Matlack, Inc. v. Louisiana Public Service Commission, No. 51613

• Court: Supreme Court of Louisiana
• Writing for the Court: McCALEB
• Citation: 260 La. 359,256 So.2d 118
• Parties: MATLACK, INC. and Shipper Transports, Inc. v. LOUISIANA PUBLIC SERVICE COMMISSION.
• Docket Number: No. 51613
• Decision Date: 13 December 1971

Page 118

256 So.2d 118 260 La. 359 MATLACK, INC. and Shipper Transports, Inc.
v.
LOUISIANA PUBLIC SERVICE COMMISSION. No. 51613. Supreme Court of Louisiana. Dec. 13, 1971.
Rehearing Denied Jan. 17, 1972.

[260 La. 361] 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.

McCALEB, Chief Justice.

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.

[260 La. 362] 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

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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 [260 La. 363] 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[260 La. 364] 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,

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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 [260 La. 365] 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...