Eagle Motor Lines, Inc. v. Alabama Public Service Commission

• Decision Date: 07 January 1977
• Citation: 343 So.2d 767
• Parties: EAGLE MOTOR LINES, INC., et al. v. ALABAMA PUBLIC SERVICE COMMISSION et al. SC 1712.
• Court: Alabama Supreme Court

Page 767

343 So.2d 767

EAGLE MOTOR LINES, INC., et al. v. ALABAMA PUBLIC SERVICE COMMISSION et al.

SC 1712.

Supreme Court of Alabama.

Jan. 7, 1977.

Robert S. Richard and William K. Martin, Montgomery, for appellants.

John P. Carlton and Ronald L. Stichweh, Birmingham, for appellees.

HEFLIN, Chief Justice.

Pursuant to the provisions of section 301(15) of Title 48 of the Alabama Code of 1940 (Recompiled 1958), Victory Freight Lines, Inc. and Vulcan Freight Lines, Inc. filed a joint application with the Alabama Public Service Commission to transfer a portion of Victory's authority under Motor Carrier's Certificate of Public Convenience and Necessity No. 718 to Vulcan.

A search of the record in this case does not disclose the exact contents of Certificate No. 718 immediately preceding the application for transfer, although the record does contain a copy of Certificate No. 718 as issued on April 19, 1945, when Victory first acquired the portion of the certificate which it now wishes to transfer. At that time, Certificate No. 718 contained the following pertinent provisions:

'IT IS ORDERED BY THE COMMISSION: That Certificate of Public Convenience and Necessity No. 718, now standing in the name of * * * Victory Freight Line * * * is hereby amended to include, in addition to the authority therein contained, the right to operate as a common carrier by motor vehicle in the transportation of general commodities over a regular route:

(1) Between Birmingham, Alabama and Tuscaloosa, Alabama * * *.

(2) Between all points and places in Alabama over irregular routes of (a) machinery, materials, supplies and equipment, incidental to, or used in, the construction, development, operation, and maintenance of facilities for the discovery, development and production of natural gas and petroleum. (b) Machinery, material, supplies and equipment used in the construction, operation and maintenance of petroleum refineries. (c) Heavy machinery, heavy and cumbersome commodities, which, because of size and weight, require the use of special equipment, and parts thereof. (d) Machinery, materials, supplies and equipment, used in the construction, operation and maintenance of natural gas, water and petroleum pipe lines, including but not restricted to, the stringing of pipe along rights of way. (e) Contractors equipment and supplies, heavy machinery parts, accessories and supplies, including heavy materials, and machinery.' (Emphasis added.)

Victory and Vulcan requested that the Public Service Commission transfer to Vulcan the following authority from Certificate No. 718:

'Heavy machinery, heavy and cumbersome commodities, which because of size and weight require the use of special equipment, and parts thereof: Between all points and 'places in Alabama over irregular routes.''

A hearing was held before an Alabama Public Service Commission Attorney- Examiner to consider the requested transfer, and the following carriers entered appearances in protest: Eagle Motor Lines, Inc.; Deaton, Inc.; Ross Neely Express, Inc.; Alabama Freight, Inc.; and Gadsden Truck Line, Inc. After the hearing, the Attorney-Examiner issued a report and proposed order, recommending that the proposed transfer be granted subject to the acceptance by Victory of a restriction concerning 'appropriate' portions of Certificate No. 718 which Victory was to retain. In effect this restriction prevented Victory from carrying listed commodities which because of size and weight required the use of special equipment. The Attorney-Examiner indicated that the purpose for recommending this restriction was to prevent an inordinate amount of overlap between the authority transferred to Vulcan and the authority retained by Victory.

The Alabama Public Service Commission by order, dated July 8, 1975, adopted the Attorney-Examiner's report and recommended order and granted the requested transfer of that portion of Victory's certificate quoted above. This authority was issued to Vulcan as Motor Carrier Certificate No. 2915.

The Commission on January 16, 1976, reissued the balance of Certificate No. 718 to Victory. In its order, the Commission noted that Certificate No. 718 had been reissued to Victory in numbered paragraphs and it utilized that format in this latest reissuement and incorporated a 'special equipment' restriction in six of the paragraphs. The certificate as reissued to Victory provided in pertinent part:

'IT IS, THEREFORE, ORDERED BY THE COMMISSION, That Motor Carrier Certificate of Public Convenience and Necessity No. 718 is hereby re-issued on the records the Commission to Victory Freight Lines, Inc., authorizing operations as a common carrier by motor vehicle, in the transportation of:

1. COMMODITIES GENERALLY:

Between Birmingham and Tuscaloosa over U.S. Highway 11, with restriction that no intermediate points be served.

2. NEW FURNITURE:

Between Birmingham and Tuscaloosa, Sylacauga, Montgomery, and Alexander City, in truckloads, only, minimum 2000 pounds.

