Avery Freight Lines, Inc. v. Alabama Public Service Commission

Citation267 Ala. 646,104 So.2d 705
Decision Date24 July 1958
Docket Number6 Div. 156
PartiesAVERY FREIGHT LINES, INC., v. ALABAMA PUBLIC SERVICE COMMISSION et al.
CourtSupreme Court of Alabama

Prichard, McCall & Jones and Victor H. Smith, Birmingham, for appellant.

John Patterson, Atty. Gen., Robt. G. Kilgore, Jr., Asst. Atty. Gen., and Wm. F. Black, Montgomery, of counsel, for appellee Alabama Public Service Commission.

Wm. Inge Hill and Jack Crenshaw, Montgomery, and Maurice F. Bishop, D. H. Markstein, Jr., and Lange, Simpson, Robinson & Somerville, Birmingham, for appellee intervenors.

LIVINGSTON, Chief Justice.

This is an appeal by Avery Freight Lines, Inc., from a decree rendered on March 22, 1957, by the Circuit Court of Jefferson County, in Equity, on an appeal taken by this appellant from an order of the Alabama Public Service Commission, dated July 13, 1956, by which it was ordered by the Alabama Public Service Commission that all authority to transport liquid commodities in bulk in tank vehicles between any points in Alabama was thereby deleted from Motor Carrier Certificate of Public Convenience and Necessity, No. 2013, theretofore issued and standing in the name of Avery Freight Lines, Inc., and by which it was further ordered that Avery Freight Lines, Inc., be, and was thereby, required to cease and desist transporting liquid commodities in bulk in tank vehicles until such time as it was shown in a public hearing that the public convenience and necessity required such transportation.

It appears from the record that Certificate No. 2013 was issued by the Alabama Public Service Commission to Avery Freight Lines, Inc., on the 27th day of February, 1951, to authorize operation as an irregular common carrier of all property on all roads in the State of Alabama. Certificate No. 2013 was issued by the Public Service Commission after litigation which resulted in an order and judgment of this Court rendered October 12, 1950, by which the judgment and decree of the Circuit Court of Mobile County, in Equity, directing the Public Service Commission to issue such certificate, was affirmed. See Alabama Public Service Commission v. Avery Freight Lines, Inc., 254 Ala. 672, 49 So.2d 170. This holding was reaffirmed in Baggett Transportation Co., Inc., v. Avery Freight Lines, Inc., 256 Ala. 615, 56 So.2d 669.

The order of the Public Service Commission from which the appeal to the Circuit Court of Jefferson County, in Equity, was taken was based upon the citation issued by the Alabama Public Service Commission on May 31, 1956, entitled 'In the Matter of Failure of Common Carriers of Property by Motor Vehicle to exercise the Authority under Certificate of Public Convenience and Necessity issued by the Commission--Re: Avery Freight Lines, Inc., Respondent, Docket No. 13880.' In this citation, it was recited that there had been previously considered by the Commission, under Docket No. 13778, a complaint of certain petroleum carriers that each of them had invested substantial sums of money in the purchase and maintenance of appropriate equipment for the safe transportation of petroleum and petroleum products as required by Sec. 17 of the Alabama Motor Carrier Act, Code 1940, Tit. 48, § 301(17), and that there were outstanding a number of Certificates of Public Convenience and Necessity which by broad commodity description might be construed as authorizing the transportation of petroleum or petroleum products in bulk who were not furnishing suitable equipment for such transportation as required by Sec. 17 of the Motor Carrier Act; and the Commission having taken testimony on said petition on November 29, 1954, did thereafter of its own initiative institute an investigation, under Docket No. 13880, and it further appearing that on March 31, 1955, the Commission did make and enter an order requiring the respondent to inform the Commission, in writing, within 30 days from the date of said order what portion or portions, if any, of its certificate had been inactive or dormant during the preceding 60 days, and to show cause why an order should not be entered requiring the carrier to comply with the provisions of the Alabama Motor Carrier Act, or in the alternative to indicate that it desired oral hearing, and further ordering that if a carrier failed to comply with the terms of said order, such order was to be considered as a proceeding instituted under Sec. 5(8) of Alabama Motor Carrier Act of 1939, to determine whether the certificate, or any portion thereof, should be suspended or revoked; and that it appearing that Avery Freight Lines, Inc., did not comply with the provisions of the order of March 31, 1955, within 30 days from the date of that order and did not indicate that it desired an oral hearing.

It was also recited that it further appearing to the Commission that Avery Freight Lines, Inc., was not then and had not theretofore transported petroleum or petroleum products or other liquid commodities in bulk and had not complied with the provisions of Sec. 17, subd. B of the Alabama Motor Carrier Act of 1939, in that it had failed to provide equipment and facilities for the intrastate transportation of liquid commodities in bulk, and it further appearing that the public convenience and necessity was affected and good cause appearing therefor;

It was ordered by the Commission that that portion, if any, of the certificate of this appellant authorizing the transportation of liquid commodities in bulk be immediately suspended pending the hearing to the extent that the same was not in bona fide operation on the date of the citation (May 31, 1956).

