Herrin Transp. Co. v. Louisiana Public Service Com'n

• Decision Date: 15 February 1961
• Docket Number: No. 45082,45082
• Citation: 127 So.2d 541,241 La. 174
• Parties: HERRIN TRANSPORTATION COMPANY et al. v. LOUISIANA PUBLIC SERVICE COMMISSION et al.
• Court: Louisiana Supreme Court

Page 541

127 So.2d 541

241 La. 174

HERRIN TRANSPORTATION COMPANY et al. v. LOUISIANA PUBLIC SERVICE COMMISSION et al.

No. 45082.

Supreme Court of Louisiana.

Feb. 15, 1961.

Rehearing Denied March 20, 1961.

Jack P. F. Gremillion, Atty. Gen., Joseph H. Kavanaugh, Baton Rouge, Special Counsel to the Atty. Gen., E. M. Nichols, Special Counsel, Lake Charles, for defendant-appellant.

Robert A. Ainsworth, Jr., William E. Crawford, Ainsworth & Ainsworth, Chaffe, McCall, Phillips, Burke & Hopkins, New Orleans, for plaintiffs-appellees and intervenor-appellee.

SUMMERS, Justice.

Cameron Freight Lines, Inc., was the holder and owner of a Certificate of Public Convenience and Necessity issued by the Louisiana Public Service Commission as a common carrier of motor freight between Cameron, Louisiana, and Johnson's Bayou over Louisiana Highway 292; between Cameron and Hackberry, Louisiana, over Louisiana Highway 104; from Abbeville, Louisiana, to Grand Chenier via Pecan Island over Louisiana Highways 43 and 292. It filed an application with the Louisiana Public Service Commission seeking an extension of the certificate to include the following points and routes: from Hackberry to Lake Charles, Louisiana, via Highways 104 and 382 and from Johnson's Bayou to the Texas line; from Abbeville, Louisiana, to New Orleans, Louisiana, via Highways 14 and 90 and serving no intermediate points. The effect of the extensions if granted would be to give Cameron Freight Lines, Inc. a substantially continuous route from Lake Charles via Cameron, Grand Chenier, Pecan Island, and Abbeville to New Orleans with no intermediate points served from Abbeville to New Orleans. The success of its application would permit Cameron Freight Lines, Inc. to handle traffic originating in Lake Charles destined for New Orleans and from New Orleans destined to Lake Charles, serving only intermediate points from Abbeville via Pecan Island and Cameron to Lake Charles.

This application was opposed by Herrin Transportation Company, T.S.C. Motor Freight Lines, Inc. (now Ryder Truck Lines, Inc.), and Southern Pacific Transport Company.

After a hearing the Louisiana Public Service Commission, by a divided vote, two to one, granted the certificate by its Order No. 7478 for the extention of routes and points requested by Cameron Freight Lines, Inc. Being dissatisfied, Herrin Transportation Company and T.S.C. Motor Freight Lines, Inc. brought suit against the Commission in the Nineteenth Judicial District Court to annul and set aside the order and to revoke and annul the Certificate of Public Convenience and Necessity issued thereunder. Southern Pacific Transport Company intervened in the suit, uniting with Herrin Transportation Company and T.S.C. Motor Freight Lines, Inc., and adopted the allegations of the petition as its own.

Plaintiffs and intervenor alleged that the Commission erred in granting the application and authorizing new service over routes which they and others had traversed and served for many years as motor carriers of general commodities, under authority of Certificates of Public Convenience and Necessity issued by the Interstate Commerce Commission and the Louisiana Public Service Commission which required them to service all intermediate points between Lake Charles and New Orleans over Highways 90 and 14. ¹ The matter was submitted to the Trial Court on the record made before the Commission and the Order of the Commission was rendered null, void and of no effect and 'cancelled' by judgment of that Court.

Within rights accorded by law, the Commission is now seeking review of the case.

The issue presented is essentially one which involves the right of the Commission to issue an order of this nature, the evidence required to sustain such an order, and the scope of judicial review of that order.

LSA-R.S. 45:164 provides:

'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.' (Italics ours).

Thus, it is observed that the language of the statute requires a showing by the applicant that the public convenience and necessity would be 'materially' promoted by the issuance of the certificate applied for.

This language imposes upon the applicant a burden of proof which requires more than a mere showing that there is Some evidence--there must be a clear showing that there is substantial evidence to support such a finding. See Texas & Pacific Co. v. Louisiana Public Service Commission, 201 La. 853, 10 So.2d 641; Illinois Central Railroad Company v. Louisiana Public Service Commission, 224 La. 279, 69 So.2d 43.

Obviously, the Commission does not have an absolute right to grant or refuse to grant a Certificate of Public Convenience and Necessity, its authority being limited in this regard by the provisions of LSA-R.S. 45:164.

This limitation is readily recognized in the right granted by LSA-R.S. 45:1192 to parties, who are dissatisfied with orders of the Commission, to file suit and subject to those orders; therein it is further provided that 'The Court may affirm the order of the commission complained of, or it may change, modify, alter, or set it aside, as justice may require.'

Additionally, the constitutional provision permitting appeals from Commission decisions states:

'The orders of the Commission shall be enforced by the imposition of penalties as hereinafter provided, and Any party in interest may appeal from orders and decrees of the Commission to the courts by filing suit, within ninety days from the date of the Commission's order, and not thereafter, against the Commission at its domicile.' Article VI, Section 5, Louisiana Constitution, LSA (Italics ours.)

The record reveals that Herrin Transportation Company, T.S.C. Motor Freight Lines, Inc., and Southern Pacific Transport Company have been operating daily for many years, rendering an overnight delivery service of freight between New Orleans and Lake Charles, and between New Orleans and Abbeville...