Opinion
January 2, 1951. Rehearing Denied February 16, 1951.
Appeal from the Circuit Court for Leon County, Hugh M. Taylor, J.
Sam W. Bucklew, Tampa, and Douglas B. Shivers, Tallahassee, for appellant.
Lewis W. Petteway, Guyte P. McCord, Jr., Tallahassee, and D. Fred McMullen, Tampa, for appellees.
The relator-appellant, Cone Brothers Contracting Company, applied to the Florida Railroad and Public Utilities Commission for a "for hire permit" for authority to operate an auto transportation company in the carriage of heavy machinery used in clearing and leveling land and in similar types of work in connection with its construction work. The application was in proper form and supported by attached documents and in every respect conformed to the approved precedents of the Railroad Commission.
The application was made under the provisions of Section 323.05(2), Florida Statutes, as amended, F.S.A. § 323.05(6), and pertinent portions thereof are viz.:
Issuance of Permit, Revocation, etc.: "Upon the filing of such application for permit the commission shall issue the same as of course and without notice of public hearing; provided, the commission may prescribe such reasonable rules, regulations and restrictions in such permit as it may deem necessary for the safety and conservation of the highways and the protection and preservation of transportation facilities as a whole in the territory involved. In its consideration of such questions the commission may require public hearing on the application and in such hearing may consider questions of public convenience and necessity and the effect of the proposed service or carriage, if granted, on existing transportation facilities and on transportation as a whole within the territory proposed to be served and may deny or restrict or modify the proposed service if the same is found to be contrary to the public interest. * *"
The respondents-appellees in their Order No. 2366, for various reasons therein recited, declined or refused to issue a "for hire" permit to the Cone Brothers Contracting Company. On petition of relator-appellant, an alternative writ of mandamus issued out of the Circuit Court of Leon County, Florida, the commands of which directed the respondent Railroad Commission to issue to the relator a "for hire" permit or to show lawful cause for not issuing the same and, second, that the relator be granted other and further relief as provided by law. The respondent Commission filed both an answer and motion on various grounds to quash the alternative writ and the relator filed a motion for peremptory writ, the return notwithstanding.
On the state of the pleadings, supra, the court below entered the following order, which is the basis of this appeal:
"This cause came on this day to be heard upon the motion of respondents to quash and dismiss the alternative writ of mandamus and the petition for same and this Court having heard arguments of counsel for the respective parties and being fully advised in the premises finds as follows:
"1. Respondent, the Florida Railroad and Public Utilities Commission, is vested under the laws of this State with judicial powers in the performance of some of its duties. Said Commission in interpreting Section 323.05, Florida Statutes 1941 (as amended by Chapter 25418, Laws of Florida, Acts of 1949 [F.S.A.]) by its Order No. 2366, denying without hearing the application of Relator for a `for hire' permit, improperly exercised its judicial or quasi judicial powers. By such action it denied to Relator the right to put into the record such testimony and evidence as it might have in support of its application.
"2. Respondent Commission does not have the power under Section 323.05, Florida Statutes, 1941, as amended [F.S.A.], to deny an application for a `for hire' permit filed with it and in proper form except after a hearing held on such application. Said Commission has the discretion to determine whether or not it will hold a hearing or will grant the permit, and although mandamus will not lie to direct it to follow a particular one of said two courses, it will lie to coerce it to act in one way or the other.
"3. Although Respondent has erroneously interpreted said statute, as aforesaid, it does not follow that it should be required, as a matter of course, to issue the `for hire' permit applied for. It is the opinion of this Court that Respondent should now be required to either hold a hearing on this application or issue the said permit. Such opinion was expressed by this Court to counsel for the parties herein following their arguments aforesaid and counsel for Relator announced that it did not care to amend its petition or writ, It is, therefore
"Ordered, Adjudged and Decreed that the motion to quash and dismiss the alternative writ of mandamus be and the same is hereby granted, and the motion of Relator for a preemptory writ notwithstanding the return be and the same is hereby denied."
On this appeal it is contended by counsel for relator-appellant that it is the legal duty of the respondents, under Section 323.05(2), supra, first, to either issue a "for hire" permit as of course and without notice of a public hearing, or, second, to call and hold a public hearing to determine such questions as public convenience and necessity, when the permit could be (a) denied; (b) restricted; (c) modified if found to be contrary to the public interest. Counsel for appellees contend that the construction placed on the involved statute by the Honorable Hugh Taylor, Circuit Judge, is sustained by the applicable authorities and clearly reflects the intention of the Legislature. Likewise, it now is the lawful duty of the respondent to issue to the applicant a "for hire" permit or to hold a public hearing on its application therefor. In the course of oral argument heard at the bar of this Court, it was stated that the Court below suggested an amendment of the pleadings of the parties so as to allow the issuance of a peremptory writ commanding the holding of a public hearing by the Railroad Commission on the pending application of the relator-appellant, which suggestion by the lower Court was declined by counsel. We fail to find error in the record. The judgment appealed from is affirmed but without prejudice to the appellant to amend upon the going down of our mandate, as suggested by the Court below.
