Alabama Public Service Commission v. Higginbotham

• Decision Date: 18 October 1951
• Docket Number: 6 Div. 141
• Citation: 56 So.2d 401,256 Ala. 621
• Parties: ALABAMA PUBLIC SERVICE COMMISSION v. HIGGINBOTHAM.
• Court: Alabama Supreme Court

Page 401

56 So.2d 401

256 Ala. 621

ALABAMA PUBLIC SERVICE COMMISSION v. HIGGINBOTHAM.

6 Div. 141.

Supreme Court of Alabama.

Oct. 18, 1951.

Rehearing Denied Jan. 31, 1952.

A. A. Carmichael, Atty. Gen., and Thos. F. Parker, Asst. Atty. Gen., and Albert Boutwell, Birmingham, for appellant.

Gibson & Hewitt, Birmingham, for appellee.

LAWSON, Justice.

The New Deal Riding Club filed its application with the Alabama Public Service Commission for a certificate of public convenience and necessity to operate as a common carrier of passengers between Dixiana and Bradford Mine, a distance of approximately six miles, over an unnumbered county road in Jefferson County. Notice of the hearing to be held on the application was given to Alton C. Higginbotham, among others. Higginbotham already held a certificate of public convenience and necessity to operate as a common carrier of passengers over the same route.

The application came on for hearing before the Commission on evidence taken before examiners. Higginbotham appeared at the hearing and opposed the granting of the certificate. Thereafter the Commission made the following order:

'New Deal Riding Club, Applicant.

Certificate of Public Convenience and Necessity No. 2164.

'Upon consideration of the record in the above docket numbered case, and the law applicable thereto, and the rules established under said law, the Commission finds and decides that this Order should be issued; now, therefore, it is

'Ordered: That Motor Carrier Certificate of Public Convenience and Necessity No. 2164, be and it is hereby issued to New Deal Riding Club, authorizing operation as a common carrier by motor vehicle of passengers and their baggage over regular route. Between Dixiana, Alabama, and Bradford Mine, over unnumbered county road.

'Restriction: Only 'Club Members' To Be Transported.

'This certificate is issued under and subject to the provisions of Alabama Motor Carrier Act of 1939 and the requirements, rules, and regulations of this Commission thereunder; and the authority herein contained shall be held and exercised subject to the requirements and provisions of said Act and other laws, now or hereafter enacted applicable to such authority or operations thereunder.

'This certificate is effective as of the date of this order, and shall remain in force and effect until amended, suspended or revoked by order of this Commission. 'Done at Montgomery, Alabama, this the 16th day of March, 1950.'

From this order Higginbotham appealed to the circuit court of Jefferson County, in equity. The appeal was considered in the circuit court on the certified transcript of the proceedings before the Commission. Upon consideration of the cause upon appeal, the circuit court by decree rendered, set aside the order of the Commission, and annulled and set aside the certificate of public convenience and necessity theretofore issued by the Commission to the New Deal Riding Club.

From the decree of the circuit court of Jefferson County, in equity, the Commission has prosecuted an appeal to this court.

The Commission's authority to issue certificates of public convenience and necessity to operate as a common carrier is provided by § 301(9), Title 48, Code 1940, Cum. Pocket Part, which provides in pertinent part as follows: 'A. Subject to the provisions * * * of paragraph B of this section, a certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operations covered by the application, if it is found, after public hearing of the application, that the applicant is fit, willing, and able to properly perform the service proposed and to conform with the provisions of this article and requirements, rules and regulations of the commission thereunder, and that the proposed service, to the extent thereby authorized by the certificate is or will be required by the present or future public convenience and necessity; otherwise such application shall be denied; * * * B. Before granting a certificate to a common carrier by motor vehicle the commission shall, among other things, consider the following: (1) Whether existing transportation service of all kinds is adequate to meet the reasonable public needs. (2) Financial ability of the applicant to furnish adequate, continuous and uninterrupted service the year around. (3) The advantages to the public of the proposed service. * * *'

In North Alabama Motor Express, Inc., v. Rookis, 244 Ala. 137, 12 So.2d 183, wherein was involved the action of the Alabama Public Service Commission in granting a certificate of convenience and necessity to engage in the business of a common carrier, after a hearing, we observed, among other things, as follows: (1) The granting of a franchise as here involved is both quasi legislative and quasi judicial; (2) the present and future public need in the matter of transportation is the major inquiry which calls for conclusions of fact upon evidence heard by special tribunal set up as a permanent body to deal with the problems involved; (3) the Commission may receive and consider evidence shedding some light on the issue, although not admissible under general rules of evidence; (4) but there must be some evidence which is competent and legal, as treated by the usual rules for the producing of evidence in any legal proceeding to sustain the finding.

