#### B & G HORSE TRANSPORTATION, INC., et al., Petitioners, v. Jess YARBOROUGH et al., Respondents.

No. 41725.

Supreme Court of Florida.

April 5, 1972.

Rehearing Denied May 12, 1972.

*160Wm. P. Simmons, Jr. of Shutts & Bowen, Miami, and Thomas F. Woods, of Woods & Johnston, Tallahassee, for petitioners.

John P. Bond, Coral Gables, and M. Robert Christ, Tallahassee, for respondents.

DEKLE, Justice.

We have for review by petition for writ of certiorari, the Florida Public Service Commission’s Orders granting a “for hire” permit to a common carrier which it cannot do. Fla.Stat. § 323.01, F.S.A.1 This Court has jurisdiction under Fla.Const. art. V, § 4(2), F.S.A.

Murty Brothers (an automatic intervenor as the carrier complained against) filed an application before the Public Service Commission (hereafter PSC or Commission) to obtain a for hire permit to transport air freight, including livestock other than ordinary (specifically here applying to race horses) by motor vehicle within a 25-mile radius of the Miami International Airport, in those instances where the livestock is upon a prior or subsequent movement by air on a through bill of lading. PSC *granted*the for hire permit which does not require a public hearing or notice. Fla.Stat. § 323.05(6); F.S.A. Thereafter, petitioners whose certificates of public convenience and necessity authorize the hauling of similar livestock, filed a formal complaint seeking cancellation of the permit. (Petitioners had theretofore been making the short haul movements of race horses for Murty.) Murty moved to dismiss the complaint and the Commission granted their motion.

Petitioners, who have standing to complain, attack the issuance of the for hire permit on the ground that Murty Brothers’ transportation operations are contrary to the statutory definition of “for hire” as stated in Fla.Stat. § 323.01(9), F.S.A.2 We must agree with this contention. Murty is a common carrier expressly prohibited by the statute. See also Commission Rule 25-5.06. Issuance of such a permit to a prohibited carrier would be to create a new type of carriage not provided by statute.

Therefore, we must hold under the facts presented here that Murty Brothers is not entitled to a for hire permit. However, this decision does not preclude any otherwise authorized carriage by Murty Brothers under any other procedures which may apply, including a certificate of registration which might authorize transportation of such commodities in the area involved, if it would. It cannot be done, however, in the manner attempted under “for hire.”

Petitioner’s remaining arguments are without merit.

Accordingly, the petition for writ of cer-tiorari is granted; PSC Orders Nos. 9433, 9632 and 9704 are quashed, without preju*161dice for Murty Brothers to proceed otherwise, if authorized and applicable.

It is so ordered.

ROBERTS, C. J., and CARLTON and McCAIN, JJ., concur.

ERVIN, J., dissents with opinion.

1

. Fla.Stat. § 323.01, F.S.A. “(9) For hire means any motor carrier engaged in the transportation of persons or property over the public highways of this state for compensation, which is *not a common carrier*or contract carrier but transports such persons or property in single, casual and nonrecurring trips. For hire carriage shall not be deemed to include charter carriage as herein defined and no for liire carriage of passengers shall be authorized by any permit as herein defined and issued by the commission under the provisions of this part in motor vehicles of a greater passenger-carrying capacity than nine including the driver or chauffeur.” (emphasis ours)

2

. *Id.*

ERVIN, Justice

(dissenting):

This case involves the ground transportation of race horses that are transported by airplane to the Miami airport but whose final destinations are race tracks or other terminii located in the vicinity of the airport within a 25-mile radius hereinafter described. The transportation of the horses to final destination is in interstate commerce under the jurisdiction of the Interstate Commerce Commission as to the ground transportation, and the Civil Aeronautics Board as to air transportation. In 1964 it was determined by those two agencies that ground transportation would encompass a 25 air line mile radius around an involved airport. See Incidental to Air Rule, 1964, MC-C-3437, 95 M.C.C. 71.

F.S. Section 323.02, F.S.A., authorizes the Florida Public Service Commission to issue for-hire permits to auto transportation companies in instances where neither a certificate of public convenience and necessity nor a certificate of registration of the Interstate Commerce Commission is issuable.

The Public Service Commission has construed the statutes to authorize it to issue for-hire permits in the 25-mile area surrounding an airport to allow completion of interstate transportation from the airport to final destination in the area. It does this, inter alia, because of tacit agreement with the Interstate Commerce Commission which although it has jurisdiction does not issue local certificates of registration or other type of interstate transportation authority in the 25-mile ground transportation area.

F.S. Section 323.01(9), F.S.A., defines “for hire” to mean any motor carrier engaged in the transportation of persons or property over the public highways of this state which is not a common or contract carrier or charter carrier and “transports such persons or property in single, casual and nonrecurring trips.”

The Commission concludes that the completion of transportation of an interstate shipment of race horses from the Miami airport to a race track or other point in the vicinity (i. e., within the 25-mile zone) is in its nature casual and nonrecurring, being dependent upon whether the shipper or the receiver of the shipment of the horses needs for-hire transportation to bring them to their final destination in the particular instance.

I think we should accept this departmental construction of these statutes because the Commission has the duty and authority under the police power to realistically and practically supervise the transportation needs of the public under given circumstances. Accordingly, we should not interfere with the for-hire permit issued Murty Bros. Agency, Inc. by the Commission.

The fact that an auto transportation company such as Murty Bros, is a common or certified carrier does not preclude it from also securing a “for hire” permit to transport property not falling in the category of common carriage, etc.