M & G Fleet Service, Inc. v. Louisiana Public Service Com'n

• Decision Date: 28 November 1983
• Docket Number: No. 83-CA-1855,83-CA-1855
• Court: Louisiana Supreme Court
• Parties: M & G FLEET SERVICE, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION.

Page 574

443 So.2d 574

M & G FLEET SERVICE, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION.

No. 83-CA-1855.

Supreme Court of Louisiana.

Nov. 28, 1983.

Rehearing Denied Jan. 6, 1984.

V. James Stewart, Baton Rouge, for plaintiff-appellant.

Marshall B. Brinkley, Baton Rouge, for defendant-appellee.

John Schwab, Baton Rouge, for intervenor-appellee.

DENNIS, Justice.

Intervention of Material Delivery Service, Inc.

The public service commission granted a motor carrier a certificate of public convenience and necessity to transport cargo statewide for which another carrier had an existing certificate. The initial certificated carrier unsuccessfully opposed the issuance of an additional certificate by the commission, futilely sought judicial relief in the district court, and now appeals directly to this court. See La. Const. art. IV § 21(E).

M & G Fleet Service, Inc. was granted a certificate by the commission in April, 1980 which permitted it to haul, inter alia, fly ash within the state. Fly ash is the residue left when coal is burned, and it is useful as an additive in cement, masonry, soil stabilization and chemical waste management. Up to the commission hearings on February 11, 1982, M & G transported fly ash produced at Big Cajun Power Plant No. 2 at New Roads, Louisiana for Bayou Ash.

Tiger Transport was a holder of a certificate to haul cement, lime, drilling mud and certain other special commodities intrastate. For two to three years prior to the hearing, it engaged in extensive interstate fly ash hauling with shippers from Alabama into Louisiana and from Alabama to Georgia. In October 1981, Tiger applied to the commission for an additional permit to haul fly ash intrastate. After the filing of this application but before the hearing Tiger was acquired by Material Delivery Service, Inc. The commission approved the merger and permitted MDS to substitute itself for Tiger in the certificate proceeding.

M & G protested the application for an additional certificate and objected to the substitution of parties. The procedural objection was overruled by the commission, and this ruling was upheld by the district court. We agree. M & G has not shown that it was prejudiced by the substitution. The merger did not change the substance of the application or the qualifications of the applicant, since MDS plans to maintain Tiger's operations as a separate division of its business.

At the commission hearing, held before an examiner on February 11, 1982, MDS produced evidence that it is well equipped to perform intrastate fly ash handling. It also produced shipper witnesses who testified that fly ash handling services in the state would be inadequate if MDS's application was unsuccessful.

The commission, on March 24, 1982, granted MDS a certificate authorizing it to transport fly ash over irregular routes from, to and between all points in the state. M & G appealed the ruling to the district court and MDS intervened. By stipulation of the parties the case was submitted for decision on the transcript of evidence adduced before the commission. The district court rendered judgment affirming the commission's ruling on July 19, 1983. M & G appealed to this court.

At the commission hearing, M & G opposed the issuance of a competing certificate to MDS. Its opposition and its present appeal is founded on the provision of La.R.S. 45:164 that: " * * * 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. * * * "

The legal precepts are well settled which govern the commission's determinations and judicial review of its orders granting certificates of public convenience and necessity under this provision:

The applicant has the burden of clearly showing that the public convenience and necessity would be materially promoted by the issuance of a certificate to it. Florane v. Louisiana Public Service Commission, 433 So.2d 120 (La.1983); Dreher Contracting & Equipment Rental, Inc. v. Louisiana Public Service Commission, 396 So.2d 1265 (La.1981); Truck Service, Inc. v. Louisiana Public Service Commission, 263 La. 588, 268 So.2d 666 (1972); Hearin Tank Lines, Inc. v. Louisiana Public Service Commission, 247 La. 826, 174 So.2d 644 (1965). Upon judicial review of the commission's determination of whether the applicant has made such a showing, a court will not upset the agency's determination unless it is based on an error of law or is one which the commission could not have found reasonably from the evidence. Florane v. Louisiana Public Service Commission, supra; Dreher Contracting & Equipment Rental, Inc. v. Louisiana Public Service Commission supra; Hearin Tank Lines, Inc. v. Louisiana Public Service Commission, supra.

Appellee contends that the district bench and the bar practicing before the commission have...