In Alabama Public Service Commission v. Crow, 247 Ala. 120, 22 So.2d 721, we said in part as follows: (1) The word 'necessity' is not used in § 301(9), Title 48, Code 1940, Cum. Pocket Part, in the sense of being essential or absolutely indispensable, but merely that the certificate is reasonably necessary for the public good; (2) in considering the question of public need, the Commission must, of course, take into consideration the fact that the territory is served by other carriers and the adequacy of such service to meet the public need.

Appeals from final action or orders of the Commission on applications of the character here involved are provided for by § 301(27), Title 48, Code 1940, Cum. Pocket Part, which section reads as follows: 'From any final action or order of the commission in the exercise of the jurisdiction, power, authority, conferred upon the commission by this article, an appeal shall lie to the circuit court of the county of the carrier's residence, or in which he has his principal place of business or to the circuit court of Montgomery County, Alabama, sitting in equity, and thence to the supreme court of Alabama. Such appeals must be taken within thirty days after the date of such final action or order, and such appeals and the supersedeas and stay of action or order appealed from in other respects shall be governed by the provisions of the law now in force, or hereafter enacted, respecting appeals in other cases from the final order and actions of the commission.' (Emphasis supplied.)

It appears that the appeal in this case was properly taken to the circuit court of Jefferson County, in equity. It is not contended to the contrary.

The contention is made that the appeal was not properly taken in that there was no application for reconsideration or rehearing of the order granting the certificate, as may be made under subdiv. 9 of § 301(5), Title 48, Code 1940, Cum. Pocket Part. The contention is without merit, aside from any consideration of the question as to whether the point is properly presented here. The case of Alabama Public Service Commission v. Alabama Power Co., 213 Ala. 374, 104 So. 814, holds in effect that if the appeal is duly filed it may be taken from either the original action or order of the Commission or from its action or order on reconsideration or rehearing.

The italicized portion of § 301(27), Title 48, supra, makes applicable § 82, Title 48, Code 1940. North Alabama Motor Express, Inc., v. Rookis, supra; Alabama Public Service Commission et al. v. Crow, supra; Alabama Public Service Commission v. Nunis, 252 Ala. 30, 39 So.2d 409.

Section 82, Title 48, Code 1940, provides in pertinent part: 'The commission's order shall be taken as prima facie just and reasonable. No new or additional evidence may be introduced in the circuit court except as to fraud or misconduct of some person engaged in the administration of this title and affecting the order, ruling or award appealed from, but the court shall otherwise hear the case upon the certified record and shall set aside the order if the court finds that: the commission erred to the prejudice of appellant's substantial rights in its application of the law; or, the order, decision or award was procured by fraud or was based upon a finding of facts contrary to the substantial weight of the evidence. * * *'

In regard to the review by the circuit court of an order of the Commission under § 82, Title 48, supra, we said in North Alabama Motor Express, Inc., v. Rookis, supra [244 Ala. 137, 12 So.2d 185], as follows: (1) 'Section 82, construed as a whole and in the light of well-established principles, means the finding of the Commission will not be overturned if supported by legal evidence of substantial weight and probative force'; (2) 'capable, understanding men, free from all interest save the performance of public duty, weighing evidence in the light of experience, is the set-up contemplated by law. Courts should not and do not overturn their findings save upon a clear conviction that their orders are wrong and unjust'; (3) 'the order of the Commission is not to be vacated on appeal because of the admission of evidence not legally admissible under technical rules upon the trial of causes before juries'; (4) "substantial evidence,' as used in Section 82, supra, means legal evidence.'

In Alabama Public Service Commission v. Nunis, supra, we held in effect that in order for the courts to set aside the order of the Commission on the ground that it was based upon a finding of facts contrary to the substantial weight of the evidence, a...