Florane v. Louisiana Public Service Com'n, 83-CA-0152

• Court: Supreme Court of Louisiana
• Citation: 433 So.2d 120
• Docket Number: No. 83-CA-0152,83-CA-0152
• Parties: Lloyd FLORANE v. LOUISIANA PUBLIC SERVICE COMMISSION.
• Decision Date: 23 May 1983

Page 120

433 So.2d 120 Lloyd FLORANE
v.
LOUISIANA PUBLIC SERVICE COMMISSION. No. 83-CA-0152. Supreme Court of Louisiana. May 23, 1983.
Rehearing Denied June 24, 1983.

Page 121

Donald G. Kelly, Natchitoches, for plaintiff-appellant.

Claire M. Goldworthy, East Baton Rouge, for intervenor-appellee.

Marshall B. Brinkley, Louisiana Public Service Com'n, Baton Rouge, for defendant-appellee.

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MARCUS, Justice.

This case involves the Louisiana Public Service Commission's grant of a certificate of public convenience and necessity to Hubert A. Andries and Tommy J. Andries, d/b/a Andries Industries, authorizing them to transport homes, house boats and barges, office buildings and storage tanks over irregular routes within Sabine, Natchitoches, DeSoto, and Vernon Parishes.

An application for the aforesaid certificate was filed by the Andrieses with the Commission on August 10, 1981. After publication of notice for hearing by the Commission, an opposition and protest was filed by Lloyd Florane, d/b/a Florane House Movers, who had been granted a similar certificate for a fifty mile radius of Coushatta (located in Red River Parish) which includes, in addition to Red River Parish, Natchitoches, Sabine, DeSoto, and the "biggest portions" of Caddo, Bossier, Webster, and Bienville Parishes. A hearing was held before an examiner on December 15, 1981. The application was considered at an open session of the Commission held December 21, 1981. 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 the grantee's compliance with the "laws and rules and regulations of the Commission bearing thereon." The order of the Commission was dated January 4, 1982. Florane's application for rehearing was denied.

After the order became effective, Florane, 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. The Andrieses intervened uniting with the Commission in resisting Florane's action. After a hearing, the district judge affirmed the order of the Commission. Florane appealed to this court pursuant to La. Const. Art. 4, § 21(E). ²

On appeal to this court, Florane contends the Commission erred in granting a certificate to the Andrieses without any proof that the public convenience and necessity would be materially promoted thereby.

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

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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. Dreher Contracting & Equipment Rental, Inc. v. Louisiana Public Service Commission, 396 So.2d 1265 (La.1981); Truck Service, Inc. v. Louisiana Public Service Commission, 263 La. 588, 268 So.2d 666 (1972). 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. Dreher Contracting & Equipment Rental, Inc. v. Louisiana Public Service Commission, supra; Truck Service, Inc. v. Louisiana Public Service Commission, supra; Hearin Tank Lines, Inc. v. Louisiana Public Service Commission, 247 La. 826, 174 So.2d 644 (1965). A ruling of the Commission may not be deemed arbitrary unless it is shown that it is not supported by some factual evidence. Dreher Contracting & Equipment Rental, Inc. v. Louisiana Public Service Commission, supra; Beauregard Electric Cooperative, Inc. v. Louisiana Public Service Commission, 378 So.2d 404 (La.1979); B & M Trucking, Inc. v. Louisiana...