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

Decision Date23 May 1983
Docket NumberNo. 83-CA-0152,83-CA-0152
Citation433 So.2d 120
PartiesLloyd FLORANE v. LOUISIANA PUBLIC SERVICE COMMISSION.
CourtLouisiana Supreme Court

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.

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 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 Public Service Commission, 353 So.2d 1323 (La.1977). 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 public convenience and necessity would be materially promoted thereby, and that the Commission's action was therefore arbitrary and capricious and a clear abuse of its power. Dreher Contracting & Equipment Rental, Inc. v. Louisiana Public Service Commission, supra; B & M Trucking, Inc. v. Louisiana Public Service Commission, supra.

Public convenience and necessity are not, and were not intended to be, susceptible of precise definition. Rather, what constitutes public convenience and necessity must have reference to the facts and circumstances of each given case as it arises. 60 C.J.S. Motor Vehicles § 90(1) (1969).

House moving, a business of operating motor vehicles as common or contract carriers of property for compensation upon public highways and bridges of this state is a business "affected with a public interest." La.R.S. 45:161. As such, the "commission has power and authority necessary to supervise, govern, regulate and control ... and to fix reasonable and just rates ... or charges for ... services rendered...." La.R.S. 45:163. As a result of a general order of the Commission, all rates and charges of common carriers are fixed and regulated by the Commission. 3 The objectives of regulatory rates charged are to (1) protect the consumer, (2) protect the common carrier and (3) conform with the overall public interest. F. Welch, Cases and Text on Public Utility Regulation (1968). Thus, the public is secured adequate service at reasonable rates and in return the common carrier is granted authority to operate in a given territory. However, according to the Commission, in the case of house movers, "no tariff need be filed and certificated carriers have been able to compete on an individual job." The Commissioner states that to its knowledge, it is the only regulated transportation which historically has been exempted from "some specific tariff filing." The Commission does prescribe a minimum rate, 4 but since the nature of the move, distance involved and labor required varies from job to job "no realistic tariff is possible." The legal effect of regulation is primarily to require identification, registration, and financial responsibility under La. R.S. 45:163. Where, as here, the rates and charges of a business are not regulated, the need for competition (to insure reasonable rates to the consumer) should be considered in...

To continue reading

Request your trial
19 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT