Miller Transporters, Inc. v. Louisiana Public Service Com'n, 87-CA-1919

• Decision Date: 18 January 1988
• Docket Number: No. 87-CA-1919,87-CA-1919
• Citation: 518 So.2d 1018
• Parties: MILLER TRANSPORTERS, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION, et al. 518 So.2d 1018
• Court: Louisiana Supreme Court

Page 1018

518 So.2d 1018

MILLER TRANSPORTERS, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION, et al.

No. 87-CA-1919.

518 So.2d 1018

Supreme Court of Louisiana.

Jan. 18, 1988.

Janet S. Boles, Boles & Mounger, Monroe, John Schwab, Schwab & Walter, Baton Rouge, for plaintiff-appellee.

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

James L. Ellis, Taylor, Porter, Brooks & Phillips, Baton Rouge, for intervenors-appellants.

DENNIS, Justice.

Miller Transporters, Inc., a motor carrier, applied to the Public Service Commission for a new or additional certificate of public convenience and necessity to operate as an intrastate common carrier. A number of competing common carriers which had previously obtained certificates to conduct similar operations opposed Miller's application. After public hearings, the Public Service Commission found that Miller had failed to show that the public convenience and necessity required such a certificate or would be materially promoted thereby and denied the application. On appeal the district court found that the Public Service Commission's findings were not supported by sufficient evidence, substituted it own finding that Miller had clearly shown that the public convenience and necessity would be materially promoted by the certificate sought, and ordered the Public Service Commission to issue the certificate. The Public Service Commission and the competing carrier opponents appealed to this court. La. Const. Art. 4, Sec. 21(E).

Legal Precepts

A motor carrier may not operate as a common carrier unless the Public Service Commission issues it a certificate based on the Commission's finding, subsequent to notice to competing common carriers and a public hearing, that public convenience and necessity require issuance of the certificate. La.R.S. 45:164. In the event the Public Service Commission previously has issued a certificate to conduct the same operations to another common carrier, the additional certificate may not be granted unless the applicant clearly shows that the public convenience and necessity would be materially promoted thereby. Id.

The convenience and necessity required is that of the entire public affected by the new or additional certificate, as distinguished from that of an individual or any number of individuals. Arkansas-Best Freight System, Inc. v. Missouri Pacific Truck Lines, Inc., 240 Ark. 664, 401 S.W.2d 571 (1966); Ace Delivery Service, Inc. v. Boyd, 111 So.2d 448 (Fla.1959); V.I.P. Limousine Service, Inc. v. Herider-Sinders, Inc., 171 Ind.App. 109, 355 N.E.2d 441 (1976); Petition of Public Service Coordinated Transport, 103 N.J.Super. 505, 247 A.2d 888 (1968); Continental Freight Forwarding Co. v. Public Utilities Commission of Ohio, 126 Ohio St. 16, 183 N.E. 790 (1932); Shupee v. Railroad Commission of Texas, 123 Tex. 521, 73 S.W.2d 505 (1934); Jessup v. Commonwealth, 174 Va. 133, 5 S.E.2d 482 (1939); 60 C.J.S. Motor Vehicles Sec. 90(1) (1969). To be a "public necessity" the new motor carrier service does not have to be absolutely indispensable, but it must provide such an improvement of the existing transportation service as to warrant the cost of making the improvement. Yazoo & M.V.R. Co. v. Louisiana Public Service Commission, 170 La. 441, 128 So. 39 (1930); Santee v. Brady, 209 Ark. 224, 189 S.W.2d 907 (1945); Greyhound Corp., Southeastern Greyhound Lines Division v. Carter, 124 So.2d 9 (Fla.1960); Campbell v. Illinois Commerce Commission, 334 Ill. 293, 165 N.E. 790 (1929); State ex rel. Missouri, Kansas & Oklahoma Coach Lines, Inc. v. Public Service Commission, 238 Mo.App. 317, 179 S.W.2d 132 (1944); Petition of Public Service Coordinated Transport, supra; 60 C.J.S., supra. Among the factors which may be considered in determining public convenience and necessity are whether the new operation or service will serve a useful public purpose, responsive to public demand or need, whether this purpose can and will be served as well by existing carriers, whether it can be served by the applicant without endangering or impairing operations of existing carriers contrary to public interest, and whether it can be served by the applicant without undue jeopardy to highway users or to the structure and safety of the roads. Goggin Truck Line, Inc. v. United States, 276 F.Supp. 884 (M.D.Tenn.1967); Florida Motor Lines, Inc. v. State Railroad Comm., 101 Fla. 1018, 132 So. 851 (1931); 60 C.J.S., supra, at Sec. 90(2). The mere fact that service rendered by existing motor carriers is allegedly inadequate is not sufficient to establish the right of another carrier to a certificate of convenience and necessity unless it further appears that there is a public necessity for the additional service. Jones v. Webb Transfer Line, Inc., 328 S.W.2d 407 (Ky.1959); Ephraim Freightways, Inc. v. Public Utilities Commission of Colorado, 151 Colo. 596, 380 P.2d 228 (1963); 60 C.J.S., supra, at Sec. 90(2).

