Ex parte Alabama Public Service Commission

• Decision Date: 30 October 1958
• Docket Number: 3 Div. 841
• Citation: 268 Ala. 322,106 So.2d 158
• Parties: Ex parte ALABAMA PUBLIC SERVICE COMMISSION.
• Court: Alabama Supreme Court

Page 158

106 So.2d 158

268 Ala. 322

Ex parte ALABAMA PUBLIC SERVICE COMMISSION.

3 Div. 841.

Supreme Court of Alabama.

Oct. 30, 1958.

John Patterson, Atty. Gen., Roy W. Kimbrough, Sp. Asst. Atty. Gen., Wm. C. Younger, Asst. Atty. Gen., and Wm. F. Black, Montgomery, for petitioner.

Jos. F. Johnston, Meade Whitaker, David R. Baker and Cabaniss & Johnston, Birmingham, for respondent.

MERRILL, Justice.

In November, 1956, the Southern Railway Company, a Corporation, hereinafter referred to as Southern, filed a petition with the Alabama Public Service Commission, hereinafter referred to as the Commission, in pursuance of Tit. 48, § 106, Code 1940, for permission to discontinue its intrastate passenger trains Nos. 19 and 20 operating between Birmingham and Mobile, via Selma.

On July 8, 1957, after a public hearing, the Commission entered an order denying Southern's petition stating that 'we are of the opinion that a public need exists for the service and that need outweighs the losses being sustained by petitioner.'

Southern appealed this order to the Circuit Court of Montgomery County, and that court, after a hearing, entered an order on May 22, 1958, reversing the order of the Commission, and directed it to enter an order permitting Southern to discontinue the trains after giving the statutory notice of ten days.

On May 28, 1958, Southern filed an application for a rehearing and requested the Circuit Court of Montgomery County to allow it to supersede the order of the Commission, and to permit the discontinuance of the trains pending the final outcome of the matter.

On June 13, 1958, the circuit court granted the rehearing and ordered the supersedeas, subject to a bond of $10,000, which Southern filed. The commission appealed to this court on June 17, and on June 19, started the instant proceeding by filing a petition for mandamus to Judge Jones to require him to set aside his order of supersedeas.

On July 24, we issued a rule nisi to Judge Jones to set aside his order or show cause why he should not do so, and made it returnable on October 6, 1958. The Commission argues that the Circuit Court of Montgomery County, in Equity, did not have the authority to supersede the order of the Commission. The trial court, represented by counsel for Southern, takes the position that the court did have the authority, both by statute and under its plenary power, and also that the Commission is barred by the doctrine of collateral estoppel from maintaining this action.

We first dispose of the question of collateral estoppel. In 1948, Southern applied to the Commission for permission to discontinue two trains in north Alabama. The Commission, after a public hearing, denied the petition.

Instead of pursuing its right of appeal to the state courts, Southern filed a complaint in United States District Court alleging diversity of citizenship and that requiring continued operation of the trains at an out-of-pocket loss amounted to a confiscation of its property in violation of the Due Process clause of the Fourteenth Amendment. The District Court held the order of the Commission void and enjoined it from taking any steps to enforce its order to keep the trains operating or from enforcing any of the statutory penalty provisions because the trains were discontinued. The Commission appealed to the United States Supreme Court.

The cause was heard in that court on the merits, but one of the questions argued there was the authority of state courts to grant a supersedeas pending the final determination of the matter. At that time, Southern took the position that the state courts did not have the authority, and the Commission argued that they did have such authority. The judgment of the District Court was reversed. Alabama Public Service Commission v. Southern Railway Co., 341 U.S. 341, 71 S.Ct 762, 95 L.Ed. 1002.

Southern agrees that the contrary position taken by the Commission now to the one taken then creates no estoppel under our holding in City of Birmingham v. Lee, 254 Ala. 237, 48 So.2d 47, since the Commission is a state-created agency. But it does contend that since the question is the same, the parties are in reality the same, and the United States Supreme Court has already decided the question, that a collateral estoppel arises to bar the Commission from relitigating the question.

We come now to a consideration of the opinion in 341 U.S. 341, 71 S.Ct. 762, 769. We understand that opinion to hold that even though the federal courts had jurisdiction, it 'should not be exercised in this case as a matter of sound equitable discretion,' and that whatever 'rights appellee may have are to be pursued through the state courts.' It is also our understanding that the U. S. Supreme Court did not construe our statutes, or pass on the particular authority of a state court to grant a stay of an order of the Commission to continue to operate a train, but after citing certain of our statutes and decisions merely stated that 'appellee has not shown that the Alabama procedure for review of Commission orders is in any way inadequate to preserve for ultimate review in this Court any federal questions arising out of such orders.'

