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11/04/94 ALABAMA PUBLIC SERVICE COMMISSION v. BILLY

November 4, 1994

ALABAMA PUBLIC SERVICE COMMISSION, ET AL.
v.
BILLY BARNES ENTERPRISES, INC.



Appeal from Monroe Circuit Court. (CV-93-94). Samuel Welch, TRIAL JUDGE.

Released for Publication February 26, 1995.

Ingram, Maddox, Shores, and Houston, JJ., concur. Steagall, J., concurs in the result.

The opinion of the court was delivered by: Ingram

INGRAM, JUSTICE.

The Alabama Public Service Commission ("APSC") and certain protesting carriers appeal from a circuit court's judgment reversing a decision of the APSC.

Billy Barnes Enterprises, Inc. ("Barnes"), applied with the APSC for authority to extend an existing operation as a common carrier by motor vehicle in intrastate commerce over irregular routes in the transportation of the following:

"Paper and paper products, materials, equipment and supplies used in the manufacture of paper and paper products (except commodities in bulk)...."

The application acknowledged the following "restrictions":

"(1) Restricted against transportation in motorized vans with a rated load capacity of three-quarter-ton or less. (2) Restricted against the transportation of reels and paper cores from the facility of Sonoco Products Company, at Opp, to all points and places in Alabama. (3) Restricted against the transportation of materials, supplies and equipment used in the manufacture and sale of reels and paper cores, from all points and places in Alabama to the facility of Sonoco Products Company at Opp."

The application was protested by Neely Truck Lines, Inc., and Neely Transport, Inc. Based on a transfer of operating authority from Neely Truck Lines, Inc., and Neely Transport, Inc., to Ross Neely Systems, Inc. ("Neely"), the Neely companies are now consolidated in this proceeding.

An administrative law Judge ("ALJ") held a hearing on Barnes's application. After the evidentiary hearing, the ALJ issued his recommended order, which was adopted by the APSC. That order, in part, is as follows:

"The Applicant did not show there is an unmet demand for service at facilities throughout the state. Instead, the evidence focused on facilities in Monroe County and Baldwin County. Some problems with service have been experienced at these facilities and traffic volume will be increasing significantly. Protestants have not shown the proposed service to these two counties would harm the service they provide. As a result, it appears, and I find, that the proposed service to these two counties is required by the public convenience and necessity."

Pursuant to Ala. Code 1975, § 37-3-29, Barnes appealed to the Circuit Court of Monroe County, contending that there was sufficient evidence to show a need for services throughout the entire state. The circuit court agreed with Barnes and remanded, instructing the APSC to issue a certificate of public convenience and necessity with full authority throughout the state. The APSC appeals.

In reviewing APSC orders, this Court, as well as the circuit court, is guided by Ala. Code 1975, ยง 37-1-124. This statute provides that the APSC's order "shall be taken as prima facie just and reasonable." We also note that no presumption of correctness is accorded to the circuit court's order. Eagle Motor Lines v. Alabama Pub. Serv. Comm'n, 343 So. ...


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