Pensacola Transit v. Douglass

• Decision Date: 24 February 1948
• Citation: 34 So.2d 555,160 Fla. 192
• Parties: PENSACOLA TRANSIT, Inc., et al. v. DOUGLASS et al. TECHE GREYHOUND LINES et al. v. SAME.
• Court: Florida Supreme Court

34 So.2d 555

160 Fla. 192

PENSACOLA TRANSIT, Inc., et al. v. DOUGLASS et al.

TECHE GREYHOUND LINES et al. v. SAME.

Florida Supreme Court

February 24, 1948

Rehearing Denied March 24, 1948.

Yonge, Beggs & Lane, of Pensacola, for Pensacola Transit, inc.

F Churchill Mellen, of Pensacola, for City of Pensacola.

Fisher Fisher, Hepner & Fitzpatrick, of Pensacola, for Teche Greyhound Lines Modern Coach Corporation, and Capital Motor Lines.

Lewis W Petteway, R. Clyde Simmons and J. Kenneth Ballinger, all of Tallahassee, for respondents.

Jones, Latham & McLane, of Pensacola, T. Franklin West, of Milton, and Philip D. Beall, Jr., of Pensacola, amici curiae.

CHAPMAN, Justice.

The petitioners Pensacola Transit, Inc., City of Pensacola, Teche Greyhound Lines, Modern Coach Corporation and Capital Motor Lines, seek an order of this Court quashing and holding as naught an order of the Railroad Commission of the State of Florida dated May 28, 1947, entered pursuant to notice and after a hearing in which considerable testimony was taken, and further identified as Order No. 2019. The effect of this order was to grant to Frank Petelinski and Red Ball Motor Lines a certificate of public convenience and necessity as a common carrier of passengers and light express, newspapers, mail and baggage in motor vehicles over certain specified routes in the vicinity of Pensacola, Florida.

It is contended that the order providing for the issuance by the Florida Railroad Commission of a certificate of public convenience and necessity authorizing the transportation of passengers and property in motor buses on designated schedules over specified routes is not only contrary to law but cannot be supported by the substantial testimony appearing in the transcript certified to this Court. The routes are viz.:

'1. From Pensacola, Florida, to the Florida-Alabama State Line over U. S. Highway No. 29 and Florida State Highway No. 95, via Gonzalez, Florida Pulp and Paper Company, Cantonment, Cottage Hill, Quintette, Molino, Pine Barren, Bogee, McDavid, Bluff Springs, Century and South Flomaton, and return over the same route, with the right to serve all intermediate points.

'2. From Pensacola, Florida, to Pensacola Beach Casino and Gulf of Mexico, over Florida State Highway No. 30 and U. S. Highway No. 98 and that certain un-numbered highway, and return over the same route with the right to serve all intermediate points.

'3. From Pensacola, Florida, to Riverview, Florida, over U. S. Highway No. 90, via East Pensacola Heights and Gull Point, and return over the same route with the right to serve all intermediate points, for sightseeing and charter parties, solely.

'4. From Pensacola, Florida, to Saufley Field in Escambia County, Florida, over U. S. Highway No. 90 to the intersection of U. S. Highway No. 90 and the Saufley Field Road, thence over the Saufley Field Road to Saufley Field and return over the Saufley Field to the intersection of the Belleview Road, thence over the Belleview Road to its intersection with U. S. Highway No. 90; thence over U. S. Highway No. 90 back to Pensacola, Florida, via Brownsville and West Pensacola.

'5. From Pensacola, Florida, to Riverview, Florida, and Escambia County River, in Escambia County, Florida, over State Highway No. 291, via Brent, Ferry Pass, Clark's Store and Ellyson Field and return over same route, with the right to serve all intermediate points.

'6. From the intersection of highway U. S. 90 alternate and State Highway No. 291, to the intersection of U. S. Highway No. 90 Alternate and State Highway No. 95, which highway is also known as U. S. Highway No. 29, and return over the same route, with the right to serve all intermediate points. There is no bus service over this route.

'7. From Clark's Store at the intersection of State Highways No. 291 and 290 over State Highway No. 290, to the intersection of State Highway No. 290 and State Highway No. 95 which highway is also designated as U. S. Highway No. 29, and return over the same route, with the right to serve all intermediate points.

'8. From the intersection of Brent Lane with State Highway No. 291 to the intersection of Brent Lane with U. S. Highway No. 29 and State Highway No. 95, and return over the same route, with the right to serve all intermediate points.