It was further ordered by the Commission that this appellant appear before the Commission on the 26th day of June, 1956, and then and there show cause why the Commission should not change the certificate of appellant as provided by Sec. 301(14) of the Alabama Motor Carrier Act for unlawful failure to comply with the provisions of Sec. 17, subd. B of the Alabama Motor Carrier Act, or with the lawful order of the Commission, dated March 31, 1955; or in the alternative to attach to the exercise of the privilege granted by such certificate such reasonable terms, conditions and limitations as the public convenience and necessity might require.

In response to the citation, this appellant appeared before the Public Service Commission on the date fixed and protested against the authority of the Commission to take the proposed action, and also denied receipt of the order of the Commission of March 31, 1955. In this proceeding, instituted on May 31, 1956, W. M. Chambers, an individual d/b/a W. M. Chambers Truck Line; Smith Transfer Co., Inc., a corporation; Hearin Tank Lines, Inc., a corporation, Liquid Carriers, Inc., a corporation; Decatur Petroleum Haulers, Inc., a corporation, and Martin Truck Lines, Inc., a corporation, holders of certificate of Convenience and Necessity to transport liquid commodities in bulk in tank vehicles, were allowed to intervene, and testimony was taken before the Commission, and the report and order of the Commission, dated July 13, 1956, was made, from which the appeal was taken to the Circuit Court of Jefferson County, in Equity, as aforesaid.

Upon a hearing in the Circuit Court of Jefferson County, in Equity, that court found in effect that the appellant did not receive the order of March 31, 1955, and that it had not unlawfully abandoned a substantial portion of its operating authority. As to the finding of the Commission, which was in substance, that in the public interest there should be deleted from the operating authority of the appellant any authority to transport liquid commodities in bulk in tank vehicles unless and until it had been shown to the Commission, in public hearing, that the public convenience and necessity required such services, it was held that the Commission, by this finding, misapplied the law to the facts.

Under Sec. 82 of Title 48, Code of 1940, the Circuit Court of Jefferson County, in Equity, reserved judgment and remanded to the Alabama Public Service Commission for further proceedings and taking of additional testimony in conformity with the following directions:

(a) That an issue be made up between the parties under the provisions of Subsec. A of Sec. 10 of the Motor Carrier Act of 1939, as to whether or not, as of the 31st day of May, 1956, the public convenience and necessity required attachment to the exercise of the privilege granted by appellant's certificate a limitation in the form of a deletion therefrom of authority to transport liquid commodities in bulk in tank vehicles:

(b) If so, to what extent, whether statewide or less, such limitation would be reasonable in the light of all circumstances involving the public interest, including, but not limited to the dormancy of appellant's exercise of its certificate of authority in that respect, the specialization of the service, the extent to which the field of such service was occupied by other carriers pending the dormancy of appellant's operations in the field; and if the limitation be less than statewide, the points, routes or territories within the State of Alabama wherein the proposed activities of the appellant would probably be injurious to the transportation system, or, on the other hand, would serve the public convenience and necessity without working disproportionate injury to such system.

In compliance with the remandment, further testimony was taken before the Commission, beginning on October 29, 1956.

Thereafter, on December 13, 1956, the Commission made a supplemental report and findings and certified the same to Hon. Robert C. Giles, Judge of the Circuit Court of Jefferson County, in Equity.

In substance, the Commission reported that the supplementary testimony before the Commission was to the effect that the service of the intervenors within the scope of their several operating authorities is sufficient and adequate to meet the reasonable needs of the...

To continue reading

Request your trial
5 cases
  • Storer Cable Com. v. City of Montgomery, Ala., Civ. A. No. 90-T-958-N.
    • United States
    • U.S. District Court — Middle District of Alabama
    • 9 octobre 1992
    ...there is no reason to doubt the Alabama courts will avail themselves of this jurisprudence. See Avery Freight Lines, Inc. v. Alabama Public Serv. Comm'n, 267 Ala. 646, 104 So.2d 705, 709 (1958) ("In construing the terms and provisions of Alabama statutes derived from federal statutes, such ......
  • Storer Cable Communications v. MONTGOMERY, ALA.
    • United States
    • U.S. District Court — Middle District of Alabama
    • 17 juin 1993
    ...monopolies and restraints of trade as they should also be administered in Alabama"). See also Avery Freight Lines, Inc. v. Alabama Pub. Serv. Comm'n, 267 Ala. 646, 104 So.2d 705, 709 (1958) ("In construing the terms and provisions of Alabama statutes derived from federal statutes, such term......
  • Crawford v. American Title Ins. Co.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 27 août 1975
    ...meaning thus given by those courts, if consistent with our conception of its true meaning"); Avery Freight Lines, Inc. v. Alabama Public Service Commission, 267 Ala. 646, 104 So.2d 704, 709 (1958). ("In construing the terms and provisions of Alabama statutes derived from federal statutes, s......
  • Marshall v. Planz
    • United States
    • U.S. District Court — Middle District of Alabama
    • 8 juillet 1998
    ...monopolies and restraints of trade as they should also be administered in Alabama"); see also Avery Freight Lines, Inc. v. Alabama Pub. Serv. Comm'n, 267 Ala. 646, 104 So.2d 705, 709 (1958) ("In construing the terms and provisions of Alabama statutes derived from federal statutes, such term......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT