Opinion
March 7, 1952.
Appeal from the Circuit Court, for Leon County, W. May Walker, J.
Charles Cook Howell, Wilmington, N.C., John Ward Henderson, Tallahassee, and G.L. Reeves, Tampa, for appellant.
Lewis W. Petteway, Guyte P. McCord, Jr., and D. Fred McMullen, Tallahassee, for appellees Florida Railroad and Public Utilities Commission.
John M. Allison, Macfarlane, Ferguson, Allison Kelly and A. Pickens Coles, Tampa, for appellees protestant Motor Carriers.
This is an appeal from a memorandum opinion and declaratory decree entered by the Judge of the Circuit Court of Leon County in a suit wherein Richard A. Mack et al., as and constituting the Florida Railroad Public Utilities Commission, filed a bill for declaratory decree against the Atlantic Coast Line Railroad Company, a Virginia corporation, et al. Hereafter we will refer to Richard A. Mack, Wilbur C. King, and Jerry W. Carter, as and constituting the Florida Railroad Public Utilities Commission, as the Commission, and the appellant as the Railroad, and the various others as Motor Carriers.
In 1950 the Railroad filed with the Commission an application for Certificate to Operate Motor Vehicles for Hire as provided for by the provisions of Section 323.26, F.S.A. Thereafter the Motor Carriers filed petitions protesting the granting of such certificate unless the same contained restrictions not provided for in Section 323.26, F.S.A. and also prayed for a hearing to be held by the Commission. The Commission set a date for the hearing on the application and the protests and petitions of the Carriers. No testimony was taken. There were arguments made by counsel for the parties but no rulings or orders were made. The certificate applied for was not issued.
In May, 1951, the Commission filed its bill for a declaratory decree, the gist of which was that the Court declare whether the Commission has the power to include in any certificate issued to a railroad under Section 323.26, F.S.A. restrictions not provided for in the Section above referred to, and to declare whether the Commission has the power to hold a hearing for the purpose of obtaining facts or testimony necessary to determine the nature and extent of such restrictions.
Answers were filed by the Railroad and by the Motor Carriers which squarely presented the issue upon which a declaratory decree was sought. It was urged by the Commission and the Carriers that the Commission had the power to include restrictions over and beyond those specifically set out in Section 323.26, F.S.A.; that the Commission had the power to hold hearings for the purpose of obtaining facts and testimony in order that it could determine the nature and extent of such restrictions, and the Carriers further urged the belief that the operations of the Railroad under such a certificate would be in violation of Section 323, F.S.A.
In due course the Circuit Court handed down its memorandum opinion and declaratory decree. Among other things the declaratory decree included the following:
"The Bill of Complaint filed herein is designed to have the court enter a Declaratory Decree, mainly, with respect to two propositions:
"'1. Whether or not plaintiffs have the power to include in a certificate of public convenience and necessity issued to a railroad company under Section 323.26, F.S. 1949 [F.S.A.], restrictions other and beyond those restrictions specifically set forth in said Section 323.26;
"'2. If it is declared and decreed that plaintiffs have the power to include restrictions in such a certificate other than the restrictions specified in said Section 323.26, then whether or not plaintiffs have the power to hold a hearing for the purpose of obtaining the facts that may be necessary to determine the nature and extent of the restrictions, if any, which should be included in such a certificate.'
"It is the opinion of the writer that the plaintiffs have the power to include restrictions other and beyond those restrictions specifically set forth in said section, provided the same are fair, just and reasonable, and appropriate to the public interest and are not inconsistent with the provisions of said section.
"Subject to the limitation indicated in the preceding paragraph with respect to restrictions, the court is of the further opinion that proposition 2 should be answered in the affirmative.
"It should be further observed, however, that the proviso of the second paragraph of the Statute, Section 323.26, supra, mandatorily requires * * * 'that upon the making of proper application therefor * * the Commission shall, as a matter of right and without a hearing, grant a certificate of public convenience and necessity to any such railroad company * * *'. The statute provides the circumstances and conditions under which the certificate shall be granted as was aptly pointed out in the case of Central Truck Lines v. Railroad Commission, 133 Fla. 190, 182 So. 783.
"Hence, confronted with the clear, unambiguous and unmistakable language of the statute, it seems obvious that when a 'proper application' has been made for a certificate of public convenience and necessity (which application must, of course, embrace a compliance with all statutory conditions precedent entitling applicant to such certificate) that the same should be granted as a matter of right and without a hearing.
"If, notwithstanding the fact that applicant meets and complies with all prerequisites of the statute entitling it to a certificate, a protest or challange be interposed to such application, it seems to the writer (agreeable to the logical reasoning employed in the case of Leonard Bros. Transfer Storage Co. v. Carter, 127 Fla. 198, 172 So. 924) that a certificate should be, nevertheless, tentatively granted in obedience to the mandate of the statute, and such investigations and hearings should thereafter be made and conducted which appear to the Commission reasonably necessary and appropriate to determine the propriety of confirming such certificate so tentatively issued or suspending or cancelling the same for an operation, in truth and in fact, contrary to the statute or otherwise illegal. See sound and pertinent enunciations embraced in the case of Central Truck Lines, Inc., v. Railroad Commission, supra.
