In Re Grubb, in Re
| Citation | 156 So. 482,116 Fla. 387 |
| Court | United States State Supreme Court of Florida |
| Decision Date | 07 September 1934 |
| Parties | In re GRUBB. |
En Banc.
Application by Paul Grubb, trading and doing business as the Grubb Transfer Company, not incorporated, for an alternative writ of mandamus, requiring the Florida Railroad Commission to issue a 'for hire' permit to relator.
Alternative writ denied, without prejudice to right of relief by other appropriate remedy.
Leo P. Kitchen and Dan R. Schwartz, both of Jacksonville, for petitioner.
This is an application for an alternative writ of mandamus against the Florida Railroad Commission to require it to issue to relator a 'for hire permit' to engage in carriage for hire of used household goods, furnishings, and furniture. Chapter 14764, Laws of Florida 1931. It is the relator's contention in this case that the issuance of a 'for hire' permit, as distinguished from a certificate of public convenience and necessity, is a mandatory duty devolving upon the Railroad Commission under the statute after an applicant has duly complied with all conditions precedent entitling applicant to have such permit issued, and that therefore mandamus, and not the usual writ of certiorari this court has held applicable, is the proper remedy in a case like the present. Florida Motor Lines, Inc., v Railroad Commissioners, 100 Fla. 538, 129 So. 876.
While upon its face section 5 of chapter 14764, Acts of 1931 allows to the Railroad Commission no discretion or judgment as to the granting of 'permits' to auto transportation companies to operate mere 'for hire' service [1] in this state, yet other provisions of chapter 14764, supra, vest in the Railroad Commission jurisdiction to determine whether or not what purports to be a mere 'for hire' service will be such in law and in fact under the circumstances of the proposed operation, and therefore it is not only within the power of the commission but it is its duty to have such hearing and to make such investigation and findings as will advise it in the premises where the nature and scope of the proposed service as outlined in an application suggests some special inquiry on that score.
The petition for the alternative writ herein sought sets up the Commission's Order No. 683 dated August 16, 1934, denying the applicant a permit after a hearing recited as having been had before the commission under date of July 18, 1934. The commission, after due notice, set the application down for a hearing in accordance with its special rules on the subject of investigations into matters of this kind the applicability or validity of which was not contested not objected to by relator at or prior to the hearing had on the rejected application.
Even were mandamus the appropriate remedy in an ordinary case of this kind, on the ground that certiorari is wholly inadequate to afford the plain, complete, and speedy remedy to which relator conceives himself entitled under the law (a point we do not now decide), the petition for the alternative writ should disclose the entire record of the proceedings upon which ...
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