Transway, Inc. v. Louisiana Public Service Commission, 49515

• Decision Date: 31 March 1969
• Docket Number: No. 49515,49515
• Citation: 253 La. 933,221 So.2d 53
• Parties: TRANSWAY, INC., et al. v. LOUISIANA PUBLIC SERVICE COMMISSION.
• Court: Louisiana Supreme Court

Page 53

221 So.2d 53

253 La. 933

TRANSWAY, INC., et al. v. LOUISIANA PUBLIC SERVICE COMMISSION.

No. 49515.

Supreme Court of Louisiana.

March 31, 1969.

Harold R. Ainsworth, Charles E. Richards, Jr., New Orleans, Grove Stafford, Stafford & Pitts, Alexandria, for intervenors-appellants.

Joseph H. Kavanaugh, Baton Rouge, for appellant.

Clint L. Pierson, Baton Rouge, Ragan D. Madden, Ruston, O'Connor & O'Connor, New Orleans, for appellees.

SANDERS, Justice.

This is a proceeding to transfer a certificate of public convenience and necessity, originating in the Louisiana Public Service Commission. England Transportation Company, Inc., holds Certificate No. 5087, authorizing it to transport certain commodities over irregular routes in Louisiana.¹ Transway, Inc., holds an irregular route certificate of the same type, embracing only a portion of the commodities covered by the England Certificate. By joint petition, England and Transway sought the approval of the Louisiana Public Service Commission to transfer the England Certificate to Transway. Opposition to the transfer was filed by Continental Southern Lines, Inc. and the Greyhound Corporation, passenger bus operators, and several rail and motor carriers. Their opposition is founded upon three grounds:

1. The purpose for which England's certificate was granted and the intent of the Commission in issuing it would be perverted by the transfer, and the operations of Transway would adversely affect other carriers.

2. Transway is not a fit and responsible person to operate the certificate.

3. England had not substantially operated all of its rights under the certificate within the preceding six months, as required for transfer by LSA-R.S. 45:166(B).

After a hearing, the Commission denied the application for transfer in a written opinion, holding Transway was not a fit person and Transway's increased service would harm existing carriers to the prejudice of the public interest. Commissioner Knight dissented from the decision.

As authorized by Article VI, Section 5, of the Louisiana Constitution, England and Transway appealed from the order by filing suit in the Nineteenth Judicial District Court for East Baton Rouge Parish. The parties then introduced additional evidence, and in accordance with established procedures, the district court remanded the case to the Commission for further review. Affirming its previous holdings of unfitness and prejudice to the competing carriers, the Commission again denied the transfer. In addition, however, it held LSA-R.S. 45:166 banned the transfer, because of the absence of substantial operation under the certificate.

Subsequently, the district court sustained the Commission's order. After granting a new trial and assigning written reasons, the district court reversed the Commission and ordered the transfer.

The Louisiana Public Service Commission and the interested carriers appealed. The Commission, however, made no appearance in this Court.

The Louisiana Public Service Commission is charged with the responsibility of regulating common carriers of persons and property in the public interest. See LSA-R.S. 45:161. Since it operates in a technical field under a delegation of legislative power, its orders are accorded great weight and will be disturbed only when they are unreasonable, arbitrary, or capricious. Saia Motor Freight Line v. Louisiana Pub. Serv. Com'n, 248 La. 1, 176 So.2d 408; Railway Express Agency v. Louisiana Pub. Serv. Com'n, 243 La. 518, 145 So.2d 18; Rubion Transfer & S. Co. v. Louisiana Pub. Serv. Com'n, 240 La. 440, 123 So.2d 880 LSA-R.S. 45:166(B) prohibits the transfer of a certificate when the holder has not 'substantially operated all rights under said certificate' during the six-month period prior to the transfer, unless the failure to operate was due to causes beyond the holder's control.

The obvious purpose of the statute is to suppress the traffic in dormant or abandoned certificates.

A detailed study of England's operations was made for a four-month test period. As evidenced by its freight bills, England handled 1337 shipments during this period, a total of 2,774,074 pounds of freight. The only certificate commodities not shown on the freight bills were cakes, crackers, matches, and tea. The tabulation lists two hundred shipments of groceries, however, which the Commission concedes may have included these items. We agree with the district court that England substantially operated its rights under its certificate of public convenience and necessity.

Assuming, however, the Commission correctly held England's operations insubstantial, it does not follow that the transfer is proscribed. During the critical period, severe financial distress and a strike threat impeded England's operations. Under the circumstances shown by the record, we are of the opinion that any deficiency in operations was due to causes beyond the carrier's control. LSA-R.S. 45:166(B); S. A. Harris Trans. & S., Inc. v. Louisiana Pub. Serv. Com'n, 240 La. 1059, 127 So.2d 148.

As evidence that Transway fails to qualify as a fit and responsible person, the opponents point to five instances in which the Commission adjudged Transway guilty of violations of its certificate, that is, instances in which it carried an unauthorized commodity. Although Transway had operated under its certificate for nineteen years, the violations occurred during a period of six years preceding the application for transfer.

The question presented is whether these five violations are sufficient to disqualify Transway as a fit and responsible person. We think not. The freight charges on the articles carried, as noted by the district court, were small. Three of the cases involved close questions of certificate interpretation.

Edward L. Newsham, former head of the Motor Transportation Division of the Commission for twenty-one years, appeared as a witness for petit...