Leonard Bros. Transfer & Storage Co. Inc. v. Carter

• Decision Date: 26 February 1937
• Citation: Leonard Bros. Transfer & Storage Co. Inc. v. Carter, 172 So. 924, 127 Fla. 198 (Fla. 1937)
• Court: Florida Supreme Court
• Parties: LEONARD BROS. TRANSFER & STORAGE CO., Inc., et al. v. CARTER et al., Florida Railroad Commission.

172 So. 924

127 Fla. 198

LEONARD BROS. TRANSFER & STORAGE CO., Inc., et al. v. CARTER et al., Florida Railroad Commission.

Florida Supreme Court

February 26, 1937

Original mandamus proceeding by Leonard Brothers Transfer & Storage Company, Inc., and another against Jerry W. Carter, as Chairman and a member of, Eugene S. Matthews, as a member of and W. B. Douglass, as a member of, jointly and severally composing, the Florida Railroad Commission of the State of Florida.

Order in accordance with opinion.

COUNSEL Leo P. Kitchen and Dan R. Schwartz, both of Jacksonville, for relators.

Theo. T. Turnbull and Wm. P. Simmons, Jr., both of Tallahassee, for respondents.

OPINION

DAVIS Justice.

Railway Express Agency, Inc., of Miami, Fla., submitted an application to the Railroad Commission for a permit to conduct business as a 'for hire' carrier under section 5 of chapter 14764, Acts 1931. Under that section of the statutes it is provided that: 'upon filing of such application for permit the Commission shall issue the same as of course and without notice or public hearing.' In this case when the application was filed with the commission, protest was interposed by interested parties on the ground that the actual operation contemplated under the permit would not constitute 'for hire' carriage, but would amount to a common carrier service on the part of the applicant, which was admittedly engaged generally in the business of common carriage of goods for hire. The Railroad Commission held a hearing on the protest for the purpose of arriving at a finding that would advise it in the premises as to the nature and scope of the proposed service. The hearing was had December 29, 1936. No decision on the application having been made by the Railroad Commission, the relators, on January 15 1937, procured from this court an alternative writ of mandamus setting forth the status of the controversy. The writ commanded in its alternative that the Railroad Commission forthwith dismiss the application that had been filed by the Railway Express Agency, Inc., of Miami (without prejudice, however, to the rights of said applicant to submit an amended application asking for a certificate of public convenience and necessity for common carriage), or that it show cause why it refused so to do.

For cause of noncompliance with the alternative writ the Railroad Commission has filed a return to the effect that it still has said application under consideration upon the evidence that has been taken concerning it and avers that the commission should have a reasonable time, without judicial interference to fully consider the facts adduced at the hearing, thereby giving it an opportunity to arrive at and announce a proper order in due course of commission procedure.

The command of the writ issued in this case is such that the commission is not merely called upon by the court to expeditiously exercise its discretion by making an...