Redwing Carriers v. Mack
| Decision Date | 25 May 1954 |
| Citation | 73 So.2d 416 |
| Parties | REDWING CARRIERS, Inc. et al. v. MACK et al. |
| Court | Florida Supreme Court |
Lewis H. Hill, Jr., and W. B. Dickenson, Jr., Tampa, for Redwing Carriers, Inc.
Martin Sack, Jacksonville, for Petroleum Carrier Corporation of Tampa and South State Oil Co.
Ted David, Hollywood, for Florida Tank Lines.
Mabry, Reaves, Carlton, Fields & Ward, Tampa, for Robertson Transp. Co.
Lewis W. Petteway and Guyte P. McCord, Jr., Tallahassee, for respondents.
L. M. Robertson and Irvin Smart, d/b/a Robertson Transportation Company, made application on the 28th day of July, 1953, to the Florida Railroad and Public Utilities Commission for a certificate of public convenience and necessity to operate an auto transportation company as a private contract carrier of liquefied petroleum gas from, to and between points and places within a 175 mile radius of Tampa, Florida, under contract with Warren Petroleum Corporation. Petitioner unsuccessfully protested the granting of the certificate for which application was made under date of December 1, 1953. The Commission granted a certificate of public convenience and necessity consonant with the application which had been made by Robertson Transportation Company.
Petitioners propose two questions for our consideration and determination. We find it unnecessary to discuss the second of these questions because we have reached the conclusion that the question hereinafter set forth should be answered in the negative. This question as propounded by petitioners is:
'Where four common carriers have state-wide authority to render service on a particular product, can the Commission issue a contract carrier permit to a new carrier to serve a new shipper in a territory from which the product had not previously moved, without first granting the existing carriers an opportunity to render the service?'
The determination of the question now before us hinges upon the proper construction to be given a portion of Section 323.04(3), F.S.A. We quote the pertinent part of said statute:
'When application is made by an auto transportation company for a certificate to operate as a private contract 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.'
Counsel for petitioners contend it was the clear intention of the legislature that existing certificate holders, in a situation such as the one depicted by the record in this cause, should be given an opportunity to provide service and facilities which may reasonably be required by the Commission before that body grants a new certificate to another carrier. The Commission disposed of the statute in the following language
In their brief counsel for Robertson Transportation Company endeavor to support the Commission's ruling and cite our opinion in Great Southern Trucking Co. v. Mack, Fla., 1951, 54 So.2d 153, and Jack's Cookie Co. v. Florida R. R. and Public Utilities Commission, Fla., 1951, 54 So.2d 695, which cases they believe inferentially at least support their position that existing carriers need not be given an opportunity to provide the necessary facilities or to improve their service before a new certificate of public convenience and necessity may be issued to another. Counsel confess that the rule in other states, as the brief of counsel for petitioner points out, is contrary, but insist that this rule rests upon statutes materially different from the Florida statute. They discuss and attempt to distinguish the following cases: Arizona Corporation Commission v. Hopkins, 52 Ariz. 174, 79 P.2d 946; Betts v. Roberts, 63 Ariz. 337, 162 P.2d 423; Atlantic Greyhound Corporation v. Public Service Commission, 132 W.Va. 650, 54 S.E.2d 169; Dixie Greyhound Lines v. American Buslines, 209 Miss. 874, 48 So.2d 584; Southern Bus Lines v. Mississippi Public Service Commission, 210 Miss. 606, 50 So.2d 149; and Virginia Stage Lines v. Commonwealth, 185 Va. 390, 38 S.E.2d 576.
It is true as contended by counsel for Robertson Transportation Company and by counsel for respondents that the statutes in the several states wherein the foregoing cases were heard and determined differ in language from our statute. Instead of using the words 'fail to provide' the Arizona statute contains the words 'will not provide'. A.C.A.1939, § 66-506. The Mississippi statute, however, has no provision similar to our own, the only relevant language being that which requires the Commission, in determining whether a certificate should be granted, to 'give due consideration to the present transportation facilities over the proposed route of the applicant * * *', Mississippi Code 1942, § 7642, and it will readily be seen that the Florida statute is much stronger in its protection of existing certificate holders. The Virginia statute provides in part: 'No certificate shall be granted to an applicant proposing to operate over the route of any holder of a certificate unless and until it shall be proved * * * that the service rendered by such certificate holder * * * is inadequate * * * and * * * such certificate holder shall be given reasonable time and opportunity to remedy such inadequacy before any certificate shall be granted to an applicant proposing to operate over such route.' Code of Virginia 1950, § 56-281.
Thus although some of the statutory language above alluded to is more positive and some less positive than our own, the construction given it by the courts universally requires consideration to be given existing certificate holders. While our statute may be susceptible of the construction which the Commission evidently placed upon it and which counsel for Robertson Transportation Company, as well as counsel for the Commission, insist should be given thereto, we are persuaded to the view that such construction is not sufficiently comprehensive. It places a strained, restrictive interpretation upon...
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Tamiami Trail Tours v. Carter
...See Great Southern Trucking Co. v. Mack, Fla.1951, 54 So.2d 153. This case is to be distinguished on the facts from Redwing Carriers, Inc., v. Mack, Fla., 73 So.2d 416, 420. The fact presented there did not show that the existing certificate holders had rendered poor, inadequate and unsatis......
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Commercial Carrier Corp. v. Mason
...Neither do we find support for the Commission's order in decisions rendered by this Court. Indeed, this Court's decisions in Redwing Carriers v. Mack, 73 So.2d 416; Alterman Transport Lines v. Carter, 88 So.2d 594, and Ace Delivery Service, Inc., v. Boyd, 111 So.2d 448, are contrary to the ......
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Alterman Transport Line v. Carter
...failed to provide service and facilities which have reasonably been required by the commission. In the recent case of Redwing Carriers v. Mack, Fla., 73 So.2d 416, 420, this Court 'It is our conclusion that as suggested, if not decided, in our opinion in Jack's Cookie Co. v. Florida Railroa......
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American Sightseeing Tours, Inc. v. Mayo, 46889
...be found to have failed to provide such service. Chief Justice Mathews, in the original opinion, relied on the case of Redwing Carriers v. Mack, 73 So.2d 416 (Fla.1954). On re-hearing in Alterman Mr. Justice Hobson 'The rule of the Redwing Carriers case must be restricted to the facts which......