Riley v. Lawson

• Decision Date: 24 August 1932
• Citation: 106 Fla. 521,143 So. 619
• Parties: RILEY v. LAWSON.
• Court: Florida Supreme Court

143 So. 619

106 Fla. 521

RILEY v. LAWSON.

Florida Supreme Court

August 24, 1932

Suit by R. R. Riley against D. B. Lawson. From an adverse decree complainant appeals.

Reversed and remanded, with directions. Appeal from Circuit Court, Hamilton County; M F. Horne, judge.

COUNSEL

T. T. Turnbull, of Tallahassee, C. A. Avriett, of Jasper, and W. J. Oven, of Tallahassee, for appellant.

Stanton Walker, of Jacksonville, for appellee.

OPINION

DAVIS J.

Section 25 of chapter 14764, Acts of 1931, Laws of Florida, section 1335(24), C. G. L. 1932 Supp., provides that an auto transportation company operating upon the highways of this state without first having obtained from the railroad commission a certificate or a permit so to do, as provided by said act, may be enjoined by the courts of this state from such unlawful or unauthorized operation on the highways of this state, at the instance of the railroad commission, or any citizen or taxpayer.

The appellant, R. R. Riley, alleging himself to be a citizen and taxpayer of Hamilton county, sought an injunction against the appellee under the foregoing provision of the statute. The injunction was denied and the bill of complaint dismissed. The case comes here upon an appeal from the final decree denying the relief sought on the ground that as applied to the appellee the statute in question is unconstitutional.

It appears from the bill, and is admitted by the answer, and therefore must be accepted as a fact in the case, that Lawson was engaged in the transportation of freight over the public highways of this state under contract with one or more persons for compensation; that he was engaging in continuous and recurring carriage, and was, under the definition of the act (C. G. L. 1932 Supp. § 1335(1), an 'auto transportation company'; and a 'private contract carrier.' The roads designated as those over which the defendant was operating were State Roads Nos. 1 and 2. The nature of the defendant's operation was charged as being the handling of goods, wares, and merchandise by motor vehicles between Jacksonville, Fla., and Jasper, Fla., under contract for hire with one Corbett & Ratliff and with one Harrison, both of Hamilton county. Fla.

It is shown that Jacksonville was not the point of production, primary manufacture, or assembling point, and that Jasper was not a point of primary manufacture, assembling, or shipping point for the goods hauled, by either rail, water, or motor transportation. It is further shown that all the goods so hauled were used and consumed in Jasper, Fla.

The defense asserted by Lawson is that he was not a common carrier, but was engaged exclusively in transporting goods, wares, and merchandise over State Roads Nos. 1 and 2 between Jacksonville, Fla., and Jasper, Fla., for compensation and in continuous and recurring carriage under contract with two named groups of individuals, and for no one else; that he looked only to these two concerns for his compensation; that such compensation was on a flat definite agreed amount per trip without reference to and regardless of the amount of tonnage hauled; that therefore he was a 'private contract carrier' under the definition of the act.

The chancellor found that the defendant was a private contract carrier under the terms of the act; that he was not a common carrier; that he did not come within any of the exemptions contained in section 30 of the act; and that he was engaged in transporting merchandise over the public highways from Jacksonville to Jasper. So finding, the chancellor held that chapter 14764, Acts 1931, supra, was unconstitutional as applied to private contract carriers such as Lawson, and denied plaintiff's motion for an injunction and dismissed the bill of complaint.

In Packard v. Banton, 264 U.S. 140, 44 S.Ct. 257, 68 L.Ed. 596, it was held that the streets and highways belong to the public and are primarily for the use of the public in the ordinary way; that their use for the purpose of gain is special and extraordinary, and generally, at least, may be prohibited or conditioned as the Legislature deems proper. It was further held in that case that legislative power to exclude altogether the use of the highways for the purpose of gain includes the lesser power to condition, and may justify a degree of regulation not admissible with regard to the use of the highways by the public in the ordinary way.

In Stephenson v. Binford (D. C.) 53 F. (2d) 509, 514, it was said: 'Standing out in decisions, text-books, and law articles is the universally accepted doctrine that the use of public roads for the conduct of business thereon, * * * is an extraordinary use, and as such is enjoyed, not as a right, but as a privilege. That the state may altogether exclude hauling by carrier, common or contract intrastate, from its roads, is generally taken for granted.'

