Hiller Truck Lines, Inc. v. ALABAMA PUB. SERV. COM'N

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290 So. 2d 649 (1974)


SC 498.

Supreme Court of Alabama.

February 21, 1974.

John P. Carlton, Birmingham, for appellant.

William J. Baxley, Atty. Gen., and Walter S. Turner, Chief Asst. Atty. Gen., for appellee Alabama Public Service Commission.

J. Douglas Harris, Montgomery, for appellee W. M. Burnett Truck Line, Inc.

MADDOX, Justice.

W. M. Burnett Truck Line, Inc., made application before the Alabama Public Service Commission to amend its Certificate of Convenience to allow it to transport general commodities between all points and places within a ten-mile radius of Haleyville, Alabama. Hiller Truck Lines and Neely Truck Lines protested. The APSC granted authority to Burnett to transport general commodities to and from the entire police jurisdiction of Haleyville. Only Hiller appealed to the Circuit Court of Montgomery County. That court affirmed the APSC order, finding that the APSC order did not contain error to the prejudice of Hiller's substantial rights in the application of the law, and that the "Report and Order was based upon a finding of facts supported by the substantial weight of the evidence."

The evidence before the Commission was in conflict.

Most of the hauling involved commodities used by the mobile home and related industries around Haleyville. The evidence was conflicting. Witnesses for the applicant generally testified that available service was insufficient. Witnesses for protestants testified that there was no need for amending Burnett's certificate to allow it to serve additional areas.

The rule of appellate review on an appeal from an order of the Circuit Court upholding an APSC order was set out in Floyd & Beasley Trans. Co. v. Alabama Public Service Commission, 276 Ala. 130, 159 So. 2d 833 (1964), as follows:

". . . The order of the Commission is taken as prima facie just and reasonable, Title 48, Sec. 82, Code of 1940, and the burden is on the party who would upset the order of the Commission. Alabama Public Service Commission v. Atlantic Coast Line R. Co., 253 Ala. 559, 45 So. 2d 449. Also, findings of the Commission will not be overturned if supported by legal evidence of substantial weight and probative force. Alabama Public Service Commission v. Higginbotham, 256 Ala. 621, 56 So. 2d 401; Alabama Public Service Commission v. Nunis, 252 Ala. 30, 39 So. 2d 409; North Alabama Motor Express v. Rookis, 244 Ala. 137, 12 So. 2d 183. * * * This Court has made it clear in the Rookis *650 case, supra, as well as in the case of Alabama Public Service Commission v. Crow, 247 Ala. 120, 22 So. 2d 721, that courts must guard against a substitution of their own judgments of findings of fact for the judgment of the Commissioners."

We think there is substantial evidence to support the finding made by the APSC in this case.