Hodges Transfer Co., Inc. v. Alabama Public Service Commission
| Decision Date | 21 September 1979 |
| Citation | 376 So.2d 680 |
| Parties | HODGES TRANSFER COMPANY, INC., et al. v. ALABAMA PUBLIC SERVICE COMMISSION et al. 78-282. |
| Court | Alabama Supreme Court |
John W. Cooper, Cooper & Huey, Birmingham, for Hodges Transfer Co., Inc., et al.
Robert S. Richard, Montgomery, for Ross Neely Express, Inc., Baggett Transportation Co., Inc., Alabama Bulk Carrier, Inc., Schwerman Trucking Co., Arrow Truck Lines, Inc., Southern Haulers, Inc., and Truck Transport, Inc.
Stanley W. Foy, Attorney-Examiner, Alabama Public Service Commission, and Debra Jean Brown, Asst. Atty. Gen., for Alabama Public Service Commission.
This is an appeal by Hodges Transfer Company (Hodges), a corporation, from a judgment of the Circuit Court of Blount County affirming an order of the Alabama Public Service Commission (APSC) requiring Hodges to cease and desist from transporting commodities under Certificate of Public Convenience and Necessity (Certificate) No. 518, which neither originated at nor are destined for Uniontown, Alabama. We affirm.
Hodges is the holder of Certificate No. 518 which is a grant of authority from the APSC that authorizes it to transport by motor carrier certain specified commodities "between Uniontown and points in Alabama within a 200 mile radius thereof, over irregular routes." Hodges is a successor corporation to John Hodges who was issued the Certificate, on application, under the Grandfather Provisions of the Alabama Motor Carrier Act (Acts 1939, No. 669).
Ross Neely Express, Inc., Baggett Transportation Company, Inc., Alabama Bulk Carrier, Inc., Schwerman Trucking Company, Arrow Truck Lines, Inc., Southern Haulers, Inc., and Truck Transport, Inc., filed a complaint with APSC alleging that Hodges, John E. Hodges, and Robbie D. Wood were transporting, under authority of the Certificate, commodities which neither originated at nor were destined for Uniontown, Alabama. Various motions were filed and Hodges filed its answer admitting such transportation, but denying that such transportation was not authorized by its Certificate. The parties stipulated that the only issue presented to APSC was the interpretation of Certificate No. 518.
A hearing examiner held a hearing concerning the Certificate, the parties filed briefs, and the examiner issued a report and recommended order that advised the APSC to require any shipments transported under Certificate No. 518 either originate at or be destined for Uniontown, Alabama. Hodges filed exceptions to the examiner's report and recommended order, and complainants replied. Subsequently, APSC entered its order which adopted the examiner's recommendation and ordered Hodges to cease and desist transporting commodities which neither originate at nor are destined for Uniontown, Alabama.
Hodges filed its notice of appeal to the Circuit Court of Perry County and, thereafter, filed its complaint and petition for supersedeas in that court. That court dismissed Hodges' appeal on motion of APSC on the ground it was not the proper forum to entertain the appeal. On motion for new trial that court transferred the action to the Circuit Court of Blount County which set a hearing and entered a supersedeas of the APSC order. The Circuit Court of Blount County then entered judgment which: (1) found it had jurisdiction; (2) vacated the supersedeas of the APSC order; and (3) affirmed the APSC order. Hodges filed a motion to alter or amend the judgment; it was denied and Hodges perfected this appeal.
The sole question before this court is: does the Certificate, which authorizes transportation between a city and other points within a specified radius thereof, authorize transportation between all pairs of points within the specified radius of that city? We answer the question in the negative.
Hodges contends the question should be answered in the affirmative. It contends it was operating in a so-called non-radial manner before Certificate No. 518 was issued; and therefore, its manner of operation before issuance of the Certificate is the true test to be used in interpreting the Certificate's extent of grant of authority. Hodges contends: (1) complainants had the burden of proof to establish that non-radial operations were not authorized; (2) they failed to meet this burden; and (3) it has been denied due process by the failure of APSC to make a finding of fact based on the evidence introduced. Hodges further contends the verbiage of its Certificate grants non-radial authority because the language, "on the one hand" and "on the other hand," was omitted from it.
In cases of this nature we review the judgment of the circuit court without any presumption of correctness, because the lower court was not in any better position to review the evidence than we, and no evidence was taken Ore tenus. Alabama Public Service Comm. v. Redwing Carriers, Inc., 279 Ala. 659, 189 So.2d 342 (1966). The order of the APSC, however, is usually taken in these cases to be Prima facie just and reasonable, and the burden to show the contrary is on the party who would overturn the order of the APSC. Redwing, supra. Code 1975, § 37-1-124. But, when the case is conducted, as in this case, before a hearing examiner and not the Commission members themselves, the presumption will be accorded the examiner's findings of fact. Southern Haulers, Inc. v. APSC, 331 So.2d 660 (Ala.1976).
Some of Hodges' arguments are difficult to follow. We find no merit in its argument that complainants failed to meet their burden of proof before the APSC. The sole issue before the APSC, as is before this court, was the interpretation of Certificate No. 518. The complainants met their burden by presenting and arguing the Alabama law and facts governing the language of the Certificate at issue. Likewise, Hodges' due process argument is far afield and without merit. The facts and law needed to adjudicate the issue in this case were presented to the examiner.
In this case the presumptions usually indulged in APSC cases are not involved because the sole issue is the construction or...
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