Alabama Public Service Commission v. Redwing Carriers, Inc.

• Decision Date: 01 June 1967
• Docket Number: 3 Div. 224
• Citation: 281 Ala. 111,199 So.2d 653
• Parties: ALABAMA PUBLIC SERVICE COMMISSION v. REDWING CARRIERS, INC., et al.
• Court: Alabama Supreme Court

Page 653

199 So.2d 653

281 Ala. 111

ALABAMA PUBLIC SERVICE COMMISSION v. REDWING CARRIERS, INC., et al.

3 Div. 224.

Supreme Court of Alabama.

June 1, 1967.

Rehearing Denied June 22, 1967.

MacDonald Gallion, Atty. Gen., and Robt. P. Bradley, Asst. Atty. Gen., for Public Service Commission.

J. Douglas Harris, Montgomery, Ormond Somerville and N. Hawthorne Hawkins, Jr., Birmingham, for appellees.

HARWOOD, Justice.

Schwerman Trucking Company filed an application with the Alabama Public Service Commission seeking a certificate authorizing it to transport dry commodities in bulk over irregular routes from and to all points in Alabama.

The application was opposed by some ten trucking companies which already held certificates authorizing the transportation of bulk commodities over irregular routes in Alabama, or in certain restricted areas. Altogether it would appear that the entire state is covered by some of the trucking companies, and by all the companies, even those whose territory is restricted, when the limited authority as to area of operation is combined.

Notice of a hearing of Schwerman's application was given and the matter was set for 18 May 1965.

On that day an order was entered by the Commission appointing William F. Black, attorney for the Commission, as examiner for the hearing and the taking of testimony 'and the recommendation of an appropriate order thereon and to perform other duties with respect to said proceeding as authorized by law.' (Italics ours.)

Black did conduct the hearing. Many witnesses testified and numerous exhibits were introduced.

At the conclusion of the hearing the record shows the following statement by Mr. Harris, an attorney for Redwing Carriers, one of the protesting carriers, and one of the appellees here:

'Mr. Examiner, before you close the record I would like on behalf of each of the protestants here to make the observation that Commissioner Connor has sat through the entire hearing of this application. Commissioner Pool has heard none of the testimony offered by the protestants and Commissioner Pepper has been in and out of the hearing room, we have not tried to keep any time. He is not present now and has not been present this afternoon and it is now 3:20 and in view of that we feel that an Examiner's report be necessary.'

Section 301(7), Title 48, Code of Alabama 1940, requires that where a hearing is ordered to be held before an examiner he shall thereafter file with the Commission his recommendation in writing, accompanied by his reasons therefor.

No recommendation of an appropriate order and the reasons therefore were ever filed by the examiner with the Commission in these proceedings.

Nevertheless, on 29 July 1965, a purported order was entered by Commissioners Pool and Pepper granting a certificate of convenience and necessity to Schwerman authorizing it to transport dry commodities in bulk over irregular routes between all points in Alabama.

This purported order shows a dissent by Commissioner Connor on the basis that the order of the majority of the Commissioners covered commodities as to which there was no evidence presented, and additionally, the record showed affirmatively that presently authorized carriers were in position to give all service required by shippers.

On 25 August 1965, four of the protesting carriers filed their motion for a reconsideration of the order of 29 July 1965.

There is attached to the motion for reconsideration as an exhibit, and made a part of the motion, a document filed with the Commission dated 4 August 1965, by Commissioner Connor. This document sets forth that Commissioner Connor had received a purported Report and Order in the present matter signed by two of the Commissioners; that while he agreed with the grounds of the purported dissent, he did not sign the purported order because it did not reflect the action of the Commission as a body, but was merely the act of two of the Commissioners acting personally and individually; that he (Connor) had never been notified of any meeting of the Commission to consider the present application, nor had there been any meeting scheduled to pass on the same; that there had been no meeting of the Commission to consider the application involved, and he had not been able to consult with or express his views to the other two Commissioners or participate in any deliberations pertaining to the application; and that the purported order is not in fact the order of the Commission, and the recitation in the purported order that it is the order of the Commission is untrue.

Before this motion was acted upon the four protesting carriers filed a notice of appeal and appeal bond for security of costs with the Commission and thereby perfected their appeals to the Circuit Court of Montgomery County, in Equity. (Section 79, Title 48, Code of Alabama 1940.)

