Southern Armored Service, Inc. v. Mason, 32420

• Decision Date: 17 June 1964
• Docket Number: No. 32420,32420
• Parties: SOUTHERN ARMORED SERVICE, INC., and Rasdale Armored Car Service, Inc., Petitioners, v. Edwin L. MASON, Jerry W. Carter, and Wilbur C. King, as members of and constituting the Florida Railroad and Public Utilities Commission, Respondents.
• Court: Florida Supreme Court

Page 848

167 So.2d 848

SOUTHERN ARMORED SERVICE, INC., and Rasdale Armored Car Service, Inc., Petitioners, v. Edwin L. MASON, Jerry W. Carter, and Wilbur C. King, as members of and constituting the Florida Railroad and Public Utilities Commission, Respondents.

No. 32420.

Supreme Court of Florida.

June 17, 1964.

Rehearing Denied Oct. 28, 1964.

Wm. Joe Sears, Jacksonville, and D. Fred McMullen, Tallahassee, for Southern Armored Service, Inc.

M. Craig Massey, for Rasdale Armored Car Service, Inc.

Lewis W. Petteway, Tallahassee, and John W. McWhirter, Jr., for Florida Railroad and Public Utilities Commission.

Hill, Hill & Dickenson, Tampa, for Armored Express, Inc.

O'CONNELL, Justice.

In December 1961 the respondent Commission granted Armored Express a certificate of public convenience and necessity authorizing it to operate an armored car service in Hillsborough County. Subsequently in December 1962, by Order No. 5590, the Commission, with one member dissenting, granted an extension of this certificate authorizing Armored Express also to render such service in Pinellas, Polk, Pasco, Manatee and Sarasota Counties.

Since 1957 Southern had been and is authorized to render armored car service between all points and places in Florida.

Rasdale has since 1953 held a certificate authorizing it to render armored car service in several counties, including those covered by the order extending Armored Express' certificate.

Both Southern and Rasdale opposed Armored Express' application for extension of its certificate. In this proceeding they seek quashal of Order No. 5590 which granted the extension.

By way of background it should be noted that the December 1961 order which granted Armored Express authority to operate an armored car service in Hillsborough County denied the application of that carrier also to operate in several surrounding counties, including Pinellas, Polk, Pasco, Manatee and Sarasota which are the counties covered in the extension order. The Commission explained denial of authority in these counties saying that both Southern and Rasdale were then adequately serving these counties, or could do so, and there was evidence of need for additional service only in Hillsborough County.

However, on April 11, 1961 the Commission sua sponte entered its Order No. 5397 entitled 'Order Directing Emergency Service.' This order directed Armored Express immediately to provide cash letter service to any banks in Pasco, Polk, Pinellas and Hillsborough Counties pending outcome of an investigation into the armored car service in the 'Tampa Bay Area.'

This Order No. 5397 was issued after filing of affidavits of two banks following loss by Rasdale of two cash letters in March 1962.

This order was not inssued pursuant to any application, no hearing was held and no notice given as required by Section 323.03, F.S.A. This order remained in effect until vacated by the Commission on October 9, 1962.

Meanwhile Armored Express, while operating under the said emergency order, on June 4, 1962 filed its application for authority to operate in the counties of Pinellas, Polk, Pasco, Manatee and Sarasota. This application resulted in Order No. 5590 under attack in this proceeding.

We must here note that Southern, one of the petitioners in this cause, also filed in this Court a petition for certiorari directed to Order 5397, the order directing emergency service which order had been vacated by the Commission in October 1962. We dismissed that petition but reserved to petitioners the right to show in the case now before us the invalidity of such order as it might affect petitioners' first question presented in this cause.

Petitioners present two questions for decision.

First they contend that the Commission departed from the essential requirements of the law in receiving, over objection, and considering in proof of convenience and necessity evidence of Armored Express' operation under the emergency Order No. 5397.

We think petitioners are correct on this point.

Section 323.03, F.S.A. prohibits operation of any auto transportation company on the highways of this state until it shall have been issued a certificate of public convenience and necessity by the Commission.

Section 323.03 provides that such a certificate shall be issued only upon application and after notice and hearing.

None of these basic statutory requirements were met as a predicate to issuance of Order No. 5397.

In support of that order the Commission takes the position that the general authority granted to it in Sections 323.07 and 350.12, F.S.A. is adequate to support its action. The Commission also cites Fogarty Bros. Transfer, Inc. v. Boyd, Fla.1959, 109 So.2d 883 and State ex rel. Seaboard Air Line Railroad Co. v. King, Fla.1957, 93 So.2d 368 as authority for its action. Neither of these cases holds that the Commission may issue any certificate or operating authority, permanent or temporary, without application therefor followed by notice and hearing as required by the statutes above cited.

The Commission is a statutory body with special and limited powers. It can only exercise the power expressly or impliedly granted to it and any reasonable doubt of existence of any power must be resolved against the exercise thereof. Atlantic Coast Line Ry. Co. v. State, 1917, 73 Fla. 609, 74 So. 595, and Fogarty Bros. Transfer, Inc. v. Boyd, supra.

While we find no statutory provision for issuance of temporary or emergency certificates or authority, this Court has unheld action of the Commission in which it granted temporary operating authority, but we specifically required that it be on application after notice and hearing. State ex rel. Seaboard Air Line Railroad Co. v. King, supra.

This Court has always held that no change or modification could be made in any existing operation except upon affirmative finding by the Commission, after due notice and hearing, that public convenience and necessity required the change. Central Truck Lines v. Railroad Commission, 1935, 118 Fla. 555, 160 So. 26.

We are forced to the conclusion that Order No. 5397 was issued in violation of the applicable statutes, that the Commission did not have the authority to issue it under these circumstances, and therefore it was void when issued.

In view of this conclusion we think it was error for the Commission to receive and consider as proof of public convenience and necessity evidence of Armored Express' operation under Order No. 5397.

The Commission urges that Crichton v. U. S., 56 F.Supp. 876, affirmed by the U.S. Supreme Court at 323 U.S. 684, 65 S.Ct. 559, 89 L.Ed. 554, makes evidence of such operations admissible. It also cites a case decided by the Interstate Commerce Commission in support of this view. Melton Truck Lines, Inc. extension, 15 Fed.Car. Cases 35,384. We have considered these cases but do not find the factual circumstances to be sufficiently akin to the case at bar to control.

Petitioners cite Shrader v. Shrader, 36 Fla. 502, 18 So. 672; McGehee v. Wilkins, 31 Fla. 83, 12 So....