Opinion
August 10, 1951. Rehearing Denied October 18, 1951.
Petition for review from the Florida Railroad and Public Utilities Commission.
Mabry, Reaves, Carlton, Anderson, Fields Ward, Tampa, for petitioner.
Lewis W. Petteway, Guyte P. McCord, Jr., and D. Fred McMullen, Tallahassee, for Florida Railroad Public Utilities Commission.
A. Pickens Coles, Tampa, for Tamiami Trail Tours, Inc., Central Truck Lines, Inc., Great Southern Trucking Company, Hunt Truck Lines, John Morris Trucking Service, Inc., Lee Terminal Warehouse Storage Co., Fogarty Bros., and Galloway Transfer Storage Co., respondents.
Although this matter comes to us on a petition to review only the third, and final order denying the petitioner's application for a certificate of public convenience and necessity, it seems to us fitting to digest two prior orders as well. In this way we can arrive at the chronology of the proceedings, the relevant facts and, more importantly, the course of reasoning the commission followed to a conclusion unfavorable to the petitioner.
Jack's Cookie Company makes cookies and distributes them in its own vans from Tampa to Miami and from Tampa to Jacksonville. Weathermaster, Inc., manufactures lightweight aluminum jalousies, or outside venetian blinds, in Miami. The former sought authority of the commission to transport as a private contract carrier the products of the latter. Thus, obviously, the petitioner would acquire pay loads for its trucks which would otherwise return empty to Tampa.
In the first order the commission recited this factual situation and found that transportation companies serving the area involved were "ready, willing and able" to transport the products of Weathermaster, Inc., which were "no less [sic] fragile than much of the property * * * now being moved safely by the certified carriers * * *." From this order it appears that one of these carriers moved that the application be dismissed on the ground, among others, which were not stated, that there had been no compliance with Sec. 323.04, Florida Statutes 1941, F.S.A., because a sworn statement of the subject matter of a contract regulating the proposed operation had not been embodied in the application. The commission thought a letter from the manufacturer of the blinds to the petitioner confirming an understanding that a certain amount would be paid for transportation services was not sufficient to meet the requirement of the statute, (1) (d), that "A sworn copy or statement of the subject matter of the contract" be specified. The commission concluded that the proposed operation would "infringe upon public convenience and necessity of maintaining existing transportation systems and fostering fair distribution of traffic and would * * have an adverse effect upon transportation as a whole within the territory involved," hence, "public convenience and necessity [did] not require the granting of the application."
Upon motion of Jack's Cookie Company this order was vacated, and the matter was re-heard. This time the commission elaborated upon the facts to considerable extent. It now found that the jalousies were made in various sizes, from two to forty square feet to fit the openings of houses for which they were ordered by individual customers; also that in the petitioner's trucks there had been permanently installed rubber or felt lined racks to accommodate the blinds without the necessity of crating them. In this manner the blinds were separated from one another by material that gave them proper protection. The blinds themselves, so the commission remarked, had "baked-on enamel and, therefore, a scratch requires a return of a blind to the factory for repainting." The petitioner, stated the commission, makes regular trips so Weathermaster, Inc., is assured prompt delivery of jalousies to customers.
Continuing, the commission found that the manufacturer had tried to use established common carriers and that they at first had hauled the blinds without crating, then required that this be done. The commission here repeated the language of the first order that the blinds were "no less [sic] fragile" than much freight being hauled safely by common carriers, but they now qualified this statement by observing that the jalousies were, however, possessed of "certain peculiarities" distinguishing them from "other types of fragile shipments" because they were composed of thin aluminum, of very light weight and "they bend and scratch easily." The commission then gave some very cogent reasons why the manufacturer should not be required to crate its products. For instance, the blinds being of varying sizes, made to order, this requirement would put upon the manufacturer the expense of having a separate crate made for each blind; a crate weighs from three to five times as much as the blind itself so the charge for transporting the crates would be more than for transporting the contents; also, "The expense of crating is equal to the manufacturing cost of the blind" so the cost upon delivery to the carrier would be doubled.
