Greyhound Corp., Southeastern Greyhound Lines Division v. Carter

• Decision Date: 21 October 1960
• Citation: 124 So.2d 9
• Parties: GREYHOUND CORPORATION, SOUTHEASTERN GREYHOUND LINES DIVISION, Petitioner, v. Jerry W. CARTER, Alan S. Boyd and Wilbur C. King, as and constituting the Florida Railroad and Public Utilities Commission, Respondents.
• Court: Florida Supreme Court

Page 9

124 So.2d 9

GREYHOUND CORPORATION, SOUTHEASTERN GREYHOUND LINES DIVISION, Petitioner, v. Jerry W. CARTER, Alan S. Boyd and Wilbur C. King, as and constituting the Florida Railroad and Public Utilities Commission, Respondents.

Supreme Court of Florida.

Oct. 21, 1960.

Rehearing Denied Nov. 28, 1960.

Wayne K. Ramsay and Milam, LeMaistre Ramsay & Martin Jacksonville, for petitioner.

Lewis W. Petteway and Guyte P. McCord, Jr., Tallahassee, for Florida Railroad and Public Utilities Commission; A. Pickens Coles, Tampa, Clifford T. Inglis, Jacksonville, and Coles & Himes, Tampa, for Tamiami Trail Tours, Inc., respondents.

KEHOE, Circuit Judge.

This is a petition for writ of certiorari filed by Greyhound Corp., Southeastern Greyhound Lines Division, to review order No. 4809 of the Florida Railroad and Public Utilities Commission, granting intervenor, Tamiami Trail Tours, Inc., two extensions to its certificate of Public Convenience and Necessity.

The two extensions involved are from Gainesville to Jacksonville via Orange Heights and Melrose over State Highway 27, thence over State Highway 21 to Jacksonville via Keystone Heights, Middleburg and Wesconnett (hereinafter called the Gainesville Extension) and from Canal Point to Jacksonville (hereinafter called the Canal Point Extension). In practical effect the first extension allows Tamiami a through service from Jacksonville to Miami via Tampa and the West Coast; the second, a through service from Jacksonville via Canal Point to Miami. Greyhound already operates several schedules daily between Jacksonville and Gainesville, though not over the particular route involved. Greyhound also operates from Jacksonville to Miami Via U. S. 1 with several cross-state feeder lines joining the main line along the East Coast. Greyhound also has a certificate to operate from Jacksonville to Miami via Orlando, Canal Point and West Palm Beach but prior to the application here concerned did not operate such as a through service.

Greyhound, in its brief, urges several grounds which we consolidate for convenience' sake as follows:

1. The Commission departed from the essential requirements of law by permitting Tamiami to introduce certain resolutions, by allowing hearsay and opinion testimony, and in finding that the public vonvenience and necessity requires four new schedules between Jacksonville and Gainesville.

2. The Commission erred in finding public convenience and necessity required the extensions.

3. There is no substantial competent evidence from which the Commission could find that Greyhound has failed in its duty to the traveling public.

4. The Commission erred in not considering the service of Greyhound subsequent to the filing of the application by Tamiami.

Considering first the question of public convenience and necessity, it is clear that the overwhelming weight of authority, with which Florida is in accord, holds, as expressed by this Court in Seaboard Air Line Railway v. Wells, 100 Fla. 1027, 130 So. 587, 588; 'The word 'necessity' as used in the statute does not mean an absolute and indispensable necessity, but rather that the proposed service is reasonably necessary to meet the public needs.' Possibly the rule is best stated by the Colorado Public Utilities Commission in Re John T. Donovan, 1921 D PUR 488 as follows:

'In application No. 62, decided January 17, 1920, the Overland Motor Express Company applied for a certificate of public convenience and necessity for the transportation of freight by auto truck between Denver and Boulder. This application was resisted by an existing auto freight truck carrier who had theretofore been granted a certificate but no railway carrier made objection or appeared in opposition to such application. In the course of that decision, this Commission undertook to construe the legislative meaning of the phrase 'public convenience and necessity'; as used in the Public Utilities Act, and based largely upon the interpretation of the New York Act by the New York Public Service Commission in re Troy Auto Car Co. PUR 1917 A, 700-707, wherein it was held that the words 'convenience and necessity' could not be split in two; that a thing necessary would always be convenient and that to show a strict necessity was not required. In other words 'convenience' and 'necessity' must be construed together to mean such a state of facts exists as show a reasonable necessity to meet a convenience of the public.'

or again, as the Supreme Court of Appeals of Virginia has said in Seaboard Air Line R. Co. v. Commonwealth, 193 Va. 799, 71 S.E.2d at pages 146 and 150:

'So here the word 'convenience,' as connected with the word 'necessity,' is so connected, not as an additional requirement, but to modify and qualify what might otherwise be taken as the strict significance of the word 'necessity.' * * * In the phrase 'public convenience and necessity' the word 'necessity' means that which is needful, essential, requisite or conducive to 'public convenience.' When more convenient and adequate service is offered to the public it would seem that necessity requires such public convenience should be served.'

