Southern Haulers, Inc. v. Alabama Public Service Commission

• Decision Date: 07 May 1976
• Citation: 331 So.2d 660
• Parties: SOUTHERN HAULERS, INC., et al. v. ALABAMA PUBLIC SERVICE COMMISSION et al. SC 1432.
• Court: Alabama Supreme Court

Page 660

331 So.2d 660

SOUTHERN HAULERS, INC., et al. v. ALABAMA PUBLIC SERVICE COMMISSION et al.

SC 1432.

Supreme Court of Alabama.

May 7, 1976.

William K. Martin and Robert S. Richard, Montgomery, for appellants.

Hill, Hill, Carter, Franco, Cole & Black, Montgomery, Vance, Thompson & Brown, Birmingham, for appellees.

BLOODWORTH, Justice.

This is an appeal by protestants from a judgment of the Circuit Court of Montgomery County affirming an order of the Alabama Public Service Commission (hereinafter referred to as 'APSC') which issued a motor carrier certificate of public convenience and necessity to R. D. Wood for a dump truck operation. We affirm.

Wood applied to the APSC for issuance of a certificate (under the provisions of Tit. 48, §§ 301(1), et seq., Code of Alabama 1940 (Recompiled 1958)) to authorize Wood's operations to engage in intrastate commerce over irregular routes as a common carrier by motor vehicle. Wood sought authority to employ his dump truck vehicles in the transportation of various road materials between all points in eighteen specified, contiguous counties located in the geographical center of the state. Protests against Wood's application were filed by ten motor vehicle common carriers (hereinafter referred to as 'protestants') who had already obtained authorization similar to that sought by Wood.

A hearing on Wood's application was held before the APSC. Because a majority of the APSC was not present throughout the entire hearing, ¹ an examiner's report and recommended order was filed. The examiner's report recommended that Wood's application be denied on the grounds that 'the Applicant has not carried the burden placed on him by law to prove the present or future public convenience and necessity requires the proposed service, and that existing transportation service is not adequate to meet the reasonable public needs.'

In an order dated January 16, 1975, the APSC 'adopt(ed), in general, the summary of the evidence contained in the Examiner's Report and Recommended Order . . .' but declined to adopt the examiner's 'resulting conclusions and findings therein.' With respect to Six of the Eighteen counties for which authority was requested, the APSC found that the applicant is fit, willing and able to perform the proposed service and that the proposed service is required by present or future public convenience and necessity. Thus, Wood only got authority to serve six of the eighteen counties. With respect to the remaining twelve counties, the APSC found Wood's proposed service was not required by present or future public convenience and necessity, and his application was denied.

Seven of the original 10 protestants appealed the APSC's order to the Circuit Court of Montgomery County, where the APSC order was affirmed and costs taxed against the protestants. Six of the seven protestants, who appealed the APSC order to the circuit court, now appeal to this Court.

On this appeal, protestants maintain that there is no dispute as to the facts surrounding Wood's application for a certificate. What the protestants dispute is the APSC's conclusion that the applicant met the burden of proof imposed on him to affirmatively establish that he is entitled to certification. Case law requires the applicant for a certificate to affirmatively show that the certification requirements of Tit. 48, § 301(9) have been met. See Service Express, Inc. v. Baggett Transportation Co., 281 Ala. 666, 207 So.2d 418 (1968). The protestants maintain that the APSC misapplied the law to the facts of this case when it determined that Wood met the burden of proof imposed upon him.

Under Tit. 48, § 82 of the 1940 Code, an APSC order may be set aside by the circuit court or by this Court only if 'the commission erred to the prejudice of appellant's substantial rights in its application of the law; or, the order, decision or award was procured by fraud or was based on a finding of facts contrary to the substantial weight of the evidence.'

Protestants voice no objection to the summary of facts that the APSC adopted (i.e., the summary set out in the hearing examiner's report) nor do they contend that the APSC order was 'based on a finding of facts contrary to the substantial weight of the evidence.' However, protestants do contend that their 'substantial rights' were prejudiced by the APSC's application of the law to, what protestants refer to as, the 'undisputed facts.'

Consequently, a determination of the sole question here before us, i.e., whether there was a misapplication of the law to the facts, depends upon whether the certification requirements of Tit. 48, § 301(9), were met. That section provides that a certificate shall be issued, if, first, 'the applicant is fit, willing, and able to properly perform the service proposed and to conform with the provisions of this article and requirements, rules and regulations of the commission thereunder,' and, second, if 'the proposed service . . . is or will be required by the present or future public convenience and necessity . . ..' The section further provides that in making its determination the Commission is to 'consider' the following factors:

'(1) Whether existing transportation service of all kinds is adequate to meet the reasonable public needs. (2) Financial ability of the applicant to furnish adequate, continuous and uninterrupted service the year round. (3) The advantages to the public of the proposed service.'

Upon review, a presumption of correctness is ordinarily to be accorded to an order of the APSC. Alabama Power Co. v. APSC, 278 Ala. 597, 179 So.2d 725 (1965) (construing Tit. 48, § 82, Code of...