"Incidentally, it is not contended in the instant case that the statutory prerequisites entitling applicant to a certificate have not been met."
Although some collateral questions have been injected into this case, the real question to be determined is: When a railroad operating in the State of Florida files under Section 323.26, F.S. 1949, F.S.A., a proper application to operate motor vehicles for hire within the State of Florida, should not the Florida Railroad and Public Utilities Commission grant a certificate of public convenience and necessity as a matter of right and without a hearing, containing only the statutory limitations prescribed in said Section?
The controlling Statute on this question is Section 323.26, F.S.A., which is as follows:
"Railroad companies, their receivers or trustees, operating in this state may operate motor vehicles for hire upon the highways of this state, provided they obtain from the commission a certificate under this chapter; and provided further, that they shall be, as to said motor vehicles, motor carriers under this chapter and subject to all the provisions of this chapter; and railroad companies, their receivers or trustees operating in this state may also own the whole or any part of the capital stock of a corporation or corporations organized or operating as a motor carrier.
"Except as hereinafter provided, no railroad company, its receivers or trustees, nor any company whose stock is owned by a railroad company, its receivers or trustees, shall be granted a certificate of public convenience and necessity without proof such as would be required by an independent motor carrier; provided, however, that upon the making of proper application therefor, by any such railroad company, its receivers or trustees, or by any company other than a railroad company, the majority of whose stock is owned by any such railroad company, its receivers or trustees, the commission shall, as a matter of right and without a hearing, grant a certificate of public convenience and necessity to any such railroad company, or to the receivers or trustees of such company, or to any such company other than a railroad company, the majority of whose stock is owned by any such railroad company, its receivers or trustees, to operate for the transportation of freight, express or United States mail over the highways and public roads of this state, using only the most practicable route located nearest to its rail lines and which is generally used between the communities served by its rail lines, said route as herein defined to be determined by the railroad commission, motor vehicles between and within communities which are connected by and served by the rail lines of any such railroad company, but not elsewhere. The rates and charges for transportation by motor vehicles, as in this section provided, shall be the same as those which any such railroad company, its receivers or trustees may be authorized to charge if such transportation had been solely by rail; and said railroad company, its receiver or trustees, and any company in which such railroad company, its receivers or trustees, may own a majority of the stock, engaged in such operation, shall, to the extent of such operation, be liable for the same fees and taxes as are prescribed for other certificated motor carriers.
"Any certificate granted by the commission as a matter of right under the foregoing proviso shall be granted subject to the following conditions, viz: When any application under this proviso is filed with the railroad commission of Florida the applicant shall attach thereto the schedules upon which it proposes to operate trucks, and such schedules once being filed shall not be changed or enlarged without the authority of the railroad commission after first making application to it and having such hearing thereon as the said commission may require.
"No rate or classification applicable to the service applied for in force and effect as prescribed or allowed by the railroad commission of Florida when such application is made, shall be lowered below the rate or classification of any competing truck lines over the route sought to be served by the applicant without the railroad commission of Florida first having heard an application so to do, upon due notice as is now or may hereafter be required of any other certificated truck line.
"When a certificate granted by the railroad commission under the provisions of this section to a company in which a railroad company may own a majority of the stock has been cancelled or revoked by the commission for violation of law or any lawful order, rule or regulation of the commission, no certificate shall be granted to any other company in which said railroad company may own a majority of the stock to operate over that portion of the route as to which the certificate may have been cancelled." It should be noted that the above Section was amended in 1937, the 1937 law being Chapter 18027, Section (1), which added everything to the original Section 323.26 except the first paragraph, and that part of the second paragraph preceding the first semicolon, and also added references to the receivers and trustees. In other words, under the law as it existed prior to the 1937 amendment, the railroad could be granted a certificate only upon proof such as would have been required by an independent motor carrier. The Legislature by this amendment had definite purposes in mind, and one of the dominant purposes appears to be that a railroad should be granted a certificate to operate as a motor carrier within the terms and the limits set forth by this section "as a matter of right and without a hearing".
It is urged by the appellees here that the entire Chapter of 323 F.S.A. and all provisions thereof should be construed together in order to arrive at the legislative intent and numerous authorities are cited in support of this principle. This principle is correct and fundamental and no citation of authorities is necessary to support it. When we consider and examine the entire Chapter 323 relating to auto transportation companies, we are forced to the conclusion that Section 323.26 is a separate and independent part of the said Chapter and relates solely to the matter of the railroad companies operating motor vehicles under the Chapter, and that it is the duty of the Florida Railroad Public Utilities Commission to grant a certificate of public convenience and necessity as a matter of right and without a hearing when a proper application is made containing only the statutory limitations prescribed in this particular Section.