The commission then observed that an officer of the manufacturing company had testified that if it became necessary to enclose the blinds in crates to meet the demands of the carriers, his company would be forced to discontinue selling to any customers save those who would call for the blinds at the factory. The commission next passed to the testimony of the protestants that they would accept the blinds if wrapped in heavy paper, but this proposition seems to have met with small favor and was discarded in this language: "However, it appears that the other blinds being handled in such manner * * * are built of heavier material and are, therefore, not as fragile as the blinds of Weathermaster, Inc. Since this company has had to work out its transportation problem in another way with applicant, the regular route common carriers not having accepted its blinds wrapped in paper heretofore, it would now be unreasonable to deny their application for the purpose of requiring Weathermaster, Inc. to experiment with paper wrapping in the use of the common carriers." (Italics supplied.) The commission then explored the field of operations by "household goods carriers" and disposed of any suggestion that these carriers could be practicably used by pointing out that they did not operate on schedule, did not accept a load of less than 5,000 pounds to one destination, and so on.
Even so, the commission announced that it did not "look with favor" upon certificates to companies distributing their own products and utilizing their equipment for return hauling of the property of others "which ordinarily would be carried by common carriers" because such a policy "would have a serious effect upon transportation facilities within the territory involved." Then appeared this bald statement: " It appears from the evidence, however, that the transportation service needed by Weathermaster, Inc. for its special type of product is a special service that the common carriers authorized to serve the area cannot adequately furnish, and is a service that has been offered only by applicant." (Italics ours.)
In spite of these considerations "favorable to the granting of this application" the commission again became deeply concerned about the contract between the petitioner and the manufacturer, because of the statute we have already cited and also because of the commission's own rule that a copy of the contract or a statement that a contract had been executed, together with a resume of its contents must accompany the application.
Again the application was denied — this time squarely on the proposition that the contract was deficient, although at the time of the first order, while the commission mentioned this point, that body seemed troubled mostly by the effect upon existing transportation systems.
At the close of this chapter, and the entrance upon the next, we now have a much clearer view of the controversy, but by the very same token we find a great difficulty in reconciling the various findings. For instance, companies holding certificates were ready, willing and able to transport the product, yet they would not accept it for transportation unless crated, the cost of which the commission considered prohibitive, or wrapped in heavy paper, which the commission thought should not be required. Although it was at first believed that materials no more fragile were being transported, it was later observed that the particular product was of such light construction and so easily damaged that, after all, it was entitled to uncommon consideration or treatment and to special facilities which only the petitioner would, or could provide. And, besides these, the only other type of transportation mentioned, "household goods carriers," were put aside as not being able to furnish the service.
But again we find that the contract was not acceptable, so it seems to have been on that ground that the application was denied the second time. It will be recalled that in the first order the principal objection was the infringement upon public convenience and necessity as relating to maintenance of existing transportation systems, a consideration which seems to have waned for later the commission found that the special service offered by the petitioner could not be adequately furnished by common carriers then serving the area.
This brings us to the next phase of the controversy. The commission granted a rehearing and there was then submitted to it a formal written contract. We shall avoid repeating any of the recitals of the last order that appeared in the first two and shall relate only what was then observed for the first time. The commission quoted the third paragraph of Sec. 323.04(3), Florida Statutes 1941, F.S.A.
"When application is made by an auto transportation company for a certificate to operate as a private contract carrier in a territory or on a line already served by a certificate holder, the commission shall grant same only when the existing certificate holder or holders serving such territory fail to provide service and facilities which may reasonably be required by the commission."
The commission acknowledged its duty, in dealing with its certificates to private contract carriers to consider the "`effect that the granting of such certificates may have upon transportation facilities within the territory sought to be served by the applicant' and the adverse effect, if any, the granting of the certificate will have upon transportation as a whole within said territory"; also not to take into account "the transportation needs of any particular community." It was the commission's view that authority for "back-haul" operations to business enterprises distributing their own products "would soon result in the complete destruction of the regulated common carriers in the State." As "another reason" for denying the application, the commission thought the arrangement, after all, was not one of "private contract carriage" but "common carriage." With these pronouncements and acknowledgments as a preface four distinct grounds for ultimately denying the application were given: (1) a contrary ruling "would jeopardize existing transportation facilities in the territory involved * * * and * * * seriously threaten the financial soundness and stability of existing carriers"; (2) "maintenance of an adequate and sustained transportation system for the benefit of the public at large requires that this application be denied"; (3) the commission had no authority to grant the application because the carriage contemplated would be "common" as distinguished from "private contract"; and (4) "Public convenience and necessity require that said application be denied."
