Opinion
November 28, 1950. Rehearing Denied December 21, 1950.
Charles Cook Howell and Frank G. Kurka, Wilmington, N.C., for appellant.
Lewis W. Petteway, Guyte P. McCord, Jr., Tallahassee, and D. Fred McMullen, Tampa, for appellees.
Petitioner applied to respondent for permission to discontinue Cross City as a regular stop for trains 32 and 33 and substitute in lieu thereof a conditional service under which train 32 Northbound would stop at Cross City to discharge passengers arriving from Tampa and St. Petersburg and points beyond and to receive passengers destined to Thomasville and points North. Train 33 Southbound, would stop at Cross City to discharge passengers arriving from Thomasville and points North, and to receive passengers destined for Tampa and St. Petersburg and points beyond. This appeal is from an order overruling appellant's application to substitute the conditional service in place of the regular stop service. It is treated as an appeal by certiorari under Rule 28 of the Rules of this Court, 30 F.S.A.
The point for determination is whether or not the order of respondent, hereinafter referred to as the Commission, is just and reasonable as contemplated by the controlling law.
Section 350.12(1) F.S.A. requires that regulatory orders of the Commission be just and reasonable and that they look to the safety, care, comfort and convenience of the public. The answer to the question presented turns on the application of this and other applicable statutes to the proofs shown by the evidence. At the outset it is pertinent to point out that trains 32 and 33 better known as the "Southland" are through passenger trains from Chicago, Ill. to St. Petersburg and Tampa, Florida. They pass Cross City daily, it is a regular stop and has a population of about 1800.
The evidence shows that the substituted service proposed by petitioner would have very little effect on Cross City traffic. Both trains would continue to stop and discharge passengers. Out going passengers would have to flag the train or make arrangements with the agent who is on duty from 8:30 A.M. to 5:30 P.M. to have the trains stopped. During the month of November 1949, trains 32 and 33 picked up only six passengers at Cross City. The only other passengers that would be affected would be those at Cross City traveling to and from points between Thomasville and St. Petersburg and the record shows that no such passengers applied for transportation.
It is further shown that during the period, November 1st, 1948 to November 30th, 1949, inclusive (13 months) train 32 Northbound made 232 stops at Cross City when no passengers boarded or alighted therefrom and train 33 Southbound, made 288 stops when no passengers boarded or alighted therefrom. When these figures are broken down they show that on an average 65 per cent of the stops that trains 32 and 33 make at Cross City they do so without handling a single passenger to or from the City. It is not to be overlooked that the small number of passengers who use these trains can still have the service under the substituted service, by flagging or having the agent to stop the trains.
But this is not all. In addition to the potential service offered by trains 32 and 33, appellant operates trains 483 Southbound and 482 Northbound daily except Sunday, between Thomasville and Burnett Lake through Cross City. In addition to this service Tamiami Trail Tours, Inc., operates six buses in each direction daily between Tallahassee and Tampa through Cross City. Florida Greyhound also operates eight buses daily between Tallahassee and Miami through Cross City. It is further shown that petitioner's ticket sales declined at Cross City twenty-two per cent in 1949 over 1948. These facts and figures show that to grant the proposed request Cross City would still have ample passenger service. The evidence also shows that trains 32 and 33 lose from five to twelve minutes each stop they make, that the cost of each stop is above three dollars and that when computed on this basis the total of unnecessary stops impose a heavy burden on appellant to operate its interstate traffic.
In response to that part of the Commission's finding relative to interference with express shipments that would be caused by the discontinuance of Cross City as a regular stop by trains 32 and 33, it is sufficient to point out that the evidence shows that most of the express to and from Cross City is handled by trains 482 and 483. Very little is handled by trains 32 and 33 and most of that whether placed on trains 32 and 33 or on trains 482 and 483, would arrive at destination at the same time. Moreover it does not appear that any shipper or receiver of express appeared at the hearing to resist appellant's application or complain about the express service in any way.
In furnishing passenger service public service carriers must give heed to the demands of the public. In interstate transportation the prevailing demand is for rapid through service. The rule seems to be well settled that interstate passenger trains may not be required to serve local stations when it is shown that passenger facilities furnished by the carrier are adequate and reasonable. Atlantic Coast Line Railroad Co. v. Wharton, 207 U.S. 328, 28 S.Ct. 121, 52 L.Ed. 230; Mississippi R.R. Comm. v. Illinois C.R. Co., 203 U.S. 335, 27 S.Ct. 90, 51 L.Ed. 209; Herndon v. Chicago R.I. P. Ry. Co. 218 U.S. 135, 30 S.Ct. 633, 54 L.Ed. 970. These are Federal cases dealing largely with interstate traffic but the doctrine announced by them is no less applicable here. The theory of the decisions in these cases is that when the railroad company is providing ample facilities for the accommodation of the traveling public and operates interstate trains with passenger facilities through the same places at which such interstate trains do not stop, a state regulation which requires such interstate trains to stop, in addition to ample facilities already provided, is an unlawful regulation and a burden on interstate commerce.
Summarized the situation adds up to this: Trains 32 and 33 are fast interstate trains and in most of the stops made by them at Cross City they do not pick up or discharge any passengers. Trains 482 and 483 are also interstate but not fast trains and offer the same passenger service. Passengers from Cross City can have the service of trains 32 and 33 by flagging. This is a very slight inconvenience to them against the cost of unnecessary stops to appellant, and both the hindrance and delay imposed on interstate traffic. Petitioner's ability to get interstate traffic is largely determined by the time and speed within which it reaches destinations. Interstate passengers should not be required to pay for fast transportation, then be forced to travel local. The disparity between the inconvenience to such a limited Cross City traffic and the cost, delay and burden to appellant is so out of proportion that we think the application for conditional service was reasonable and just and should have been granted.
Certiorari is therefore granted and the order of the commission is quashed.
It is so ordered.
ADAMS, C.J., and CHAPMAN and ROBERTS, JJ., concur.
THOMAS and HOBSON, JJ., dissent.
SEBRING, J., not participating because of illness.
I do not believe that Petitioner has carried its burden of showing that the order entered by the Respondents, as and constituting the Florida Railroad and Public Utilities Commission, was illegal or unauthorized; nor has it been made clear by the Respondents that the order fails to accord with the essential requirements of law controlling the matter brought here for review. Error has not been made clearly apparent.