See also State ex rel. Missouri Kansas & Okla. Coach Lines v. Public Service Commission, 238 Mo.App. 317, 179 S.W.2d 132, at page 136.

In regard to the Gainesville Extension it should be noted that Greyhound's certificate was revoked by order No. 4808, certiorari from which we have today denied. However, even if we must look to conditions as they existed on the day application for the extension was made, Greyhound's certificate had already become dormant through failure to serve for a period of longer than 6 months without the formal approval required by statute. Thus the inquiry re the Gainesville extension is not actually one of duplicated service. No one was authorized, either on the date of application or on the date order No. 4809 was handed down to operate through Melrose, Orange Heights, Keystone Heights, Middleburg and Wesconnett. It is quite true that Greyhound was operating between Gainesville and Jacksonville, and that the Commission had recently authorized a reduction in that service but it seems to us that the essential point is that Greyhound was operating over an entirely different route leaving this particular route unserviced. Since Greyhound's certificate was dormant, no carrier, so far as appears, was certified to operate over this route. The question of public convenience and necessity thus has a different complexion on this extension than on the Canal Point extension which is essentially a duplicated service and to which different principles must be applied.

The Commission has found that 'The testimony and evidence presented by the applicant (Tamiami) amply showed that public convenience and necessity require the proposed service. There is not only a present need for the service but the continuing rapid growth of this section of the state and the West Coast area generally indicates a need from the standpoint of future public convenience and necessity.'

This court's function in matters before it on certioari has often been discussed (see e. g. Great Southern Trucking Co. v. Douglas, 147 Fla. 552, 3 So.2d 526; Atlantic Coast Line R. Co. v. Railroad Commission, 149 Fla. 245, 5 So.2d 708; Florida Motor Lines Corp. v. Douglass, 150 Fla. 1, 7 So.2d 843; Tamiami Trail Tours v. Carter, Fla., 80 So.2d 322). In the last cited case in the original opinion which we readopted and adhered to in the rehearing of Alterman Transport Line v. Carter, Fla., 88 So.2d 594, we stated as follows:

'It is only in those instances, as we have said on many previous occasions, where it is made clearly to appear to us that the Commission has done an illegal or unauthorized act, has exceeded its jurisdiction or failed to accord with the essential requirements of the law, that we are authorized to interfere with its actions. It is indeed a narrow corridor through which the petitioner must pass and we should be most circumspect not to transgress its limitations. Proper restraint in this connection on the part of this Court clearly preserves the true historical purpose of the Courts and leaves the Commission the power effectively to function within its limited filed of operation under the Constitution and Statutes.

'We have assiduously searched the record here and have failed to find that in this case the Railroad Commission either exceeded its jurisdiction or failed to observe the essential requirements of the law in the issuance of the challenged order or that such order is in any respect illegal or unauthorized. It is not our function to examine and weigh the evidence in detail. In Nelson v. State ex rel. Quigg, 156 Fla. 189, 23 So.2d 136, we said, and now repeat:

"We have held, and it seems to be an almost universal rule, that the findings of fact made by an administrative board, bureau, or commission, in compliance with law, will not be disturbed on appeal if such findings are sustained by substantial evidence * * *.

"The rule invoked herein is salutary and founded in good common sense and irrefutable logic. It should be adhered to religiously * * *.'

'The responsibility is upon the petitioners here to make it clearly appear to us that the challenged order is so defective in one of the aspects hereinbefore named as to bring into operation the powers of this Court to vacate it. No such showing has been made. Moreover, there can be no question but that whatever harm may be suffered by protestants in granting the permit is so inconsequential when arrayed alongside the obvious benefits which will be received by the various public interests affected, as to support clearly the conclusions reached by the Commission in the exercise of the discretion vested in it under the law.'

Likewise in the instant case there has been no showing that the Commission has done an illegal or unauthorized act, has exceeded its jurisdiction, or failed to accord with...