On February 12, 1937, E.T. Hamil made affidavit before E.G. Duckworth, Justice of the Peace, First District of Orange County, Florida, charging a violation of Chapter 14746, Acts of 1931, in the following language:
"Chester Fohl was driving, operating, or causing to be operated a motor propelled vehicle, to-wit: A Reo Speed *Page 308 Wagon, Pennsylvania 1937 license V734B, and semi-trailer, Pennsylvania 1937 license Tag No. 0741, said vehicle being used upon the highways of the County of Orange in said Justice District, and State of Florida, for the transportation of property for compensation in violation of Chapter 14,764, Acts of 1931, Laws of Florida.
"2. Said defendant has not complied with the police regulations of the State of Florida as set forth in Chapter 14,746, Acts of 1931, Laws of Florida, and has not paid to the State of Florida, mileage tax lawfully due to the State of Florida, by virtue of such operation over the highways of the State.
"3. The State Railroad Commission has not given its consent or approval to any operation in said County and Justice District, by the said Chester Fohl, for the transportation of property for compensation over the public highways of the State of Florida, and the said Chester Fohl not having had assigned routes, secured number plates, filed public liability and property damage insurance, nor complied with other police regulations of Chapter 14,764, Acts of 1931, Laws of Florida."
A warrant issued on said affidavit and the defendant taken into custody and at a hearing held on June 24, 1937, on the following stipulation of facts, Chester Fohl was remanded to the custody of the Sheriff of Orange County, Florida, viz.:
"1. That on February 12, 1937, Rice, Trew Rice Company, Inc., and Walter Howe jointly owned the truck described in the information in this cause and then being driven by Chester Fohl, an employee.
"2. That on the occasion of the arrest of Chester Fohl, on February 12, 1937, he was entering Orlando, Florida, from Biglerville, Pennsylvania, with a load of Growers' *Page 309 supplies, produced and owned by Rice, Trew Rice Company, Inc., and being transported in the truck aforesaid from Rice, Trew Rice Company, Inc., at Biglerville, Pennsylvania, to Rice, Trew Rice Company, Inc., at Orlando, Florida; that in the transportation of such goods the said Chester Fohl was subject to the direction, under the control of and operating for Rice, Trew Rice Company, Inc., and that the said Chester Fohl was then and there an employee and receiving wages only for his services and no other kind of compensation.
"3. That the said truck so owned by Rice, Trew Rice Company, Inc., and Walter Howe was operated on its trips into Florida on the following basis and no other: That it made trips from Biglerville, Pennsylvania, to Orlando, Florida, and in the making of such trips it transported growers' supplies to be used by growers and shippers in Florida to whom said goods were sold in this State by Rice, Trew Rice Company, Inc., and that at all times during the transportation of such goods and supplies they belonged to, were the property of and were produced by Rice, Trew Rice Company, Inc.; that upon said truck reaching Orlando, Florida, it would take on a load of citrus fruits or vegetables there purchased by Walter Howe, and at the time said citrus fruits and vegetables were loaded upon said truck they were the property of Walter Howe, and transported to him at Biglerville, Pa., for sale there through his produce store; that on return trips from Florida said truck was not used for any other purpose or purposes whatsoever and was at all times subject to the direction of Walter Howe as was his employee, Chester Fohl.
"4. That in the transportation of said goods no profits whatsoever therefrom are realized by Rice, Trew Rice Company, Inc., or by Walter Howe from the operation of *Page 310 said truck; that they tentatively estimate the actual cost of the operation of said truck at ten cents per mile and contribute accordingly to a common fund for the purpose of defraying the actual expenses incident to operating same, out of which fund the truck is maintained and the truck driver is paid, and Walter Howe is paid a wage of $20.00 per week for supervising said operation; that in the event such common fund so contributed to exceeds the actual cost of such operation, then from time to time Rice, Trew Rice Company, Inc., and Walter Howe are reimbursed to the extent of such excess in said common operating fund.
"5. That the operation charged by said warrant as constituting a violation of Chapter 14764, Laws of Florida, Acts of 1931, consists of and is limited to the transportation of the goods of Rice, Trew Rice Company, Inc., to and for Rice, Trew Rice Company, Inc., from Biglerville, Pa., to Orlando, Florida, on February 12, 1937."
