Texas & Pacific Ry. Co. v. Louisiana Public Service Com'n

• Decision Date: 04 November 1942
• Docket Number: 36573.
• Citation: 10 So.2d 641,201 La. 853
• Court: Louisiana Supreme Court
• Parties: TEXAS & PACIFIC RY. CO. et al. v. LOUISIANA PUBLIC SERVICE COMMISSION et al.

10 So.2d 641

201 La. 853

TEXAS & PACIFIC RY. CO. et al. v. LOUISIANA PUBLIC SERVICE COMMISSION et al.

No. 36573.

Supreme Court of Louisiana

November 4, 1942

James O'Connor, of New Orleans, for appellants.

H Payne Breazeale, of Baton Rouge, Robert Ainsworth, Jr., of New Orleans, Robert L. Garrett, of Shreveport, and Byron R Kantrow, of Baton Rouge, for appellees.

HIGGINS Justice.

This is a suit by fifteen transportation companies against the Louisiana Public Service Commission and Angelo Centineo Inc., asking for the annulment of Order No. 2650 issued by the Commission on December 3, 1940, which granted to Centineo, Inc., a certificate of public convenience and necessity as a common carrier of special commodities over certain public highways in this State.

The defendant, Centineo, Inc., filed exceptions to the jurisdiction of the court rationae personae and rationae materia of no right and no cause of action, based on the ground that the plaintiff had not timely filed an application for a rehearing before the Commission from its adverse decree. The trial judge overruled the exceptions and, after a trial on the merits, set aside and cancelled the order and the certificate of the Commission.

The defendant corporation alone appealed.

Section 5 of Article 6 of the Constitution of 1921 reads as follows:

'The orders of the Commission shall be enforced by the imposition of penalties as hereinafter provided, and any party in interest may appeal from orders and decrees of the Commission to the courts by filing suit, within ninety days from the date of the Commission's order, and not thereafter, against the Commission at its domicile. * * *' (Italics ours.)

The suit was filed in the district court within the ninety day period above provided. Obviously, the Commission could not adopt any rule or regulation which would deprive any party in interest of the right to appeal to the court from the decree or order of the Commission within ninety days. Moreover, the Commission allowed the plaintiffs additional time to file their application for a rehearing, which it subsequently refused to grant. Therefore, all of the exceptions were properly overruled.

Centineo Inc., produce seven witnesses and their testimony and the record tend to show that the applicant, Centineo, Inc., operated under Permit No. 1003, authorized by Order No. 2050 of the Louisiana Public Service Commission, dated October 29, 1938, as a contract carrier of freight by motor over certain routes set forth in the order; that Centineo, Inc., was limited to not more than five separate shippers of property, by subsection (j), Section 2 of Act 301 of 1938; that, under that section, having shown that it had been previously conducting such operations prior to January...