The lower Court did decide that the certificate should issue as a matter of right and without a hearing, but seemed to limit the same to a tentative certificate, and the lower Court further held that the Commission had the power to include restrictions over and beyond those set forth in the Statute and also had the power to hold a hearing for the purpose of determining the nature and extent of such restrictions. Such limitations set forth by the Chancellor in the Court below are contrary to the plain and unambiguous language of the Statute and contrary to the intent and purpose of the Legislature in enacting the amendment in 1937.
It is quite true that railroads in operating motor vehicles after they have obtained the certificate as a matter of right and without a hearing "shall be, as to said motor vehicles, motor carriers under this chapter and subject to all of the provisions of this chapter". This proviso does not change the right to obtain the certificate as a matter of right and without a hearing. The Legislature itself has determined the right of the railroad companies to receive the certificate when proper application is made and to that extent the Commission is divested of the power and authority which it may have had prior to the 1937 Amendment. After the railroad company received such a certificate as a matter of right and without a hearing, it is subject to the provisions of Chapter 323, F.S.A., with respect to such matters as qualifications of drivers, safety devices, mileage tax, width, height, length of motor vehicles, speed laws and other provisions.
Many cases were cited by the appellees in support of their contention that the Commission had the right to add to the provisions and restrictions other than those contained in Section 323.26, or that the Commission would have the right to hold hearings and take testimony and establish facts as to what would be reasonable restrictions. Among the cases cited were the following: In re Grubb, 116 Fla. 387, 156 So. 482; Central Truck Lines Inc., v. Railroad Commission, 118 Fla. 526, 160 So. 22; Central Truck Lines, Inc., v. Railroad Commission of Florida, 133 Fla. 190, 182 So. 783; Leonard Bros. Transfer Storage Co., Inc., v. Carter, Florida Railroad Commission, 127 Fla. 198, 172 So. 924. We have examined these cases and others cited by the appellees and they are not applicable.
The case of Central Truck Lines, Inc., v. Railroad Commission of Florida, 133 Fla. 190, 182 So. 783, 784, is of particular interest. In that case application had been filed by the receivers of the Seaboard Airline Railway on March 15, 1937. A hearing was set for April 20, 1937. This hearing was continued pending the disposition of proposed legislation which was finally passed and approved June 4, 1937, and became Chapter 18027, Acts of 1937, to which we have heretofore referred. After this chapter became law, an amended application was submitted under the terms of this new Act. Central Truck Lines, Inc. moved to intervene for the purpose of moving to vacate the order which the Commission had made pursuant to the terms of this Act. The motion to intervene was granted, but the motion to vacate and set aside the order was denied. Petition for certiorari was filed with this Court. Writ of certiorari was denied. In the course of the opinion, this Court said: "It will thus be seen that chapter 18027, Acts 1937, does not purport to amend anything more than section 27, chapter 14764, Acts 1931, and, as to this, the gist of the complaint is that it extends to railroad companies the privilege of securing from the Railroad Commission a certificate of public convenience and necessity to carry freight, express, or mail over the public highways as a matter of right without notice of public hearing or proof of necessity therefor."
It is urged by the appellees in their briefs that the Railroad did not file a proper application. This whole proceeding is based upon the filing of a proper application. There was no dispute in the Court below about proper application. The Chancellor in his final decree stated: "It is not contended in the instant case that the statutory prerequisites entitling applicant to a certificate have not been met". It is too late to raise such a question for the first time in this Court in briefs.
We have considered other questions raised; such as, laches, changed traffic conditions, the effect of granting the certificate, and all others, and find them without merit. If changed traffic conditions, or the effect of granting such a certificate, make desirable some amendment or change in the law, the Legislative Department of the Government, and not the Judicial Department, should make the change by amending the law. The Commission has no more power to make the change or amend the law, by the adoption of rule or regulation, than the Court has.
Considerable fear is manifested by the appellees that the Railroad will violate the terms of its certificate or some provision, or provisions, of the law. It is presumed that persons will observe the law and we cannot assume that they will violate the law, or the terms of the certificate. If and when there should be any such feared violation, the Commission, or any citizen, or taxpayer, of the State has ample remedy. See Section 323.24, F.S.A.
We, therefore, hold that under the provisions of Section 323.26, F.S.A.:
(1) The Florida Railroad Public Utilities Commission does not have the power to include in a certificate of public convenience and necessity issued to a railroad company under the Section in question restrictions other and beyond those specifically set forth in the said section.
(2) The Florida Railroad Public Utilities Commission does not have the power to hold a hearing for the purpose of obtaining facts and evidence that may be necessary to determine the nature of and the extent of the restrictions which should be included in such certificate.
Nothing in this opinion, however, shall be construed as limiting the power of the Florida Railroad Public Utilities Commission from holding hearings or making investigations or taking such action as it may have authority to make with reference to violations of the terms of the certificate.
Affirmed in part and reversed in part for further proceedings in accordance with this opinion.
SEBRING, C.J., and CHAPMAN and ROBERTS, JJ., concur.