It is our opinion that the opinion in 341 U.S. 341, 71 S.Ct. 762, is neither res judicata nor a collateral estoppel in the instant proceeding.

That brings us to the main question--whether or not the Circuit Court of Montgomery County, in the exercise of its equity and statutory jurisdiction, had the power to supersede or stay the order of the Commission of July 8, 1957, pending final determination of the controversy.

This question is one of first impression in Alabama, and we are advised that there is no precedent for a railroad to discontinue the operation of passenger trains without a permit from the Commission or other regulatory body, prior to the determination of the merits in the case by a Supreme Court.

Our statute, Tit. 48, § 106, provides:

'No transportation company subject to this chapter shall abandon all or any portion of its service to the public or the operation of any of its lines, properties, or plant which would affect the service it is rendering the public, except ordinary discontinuances of service for nonpayment of charges, nonuser, violations of rules and regulations or similar reasons in the usual course of business, unless and until there shall first have been filed an application for a permit to abandon service and obtained from the commission a permit allowing such abandonment.'

The constitutionality of this section was upheld in St. Louis-San Francisco Ry. Co. v. Alabama Public Service Commission, 279 U.S. 560, 49 S.Ct. 383, 73 L.Ed. 843.

The Commission has refused to issue Southern the permit to abandon service. The case on the merits was considered by the circuit court and has been appealed to this court. The certificate of appeal is here and the transcript has been filed, but it has not yet been submitted. The order of the circuit court granting supersedeas must fall unless there is some authority to justify its issuance.

The order of the Commission is prima facie just and reasonable. This rule is both statutory and case law. As stated in our recent case of Railway Express Agency, Inc., v. Alabama Public Service Commission, 265 Ala. 369, 91 So.2d 489, 494:

'The order of the Public Service Commission on appeal to this court is taken as prima facie just and reasonable, and the finding of the Commission will not be overturned if supported by legal evidence of substantial weight and probative force. Section 82, Title 48, Code 1940; North Alabama Motor Express, Inc., v. Rookis, supra [244 Ala. 137, 12 So.2d 183]; Alabama Public Service Commission v. Crow, 247 Ala. 120, 22 So.2d 721; Alabama Public Service Commission v. Nunis, 252 Ala. 30, 39 So.2d 409; Alabama Public Service Commission v. Higginbotham, 256 Ala. 621, 56 So.2d 401.'

The Constitution of Alabama of 1901, in Sec. 242, classifies railroads as public highways and states that they are common carriers. In Sec. 243, the power to regulate railroads is conferred upon the Legislature.

The Legislature in turn has created the Alabama Public Service Commission to handle the regulation of utilities and common carriers, including railroads. Tit. 48, § § 1-78. The Legislature provided for appeals from orders of the Commission to the circuit court and thence to this court. Tit. 48, § § 79-93. The Commission was not known at common law and any appeal from any of its orders is strictly statutory. In Birmingham Electric Co. v. Alabama Public Service Comm., 254 Ala. 119, 47 So.2d 449, 452, we said:

'* * * It is familiar law that when special statutory authority in derogation of the common law is conferred on courts of general jurisdiction, such a court of general jurisdiction becomes quoad hoc a court of inferior or limited jurisdiction. State v. Mobile & G. R. Co., 108 Ala. 29, 18 So. 801; Goodwater Warehouse Co. v. Street, 137 Ala. 621, 34 So. 903; Gunn v. Howell, 27 Ala. 663, 62 Am.Dec. 785; Martin v. Martin, 173 Ala. 106, 55 So. 632; Ex parte Pearson, 241 Ala. 467, 3 So.2d 5; Truett v. Woodham, 98 Ala. 604, 13 So. 519.

"With respect to the judicial acts of courts exercising special and limited jurisdiction, the existence of jurisdictional facts is not inferred from the mere exercise of jurisdiction, but must affirmatively appear from the record. Goodwater Warehouse Co. v. Street, 137 Ala. 621, 625, 34 So. 903, and authorities there cited. In such cases 'a compliance with the requisitions of the statute is necessary to its jurisdiction, and must appear on the face of its proceedings.'--State v. Mobile & G. R. Co., supra, [108 Ala. 29, 18 So. 801]. It follows, as of course, that such jurisdiction cannot be obtained or conferred by the proclamation thereof, positively or by invited necessary inference, in the order or decree of a court assuming to exercise a limited special authority.--Neville v. Kenney, 125 Ala. 149, 28 So....