibility by local telephone, (4) their contention that in agency discontinuance cases carload lot freight should not be considered because an agent is not needed to service this type of freight, (5) the fact that the economies herein sought are especially important to the railroad which has been in receivership...