'9. From Pensacola, Florida, to Corry Field in Escambia County, Florida, over State Highway No. 294 and return over the same route with the right to serve all intermediate points.

'10. From Pensacola, Florida, to Gulf Beach in Escambia County, Florida, over County Highway known as Gulf Beach Highway, and also over State Highway No. 295, via Warrington, Pensacola, Naval Air Station, Pleasant Grove and Interarity Point, and return over the same route, with right to serve all intermediate points.

'11. From Pensacola, Florida, to the Perdido Bay and Paradise Beach over U. S. Highway No. 90 and State Highway No. 298, via Myrtle Grove and Mill View; and also to the Dog Track of the Pensacola Kennel Club over state Highway No. 297 and return over the same route, with the right to serve all intermediate points.

'12. From the intersection of State Highway No. 298 and State Highway No. 297 to Pensacola Naval Air Training Base over State Highway No. 297; County Highway known as the Gulf Beach Highway; and over State Highway No. 295, via Pensacola Kennel Club Dog Track and Pleasant Grove, and return over the same route with the right to serve all intermediate points.

'13. From Pensacola, Florida, to Warrington, Florida, over County Highway known as the Warrington Highway, via Bayou Chico and return over the same route, with the right to serve all intermediate points.

'14. From West Pensacola, in Escambia County, Florida, over State Highway No. 295, to the Pensacola Naval Air Training Base, thence continuing over State Highway No. 295 to the intersection of State Highway No. 295 with Gulf beach Highway.

'15. From Pensacola, Florida, to Gulf Beach over the Admiral Murray Boulevard, State Highway No. 295 and Gulf Beach Highway, via Warrington, Pleasant Grove, Interarity Point and colored Beach beyond Pleasant Grove, and return over the same route with the right to serve all intermediate points.'

The Pensacola Transit, Inc., and the City of Pensacola Contend, first, that the issuance of a certificate of public convenience and necessity, under the testimony adduced and the applicable law, was clearly erroneous as to the territory situated wholly within the city limits of Pensacola and its adjoining suburban territory and these routes are identified in the challenged orders as (b), (d), (e), (g), (h), (i), (l), (m), and (n). Second, that the challenged order should be amended to require the Red Ball Motor Line to operate with closed doors inside the City of Pensacola and its adjoining suburban territory and to restrict the transportation of passengers to or from points outside of the suburban territory or from fixed terminals within the City of Pensacola and adjoining suburban territory. This contention applies to routes identified in the order as routes (a), (c), (j), (k) and (o).

The petition of the Teche Greyhound Lines, the Modern Coach Corporation and Capital Motor Lines present the contention that the Railroad Commission in its order failed to take into consideration subsection (3) of Section 323.03, F.S.A., which is viz.:

'(3) Disposition of application. At the time specified in said notice, or at such time as may be fixed by the commission, a public hearing upon said application shall be held by the commission. At or after such hearing the commission may issue a certificate of public convenience and necessity, as prayed for or refuse to issue the same, or may issue the same with modifications, or upon such terms and conditions as in its judgment the public convenience and necessity may require; provided, that the commission in granting any such certificate shall take into consideration the effect that the granting of such certificate may have upon transportation facilities within the territory sought to be served by said applicant, and also the effect upon transportation as a whole within said territory. * * *

'When application is made by an auto transportation company for a certificate to operate as a common carrier in a territory or on a line already served by a certificate holder, the commission shall grant same only when the existing certificate holder or holders serving such territory fail to provide service and facilities which may reasonably be required by the commission.'

It is not clear to the writer, after a careful study of the transcript and briefs, the exact portions of the order that is sought to be quashed here, but apparently the contentions are directed to routes (a), (c), (j), (k) and (o) of the challenged order. It is reasonable to assume that the petitioners named in Case No. 2, supra, object to and noe protest the issuance by the Railroad Commissioners of Florida of certificates of convenience and necessity to the applicant to operate as a common carrier over each of the routes leading out of the City of Pensacola and adjoining suburban territory over which routes the petitioners now operate as certificated carriers.

The transcript discloses a resolution of the Board of County Commissioners of Escambia County adopted under date of March 25, 1947, which recites (1) that the Commissioners are familiar with and have knowledge of the proposed routes in Escambia County over which the applicant intends to operate as a common carrier; (2) the several Commissioners express the unanimous view that the proposed service offered by the applicant is needed by the residents and visitors of Escambia; (3) the Board of Commissioners of Escambia County requested...