Dreher Contracting & Etc. v. La. Public Service Com'nDreher Contracting & Etc. v. La. Public Service Com'n
Marshall B. Brinkley, Baton Rouge, for defendant-appellee.
Charles H. Ryan, Janet Boles Chambers, Boles & Mounger, Baton Rouge, for intervenor-appellee.
MARCUS, Justice.
This case involves the Louisiana Public Service Commission‘s grant of a certificate of public conveniеnce and necessity to Loyd Brown, d/b/a Brown‘s Vacuum Truck Service, authorizing him to transport fresh water and salt water (special commodities) by motor vehicle over irregular routes within Uniоn and Ouachita Parishes.
An application for the aforesaid certificate was filed by Brown with the Commission on July 24, 1979. After publication of notice for hearing by the Commission, an oppоsition and protest was filed by Dreher Contracting & Equipment Rental, Inc., which had been granted a similar certificate for Union, Ouachita and Morehouse Parishes
After the order became effective, Dreher, pursuant to
On aрpeal to this court, Dreher contends that the district court erred in holding that the scope of judicial review of an order of the Commission requires only a finding that some evidence wаs presented which supported the Commission‘s issuance of the order and further that the evidence presented in this case did not support the Commission‘s granting of the certificate.
No motor carrier shall operate as a common carrier without first having obtained from the commission a certificate of public convenience and necessity, which shаll be issued only after a written application made and filed, a public hearing, due notice given to applicant and all competing common carriers, and a finding by the cоmmission that public convenience and necessity require the issuance of a certificate. No new or additional certificate 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.
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. 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, 247 La. 826, 174 So.2d 644 (1965); Saia Motor Frеight Line v. Louisiana Public Service Commission, 243 La. 787, 147 So.2d 390 (1962). The orders of the Commission and of other administrative bodies exercising discretionary authority are accorded great weight and will not be overturned in the absence of a showing that the administrative action is arbitrary and capricious. Truck Service, Inc. v. Louisiana Public Service Commission, supra; Hearin Tank Lines, Inc. v. Louisiana Public Service Commission, supra. 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, Inс. 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. In other words, upon judicial review a court will not upset orders such as the one in this casе unless after looking at 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.
The record reflects that Brown had been involved in hauling fresh and salt water usеd in oil and gas well drilling operations in Union and Ouachita Parishes for approximately five years prior to the hearing without having obtained a certificate. His operation was based in Sterlington in Union Parish. His equipment consisted of two vacuum trucks and one tank truck, and he employed four full-time employees. Brown had never been cited by the Commission for unauthorized trаnsportation. Dreher, which had been issued a permit by the Commission about two years earlier, had seven vacuum tank trucks, employed fourteen persons, and serviced customers in Ouachita, Morehouse and Union Parishes. Murphy Dreher testified that he had properly serviced customers in Union and Quachita Parishes in the past and could continue to do so.
Seven letters in support of Brown‘s application were filed with the Commission prior to the hearing by various oil and gas-related firms in the area Brown serviced. The letters generally stated that Brown‘s services in the past had been highly satisfactory, that the services were presently necessary and vital to the industry in that area, and that the need for those services was growing due tо the increased drilling activities. Max Parker, a production superintendent for Mid-Louisiana Gas, testified that there was a need for Brown‘s services in the area and that he felt that his business would be hurt and that he might experience some delays if Brown was denied authorization. Robert Freeman, president of Freeman Chemical and Concrete Company, also testified аs to the need for Brown‘s services and stated that his business could possibly be inconvenienced or delayed if Brown was denied certification. Both witnesses testified to an increased need for such services in the future with the drilling of more wells in the area and that there was a need for both Dreher‘s and Brown‘s services in the two parishes. There was further testimony suggesting that, becаuse of Brown‘s business location on the border of Union and Ouachita Parishes, he was able to service drilling sites in the two parishes more economically and efficiently than Dreher, whоse base of operation was located in Bastrop in Morehouse Parish.
The district court properly stated the standard for judicial review of an order by the Commission granting a certificate of public convenience and necessity. Upon review, we find that the record contains sufficient evidence upon which the Commission could have reasonably concluded that there had been a clear showing that the public convenience and necessity would be materially promoted by granting a certificate to Brown. Clearly, the action of the Commission was not arbitrary and capricious.
DECREE
For the reasons assigned, the judgment appealed from upholding the Louisiana
Notes
If any of the persons, mentioned in
Appeal may be taken in the manner provided by law by any aggrieved party or intervenor to the district court of the domicile of the commission. A right of direct appеal from any judgment of the district court shall be allowed to the supreme court. These rights of appeal shall extend to any action by the commission, including but not limited to action taken by the commission or by a public utility under the provisions of Subparagraph (3) of Paragraph (D) of this Section.