South Arkansas Vacuum Service of Louisiana, Inc. v. Louisiana Public Service Com'n

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

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.

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

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 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 574 (La.1984):

"This court has often pointed out that a commission determination cannot be set aside for lack of evidence if there is sufficient evidence in the record from which a reasonable person could have made that finding."

It is therefore necessary to examine the sufficiency of the evidence presented by the applicant. The record reflects that McLain presented two shipper witnesses in support of his application. The first was Sam L. Mobley, field supervisor for O.B. Mobley Oil Company. He testified that his area of supervision was from Plain Dealing to Simsboro to Elm Grove. Mr. Mobley specifically was charged with the responsibility of seeing after the drilling rigs and workover rigs and also in charge of production. He had been in the business for 30 years; and was especially familiar with the oil and gas related business of North Louisiana. When asked if he had any dealings with vacuum service companies, he answered yes, but not too often lately, because things had slowed down. While he did state that McLain had done excellent work hauling under his lease arrangement, he stated that the last time his business need necessitated a vacuum truck was around Christmas; over three months ago. On cross examination, Mr. Mobley was asked whether he had used any of the already certificated carriers in the area. Of the nine carriers that were available for his potential use, he admitted having used only five. All of these carriers are certificated and domiciled within the 100 mile locale for which McLain is seeking authority. When asked if at the present time there was a surplus of trucks in North Louisiana, he replied "Right, surplus of a lot, rigs, the whole works.".

The second supporting shipper was Robert M. Scoggins, owner of Petroleum Engineering Services Company in Shreveport. He stated that his company performed any services to do with the drilling, completions, workovers, and operations in the oil and gas business in North Louisiana, South Arkansas and East Texas. He has been dealing with vacuum service companies since 1964. Mr. Scoggins stated that he had known McLain for the past six years and that McLain's work was satisfactory. When asked how many times he had used vacuum trucks for work within a 100 mile area of Minden over the last six months, he replied about 7, 8 or 10 times. He was asked if he had any trouble locating vacuum trucks within the past year and he stated that he had not. He was asked whether his business was down and if so, did that result in his business using less vacuum trucks than the year preceding. He replied affirmatively to both questions.

Ten certificated vacuum truck carriers were present in opposition to...