Douglass v. Pan-American Bus Lines

• Decision Date: 27 December 1935
• Docket Number: No. 7889.,7889.
• Citation: 81 F.2d 222
• Parties: DOUGLASS et al. v. PAN-AMERICAN BUS LINES.
• Court: U.S. Court of Appeals — Fifth Circuit

81 F.2d 222 (1935)

DOUGLASS et al. v. PAN-AMERICAN BUS LINES.

No. 7889.

Circuit Court of Appeals, Fifth Circuit.

December 27, 1935.

A. Y. Milam, Robt. R. Milam, and E. T. McIlvaine, all of Jacksonville, Fla., and Theo. T. Turnbull, of Tallahassee, Fla., for appellants.

C. L. Waller and Claude Pepper, both of Tallahassee, Fla., for appellee.

Before FOSTER, HUTCHESON, and WALKER, Circuit Judges.

HUTCHESON, Circuit Judge.

Appellants are members of the Railroad Commission of Florida and two motorbus lines operating in that state under permit from the commission. Appellee, plaintiff below, is an operator of an interstate motorbus line. The appeal is from an order granting appellee an interlocutory injunction restraining appellants from "arresting or causing the arrest of, or molesting or interfering with the plaintiff's motor bus operation between New York City and Miami, Florida, so long as the same is conducted purely as interstate commerce, and not in conflict with the provisions of the Federal Motor Carrier Act of 1935, Senate Bill No. 1629 (49 U.S.C.A. § 301 et seq.) nor in conflict with the tax laws of the state of Florida or the laws of the state of Florida with respect to the size, weight and equipment of the vehicles operated and the laws of the state of Florida regulating the manner of the operation of such vehicles over the Florida highways."

The injunction was granted August 26, 1935, on the sworn bill of complaint and nothing has been since done by appellants to bring the cause to trial on its merits. No answer has been filed, no testimony taken. The only facts we have are those the bill alleges. An appeal under such circumstances ordinarily brings up nothing for review but whether discretion has been abused. Butler v. D. A. Schulte, Inc. (C. C.A.) 67 F.(2d) 632, 635.

Appellants argue the case as though it were here on the merits. They insist that the court below determined that, and we must determine whether the enactment of the Federal Motor Carrier Act of 1935, Senate Bill No. 1629, 74th Congress, completely deprived the Florida commission of jurisdiction to regulate or control interstate traffic for the period named in the act pending the assertion by the Interstate Commerce Commission of active jurisdiction and control,¹ and freed all persons carrying or proposing to carry, interstate, from all regulation. They insist that this is not the effect of the act; that its purpose and effect is to continue the supervision of the state commission as before over all existing motor carrier service until the Interstate Commerce Commission should begin functioning and to prohibit all new operations,² except those duly certificated by state authority pending the time the Interstate Commerce Commission commences to actively function.

We cannot agree with appellant that these questions are before us for decision. All that we have here under the case as made on the temporary application is whether the court abused its discretion in restraining the defendants as it did. This is the case plaintiff's bill makes. Desiring to conduct a first-class interstate scenic tourist service from New York to Miami, Fla., and being particularly qualified to do so, it provided the proper equipment, obtained the necessary licenses and permits from all states north of Florida, to wit, New York, New Jersey, Maryland, District of Columbia, Virginia, North Carolina, South Carolina, and Georgia, and on June 23, 1935, applied to the commission, defendants, for a Florida interstate certificate. It filed this pursuant to and in strict accordance with the commission's rule 61 promulgated under authority of chapter 14764, Laws of Florida 1931, covering interstate motor vehicle operations. In said application and in support of it, it fully showed that the proposed service would not congest or injuriously affect the public highways of Florida, or the safety and convenience of the public traveling thereon, but would be of convenience and service to the state, its communities, and the public. After full hearing, the commission took the application under advisement and consideration. On August 10, finding that the service proposed was in fact a bona fide exclusive interstate operation but that the passage by Congress of Senate Bill No. 1629, Interstate Motor Carrier Act, had deprived the commission of jurisdiction to grant a certificate to an interstate carrier, it dismissed the application, "without prejudice to the applicant to operate over the highways within the state of Florida designated in such application when it shall have produced evidence before this commission of full compliance with the federal act above described, and shall have complied with the reasonable rules and regulations affecting the police powers of this commission insofar as they do not burden or obstruct interstate commerce."

Pursuant to that order, plaintiff filed with the commission, on the 10th of August, a showing that it had fully and completely met the requirements of the federal act, of the taxing laws of the state of Florida, the insurance requirements of the Railroad Commission, and all Florida police regulations affecting motorbusses. It advised the commission that it had obtained a for hire license required by Florida law, that it would keep its equipment fully up to the requirements of that law, and that it proposed to begin the operation in question immediately. Thereafter, plaintiff on the 10th of August did inaugurate its service, and said service has been maintained and will be maintained in all respects in accordance with the law. Notwithstanding all the foregoing, the commission, defendants, and the defendants Florida Motor Lines and Atlantic Greyhound Lines, as plaintiff's competitors, threaten to and will cause the continuous apprehension, and arrest of plaintiff's employees, thus preventing plaintiff's vehicles from being operated in the state of Florida, thereby impeding and interfering with its operations in interstate traffic. If these defendants do this, they will cause irreparable injury, both to plaintiff, in its service, and to the passengers it is carrying.

A reading of the court's order in the light of plaintiff's allegations makes it clear that the only thing the temporary injunction did was to prevent the arrest of plaintiff's drivers and the stoppage of its business, solely on the ground that it did not have a Florida certificate. The injunction expressly left it open to the defendants to proceed against and prevent plaintiff's operations for any violation of applicable provisions of the Federal Interstate Motor Act or the Florida laws. It in effect enjoined defendants from interference on the sole ground that plaintiff had no Florida certificate. Plaintiff in good faith applied for such certificate, meticulously and in every respect offering to comply, it did comply with the Florida law and regulations, governing the issuance of a Florida interstate certificate. On the showing it made it was in law entitled to such certificate. Indeed, it appears from the commission's findings that...