In Re Edwards, in Re

• Decision Date: 22 October 1930
• Parties: In re EDWARDS.
• Court: Florida Supreme Court

130 So. 615

100 Fla. 989

In re EDWARDS.

Florida Supreme Court, Division A.

October 22, 1930

Proceeding for writ of certiorari by Harold R. Edwards to review an order made by the State Railroad Commission denying the petitioner a certificate of public convenience and necessity to operate a truck line between Tampa and Orlando, Fla., and serve intermediate points between Haines City, Fla., and Orlando, Fla., namely Davenport, Loughman, and Kissimmee.

Petition denied.

COUNSEL Parker & Parker, of Tallahassee, for petitioner.

OPINION

BROWN J.

This is a petition for writ of certiorari to review an order of the railroad commission denying petitioner a certificate of public convenience and necessity to operate a freight truck line from Tampa to Orlando and intermediate points between Haines City and Orlando. The petitioner alleges that he operated a freight truck line over this same route from Tampa to Orlando and intermediate points between Haines City and Orlando, including the towns of Davenport, Loughman, and Kissimmee, prior to and on the 19th day of April, A. D. 1929. The evident purpose of this allegation is to bring the petitioner within the proviso to subsection 6 of section 3 of chapter 13700, Acts 1929, which act became effective on July 1, 1929. This proviso reads: 'Provided That a Certificate of Public Convenience and Necessity shall upon hearing be granted as a matter of right to such Auto Transportation Companies operating in good faith on the 19th day of April, 1929, over the route for which such certificate shall be sought, who shall comply in full with the provisions of this Act.'

Petitioner's application for the certificate, attached as an exhibit shows that six other auto transportation companies are already operating over the same route or a portion thereof.

The petition alleges that after the hearing the railroad commission made an order denying the certificate, a copy of which is attached to the petition as an exhibit. Said order and findings of the commission, dated September 4, 1930, read in part as follows:

'And now on this date the said Commissioners having considered the evidence taken at said hearing and being fully advised in the premises, do find as follows:

'(a) That said applicant obtained a certificate as a matter of right to operate over the route from Tampa to Haines City and subsequently sold all of his rights under said certificate to the Strickland Truck Line of Tampa, Fla., who is now operating over said route under said certificate.

'(b) That said applicant claims to have operated over the route from Haines City to Orlando prior to April 19, 1929, but yet had never applied for a certificate to operate from Haines City to Orlando until June 1930.

'(c) That the evidence shows said applicant is not entitled as a matter of right to a certificate of public convenience and necessity; and if the said applicant was entitled to said certificate as a matter of right that he failed to exercise his right within a reasonable time as required by the rules of the Railroad Commission.

'(d) That the granting of this application is not necessary and proper for the service, accommodation, convenience and safety of the public traveling over said roads, and is not reasonably required in the interest of public convenience and necessity.

'(e) That a proper use and preservation of the public roads of the State, and the safety and convenience of the traveling public who have primary rights in the preservation, safety and use of the highways maintained by taxation, demand the denial of said application.

'Wherefore, it is considered, ordered and adjudged by the Railroad Commissioners of the State of Florida that the application of Edwards Truck Line be and the same is hereby denied.'

The petition further alleges that, under the above-quoted proviso to subsection 6 of section 3 of the statute, the petitioner was entitled to an issuance of a certificate as a matter of right, and that the action of the railroad commission was without authority of law, and was not supported by, but was contrary to the evidence in the cause. There is no allegation of a total lack of evidence.

The evidence is not set out, nor any statement of the substance thereof, on the points averred in the petition or those mentioned in the findings of the commission which have a bearing thereon. Without going into the question as to how far or in what respect the findings of the railroad commission on questions of fact upon which evidence has been produced are reviewable by this court on petition for writ of certiorari, the general rule is that such a petition...