The evidentiary and procedural precepts are well established which govern the judicial review of Public Service Commission orders granting or denying certificates of public convenience and necessity. The applicant for a new or additional certificate has the burden of clearly showing that the public convenience and necessity would be materially promoted by the issuance of the certificate. M & G Fleet Service, Inc. v. Louisiana Public Service Commission, 443 So.2d 574, 575 (La.1983); Florane v. Louisiana Public Service Commission, 433 So.2d 120, 123 (La.1983); Dreher Contracting & Equipment Rental, Inc. v. Louisiana Public Service Commission, 396 So.2d 1265, 1266-67 (La.1981); Truck Service, Inc. v. Louisiana Public Service Commission, 263 La. 588, 268 So.2d 666, 667-68 (1972); Hearin Tank Lines, Inc. v. Louisiana Public Service Commission, 247 La. 826, 174 So.2d 644, 647 (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 finding unless it is based on an error of law or is one which the Commission could not have found reasonably from the evidence. M & G Fleet Services, Inc. v. Louisiana Public Service Commission, supra; Florane v. Louisiana Public Service Commission, supra; Dreher Contracting & Equipment Rental, Inc. v. Louisiana Public Service Commission, supra; Truck Service, Inc. v. Louisiana Public Service Commission, supra; Hearin Tank Lines, Inc. v. Louisiana Public Service Commission, supra.

After considering the evidence and the oral and written arguments of counsel, we conclude that the Public Service Commission was not guilty of arbitrary, capricious or unreasonable action in finding that Miller failed to prove clearly that the proposed certificate would materially promote public convenience and necessity. The evidence was more than adequate to warrant the Commission's finding and denial of the certificate, as will be indicated by the following summary of the record.

Applicant Miller's Case

Miller Transporters, Inc. has an interstate certificate which permits it to transport cargo between points in Louisiana and in other states. Miller also has a limited intrastate certificate which permits it to transport petroleum products within a 150 mile radius of Shreveport and to transport fertilizer from Lake Providence to other points in the state. In the present application, Miller is seeking to expand its intrastate authority to transport certain types of cargo statewide.

In support of its application, Miller presented evidence of its ability to provide transportation services. Miller has 554 tractors and 861 trailers, making it one of the largest carriers operating in the south and giving it the flexibility to move large amounts of equipment on short notice and on a regular basis. This equipment includes two rubber-lined trailers which would be useful in hauling muriatic acid. Miller operates shipping terminals in Shreveport, Arcadia and Baton Rouge.

In support of its claim that the existing intrastate common carrier service is deficient, and as further evidence of its own abilities, Miller presented evidence from the representatives of thirteen firms which engage in both interstate and intrastate shipping. ¹ Generally, these witnesses testified to their satisfaction with Miller's interstate transportation service, desire to use Miller for intrastate shipping and dissatisfaction with the service provided by one or more of the existing intrastate carriers.

Charles T. Williams of Vulcan Materials Company, a shipper of chemicals in bulk, testified that on six occasions within the previous year his company experienced problems obtaining carrier service. He stated that Matlack, Inc. failed on four occasions to provide rubber-lined trailers on short notice for the transportation of hydrocloric acid. Vulcan was able to find an alternate carrier on one occasion and used its own equipment on another, but the company did lose sales to its competitors on the other two occasions. The two other instances of problems involved the contamination of a product by Matlack and a late arrival by Quality Carriers, Inc. Vulcan was able to return the contaminated product back into its stock, but the customer who rejected the contaminated load did not ask Vulcan to replace it. Mr. Williams therefore assumed Vulcan lost this sale to a competitor. In the instance involving Quality Carriers' late arrival, Vulcan was able to handle the load with one of its own tractor-trailers. Finally, Williams declared that Vulcan ships approximately sixty truck loads per month by for-hire carriers and that it would like to use Miller in intrastate shipping.

Allied Corporation's prepared statement related six instances of existing carriers not having the necessary equipment for the transportation of certain commodities. Three involved a movement of bauxite ore from Marrero to West Monroe, while the other three involved the transportation of liquid aluminum. Joseph Guittari, Allied's representative,...