In Smith v. Cahoon, 283 U.S. 553, 51 S.Ct. 582, 75 L.Ed. 1264, the Supreme Court of the United States had under consideration the constitutional validity, under the Fourteenth Amendment to the Federal Constitution, of chapter 13700, Acts of 1929, which was superseded by chapter 14764, Acts of 1931. In that case the ratio decidendi of the decision holding the 1929 act invalid was that the statute either imposed upon the private contract carrier, who was the appellant in that case, obligations to which the state had no constitutional authority to subject him, or it failed to define such obligations as the state did have the right to impose, with that fair degree of certainty which is required of criminal statutes.

The present statute appears to have been passed by the Legislature in an attempt to obviate the objections pointed out by the Supreme Court of the United States concerning the former one. We are therefore incidentally called upon to determine in this case whether or not such objections have been overcome by the terms of chapter 14764, Acts of 1931, supra.

It has been held that the right of the state to regulate the use of the public highways by auto transportation companies operating for hire is drawn from two distinct sources, to wit: The nature of the business done by such companies on the highways; and the right to conserve and protect the enjoyment by the people of their public highways as viatic ways. Southern Motorways, Inc., v. Perry (D. C.) 39 F. (2d) 145. In that case it was held, and with that rule we agree, that when the public highways are made the place of doing business for compensation, the right to regulate the use of the highways by vehicles engaged in such purpose, is primarily to be exercised in the interest of the safety and convenience of the other users of the highway, and of the passengers on the highways themselves, and for the conservation of the public highways. We are further agreed that the last class of regulation arises independent of the nature of the business done by the vehicles regulated.

As we have seen, the state may entirely prohibit vehicular travel on the public highways as a means of conducting a business of transportation for compensation. We have further seen that the right to entirely prohibit such extraordinary use of the highways includes the right to limit and condition the use that is permitted when permission is granted at all. Packard v. Banton, supra.

The only limitations found in the adjudicated cases restricting the right of the state to condition the use of the public highways as a means of vehicular transportation for compensation are: (1) That the state must not exact from those it permits to use the highways for haulage for gain the condition that the permittee shall surrender any of his inherent federal constitutional rights as a condition precedent to his obtaining permission for such use; (2) that the state in permitting such use shall not deny to permittees of the same class the equal protection of the laws which is guaranteed by the Federal Constitution.

Thus it has been held that the state is without power under the Fourteenth Amendment to compel a person to permit himself to be deprived of his property without due process of law by enforcing him to dedicate it to public service as a common carrier for hire as a condition precedent to being permitted to use the highways as a means of engaging in the gainful occupation of haulage. Frost v. Railroad Commission, 271 U.S. 583, 46 S.Ct. 605, 70 L.Ed. 1101, 47 A. L. R. 457; Michigan Public Utilities Com. v. Duke, 266 U.S. 570, 45 S.Ct. 91. 69 L.Ed. 445, 36 A. L. R. 1105. Nor surrender a privilege of removing a case from the state to the federal courts under provisions of federal law as a condition precedent to enjoying a privilege which might otherwise constitutionally be entirely denied. See Terral v. Burke Construction Co., 257 U.S. 529, 42 S.Ct. 188, 66 L.Ed. 352, 21 A. L. R. 186. See, also, Pullman Co. v. Kansas, 216 U.S. 56, 30 S.Ct. 232, 54 L.Ed. 378; Sioux Remedy Co. v. Cope, 235 U.S. 197, 35 S.Ct. 57, 59 L.Ed. 193; Western Union Tel. Co. v. Foster, 247 U.S. 105, 38 S.Ct. 438, 62 L.Ed. 1006, 1 A. L. R. 1278.

That a state is forbidden to deny to any person within its jurisdiction the equal protection of the laws is an express provision of the Fourteenth Amendment to the Federal Constitution. This organic provision guarantees to individuals and to corporations that they shall not by state law be excluded from the enjoyment of privileges which other persons and corporations similarly circumstanced enjoy, or that they may not have imposed upon them burdens from which others similarly circumstanced are free. Yick We v Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220. But the equal protection clause of the Fourteenth Amendment does not take away from the state the power to classify in the adoption of police laws,...