Avery Freight Lines v. White

• Decision Date: 20 April 1944
• Docket Number: 3 Div. 411.
• Parties: AVERY FREIGHT LINES, Inc., v. WHITE et al.
• Court: Alabama Supreme Court

18 So.2d 394

245 Ala. 618

AVERY FREIGHT LINES, Inc., v. WHITE et al.

3 Div. 411.

Supreme Court of Alabama

April 20, 1944

Rehearing Denied June 22, 1944.

Pritchard Aird & Fox and James W. Aird, all of Birmingham, and Hill, Hill, Whiting & Rives and Richard T. Rives, all of Montgomery, for appellant.

Wm N. McQueen, Acting Atty. Gen., Forman Smith, Asst. Atty Gen., and Bowers, Dixon & Dunn, of Birmingham, for appellees.

BOULDIN, Justice.

Avery Freight Lines, Inc., filed its complaint against the members of the Alabama Public Service Commission in the Circuit Court of Montgomery County seeking a declaratory judgment with further relief by mandamus or prohibition, if necessary. The defendants and certain intervening carriers filed demurrers going to the sufficiency of the complaint to make a case for declaratory judgment. These demurrers were sustained by the trial court. Because of such adverse ruling, the plaintiff took a non-suit and appeals.

The case made by the complaint and exhibits thereto may be summed up as follows: On August 22, 1940, the plaintiff, hereafter called the carrier, obtained a permit from the Judge of Probate of Mobile County under the law then in force, giving the carrier the right to operate as an irregular common carrier of freight by motor vehicle over all the roads of the State of Alabama and was operating thereunder when the Motor Carrier Act of 1939 became affective. After it became effective and within the time specified therein, the carrier made application to the Public Service Commission for a certificate of public convenience and necessity under what is known as the "grandfather clause" of § 8 of the Act of 1939, p. 1069, now § 301(8), Title 48 of the Code, Pocket Part. This application sought a certificate authorizing the carrier to operate over certain specified regular routes and highways and between specified points in Alabama over irregular routes on specified highways. Upon the hearing of this application the Commission, on July 8, 1941, denied the same.

The carrier appealed from said order to the Circuit Court of Mobile County under the provisions of § 27 of the Act of 1939, now § 301(27), Title 48 of the Code, Pocket Part.

The appeal coming on to be heard September 30, 1941, the Circuit Court of Mobile County entered its judgment or decree, in pertinent part as follows: "* * * the Court having considered all of the evidence certified by the said Alabama Public Service Commission, being all of the evidence in the cause, and the cause having been argued at length by the respective parties and the Court understanding the evidence and the issues presented, is of the opinion that the findings of facts as set forth in the report of the Commission, including the finding that, 'Immediately after applicant took over these operations, it commenced a more extensive service. It operated some of its equipment as a common carrier over regular routes, though it had no proper authority to do so, and knew at the time it did not have such authority,' did not warrant the Commission in entering its order denying applicant 'Grandfather' rights. The Court is further of the opinion that the Commission erred to the prejudice of appellant's substantial rights in its application of the law to such facts, and that said order here appealed from should be modified to the extent herein provided, wherefore it is by the Court:

"Ordered, Adjudged and Decreed, as follows, the order entered by the Alabama Public Service Commission dated July 8th, 1941, in this matter is modified to provide that the applicant, Appellant, Avery Freight Lines, Inc. is entitled under the provisions of the Alabama Motor Carrier Act of 1939 and more specially Tit. 48, Paragraph 301(8) Code of Alabama 1940, to have a certificate of convenience and necessity under the proof and petition heretofore filed with the Alabama Public Service Commission, to operate as an irregular common carrier to the extent provided in the motor carrier permit issued to the appellant by Honorable Matt A. Boykin, Judge of Probate of Mobile County, Alabama, on the 22nd day of August, 1940, which gave and allowed applicant, appellant, here the right to operate as an irregular common carrier of property on all roads in the State of Alabama.

"The said order of the Commission is hereby further amended to provide that the Avery Freight Lines, Inc., appellant, may continue the operation of its said business as an irregular common carrier of property on all roads in the State of Alabama."

