Alabama Public Service Commission v. Nunis

• Decision Date: 17 March 1949
• Docket Number: 6 Div. 812.
• Parties: ALABAMA PUBLIC SERVICE COMMISSION et al. v. NUNIS.
• Court: Alabama Supreme Court

39 So.2d 409

252 Ala. 30

ALABAMA PUBLIC SERVICE COMMISSION et al. v. NUNIS.

6 Div. 812.

Supreme Court of Alabama

March 17, 1949

A A. Carmichael, Atty. Gen., MacDonald Gallion, Asst. Atty Gen., and Maurice F. Bishop, of Birmingham, for appellants.

D. H. Markstein, Jr., of Birmingham, for appellee.

FOSTER Justice.

This is an appeal from a decree of the Circuit Court of Jefferson County, in Equity, rendered on an appeal to that court from an order of the Alabama Public Service Commission denying the petition of appellee for a permit to operate as a contract carrier of petroleum in bulk products, between all points in Alabama under the Alabama Motor Carrier Act, approved July 5 1940, General Acts 1939, page 1064, sections 301(1) to 301(51), Title 48, Pocket Part of Code 1940.

An amendment of the petition specified the routes as between Mobile, Tuscaloosa, Birmingham, Duncan (West End), and Lynn Park (Powderly) on the one hand, and all places in Alabama north of U. S. Highway No. 80 as the destination.

There was a hearing before the commission on evidence taken before an examiner. The commission made an order containing the following finding:

'Upon consideration of all the evidence in this case this commission is of the opinion and finds that there are sufficient existing carriers qualified with this commission to transport the petroleum products as outlined in the above styled application and that the issuance of another permit would not be consistent with the public interest, and that said application should be denied.' It was so ordered.

The circuit court, in equity, by decree set aside the order of the commission and remanded the cause to it with direction to issue a permit to this appellee to transport petroleum products in bulk as a contract carrier over irregular routes between Duncan, Alabama (which is the end of a pipeline in West End, Birmingham, where it is stored for reshipment), on the one hand, and Huntsville Arsenal and Redstone Arsenal on the other hand. From that decree, the Alabama Public Service Commission has prosecuted this appeal, and intervener has joined in the assignments of error.

Appellee has not cross-assigned errors, and is making no contention that he should have a certificate authorizing him to do business as a contract carrier other than as provided in the judgment and decree of the circuit court. That status makes unimportant much evidence in the case.

The proceedings on appeal in the circuit court, in equity, are controlled by section 82, Title 48, Code. It provides that the commission's order shall be taken as prima facie just and reasonable, and that no new or additional evidence may be introduced, with an exception not here pertinent, and the court shall hear the case upon the certified record, and shall set aside the order if the court finds that the commission erred in its application of the law, or its order was procured by fraud, or 'was based upon a finding of facts contrary to the substantial weight of the evidence.'

We held in North Alabama Motor Express v. Rookis, 244 Ala. 137, 12 So.2d 183, 185, that the last quoted provision of that statute means that the 'finding of the Commission will not be overturned if supported by legal evidence of substantial weight and probative force.' It is also said in that case that there must be evidence which is competent and legal as treated by the usual rules for producing evidence in a legal proceeding. It cannot be founded on hearsay or other improper evidence. That does not mean that a letter which evidences a contract is not legal evidence as being hearsay.

So that the question here is limited to two issues: (1) Did the commission err in its application of the law to the substantial prejudice of the appellee? (2) Is the finding of the commission supported by legal evidence of substantial weight and probative force?

Section 301(11), Title 48, Pocket Part, Code 1940, section 11 of the Act of July 5, 1940, supra, contains a specification of the standards which must control the commission in determining whether appellee should be granted the certificate which the circuit court has ordered.

Appellee, who was the applicant for a permit, insists that the finding was not a sufficient compliance with the duty of the commission in that respect, and that the matters so found do not justify the order which was made denying the permit to the extent ordered by the circuit court.

Appellee cites United States v. Carolina Freight Carriers Corp., 315 U.S. 475, 62 S.Ct. 722, 86 L.Ed. 971, as holding that when Congress sets up certain standards by which the commission is controlled, it is mandatory on the commission to find the facts within those standards to justify it in granting the right claimed. See United States v. Felin, 334 U.S. 624, 68 S.Ct. 1238. Appellee cites Railroad Comm. of Alabama v. Ala. Gr. So. R. R., 185 Ala. 354, 64 So. 13 L.R.A.1915D, 98, as holding that when a commission bound by certain standards, acts in a way not justified, except upon the existence of a certain status, the order acts as such a finding without being expressed.

On appeal to this Court, we must review the judgment of the circuit court without any presumption of its correctness, since that court was in no better position to review the order of the commission than we are. Title 13, section 17, par. 1, Code 1940. The evidence was not taken before the trial judge in the circuit court. Green v. Green, 249 Ala. 150, 30 So.2d 905. We are governed by the same rules in our review as was the circuit court. So that we will review the order of the commission as though the appeal from the commission's order had been directly and primarily to this Court. Those standards are (1) that the applicant is fit, willing and able to properly perform the service of a contract carrier by motor vehicle and to conform to the provisions of this article and the lawful requirements, rules and regulations of the commission thereunder; and (2) that the proposed operation to the extent authorized by the permit will be consistent with the public interest. Otherwise such application shall be denied.

The commission made no finding as to the first matter stated above, but did find that there were sufficient existing carriers qualified with the commission to perform the service, and that the issuance of another permit would not be consistent with the public interest.

There are certain administrative proceedings in which the law does not, in express terms, require a finding expressly so made. Wichita R. & Lt. Co. v. Public Utilities Comm., 260 U.S. 48, 43 S.Ct. 51, 67 L.Ed. 124; Mahler v. Eby, 264 U.S. 32, 44 S.Ct. 283, 68 L.Ed. 549.

But if the statute does not require a finding by the commission either in terms or effect, an express finding has been said not to be necessary. Pacific States Box & Basket Co. v. White, 296 U.S. 176, 56 S.Ct. 159, 80 L.Ed. 138; 42 Am.Jur. 426, section 96. In our case of Railroad Commission v. Ala. Gr. So. R. R., supra, the statute did not require a finding to support action by the commission, but directed action when the necessities of the case in the judgment of the commission demanded it. All the commission had to do, it was said, was to inform itself as to the necessities, which was presumed to have been done from making the order. It has been settled by our cases that all legal intendments are with such orders, and will be upheld unless their invalidity is shown. Hawkins v. Vines, 249 Ala. 165, 30 So.2d 451.

Section 301(11), supra, provides that 'if, after public hearing of the application, it appears from the application and the evidence in support thereof or from any hearing held thereon that the...