Hearin Tank Lines, Inc. v. Louisiana Public Service Commission, 47560

• Decision Date: 03 May 1965
• Docket Number: No. 47560,47560
• Parties: HEARIN TANK LINES, INC., et al. v. LOUISIANA PUBLIC SERVICE COMMISSION.
• Court: Louisiana Supreme Court

Page 644

174 So.2d 644

247 La. 826

HEARIN TANK LINES, INC., et al. v. LOUISIANA PUBLIC SERVICE COMMISSION.

No. 47560.

Supreme Court of Louisiana.

May 3, 1965.

Harold R. Ainsworth, New Orleans, for appellants.

J. Nilas Young, Isom J. Guillory, Jr., Eunice, for intervenor-appellee.

Joseph H. Kavanaugh, Baton Rouge, for appellee.

HAWTHORNE, Justice.

Hearin-Miller Transporters, Inc., ¹ Younger Brothers, Inc., Earl C. Gibbon, d/b/a Earl Gibbon Petroleum Transport, and Prudhomme Truck Tank Service, Inc., all holders of statewide common carrier certificates for the transportation of liquid commodities, have appealed from a judgment of the Nineteenth Judicial District Court for the Parish of East Baton Rouge, Louisiana, which affirmed an order of the Louisiana Public Service Commission and dismissed their action to annul this order. The Public Service Commission's order amended a common carrier certificate for petroleum products on the application of the holder thereof, Guillory Tank Truck Service, Inc., as follows:

'ORDERED, that Certificate of Public Convenience and Necessity No. 5384--A reissue to Guillory Tank Truck Service, Inc. amended to authorize fully the following described transportation as a common carrier by motor vehicle:

'Transportation of commodities of Water, Salt Water, Crude Oil, Gasoline, Diesel Fuel and other Petroleum Products of all types, transported in bulk in tank truck only; over irregular routes through the state of Louisiana with the restriction that service to and from all points North of a line running East and West and which is ten (10) miles North of Alexandria, is excluded * * *.'

Guillory Tank Truck Service, Inc., since 1960 ² has been the holder of a certificate of public convenience and necessity for the transportation as a common carrier of certain commodities over irregular routes within a radius of 75 miles of Eunice, Louisiana, with the restriction that service between East Baton Rouge and this area was excluded. In May, 1961, Guillory applied to the Public Service Commission for amendment of its certificate to increase both territory covered and kinds of commodities carried, and the commission in due course after a hearing granted the amended certificate as set out above. Appellants opposed Guillory's application before the commission, and when the order was issued over their opposition, they sought judicial review in the district court.

R.S. 45:164 provides in part:

'* * * 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.'

This statute imposes a duty upon the commission not to issue a certificate over a route where there is an existing certificate unless the applicant therefor clearly shows that public convenience and necessity would be materially promoted. In other words, the burden before the commission is on the applicant, who as a prerequisite to the issuance of the certificate must clearly show that public convenience and necessity would be materially promoted by its issuance.

In the instant case appellants contend that the applicant offered no substantial evidence before the commission which would justify its order. As authority for their contention that the evidence before the commission must be 'substantial' they rely on language in the case of Herrin Transportation Company v. Louisiana Public Service Commission, 241 La. 174, 127 So.2d 541. In that case the court in affirming a judgment of the lower court which annulled an order of the commission issuing a certificate of public convenience and necessity stated that '* * * there must be a clear showing that there is substantial evidence' to support an order of the commission. As authority for this statement the opinion refers the reader to the cases of Texas & Pacific R. Co. v. Louisiana Public Service Commission, 201 La. 853, 10 So.2d 641, and Illinois Central Railroad Company v. Louisiana Public Service Commission, 224 La. 279, 69 So.2d 43.

In the Texas & Pacific R. Co. case this court after reviewing the record stated that the evidence was '* * * inadequate to clearly show the public convenience and necessity would be materially promoted by the issuance of the new or additional certificate * * *' of public convenience and necessity. In the Illinois Central case the court after reviewing the record said: '* * * we cannot say that the decision of the Commission was plainly contrary to the facts or unsupported by evidence. * * *' ³

A reading of the opinion in the Herrin case, supra, discloses that the court in making the statement relied on was only stating the burden of proof imposed by the statute--that is, that the applicant for a certificate in such a case must clearly show that public convenience and necessity would be materially promoted, and that the burden of proof 'requires more than a mere showing that there is some evidence'. In short, if the applicant adduces evidence before the...