Floyd & Beasley Transfer Co. v. Alabama Public Service Commission

• Decision Date: 25 July 1963
• Docket Number: 3 Div. 969,Nos. 3,s. 3
• Citation: 159 So.2d 833,276 Ala. 130
• Court: Alabama Supreme Court
• Parties: FLOYD & BEASLEY TRANSFER CO., Inc. v. ALABAMA PUBLIC SERVICE COMMISSION et al. Div. 968,

Page 833

159 So.2d 833

276 Ala. 130

FLOYD & BEASLEY TRANSFER CO., Inc. v. ALABAMA PUBLIC SERVICE COMMISSION et al.

Nos. 3 Div. 968, 3 Div. 969.

Supreme Court of Alabama.

July 25, 1963.

Rehearing Denied Jan. 30, 1964.

John W. Cooper, Birmingham, for appellant.

Richmond M. Flowers, Atty. Gen., Jas. T. Hardin, Asst. Atty. Gen., and Wm. F. Black, Montgomery, for appellee Public Service Commission.

J. Douglas Harris, Montgomery, for appellees Bates, Livingston and Benton.

LIVINGSTON, Chief Justice.

Two appeals were taken by Floyd & Beasley Transfer Company, Inc., from a decree of the Circuit Court of Montgomery County, Alabama, in Equity, affirming an order of the Alabama Public Service Commission transferring Certificate of Public Convenience and Necessity No. 637 from W. H. Jackson, d/b/a Jackson Truck Line, to Charles Bates, Gene Livingston and E. J. Benton, d/b/a B & L Truck Line, and subsequently to Bates and Livingston d/b/a B & L Truck Line. The certificate was originally issued to Jackson, who hauled goods within a certain radius of Notasulga, Alabama. Most of the hauling was done for Tallassee Mills at Tallassee, Alabama.

When application was made for the transfer of the certificate from Jackson to Bates, Livingston and Benton, Floyd & Beasley appeared to oppose the transfer although they did not style themselves as intervenors. They also appeared to oppose the transfer of the certificate from Bates, Livingston and Benton to Bates and Livingston, and when the Alabama Public Service Commission granted the requests for both transfers, Floyd & Beasley appealed the orders to the Circuit Court of Montgomery County, in Equity. Judge Walter B. Jones consolidated the two cases and remanded them to the Alabama Public Service Commission for certain purposes. The cases were re-examined by the Public Service Commission and the same orders were again made in both cases. Floyd & Beasley again appealed to the Montgomery Circuit Court, in Equity, and that court then affirmed the action of the Public Service Commission. It is from this decree of affirmance that the present appeals were perfected. We have again consolidated them because although there are two records, both arose out of essentially the same facts, and both are from the same decree.

Title 48, Sec. 301(15), Code of 1940, provides that transfers such as those with which we are here concerned may be made by the Commission if the transferee is qualified and if such transfer is consistent with the public interest. Appellant's chief contention is that these transfers did not serve the public interest. With this we cannot agree.

There was ample evidence adduced at the hearing to support the orders of the Commission. It appears from the testimony that Jackson's Company was in financial trouble and that Bates, Livingston and Benton wanted the transfer of the certificate so that some of Jackson Truck Line's creditors could be paid. We are of the opinion, as were the Commission and the trial court, that this would serve the public interest. We see no merit in appellant's contention that because all the creditors could not be paid, the public interest would not be served. It would seem to us better to arrange to pay off some creditors than none at all.

Appellant argues that the certificate was dormant and therefore should not have been transferred. It is true that it is the policy of the Alabama Public Service Commission not to transfer certificates which are dormant unless good cause is shown for such transfer. While we will not concede that the certificate was dormant, we see no reason to disagree with the Commission's finding that there was good cause shown for the transfer, and the question of dormancy thus becomes moot. The order of the Commission is taken as prima facie just and reasonable, Title 48, Sec. 82, Code of 1940, and the burden is on the party who would upset the order of the Commission. Alabama Public Service Commission v. Atlantic Coast Line R. Co., 253 Ala. 559, 45 So.2d 449. Also, findings of the Commission will not be overturned if supported by legal evidence of substantial weight and probative force. Alabama Publice Service Commission v. Higginbotham, 256 Ala. 621, 56 So.2d 401; Alabama Public Service Commission v. Nunis, 252 Ala. 30, 39 So.2d 409; North Alabama Motor Express v. Rookis, 244 Ala. 137, 12 So.2d 183. There is, we think, ample evidence to support the Commission's finding of good cause, and in view of the above authorities we are constrained to agree with the Commission. This Court has made it clear in the Rookis case, supra, as well as in the case of Alabama Public Service Commission v. Crow, 247 Ala. 120, 22 So.2d 721, that courts must guard against a substitution of their own judgments of findings of fact for the judgment of the Commissioners. In the instant case, there was substantial legal evidence from which the Commissioners could justly have found good cause for any interruption of service which might have occurred on the part of Jackson and good cause for granting the transfer.

Appellant urges that he was harmed by the refusal of the Commission to compel Jackson to appear and testify. Appellant's attorney apparently wanted to 'cross-examine' Jackson to prove the dormancy of the certificate. In light of the finding of good cause as set out above, however, any testimony as to the dormancy of the certificate would have been pure surplusage. Therefore, if there was error on the part of the Commission in the failure to...