On 25 October 1965, the four protesting carriers filed their bill in the nature of a bill of complaint in the Circuit Court of Montgomery County, in Equity.

On 9 November 1965, a fifth carrier (one of the protestants before the Commission) was permitted by the Circuit Court to intervene in the proceedings therein, but in view of our conclusions hereinafter set forth, no need arises to consider this facet of the proceedings in the court below.

In the Circuit Court, the Commission filed a motion to dismiss, and a motion to strike the bill of complaint. The substance of the grounds of these two motions was to the effect:

(a) Rule B of the Circuit Court of Montgomery County, in Equity, requires that a bill in the nature of a Bill of Review to review orders of the Commission requires such bill to be filed within thirty days after an appeal therefrom is perfected.

(b) The bill was not filed in the manner nor in the time provided by law.

These motions to dismiss and to strike the bill were denied by the court below, and these rulings are presented on this review by appropriate assignments of error. Presenting a threshold question, we shall consider these matters first.

Rule B of the Circuit Court of Montgomery County, in Equity, in parts pertinent to this review reads as follows:

'To expedite and clarify the procedure on appeals from orders of the Alabama Public Service Commission, and to avoid confusion and the inconvenience of entering a separate order in each case, effective as of this date, whenever an appeal is taken to the Circuit Court of Montgomery County, Alabama, from orders of the Alabama Public Service Commission, and when a different course of procedure is not otherwise provided by law, the party taking the appeal shall become Complainant in said Circuit Court and shall, within thirty days after the date of the appeal (or within thirty days after the adoption of this Rule) file in said Circuit Court a pleading in the nature of an original bill, clearly and concisely setting forth the facts on which his claim or claims are based.

'A copy of said pleading shall be served on the Alabama Public Service Commission and on all opposing parties or their solicitors of record, as provided by law for service in case of amendment to original bills of complaint, provided, however, service may be accepted by opposing parties or their said solicitors. For the purpose of this rule all parties, in the proceedings before the Public Service Commission, resulting in the order from which said appeal is taken shall be considered as opposing parties.

'Such opposing party or parties shall have thirty days from the date of such service or acceptance thereof to plead, answer or demur to said pleading. In case such pleading is not filed by the Appellant as herein provided, the Court May, on motion of Appellee, dismiss said appeal. * * *' (Italics ours.)

It must be remembered we are here dealing with a rule of court. The first sentence of Rule B, supra, is clearly indicative that the rule was promulgated 'to expedite and clarify the procedure on appeals from orders of the Alabama Public Service Commission, and to avoid * * * the inconvenience of entering a separate order in each case.' In other words, one of the basic reasons for the rule was to serve the convenience of the court.

It is also to be noted that the rule provides that:

'In case such pleading is not filed by the Appellant as herein provided, the Court May, on motion of Appellee, dismiss said appeal.' (Italics ours.)

In Board of Education of Jefferson County v. State ex rel. Kuchins, 222 Ala. 70, 131 So. 239, it is stated that generally speaking, provisions not relating to the essence of the thing to be done, and as to which compliance is a matter of convenience rather than substance, are directory.

It is apparent from its ruling denying the motions to dismiss and to strike the complaint because of Rule B that the Circuit Court of Montgomery County has construed the rule as directive rather than mandatory. By the large, the construction of rules of court are for the court which promulgated them. State ex rel. Logan v. Ellison, 267 Mo. 321, 184 S.W. 963; Jaynes v. Lee, (Tex.Civ.App.), 306 S.W.2d 182.

Further, the interpretation by a court of its own rules is entitled to the greatest weight by a reviewing court and such interpretation will be followed unless it appears to be clearly unreasonable or arbitrary. United States v. Eaton, 169 U.S. 331, 18 S.Ct. 374, 42 L.Ed. 767; Thomas v. State Board of Health, 72 W.Va. 776, 79 S.E. 725, 49 L.R.A.,N.S., 150; Osborne v. Tennessee Elec. Power Co., 158 Tenn 278, 12 S.W.2d 947; Richter v. Scranton City, 321 Pa. 430, 184 A. 252.

We find no basis for concluding that the lower court erred in denying the motions to dismiss or to strike and bill of complaint or to dismiss the same because of non-compliance with Rule B, supra.

Under the second ground of the motions to dismiss and to strike the complaint, counsel for the Commission (appellant) argues first that the motion for reconsideration being pending at the time of the attempted appeal to ...