3. BUILDING MATERIALS, LUMBER, PAINTS, CLASS, ROOFING AND TAR, MACHINERY, CULVERT PIPE, BOILERS AND STACKS, BOILER PARTS, PETROLEUM PRODUCTS, EMPTY DRUMS, AND AUTO PARTS (except such commodities which, because of size and weight, require the use of special equipment):

Between Birmingham, on the one hand, and points and places located within a radius of 130 miles of Birmingham, on the other hand; truckloads only, minimum 5000 pounds.

4. CAST IRON PIPE, IRON AND STEEL ARTICLES, as described in ATA Tariff No. 1--G, MF--APSC No. 35, and CONTRACTOR'S EQUIPMENT (except such commodities which, because of size and weight, require the use of special equipment):

Between Birmingham, on the one hand, and between points and places located within a radius of 150 miles of Birmingham, on the other hand; truckloads only, minimum 10,000 pounds.

5. GROCERIES, PRODUCE, BURIAL VAULTS AND CASKETS, HARDWARE, AND PLUMBING GOODS:

Between Tuscaloosa and Birmingham via U.S. Highway 11.

6. PAPER ARTICLES, PRINTED AND PLAIN:

Between Birmingham and Tuscaloosa, on the one hand, and within a radius of 100 miles of Tuscaloosa and Birmingham, on the other hand; truckloads only, minimum 5000 pounds.

7. MACHINERY, MATERIALS, SUPPLIES AND EQUIPMENT Incidental to, or used in, the construction, development and production of natural gas and petroleum (except such commodities as require the use of special equipment):

Between all points and places in Alabama over irregular routes.

8. MACHINERY, MATERIAL, SUPPLIES AND EQUIPMENT Used in the construction, operation and maintenance of petroleum refineries (except such commodities as require the use of special equipment):

Between all points and places in Alabama over irregular routes.

9. MACHINERY, MATERIALS, SUPPLIES AND EQUIPMENT Used in the construction, operation and maintenance of natural gas, water, and petroleum pipelines, including, but not restricted to, the stringing of pipe along rights-of-way (except such commodities as require the use of special equipment):

Between all points and places in Alabama over irregular routes.

10. CONTRACTORS' EQUIPMENT AND SUPPLIES, HEAVY MACHINERY PARTS, ACCESSORIES AND SUPPLIES, INCLUDING HEAVY MATERIALS AND MACHINERY (except such commodities as require the use of special equipment):

Between all points and places in Alabama over irregular routes.

11. TELEPHONE, TELEGRAPH AND POWER LINE CONSTRUCTION MATERIALS:

Between points and places in Alabama, truckloads only.

12. HOUSEHOLD GOODS:

Between points and places in Alabama, truckloads only.

13. LUMBER, PLYWOOD, LAMINATED FLOORING, AND RAILROAD TIES:

From the plantsite of Birmingham Forest Products, Inc., near Cordova, Alabama, to all points in Alabama over irregular routes.'

Eagle Motor Lines, Ross Neely Express, Deaton, Inc., and Arrow Truck Lines appealed the Commission's order of July 8, 1975, which had granted the transfer of authority, to the Montgomery County Circuit Court. On January 27, 1976, the circuit court affirmed the Commission's order and it is from this final judgment that the appeal to this court is taken.

In reviewing an order of the Commission, it should be remembered that there is a presumption of correctness accorded their order and this court will not substitute its own judgment on the findings of fact for that of the Commission's, except under extraordinary circumstances. Southern Haulers, Inc. v. Alabama Public Service Commission, Ala., 331 So.2d 660 (1976) citing Alabama Power Co. v. Alabama Public Service Commission, 278 Ala. 597, 179 So.2d 725 (1965). In cases such as this where the evidence was heard ore tenus by a hearing examiner, as provided for in Title 48, §§ 66, 301(7) Alabama Code 1940 (Recompiled 1958), rather than by the Commissioners themselves, the same presumption of correctness is given the examiner's findings of fact. Southern Haulers, Inc. v. Alabama Public Service Commission, Ala., 331 So.2d 660 (1976), citing Alabama Public Service Commission v. Perkins, 275 Ala. 1, 151 So.2d 627 (1962).

The factual development which follows is taken from the Attorney-Examiner's findings of fact. In 1970 the present owners of Victory Freight Line, Inc., purchased the company when it was in dire financial straits. At the time of the hearing, Victory had approximately $5,000 in available cash and a long-term debt of approximately $210,000, of which $130,000 was then due and payable in full. In an effort to raise operating capital and to discharge the company's indebtedness, Victory entered into a contract with Vulcan Freight Line, Inc., whereby for the consideration of $250,000 Victory would transfer that portion of its carrier's certificate covering both intra- and interstate operation which is commonly referred to as 'heavy hauling' authority. This contract was made contingent upon the approval of the transfer by both the Alabama Public Service Commission and the Interstate Commerce Commission. The contract contained several conditional provisions relative to the two agencies'...