Truck Service, Inc. v. Louisiana Public Service Commission, A--1

• Court: Supreme Court of Louisiana
• Writing for the Court: TATE
• Citation: 263 La. 588,268 So.2d 666
• Parties: TRUCK SERVICE, INC., Plaintiff-Appellee, v. The LOUISIANA PUBLIC SERVICE COMMISSION, Defendant-Appellant,Equipment Rentals, Inc., Intervenor-Appellant.
• Docket Number: A--1,No. 52406,52406
• Decision Date: 06 November 1972

Page 666

268 So.2d 666 263 La. 588 TRUCK SERVICE, INC., Plaintiff-Appellee,
v.
The LOUISIANA PUBLIC SERVICE COMMISSION, Defendant-Appellant,
A--1 Equipment Rentals, Inc., Intervenor-Appellant. No. 52406. Supreme Court of Louisiana. Nov. 6, 1972.

[263 La. 590]

Page 667

D'Amico, Curet & Bush, Bryan E. Bush, Jr., Baton Rouge, for intervenor-appellant.

Marshall B. Brinkley, Baton Rouge, for defendant-appellant.

[263 La. 591] Breazeale, Sachse & Wilson, John B. Noland, Baton Rouge, for plaintiff-appellee.

TATE, Justice.

The plaintiff ('Truck Service') files judicial proceedings to question the issuance of a certificate of public convenience and necessity to another carrier. La.Const. Art. VI, Section 5. This other carrier ('A--1 Equipment') intervened. The intervenor and the Commission appeal from a judgment of the trial court annulling the certificate issued to A--1 Equipment.

The basic facts adduced at the Commission hearings show:

Truck Service's predecessor corporation was granted a certificate by the Commission in 1959 which permitted it to haul, inter alia, bauxite ore between East Baton Rouge Parish and Ascension Parish. In 1966, this permit was transferred to Truck Service, which acquired the assets of the predecessor corporation.

During this entire time and up to the Commission hearings in 1971, Truck Service had hauled bauxite ore only once. This was in 1959 or 1960, on which occasion it had performed its work through a hauling subcontract executed by A--1 Equipment, the present applicant for another certificate.

The evidence shows, however, that this was the only intrastate hauling of bauxite [263 La. 592] ore during this period. A new need for such intrastate hauling has just developed because of the sale of large quantities of bauxite from government stockpiles in Baton Rouge.

A--1 Equipment is a holder of an interstate certificate to haul bauxite ore. Pursuant to this permit, it has engaged in extensive interstate bauxite hauling with shippers in Baton Rouge and Ascension Parishes. In 1971 it applied to the state's Commission for an additional permit to haul bauxite ore intrastate.

At the hearings, A--1 Equipment produced substantial evidence that it is well equipped to perform intrastate bauxite hauling. It also produced a shipper witness who testified, generally, that A--1 Equipment could perform such intrastate hauling and that Truck Service could not. (By stipulation, it is conceded that only Truck Service and--if the issuance is here sustained--a--1 Equipment have the only common carrier certificates from the Commission authorizing the intrastate hauling of bauxite ore.)

At the Commission hearings, Truck Service opposed the issuance of a competing certificate to A--1 Equipment. Its opposition and its present application for judicial review is founded upon the provision of La.R.S. 45:164 that: '* * * No new or additional certificate shall be granted over a route where there is an existing [263 La. 593] certificate, unless it be clearly shown that the public convenience and necessity would be materially promoted thereby. * * *'

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. Hearin Tank Lines, Inc. v. Louisiana Public

Page 668

Service Commission, 247 La. 826, 174 So.2d 644 (1965); Saia Motor Freight Line v. Louisiana Public Service Commission, 243 La. 787, 147 So.2d 390 (1962); Herrin Transportation Co. v. Louisiana Public Service Commission, 241 La. 174, 127 So.2d 541 (1961). A ruling of the Commission granting or denying a new certificate must be...