An appeal was prosecuted from this judgment or decree to this court, which was later dismissed by appellant and the aforestated judgment still stands not reversed or otherwise vacated.

Pending the appeal in this court, the Commission, having denied a certificate under the grandfather clause, did, on further application, issue a limited certificate of public convenience and necessity, No. 432, authorizing the carrier to operate between Mobile and Birmingham and intermediate points over Alabama Highway No. 5. After the rendition of the judgment on appeal by the Mobile Circuit Court, the carrier continued to operate as an irregular common carrier on all the roads in the state. It is alleged that the carrier requested a certificate issued pursuant to the decree of the Circuit Court of Mobile and the same had been denied; the Commission claiming the carrier had no legal rights other than those conferred by Certificate No. 432.

Thus matters continued until the 29th of March, 1943, when the Public Service Commission issued to the carrier a citation reciting that the Commission was informed that the carrier was operating between named points not authorized by Certificate No. 432, and ordering the carrier to appear and show cause why its Limited Certificate No. 432 should not be suspended or revoked because the carrier had failed to comply with the provisions of the Motor Carrier Act of 1939, or with any lawful order, rule or regulation of the Commission, or with any term, condition, or limitation of said Certificate No. 432. This citation contained an order to the carrier to "cease from and discontinue immediately the transportation of property by motor vehicle as a common carrier other than as authorized in Certificate of Public Convenience and Necessity No. 432 and over the route specified in said certificate." Pending the hearing pursuant to this citation, the complaint in the Circuit Court of Montgomery County was filed, in which the carrier "prays for a declaratory judgment or decree declaring its rights, status and legal relations with respect to the matters herein set forth, and declaring and settling that the said Avery Freight Lines, Inc. has the right and privilege to operate as an irregular common carrier of property on all roads in the State of Alabama in accordance with the terms of the decree of the Circuit Court of Mobile County, in Equity," and "prays for supplemental relief or other different relief and prays that this Honorable Court may issue a writ of mandamus commanding the defendants and each of them to issue to said Avery Freight Lines, Inc., a Certificate of Public Convenience and Necessity in accordance with the terms of the said decree of the Circuit Court of Mobile County, in Equity, and may further, if necessary, or proper, issue to the said defendants its writ of prohibition prohibiting the said defendants, and each of them, from suspending or revoking the said Certificate of Public Convenience and Necessity No. 432 on account of or because of the transportation by said Avery Freight Lines, Inc. of commodities in accordance with the terms of the said decree of the Circuit Court of Mobile County, in equity."

The parties on appeal concur in the view that the primary question is whether the complaint presents a case invoking the jurisdiction of the court, presents a justiciable issue calling for a declaration under the Uniform Declaratory Judgment Statute of Alabama.

The Motor Carrier Act of 1939, approved July 5, 1940, and effective ninety days thereafter, was a comprehensive statute, original in form, recasting in much the laws relating to common carriers by motor vehicle over the public highways of the state, and their supervision by the Alabama Public Service Commission.

§ 8, now § 301(8), Title 48 of the Code, Pocket Part, known as the "grandfather clause," so far as here pertinent, reads:

"A. Except as otherwise provided in this section no common carrier by motor vehicle subject to the provisions of this article shall engage in intrastate commerce on any highway in this state unless there is in force with respect to such carrier a certificate of public convenience and necessity issued by the commission pursuant to the provisions of this article, authorizing such operation provided, however, * * * if any such carrier of property * * * or predecessor in interest was in bona fide operation as such common carrier of property by motor vehicle prior to the effective date of this article, over the route or routes or within the territory for which application is made and has so operated since that time * * * the commission shall issue such certificate without requiring further proof that public convenience and necessity will be served by such operation, and without further proceedings, if application for such certificate is made to the commission as provided in paragraph B of this section, and within one hundred twenty days after this section shall take effect. * * * B. Application for certificates shall be made in writing to the commission, be verified under oath and shall be in such form and contain such information and be accompanied by proof of service of notice thereof upon such interested parties as the commission shall, by regulation...