Harbin v. Alabama Public Service Com'n

• Decision Date: 21 June 1985
• Citation: 474 So.2d 63
• Parties: Ira T. HARBIN, d/b/a Harbin Freight Line v. ALABAMA PUBLIC SERVICE COMMISSION; Jim Sullivan, as President; Lynn Greer, as Associate Commissioner; Jim Folsom, Jr., as Associate Commissioner of the Alabama Public Service Commission; Petrey Freight Line, Inc., a corporation. 83-1096.
• Court: Alabama Supreme Court

Page 63

474 So.2d 63

Ira T. HARBIN, d/b/a Harbin Freight Line v. ALABAMA PUBLIC SERVICE COMMISSION; Jim Sullivan, as President; Lynn Greer, as Associate Commissioner; Jim Folsom, Jr., as Associate Commissioner of the Alabama Public Service Commission; Petrey Freight Line, Inc., a corporation.

83-1096.

Supreme Court of Alabama.

June 21, 1985.

J. Douglas Harris of Harris & Harris, Montgomery, for appellant.

Justice D. Smyth III and Philip H. Butler of Robison & Belser, Montgomery, for appellee Petrey Freight Line.

Charles A. Graddick, Atty. Gen., for appellee Alabama Public Service Com'n.

MADDOX, Justice.

Harbin Freight Line appeals from the judgment of the Circuit Court of Crenshaw County affirming an order of the Alabama Public Service Commission (APSC), which issued a motor carrier certificate of public convenience and necessity to appellee Petrey Freight Line, Inc.

Petrey Freight Line presently holds contract carrier authority from the APSC to haul merchandise owned by Petrey Wholesale Company after Petrey Wholesale has acquired title to the merchandise.

Petrey Freight Line applied for authority to institute a new operation as a common carrier in intrastate commerce between Montgomery and Petrey, Alabama, over irregular routes, to transport the following:

"General commodities. The referenced commodities are to be transported in enclosed motor vehicles from all points in Montgomery County to all points within a one mile radius of Petrey, AL."

Harbin Freight Line challenged this application. After a hearing, the appointed administrative law judge found that there was insufficient evidence to demonstrate that existing service was inadequate and he recommended that the application be denied.

Petrey Freight Line filed its exceptions to the report and recommended order, stating that it had proved a public need for the services outlined in its application; that it was fit, willing, and able to properly perform the service proposed; and that the proposed service was and will be required by the present and future public convenience and necessity. Petrey Freight Line stated that the only reason Harbin Freight Line could offer for denying its application was that a grant of this authority would reduce Harbin Freight Line's revenues.

Harbin Freight Line filed its replies to Petrey Freight Line's exceptions. Harbin Freight Line stated that the applicant failed to carry its burden of proof; that the evidence failed to show any advantages to the public of the proposed service; and, that existing transportation service is adequate to meet the reasonable public needs. Harbin Freight Line stated that the evidence shows that a grant of this authority would result in a detriment to Harbin Freight Line.

The APSC found that the administrative law judge accurately summarized the evidence presented, but erred in his conclusions and recommendations. The APSC granted the application after finding that "the testimony show[ed] that the applicant [had] met the burden of proof necessary to show that public convenience and necessity requires the proposed service, and that such proposed service will be superior to existing service to Petrey, which the record shows has been provided in an untimely fashion." Harbin Freight Line appealed to the circuit court, which affirmed the APSC's decision. Harbin Freight Line appeals here, contending that the APSC's decision to reject the administrative law judge's recommendations was not supported by legal evidence and that the APSC erroneously granted the application to Petrey Freight Line to the prejudice of Harbin's substantial rights.

Pursuant to Code 1975, § 37-1-124, "The commission's order shall be taken as prima facie just and reasonable." The order may be set aside if the court finds that "(1) The commission erred to the prejudice of appellant's substantial rights in its application of the law; or, (2) The order, decision or award was procured by fraud or was based upon a finding of facts contrary to the substantial weight of the evidence."

Where the evidence was presented ore tenus and was heard by a hearing examiner and not by the commission members themselves, the presumption of correctness normally accorded to the commission's order will be accorded to the hearing examiner's findings of fact. Although the ore tenus rule mandates that a presumption of correctness be accorded a hearing examiner's findings of fact when he, alone, has heard the evidence, the ore tenus rule does not...