South Arkansas Vacuum Service of Louisiana, Inc. v. Louisiana Public Service Com'n, 84-CA-0831

• Court: Supreme Court of Louisiana
• Writing for the Court: BLANCHE; DENNIS; CALOGERO; WATSON; DENNIS
• Citation: 457 So.2d 655
• Parties: SOUTH ARKANSAS VACUUM SERVICE OF LOUISIANA, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION.
• Docket Number: No. 84-CA-0831,84-CA-0831
• Decision Date: 15 October 1984

Page 655

457 So.2d 655 SOUTH ARKANSAS VACUUM SERVICE OF LOUISIANA, INC.
v.
LOUISIANA PUBLIC SERVICE COMMISSION. No. 84-CA-0831. Supreme Court of Louisiana. Oct. 15, 1984.

Page 656

Janet Boles Chambers, Monroe, for plaintiff-appellant.

Marshall B. Brinkley, General Counsel, Louisiana Public Service Commission, Baton Rouge, for defendant-appellee.

BLANCHE, Justice.

This case involves the Louisiana Public Service Commission's grant of a certificate of public convenience and necessity to Henry C. McLain, d/b/a McLain Trucking Company, authorizing the transportation of liquid muds, KCL water, calcium chloride, calcium bromide, fresh water and salt water used in the drilling, completion, production and workover of oil and/or gas wells. The permit also allows the transportation of any waste material derived from the above operations to disposal systems, over irregular routes within a radial area of one hundred (100) miles from Minden, Louisiana.

The only issue before the court is whether the issuance of the permit by the Commission to the applicant was in the public's interest. ¹

Page 657

The Commission found that in view of the evidence present in the record, the public convenience and necessity required and would be materially promoted by the granting of the certificate sought. ²

The district court for the 19th Judicial District, Parish of East Baton Rouge, affirmed the decision of the Louisiana Public Service Commission by judgment with written reasons. The court contended that the sole issue was whether it was shown at the hearing that the public convenience and necessity would be materially promoted by the granting of McLain's application for a certificate. They based their decision to grant McLain's application on the following findings of fact: (1) that the testimony at the hearing showed McLain was worthy of certification since he had been involved in the "trucking" or "carrier" business since 1969 and that at the time of the hearing, he had been in the vacuum truck business for more than 18 months by means of a leasing arrangement ³ with another certified carrier. Pursuant to this type of arrangement, McLain was operating at least three trucks; and (2) that the testimony presented by Sam L. Mobley and Robert M. Scoggins, applicant's two shipper witnesses, stood unrefuted in showing McLain had performed excellent work for them and had a good reputation among his customers; and (3) that since orders of the Public Service Commission, with respect to the issuance of certificates of public convenience and necessity, are accorded great weight, then the commission could have reasonably concluded that public convenience and necessity would be materially promoted by the granting of the application.

Petitioners appealed to this court pursuant to La. Const. Art. 4, Sec. 21(E). ⁴

On appeal to this court, petitioners contend that the district court erred by failing to apply the correct standard of judicial review in ascertaining whether public convenience and necessity would be materially promoted.

The applicable law in this case requires a consideration of La.R.S. 45:164 which states in part that "no new or additional certificates 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."

This court stated in Truck Service, Inc. v. Louisiana Public Service Commission, 263 La. 588, 268 So.2d 666 (1972), that:

"The principles are well settled for judicial review of Commission 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."

The orders of the Commission are to be accorded great weight and will not be overturned absent a showing that the administrative action was arbitrary and capricious. 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,

Page 658

47 La. 826, 174 So.2d 644 (1965); Dreher Contracting & Equipment Rental, Inc. v. Louisiana Public Service Commission, 396 So.2d 1265 (1981).

"A ruling of the Commission may not be deemed arbitrary unless it is shown that it is not supported by some factual evidence."

Beauregard Electric Cooperative, Inc. v. Louisiana Public Service Commission, 378 So.2d 404 (La.1979); B & M Trucking, Inc. v. Louisiana Public Service Commission, 353 So.2d 1323 (La.1977); Truck Service, Inc. v. Louisiana Public Service Commission, supra. But even a showing of "only" some evidence will not save the Commission's order from arbitrariness when that evidence does not and could not reasonably support the Commission's findings. In other words, upon judicial review a court will not upset orders such as the one considered here unless after reviewing the evidence it concludes that the Commission could not have reasonably concluded that there had been a clear showing that the public convenience and necessity would be materially promoted thereby, and that the Commission's action was therefore arbitrary and capricious and a clear abuse of its power. B & M Trucking, Inc. v. Louisiana Public Service Commission, supra; Hearin Tank Lines, Inc. v. Louisiana Public Service Commission, supra.

Public convenience and necessity are not susceptible of precise definition. Rather, what constitutes public convenience must be determined on a case by case basis. Florane v. Louisiana Public Service Commission, 433 So.2d 120 (La.1983).

Similarly, as stated in M & G Fleet Service, Inc. v. Louisiana Public Service Commission, 443 So.2d...