Alabama Public Service Commission v. Crow

• Decision Date: 10 May 1945
• Docket Number: 4 Div. 365.
• Citation: 247 Ala. 120,22 So.2d 721
• Parties: ALABAMA PUBLIC SERVICE COMMISSION et al. v. CROW.
• Court: Alabama Supreme Court

22 So.2d 721

247 Ala. 120

ALABAMA PUBLIC SERVICE COMMISSION et al. v. CROW.

4 Div. 365.

Supreme Court of Alabama

May 10, 1945

Rehearing Denied July 26, 1945.

Wm N. McQueen, Acting Atty. Gen., and Forman Smith, Asst. Atty Gen., for appellant Alabama Public Service Commission.

Thos B. Hill, Jr. and Wm. Inge Hill, both of Montgomery, for Capital Motor Lines.

T. E. Buntin, of Dothan, and Robt. B. Albritton, of Andalusia, for Alaga Coach Line.

Ewell C. Orme, of Troy, for appellee.

GARDNER, Chief Justice.

From an order of the Alabama Public Service Commission denying to J R. Crow, doing business as the Florida-Alabama Motor Lines, a certificate of Public Convenience and Necessity for operation as a common carrier of passengers between Andalusia and Opp, Alabama, a distance of 16 miles, an appeal was prosecuted to the Circuit Court of Pike County, the place of residence of the carrier and his principal place of business. Title 48, Sec. 301(27), Code 1940, Cumulative Pocket Part. The appeal was there considered on the certified transcript of the proceedings before the Commission, and was governed by Sections 82 and 83, Title 48, Code 1940.

Upon consideration of the cause upon appeal the Circuit Court by decree rendered, set aside the order of the Commission and directed the issuance by the Commission forthwith of the certificate as sought by the applicant. From the decree the Commission has prosecuted an appeal to this Court. Section 82, supra, provides for the setting aside of the order of the Commission (1) if it be determined there was error of law; (2) or that the order was procured by fraud; (3) or was based upon a finding of fact contrary to the substantial weight of the evidence. There was no pretense that the order of the Commission should be set adide upon grounds 1 and 2 above indicated. The decree rendered was rested upon a disagreement of the learned trial Judge with the Commission as to the finding of fact.

The application in this case was presented in July, 1944. In the order entered on October 11, 1944, denying the application the Commission made note of the fact that in June, 1943, the applicant had sought authority to operate as a common carrier for passengers over the same route and between the same points, i. e., Andalusia and Opp, and that after due consideration his application was denied in September, 1943. The order also mentions the further fact that no rehearing was sought by the applicant, nor was any appeal prosecuted by him from the order denying his application.

The Commission further stated that nothing appeared showing any change in conditions affecting travel between these points. The conclusion was reached that the evidence did not sufficiently show the existence of any unsatisfactory travel conditions that could not be remedied by the applicant by making a change in the schedule, or by the addition of other schedules. These observations by the Commission were not made with any idea in mind that the matter had become foreclosed on the doctrine of res adjudicata. 42 Am. J. 519. The Commission evidently, however, considered it proper to state the fact that just a year previous application had been made and denied as to this same route. There appears to be only one difference in the application, and that is, that in the present application the applicant states that he will operate his buses with closed doors between Andalusia and Opp, and eliminate local traffic. In some instances a Certificate of Convenience and Necessity has been granted with restrictions of this character, as illustrated in the case of Bartonville Bus Line v. Eagle Motor Coach Line, 326 Ill. 200, 157 N.E. 175. The Commission, however, evidently did not consider this restriction as presenting a matter of any great difference in this particular case. Perhaps also the Commission considered the matter of supervision as to such restriction rather difficult.

Upon the hearing must evidence was offered both by the applicant and for the protestants, known as the Alaga Lines, and the Capital Lines, two protesting lines which operate over this route between Andalusia and Opp. It appears that the Alaga Lines operated four schedules per day in each direction and the Capital Lines three schedules in each direction per day, making a total of seven daily schedules in each direction over this route of 16 miles between Andalusia and Opp. It appears that the applicant operates a bus line from Phenix City, Alabama, to Opp, and embracing several intermediate points. He also operates a line from Elba to Dothan, by way of New Brocton and Enterprise; and from the Florida line to Andalusia, Alabama. He insists that the granting of his application will enable him to give a through passenger service joining points below Andalusia with Opp and points northeast of Opp with Andalusia.

Applicant offered before the Commission several witnesses who use his line, and who testified to the effect that such through service would meet the public convenience, saving the passengers the trouble of changing from applicant's line in making connection with the two competing lines at these points. The witness Taylor also testified to the convenience which would result to him in shipment of automobile parts from Andalusia south, as pursuant to the present arrangement he is required to carry them the 16 miles to Opp in order to make a direct shipment and save time. Applicant being asked as to whether or not he would accept an express shipment exchanged from either of the other lines at Opp stated that he would not, and such was not the custom. On the other hand protestants offered numerous witnesses who traveled in this territory, and who testified they had had no trouble concerning the schedule into Opp. or Andalusia, or from, one of the points to the other; that the buses were not crowded and that they were always able to obtain a seat. Counsel for applicant appears to be under the impression that some of the testimony offered by protestants was objectionable as hearsay, but we do not consider it subject to such objection. Illustrative is the testimony of A. H. Johnson of Dothan, Alabama, who is Secretary of the Chamber of Commerce, and also Secretary of the Wiregrass Commerce Council, whose duties require him to travel much on the bus in all of this territory. Naturally in his line of business he has many inquiries, and is perhaps himself alert to discover any objectionable features that might affect the public. He stated that he had never heard any...