ADAMS, C.J., and TERRELL and THOMAS, JJ., concur.
HOBSON and ROBERTS, JJ., dissent.
SEBRING, J., not participating.
I am constrained to dissent from the majority opinion because I have the view that Section 323.05, Florida Statutes 1941, as amended F.S.A., when considered in toto makes it mandatory upon the Commission to issue the permit "as a matter of right" — "as of course and without notice of public hearing" unless the Commission in exercising the only discretion given to it should decide to "require public hearing on the application".
There are several reasons why I feel that the word "shall" in paragraph 6 of Section 323.05, supra, should not be construed by this Court to mean "may." In the first place, the intent of the legislature should be found in the language used by it unless the wording is not clear or is ambiguous. The language used by the legislature in the foregoing paragraph of the Act under consideration is certainly clear. Another reason why I feel that the word "shall" is mandatory is because in the same paragraph 6 the legislature used the word "may" in connection with giving the Commission the discretion to require a public hearing. This use of the two words in the same paragraph of the same Act leads to the logical conclusion that the legislature knew what it was doing, knew the difference between "shall" and "may" and designedly used the former in one instance and the latter in another. Finally, upon a consideration of the entire Act, I am persuaded that it is essentially a regulatory and revenue-producing measure enacted in recognition of the right to use, and designed to permit free and unfettered use of, our public highways by one engaged in a lawful business enterprise unless the Commission for some legitimate reason exercises its discretion to require a public hearing and upon said hearing appropriately decides that issuance of the permit would be adverse to the public interest.
In paragraph 1 of the Act we find the following language: "* * * which permit shall issue as a matter of right and of course when the provisions of this chapter and the laws of the State of Florida touching such motor vehicle operation have been complied with by the applicant." (Italics supplied.) When the foregoing language and the provisions of paragraph 6 are considered in connection with the following language of paragraph 3, to-wit: "No such permit shall be required in respect to the private carriage or distribution of his own goods, wares or merchandise over public highways by any person using his own motor vehicles in such carriage", it is evident that the legislative intent was to direct the Commission to issue the permit "as of course and without notice of public hearing", or, in its discretion, hold a public hearing and, after such hearing, "deny or restrict or modify the proposed service if the same is found to be contrary to the public interest." (Italics supplied.) The Commission upon examining an application might have occasion to suspect that the proposed service might be contrary to the public interest but the only way it is authorized to make such determination and deny the permit is to hold a public hearing. Such construction finds ample support in the language of this Court in the case of In re Grubb, 116 Fla. 387, 156 So. 482, 483, wherein we said:
"* * * it is not only within the power of the commission, but it is its duty to have such hearing and to make such investigation and findings as will advise it in the premises where the nature and scope of the proposed service as outlined in an application suggests some special inquiry on that score."
Nowhere in the statute is the Commission granted the right to deny an application without first exercising its discretion in favor of holding a public hearing. The reason for according to the Commission the discretion of holding a public hearing, if the application suggests need for special inquiry, and in authorizing the Commission only after public hearing to deny the permit, is not only to accord to the applicant his inherent privilege to use the public highways for any legitimate purpose but likewise to preserve to the applicant his constitutional right to due process of law. If the Commission had the authority to deny a permit without first exercising its single discretion to afford a public hearing, the applicant would be precluded from appeal to the courts because there would be no basis or predicate for an appeal.
The construction which I place on the words "shall issue the same as of course and without notice of public hearing" does not lead to absurdity or an evil result. Indeed, it is consonant with our system of government for no man's legitimate enterprise should be condemned or prohibited without a hearing and a determination that engaging in such business would be inimical to the public interest. Particularly is this true when a consideration of the entire Act leads inevitably to the conclusion that it was enacted in definite recognition of the normal right of free use of public highways.
If we should indulge in speculation and conjecture (as did the Commission when without a public hearing it determined that the issuance of the permit would be inimical to the public interest) and assume that the strict letter of the statute here under consideration would lead to an evil result, such evil result would not flow from the legislative intent as gleaned from the clear language of the Act or from the common usage connotation which I feel we are compelled to give to such wording, but rather from the Commission's unauthorized and arbitrary action in denying the application after having exercised its only discretion by deciding against holding a public hearing. Moreover, the courts in determining whether the interpretation consonant with the strict letter of the statute would lead to an evil result should consider whether such evil result would generally and/or inevitably follow such interpretation, not whether an evil result might be brought about in a single or isolated instance which is the most that can be said with reference to my construction of Section 323.05 Florida Statutes 1941, as amended, F.S.A.
I would reverse the judgment from which this appeal was prosecuted and direct the Commission to issue the permit because it has already exercised the only discretion granted to it in determining that a public hearing was unnecessary. When the Commission has exercised its single discretion (to hold a public hearing if the "application suggests some special inquiry") and has determined to not hold a public hearing nothing remains for the Commission to do except to perform its mandatory duty to issue the permit "as of course and without notice of public hearing."
ROBERTS, J., concurs.