Dreher Contracting & Equipment Rental, Inc. v. Louisiana Public Service Commission, 80-CA-2407

• Decision Date: 06 April 1981
• Docket Number: No. 80-CA-2407,80-CA-2407
• Citation: 396 So.2d 1265
• Court: Louisiana Supreme Court
• Parties: DREHER CONTRACTING & EQUIPMENT RENTAL, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION.

Page 1265

396 So.2d 1265

DREHER CONTRACTING & EQUIPMENT RENTAL, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION.

No. 80-CA-2407.

Supreme Court of Louisiana.

April 6, 1981.

Adcock, Dupree & Shows, Jeff Hughes, Herschell C. Adcock, Baton Rouge, for plaintiff-appellant.

Marshall B. Brinkley, Baton Rouge, for defendant-appellee.

Charles H. Ryan, Janet Boles Chambers, Boles & Mounger, Baton Rouge, for intervenor-appellee.

MARCUS, Justice.

This case involves the Louisiana Public Service Commission's grant of a certificate of public convenience and necessity to Loyd Brown, d/b/a Brown's Vacuum Truck Service, authorizing him to transport fresh water and salt water (special commodities) by motor vehicle over irregular routes within Union and Ouachita Parishes.

An application for the aforesaid certificate was filed by Brown with the Commission on July 24, 1979. After publication of notice for hearing by the Commission, an opposition and protest was filed by Dreher Contracting & Equipment Rental, Inc., which had been granted a similar certificate for Union, Ouachita and Morehouse Parishes two years before. A hearing was held before an examiner on October 31, 1979. The application was considered at an open session of the Commission held January 21, 1980. The Commission found that in view of the evidence present in the record, "the public convenience and necessity require, and would be materially promoted by the granting of the authority sought." Accordingly, the application was approved conditioned upon grantee's compliance with the "laws and rules and regulations of the Commission bearing thereon." The order of the Commission was dated February 1, 1980.

After the order became effective, Dreher, pursuant to La.R.S. 45:1192, ¹ filed a petition in the district court setting forth its cause of objection to the order of the Commission. The petition alleged that the decision of the Commission was arbitrary and capricious and that no showing was made that the public convenience and necessity would be materially promoted by the granting of this certificate. The Commission answered generally denying the allegations of the petition. Brown intervened uniting with the Commission in resisting Dreher's action. After a hearing, the district judge, finding "some factual evidence" to support the Commission's finding that the public convenience and necessity would be promoted by granting the certificate to Brown, affirmed the order of the Commission. Dreher appealed to this court pursuant to La.Const. Art. 4, § 21(E). ²

On appeal to this court, Dreher contends that the district court erred in holding that the scope of judicial review of an order of the Commission requires only a finding that some evidence was presented which supported the Commission's issuance of the order and further that the evidence presented in this case did not support the Commission's granting of the certificate.

La.R.S. 45:164 provides in pertinent part:

No motor carrier shall operate as a common carrier without first having obtained from the commission a certificate of public convenience and necessity, which shall be issued only after a written application made and filed, a public hearing, due notice given to applicant and all competing common carriers, and a finding by the commission that public convenience and necessity require the issuance of a certificate. No new or additional certificate shall be granted over a route where there is an existing certificate, unless it be clearly shown that the public convenience and necessity would be materially promoted thereby.

The principles are well settled for judicial review of Commission orders granting certificates of public convenience and necessity under this provision. The applicant has the burden of clearly showing that the public convenience and necessity would be materially promoted by the issuance of a certificate to it. Truck Service, Inc. v. Louisiana Public Service Commission, 263 La. 588, 268 So.2d 666 (1972); Hearin Tank Lines, Inc. v. Louisiana Public Service Commission, 247 La. 826, 174 So.2d 644 (1965); Saia Motor Freight Line v. Louisiana Public Service Commission, 243 La. 787, 147 So.2d 390 (1962). The orders of the Commission and of other administrative bodies exercising discretionary authority are accorded great weight and will not be overturned in the absence of a showing that the administrative action is arbitrary and capricious. Truck Service, Inc. v. Louisiana Public Service Commission, supra; Hearin Tank Lines, Inc. v. Louisiana Public Service Commission, supra. A ruling of the Commission may not be deemed arbitrary unless it is shown that it is not supported by some factual evidence. Beauregard Electric Cooperative, Inc. v. Louisiana Public Service Commission, 378 So.2d 404 (La.1979); B & M Trucking, Inc. v. Louisiana Public Service Commission, 353 So.2d 1323 (La.1977); Truck Service, Inc. v. Louisiana Public Service Commission, supra. In other words, upon judicial review a court will not upset orders such as the one in this case unless after looking at the evidence it concludes that the Commission could not have reasonably concluded that there had been a clear showing that the...