Matlack, Inc. v. Louisiana Public Service Commission
| Decision Date | 13 December 1971 |
| Docket Number | No. 51613,51613 |
| Citation | 260 La. 359,256 So.2d 118 |
| Parties | MATLACK, INC. and Shipper Transports, Inc. v. LOUISIANA PUBLIC SERVICE COMMISSION. |
| Court | Louisiana Supreme Court |
Kantrow, Spaht, Weaver & Walter, Carlos G. Spaht, James M. Field, Baton Rouge, for plaintiffs-appellants.
Theo F. Cangelosi, John Schwab, Robert L. Cangelosi, Joseph H. Kavanaugh, Marshall B. Brinkley, Baton Rouge, for defendant-appellee.
Matlack, Inc., and its wholly owned subsidiary Shipper Transports, Inc., are appealing from a judgment affirming the ruling of the Louisiana Public Service Commission which ordered the cancellation of Certificate No. 5356 at the instance of complainants, Bulk Transport, Inc., and Asphalt Transport, Inc.
This certificate, which was granted to Shipper in August of 1956, authorized the transportation of cement in bulk by motor vehicle 'Over irregular routes from, to and between all points within the state of Louisiana.' In 1964 the commission approved a merger through which all of the capital stock of Shipper was acquired by a new (Hearin-Miller) transportation corporation, but it refused to authorize the transfer of Certificate No. 5386 to the new corporation. 1 When Matlack, subsequently and through another approved merger, acquired all of the capital stock of Shippr, it was also unsuccessful in securing the transfer of the certificate to it. 2 In both instances the transfers were opposed by Bulk and Asphalt, the complainants, although they offered no opposition to the acquisition of all of Shipper's capital stock by these new corporations, and made no effort ot have the certificate cancelled under R.S. 45:166(C), as here.
It is conceded by appellants that after Certificate No. 5386 was acquired in 1957 it lay more or less dormant for a period of years, the reason therefor being that, although Shipper was ready, willing, and able to haul cement, it had been unable to obtain any traffic despite efforts exerted in this respect. During the latter part of 1965 and early in 1966, however, due largely to labor difficulties involving Bulk Transport, Inc., Shipper did for a short period actively conduct operations under the certificate.
The ruling refusing transfer of the certificate to Matlack was handed down April 5, 1967, and, from that time until September of 1969 the certificate again lay dormant because of inability to secure traffic, despite an active campaign for business which was commenced in 1968.
Shortly after Shipper became active in the field in September of 1969, its vicepresident, on October 31, 1969, wrote the commission for advice as to 'whether it is proper for Shipper Transports, Inc. to continue to engage in business transporting Cement in intrastate commerce in Louisiana,' as they had been receiving inquiries from various shippers with respect to this. The commission's secretary, on November 4, 1969, informed Shipper by letter that 'there is not at the present time (and has not been) any order or ruling of the Commission prohibiting such operations.' Consequently, Shipper continued its operations until October 28, 1970, when the commission's final ruling, 3 contained in its order No. 10474(A), cancelled Certificate No. 5386, effective on that date. 4
Meanwhile, Bulk and Asphalt had filed a complaint with the commission in which they alleged Matlack and Shipper were engaged in the illegal transportation of cement in intrastate commerce in Louisiana. The basis for this complaint was that Matlack had no certificate authorizing such transportation, that the commission's order declining to transfer Shipper's operating rights under Certificate No. 5386 was (purportedly) 'issued on the basis that said certificate had not been operated within six (6) months prior to the proposed transfer, as required by R.S. 45:166(B);' and that accordingly, in view of the commission's finding there had been no operation for six months under R.S. 45:166(B), the certificate 'must now be cancelled' under R.S. 45:166(C).
In sustaining this complaint and ordering the cancellation of Certificate No. 5386, albeit no written reasons were assigned for its decision, the commission evidently gave a strict and literal construction to the provisions of R.S. 45:166(C) and, likewise, the district judge, in sustaining the ruling without written reasons must have applied the same interpretation. Hence, the case presents for our consideration for the first time an interpretation, in the perspective of the facts, of R.S. 45:166(C), adopted by Act 131 of 1958, bearing in mind, however, that in interpreting R.S. 45:166(B) in S. A. Harris Trans. & S., Inc. v. Louisiana Public Service Commission, 240 La. 1059, 127 So.2d 148, we gave it a broad and liberal application. 5
R.S. 45:166(B) provides: 'No certificate or permit shall be sold, leased or transferred, nor shall such certificate or permit be used by any other than the person, firm or corporation to whom it was originally granted, unless and until it be shown by a clear preponderance and to the satisfaction of the commission that the owner thereof shall have for a period of six consecutive months, immediately prior to the lease transfer or use thereof by one other than the owner, substantially operated all rights under said certificate or permit; or that the failure to so operate was due to bankruptcy, receivership, or other legal proceedings, Or to other causes beyond his or its control.' (Emphasis ours.)
Subsection (C) provides: 'Where the owner of a certificate as a common carrier of passengers or freight or of a permit as a contract carrier issued by the Louisiana public service commission has not for a period of six consecutive calendar months operated thereunder to a reasonable extent all rights under said certificate or prmit Shall cease and terminate and same shall be cancelled either upon motion of commission or of any interested person after notice to the owner of said certificate or permit and hearing thereon by the commission.' (Emphasis ours.)
Counsel for appellants contend (1) the commission acted arbitrarily in cancelling Certificate No. 5386 inasmuch as Shipper was operating substantially and/or to a reasonable extent at the time appellants were cited under the complaint and also at the time of the hearing; and that (2) when Subsections (B) and (C) are considered together, as they must, being laws in pari materia, in determining what constitutes operation 'to a reasonable extent' under the latter, the commission erred in cancelling the certificate in view of the evidence establishing Shipper was at all times ready, willing, and able to haul cement over irregular intrastate routes, and its failure to secure traffic in this field was due to conditions beyond its control.
The Bulk and Asphalt corporations, on the other hand, take the position that the mere fact Shipper was operating on the date of citation and/or hearing does not place the matter 'without the ambit of R.S. 45:166C' under the plain language of the statute and the evidence reflecting nonoperation year after year. Although there is no mention of this phase of the case in brief, during oral argument counsel for the complainants contended the certificate holder could only remove itself from the cancellation penalty of Subsection (C) if, at the time of citation and/or hearing, it had been actually conducting operations 'to a reasonable extent' for a period of at least six months.
Counsel for complainants further assert that the lenient provisions excusing non-operation for reasons beyond the certificate holder's control, available to facilitate the transfer, sale, or lease of certificates under Subsection (B), cannot be read into Subsection (C) to prevent cancellation for nonoperation during any prescribed six-month period. They declare that since the provisions of Subsection (C) are clear, unambiguous, and mandatory resort may not be made to other sources to determine legislative intent, and once it is established there has been no operation to a reasonable extent for 'six consecutive calendar months,' the certificate under the very terms of the statute 'shall cease and terminate' and the commission has no discretion but to cancel it.
In this connection counsel argue that even if (B) and (C)...
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