We shall now concentrate on the last order, the one with which we are directly concerned, the reader having been acquainted with the reasons for denial of the application on the first two presentations.
We have no criticism of the policies and principles embraced by this important commission in its earnest, worthy and conscientious efforts to cope with the enormous task of regulating transportation in furtherance of the purposes and objects of the act. Certainly, the commission can be only commended for preserving and protecting public convenience and necessity, fostering fair distribution of traffic and promoting the welfare of the public and those serving the public under the commission's supervision. Nor will we undertake to criticize their disfavor of competition to established certificate carriers that would arise from promiscuously authorizing various enterprises engaged in delivering their own wares to accept "back-haul" pay loads. The evil of too much generosity in this respect is obvious.
But the facts here as they are outlined in the commission's own orders seem somewhat afield of the pattern the commission has created.
To begin, the statute last quoted in full contains the provision that an application for private contract carriage in an area served by a certificate holder should be granted only when the certificate holder fails to provide service and facilities reasonably required. This clearly implies that there may be circumstances where a particular service is not afforded by established carriers and where to meet the need the commission can authorize the transportation offered by another. We are not apprised whether there was any requirement that the established carriers furnish the equipment that the manufacturers of the jalousies needed in order to deliver their products unmarred to their customers. It is plain that the commission thought that the jalousies were of such delicate material and finish that they needed the transportation equipment the petitioner furnished. The commission held that these were available from no one else; that the cost of crating would be prohibitive; that the blinds, in the final analysis, could not be handled as those of heavier material; that the manufacturer could not resort to household goods carriers; and that it ought not to be required to experiment with shipping in paper. Thus, every other means of transportation except that offered by the petitioner seems to have been eliminated.
In this situation, and particularly in view of the representation of the manufacturer that it would be required as a result of a contrary ruling to discontinue a large part of his business, we fail to understand how the granting of the application could jeopardize existing transportation facilities, threaten the soundness and stability of existing carriers, affect the maintenance of an adequate and sustained transportation system, or impair public convenience and necessity. If the existing carriers do not furnish the equipment that petitioner offers, the matter of competition seems to be eliminated. We think that it is rather farfetched to suggest that if the existing carriers do not, or will not, equip their trucks properly to handle the product of Weathermaster, Inc., the manufacturer should go out of business in the area served by them. That would amount to an application of a principle that would in a sense defeat itself. It is no answer to say that present certificate holders are ready, willing and able to carry the jalousies when from findings of the commission based on evidence, it appears that they are not equipped to do so without probable damage to the product or prohibitive expense to the manufacturer. There seems to have been no effort originally on the part of the manufacturer to avoid patronizing the established carriers or to create competition to them, because he had attempted to use their trucks and had discontinued the relationship because they required that the blinds be crated. Patently, the manufacturer resorted to the present method of transportation because none other was available.
It is crystal clear from the commission's findings that the petitioner has offered the equipment necessary safely to transport the blinds and that no other company has done so or been required to do so.
We, of course, are chary of interference with the orders of the Railroad and Public Utilities Commission, but it seems to us that the findings in this case, by application of the essential requirements of law, lead to a conclusion directly contrary to the one reached by the commission.
The granting of a certificate under the facts peculiar to this case would be only the recognition of an exception, strengthening rather than weakening the rule against creating competition to established carriers by permitting companies distributing their own goods to take a "back-haul" pay load.
Geographically, the same territory would be traversed by the petitioner and the protestants, but just there any similarity of competition seems to end. No customer of the carriers would be weaned away from them by granting the petition and, if the testimony of the Weathermaster's officer, dignified by recital in the order, be true no business would flow to the carrier by denying the petition for the simple reason that Weathermaster's jalousies in that case wouldn't be carried at all.
If these be sound principles, and we think they are, existing facilities could not be jeopardized, the financial structure of the protestants could not be damaged, the transportation system and public convenience and necessity could not be impaired.
And so we say in this unusual situation clearly defined by the facts determined by the commission itself, there was a departure from the essential requirements of law which should be rectified by an opposite ruling.
The objection that the contract is not one for private carriage has not escaped our attention. We think it has no merit.
The petition for certiorari is therefore granted and the order denying the application is quashed.
SEBRING, C.J., and TERRELL and HOBSON, JJ., concur.