Cooper Transfer Co. v. Alabama Public Service Commission, 1 Div. 761

• Decision Date: 02 March 1961
• Docket Number: 1 Div. 761
• Citation: 271 Ala. 673,127 So.2d 632
• Parties: COOPER TRANSFER COMPANY, Inc. v. ALABAMA PUBLIC SERVICE COMMISSION.
• Court: Alabama Supreme Court

Page 632

127 So.2d 632

271 Ala. 673

COOPER TRANSFER COMPANY, Inc. v. ALABAMA PUBLIC SERVICE COMMISSION.

1 Div. 761.

Supreme Court of Alabama.

March 2, 1961.

D. H. Markstein, Jr., Markstein & Cooper, Birmingham, for appellant.

John Patterson, Atty. Gen., and Wm. C. Younger, Asst. Atty. Gen., for appellee.

COLEMAN, Justice.

This is an appeal from a decree of the Circuit Court of Mobile County, in Equity, overruling a demurrer to a bill of complaint.

The complaint, Alabama Public Service Commission, alleges in the bill that respondent is an Alabama corporation operating as a common carrier by motor vehicle; that respondent's principal place of business is Brewton, which we judicially know is in Escambia County, Hall v. State, 213 Ala. 325, 104 So. 826; that respondent holds a certificate authorizing it to operate, inter alia, 'Between Brewton and points within a radius of 150 miles of Brewton, over irregular routes, No Service to Points Located on Alabama Highway 5, or Points West of Alabama Highway '5'; 'That lying adjacent to Alabama Highway No. 5, on the east thereof, approximately twenty miles north of Mobile, Alabama, in Mobile County, is a manufacturing plant know as Courtaulds, Inc. The real property of Courtaulds, Inc., extends from the east boundary line of said Highway No. 5 eastward to the Alabama River, and running north and south approximately through the center of said property and paralleling said Highway No. 5 is the right of way of the Southern Railway Company. The plant proper of Courtaulds, Inc., is located east of the said Southern Railway right of way and other structures and buildings are located on both sides of said railroad right of way. The only access to Courtaulds, Inc., except by rail, is a county road, which runs directly from said Highway No. 5 in an easterly direction across the said Southern Railway right of way to the physical plant of the said manufacturing Company. The said county road originates at the east boundary line of Highway No. 5 and terminates on the said property of Courtaulds, Inc.'; that respondent is handling shipments to and from said plant of Courtaulds, Inc., 'whose manufacturing plant and other facilities are located on its property, which is located on, contiguous and adjacent to Alabama Highway No. 5'; that respondent's certificate does not authorize it to serve Courtaulds as aforesaid; that complainant had notified respondent by letter that respondent was not authorized to serve Courtaulds, and had directed respondent to cease handling shipments to and from Courtaulds; that respondent's attorney had replied by letter advising complainant that respondent refused to cease as directed because it believed it had authority to serve Courtaulds and offering to file bill for declaratory judgment to determine respondent's authority.

The prayer is for a permanent injunction enjoining respondent from transporting goods to and from Courtaulds at the location hereinabove described and for general relief.

Respondent argues two grounds of demurrer, to wit, first, that the averments of the bill show that the venue is improperly laid in Mobile County, and, second, that the bill fails to show that respondent, in serving Courtaulds, is exceeding its authority under its certificate.

Venue.

If the averments of the bill show that it is filed in the wrong venue, a demurrer to it on that ground is the proper practice. State v. Stacks, 264 Ala. 510, 88 So.2d 696; Faulk v. Faulk, 255 Ala. 237, 51 So.2d 255, 256. We are of opinion, however, that the averments of the instant bill do not show that it is improperly filed in Mobile County and that the grounds of demurrer challenging the venue are not well taken.

The venue of original suits in equity is fixed by § 294, Title 7, Code 1940, which provides in pertinent part 'The bill must be filed in the county in which the defendant, or a material defendant, resides; * * *.' Faulk v. Faulk, supra. In considering venue of a suit for divorce, however, this court said: 'Both the jurisdiction and the venue of a suit for divorce are determined in this state by section 3801 of the Code (of 1937, now § 28, Title 34, Code 1940), and not by either section 3093 (of Code of 1907, now § 294, Title 7, Code 1940) or 6110 (of Code of 1907, now § 54, Title 7, Code 1940), for this last section expressly provides that it applies in those cases only in which the venue is not otherwise provided. While section 3093 ( § 294, Title 7, Code 1940) does not expressly so provide, yet it is certain that it would not control as against a statute which expressly provides the particular jurisdiction and venue as for a specific class of actions, as is done in the case of divorce proceedings. * * *.' (Par. and Emphasis supplied.) Puckett v. Puckett, 174 Ala. 315, 320, 56 So. 585, 586. Special provisions relating to specific subjects control general provisions relating to general subjects. Herring v. Griffin, 211 Ala. 225, 100 So. 202; Geter v. United States Steel Corporation, 264 Ala. 94, 84 So.2d 770.

There is a statute which expressly provides the vanue for the specific class to which the instant suit belongs. Act No. 669, approved July 5, 1940, in pertinent part recites:

'* * *. B. If any motor carrier or broker operates in violation of any provision of this article (except as to the reasonableness of rates, fares, or charges and discriminatory character thereof), or any rule, regulation or requirement, or order thereunder, or of any term or condition of any certificate of permit, the commission or its duly authorized agency may apply to the circuit court of the State of Alabama for any county where such motor carrier or broker operates, for the enforcement of such provision of this article, or of such rule, regulation, requirement, order, term or condition; and such court shall have jurisdiction to enforce obedience thereto by a writ of injunction or by other process, mandatory or otherwise, restraining such carrier or broker, his or its officers, agents, employees, and representatives from further violation of such provision of this article or of such rule, regulation, requirement, order, term, or condition and enjoining upon it or them obedience thereto. * * *.' General Acts of Alabama 1939, at pp. 1084, 1085; 1958 Reprint, 1940 Code, Title 48, § 301(23).

We repeat the applicable language, to wit:

'* * *. B. If any motor carrier * * * operates in violation * * * of any term or condition of any certificate of permit, the commission * * * may apply to the circuit court * * * for any county where such motor carrier * * * operates, for the enforcement of such * * *...