Van Arsdale v. King

• Decision Date: 30 January 1963
• Docket Number: No. 32054,32054
• Parties: W. Palmer VAN ARSDALE, Frank R. Gernert, Florida Tank Lines, Inc., and Redwing Carriers, Inc., Petitioners, v. Wilbur C. KING, Jerry W. Carter, and Edwin L. Mason, as members of and constituting the Florida Railroad and Public Utilities Commission, Respondents.
• Court: Florida Supreme Court

Page 353

149 So.2d 353

48 P.U.R.3d 204

W. Palmer VAN ARSDALE, Frank R. Gernert, Florida Tank Lines, Inc., and Redwing Carriers, Inc., Petitioners, v. Wilbur C. KING, Jerry W. Carter, and Edwin L. Mason, as members of and constituting the Florida Railroad and Public Utilities Commission, Respondents.

No. 32054.

Supreme Court of Florida.

Jan. 30, 1963.

Lewis H. Hill, Jr. (of Hill, Hill & Dickenson), Tampa, for petitioners.

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

A. Pickens Coles, Tampa, James E. Wharton, Lakeland, and Coles, Himes & Talley, Tampa, for Tropical Transport, Inc., Commercial Carrier Corp. and Clay Hyder Trucking Lines, Inc., protestants.

Sack & Sack, Wm. Joe Sears, Jacksonville, and D. Fred McMullen, Tallahassee, amici curiae.

THORNAL, Justice.

By a petition for a writ of certiorari we are requested to review an order of the respondent Commission in a common carrier stock transfer proceeding.

We must determine whether Section 323.10(2) authorizes the Commission to declare abandoned because of dormancy a portion of a certificate held by a non-schedule, irregular route carrier of specified commodities.

Since 1953, Florida Tank Lines, Inc. has held a certificate of public convenience and necessity authorizing it to transport cement and other similar commodities 'between all points in Florida over irregular routes.' The petitioners Van Arsdale and Gernert, being the owners of all of the capital stock of Florida Tank Lines, Inc., propose to transfer the same to Redwing Carriers, Inc. They initiated a proceeding under Section 323.041, Florida Statutes, F.S.A., seeking approval of the stock transfer. The Commission finally approved the transfer, subject to a restriction against the transportation of cement from originating points in Hillsborough, Dade, Duval, and Flagler Counties 'until the further order of this Commission.' It was the view of the Commission that since the record revealed that Florida Tank Lines, Inc., had not transported cement in bulk from points in the four counties for more than six months, there was a prima facie showing that its certificate had become dormant as to those points of origin. It concluded that the transfer should be subject to a restriction for dormancy to be finally concluded in a separate proceeding under Section 323.10(2), Florida Statutes, F.S.A. The Commission also appeared to have the view that it could not finally adjudicate the matter of dormancy in the transfer proceeding. Hence, it placed 'a temporary limitation' against the certificate 'until the procedures provided for in Section 323.041 [Sic] have run their course * * *' The reference should have been to Section 323.10(2).

The petitioners here contend that the respondent Commission has no power to declare a partial revocation of a non-schedule, irregular route certificate because of dormancy. It is also contended that there was no showing of dormancy in the instant case.

The respondent Commission, with the support of certain protestants, contends that the subject restriction is not a final adjudication of dormancy and that any consideration of the merits of the ruling would be, at this point, premature.

It is true that the subject restriction was announced by the Commission to be 'a temporary limitation of authority.' The Commission also found that a prima facie showing of dormancy had been made but that the question would be finally adjudicated in a separate proceeding under Section 323.10(2), Florida Statutes, F.S.A. To the extent indicated the restriction has not become final. However, if the respondent has no power to declare a partial abandonment of the type of certificate before us, then even the temporary restriction announced in the transfer proceeding is a deviation from the essential requirements of the law. To that extent it is subject to review. Such a limitation could constitute a substantial impediment to the stock transfer negotiations. If the respondent Commission has no power under any circumstances to declare a partial abandonment of the so-called limited common carrier certificate there would seem to be no occasion to await the results of a separate proceeding before deciding the question. As we shall see, a separate proceeding is actually unnecessary.

It is important to have in mind the nature of the service rendered by Florida Tank Lines under its certificate. As pointed out above, it transports bulk cement and similar commodities over irregular routes when service is required by a particular shipper. It is not required to operate on specified schedules or between specific points and places. It could in some measure be analogized to charter service in the passenger field.

In the instant case there was no question but that Florida Tank Lines has maintained an adequate, well-equipped fleet of vehicles to meet every demand that has been made for its services. There is no question as to its financial stability or the efficiency of its operations. There was testimony that for more than six months Florida Tank Lines had not transported bulk cement or other commodities under its certificate from any points in Dade, Duval, Hillsborough or Flagler counties. However this was explained by the fact that competing carriers had contracts for moving cement out of the four counties, and that no request had been made on Florida...