On June 28, 1937, petitioner represented to this Court that he was illegally deprived of his personal liberty and detained in custody without lawful authority by Frank Karel, as Sheriff of Orange County, Florida. A writ of habeas corpus issued and the cause is now before this Court.
The question for decision is: from the above statement of facts are Rice, Trew Rice and Walter Howe required to obtain from the Florida Railroad Commission a certificate of public convenience and necessity or permit?
The intention of Chapter 14764 is to protect our system of highways and in doing so considerable authority is lodged with the Railroad Commission wherein it has power to fix the weight, width, height and length of motor vehicles traveling the public highways of Florida. All transportation companies for hire are required to obtain certificates *Page 311 of public convenience and necessity from the Railroad Commission prior to the use of the public highways, but a certificate of public convenience and necessity is not required of those using the highways for transportation purposes not for hire, where the same is incidental to their said business or businesses. See Section 30, Chapter 14764, Acts of 1931:
"* * * Nothing in this Act contained shall be construed or applied to require any private motor vehicle engaged in the transportation of goods, wares or merchandise belonging to the owner or operator of such vehicle to secure a permit or a certificate of Public Convenience and Necessity under the provisions of this Act or to become subject to regulations prescribed by this Act or by the Railroad Commission in respect to common, private contract or for hire carriage, or to pay the mileage tax provided by this Act. * * *"
Our Supreme Court in Coleman v. Achim, 114 Fla. 91,153 Sou. Rep. 96, speaking through Mr. Justice BUFORD, said:
"It may be said that Chapter 14764 was enacted primarily to authorize State supervision and control of motor vehicles operated for hire on the public highways of the State of Florida and that public welfare was the prime consideration for the enactment of the statute. When the State assumed to supervise and control the operation of motor vehicles for hire on the State highways, it became the duty of the State to cast reasonable provisions for protection around those vehicles and the operators thereof which were required to comply with the law and it also became the duty of the State to enact provisions for the protection of the public in connection with the use by the public of such motor vehicles." *Page 312
The rights of citizens and their use of the highways for the transportation of property was considered in suit of State v. Quigg, 94 Fla. 1056, text p. 1066, 114 Sou. Rep. 859, and the following language was used:
"`The right of a citizen to travel upon the highway and transport his property thereon, in the ordinary course of life and business, differs radically and obviously from that of one who makes the highways his place of business and uses it for private gain in the running of a stage coach or omnibus. The former is the usual and ordinary right of a citizen, a common right, a right common to all, while the latter is special, unusual and extraordinary. As to the former, the extent of legislative power is that of regulation; but, as to the latter, its power is broader. The right may be wholly denied, or it may be permitted to some and denied to others, because of its extraordinary nature. This distinction, elementary and fundamental in character, is recognized by all the authorities.'"
The right to use the highways is treated in 13 R.C.L. p. 253, par. 209:
"The right to use the highway and streets for purposes of travel, however, is not an absolute and unqualified one, but may be limited and controlled by the State in the exercise of its police power, whenever necessary to provide for and promote the safety, peace, health, morals, and general welfare of the people, and is subject to such reasonable and impartial regulations adopted pursuant to this power as are calculated to secure to the general public the largest practical benefit from the enjoyment of the easement, and to provide for their safety while using it. * * * It is the province of the Legislature to decide upon the wisdom and expediency of such regulations and restraints, and the courts cannot declare them void, or interfere with their *Page 313 operation, unless they are so manifestly unjust and unreasonable as to destroy the lawful use of property, and hence are not within the proper exercise of the police power of the government. * * *"
See Merchants Mutual Association, Inc., v. Matthews, 110 Fla. 325, text p. 329, 149 Sou. Rep. 27.
An application of the principle of law controlling this suit to the admitted statement of facts clearly shows that the affidavit and warrant under which petitioner is held fail to allege a criminal offense and for this reason the petitioner is discharged from custody, and it is so ordered.
ELLIS, C.J., and TERRELL, J., concur.
WHITFIELD, BROWN and BUFORD, J.J., dissent.