S. A. Harris Transfer & Storage, Inc. v. Louisiana Public Service Commission

• Decision Date: 15 February 1961
• Docket Number: No. 45433,45433
• Citation: 240 La. 1059,127 So.2d 148
• Court: Louisiana Supreme Court
• Parties: S. A. HARRIS TRANSFER & STORAGE, INC. et al. v. LOUISIANA PUBLIC SERVICE COMMISSION et al.

Page 148

127 So.2d 148

240 La. 1059

S. A. HARRIS TRANSFER & STORAGE, INC. et al. v. LOUISIANA PUBLIC SERVICE COMMISSION et al.

No. 45433.

Supreme Court of Louisiana.

Feb. 15, 1961.

Jack P. F. Gremillion, Atty. Gen., Joseph H. Kavanaugh, Sp. Counsel to Atty. Gen., for defendant-appellant.

Polk, Foote & Neblett, Alexandria, for plaintiff-appellee.

McCALEB, Justice.

The Public Service Commission is appealing from a judgment annulling, at the instance of plaintiffs, its Order No. 7942 which permitted A. Colletti Trucking, Inc. to lease its certificate of public convenience and necessity to operate over irregular routes within this State as a motor carrier of oil field equipment and household goods.

On June 19, 1959 A. Colletti Trucking, Inc. and Richard T. Gavin, the proposed lessee, applied to the Commission for approval of a lease of Colletti's Certificate of Public Convenience and Necessity No. 5037--A, issued on November 7, 1955, under which Colletti had continuously operated a motor carrier business until December, 1958.

This application was opposed by the motor carriers competing with Colletti on the ground that he had not substantially operated his business for six months prior to the lease and, therefore, had lost his right to transfer the permit in view of the provisions of Act 131 of 1958, R.S. 45:166B. This Section provides as follows:

'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.'

At the hearing before the Commission, the evidence disclosed that Colletti had closed his terminal shortly before Christmas of 1958 and had transported only four loads since that time. Colletti testified that the reason for closing the business was due to its insolvency and his corporate balance sheet for 1958 disclosed an operational loss of $13,000 and a year-end deficit of $25,192, despite the fact that the certificate in question is listed as a corporate asset having a value of $15,000. Colletti further stated that he was trying to clear up his debts, get out of the trucking business and move back to his home in Beaumont, Texas, where he had an interest ($2,000 of stock) in a motel operated by his mother.

In approving the lease to Gavin, the Commission found as a fact that, although Colletti had not substantially operated his motor carrier business for six months immediately prior to June 19, 1959, he had not lost his right to transfer the certificate as his failure to operate was due to his unstable financial condition--a cause beyond his control within the meaning of R.S. 45:166B.

The district judge disagreed with the Commission's interpretation of the statute and sustained the position of plaintiffs that insolvency of a permittee does not come within the general proviso contained in R.S. 45:166B which reserves to a permittee, who has failed to substantially operate under his permit for a period of six months, the right to transfer his certificate when his failure '* * * to so operate was due to bankruptcy, receivership, or other legal proceedings, or to other causes beyond his or its control'.

In his Court, counsel for the Commission argues that financial inability to operate business comes within the above quoted exception and is a cause beyond a permittee's control as a matter of law, pointing out that the specific terms, bankruptcy and receivership, when read with the general clause connote a legislative intent to include adverse financial condition as an excusable cause for non-operation.

Conversely, plaintiffs contend that the legislative intent in enacting R.S. 45:166B was to terminate the trafficking in 'dead certificates', i.e., those under which substantial operations have not been conducted, and thus put to an end the popular practice of new operators evading a Commission hearing on...