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Avery Freight Lines, Inc., v. Persons

Supreme Court of Alabama
Dec 18, 1947
250 Ala. 40 (Ala. 1947)

Summary

In Avery Freight Lines, Inc. v. Persons, 1947, 250 Ala. 40, 32 So.2d 886, 889, the Supreme Court of Alabama, in holding that an appeal to the Circuit Court under the statutes concerned was judicial and not legislative or administrative, observed: "Under the foregoing statutes * * * the circuit court can do only three things.

Summary of this case from Southern Ry. Co. v. Alabama Public Serv. Commission

Opinion

3 Div. 471.

October 16, 1947. Rehearing Denied December 18, 1947.

Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.

Wm. S. Pritchard and Winston B. McCall, both of Birmingham, and Hill, Hill, Whiting Rives, of Montgomery, for appellant.

The province of this Court on this appeal is to review the declaratory judgment entered by the trial court. Avery Freight Lines v. White, 245 Ala. 618, 18 So.2d 394, 154 A.L.R. 732. This is a case for adjudicting, as between the commission and the plaintiff, the legal rights of the plaintiff under the decree of the Mobile Court, which, in turn, involves a construction of that decree, a determination whether it is void in toto or in part; whether errors in that decree, if any, were errors reviewable only on appeal or were jurisdictional; to what extent, if any, the decree was without the jurisdiction of the court and void; and finally what rights, if any, were adjudicated. Avery Freight Lines v. White, supra. Adequate judicial review of administrative action and right of effective appeal to the courts is a requirement of due process of law guaranteed by the Constitution. Alabama P. S. Comm v. Mobile Gas Co., 213 Ala. 50, 104 So. 538, 41 A.L. R. 872; Washington v. Fairchild, 224 U.S. 510, 32 S.Ct. 535, 56 L.Ed. 863; Chicago M. St. P. R. Co. v. Minnesota, 134 U.S. 418, 10 S.Ct. 462, 33 L.Ed. 970. The final determination of questions of law is a judicial power vested in the courts and may not be exercised by legislative or administrative bodies to the exclusion of the courts. Const. 1901, Secs. 139, 43; Code 1940, Tit. 13, § 1. The fact that the commission's order was one of dismissal of appellant's complaint did not foreclose the right of review. Appellant was an aggrieved party and the negative form of the order is not controlling. Mitchell v. United States, 313 U.S. 80, 61 S.Ct. 873, 85 L.Ed. 1201; Rochester Tel. Co. v. United States, 307 U.S. 125, 59 S.Ct. 754, 83 L.Ed. 1147; United States v. Maher, 397 U.S. 148, 59 S.Ct. 786, 83 L.Ed. 1162. The appeal so provided by Alabama Code is to bring the entire record of proceedings of the commission before a judicial tribunal of general jurisdiction for review upon questions of law. Avery Freight Lines v. White, supra; Code 1940, Tit. 48, §§ 301 (27), 82. In judicially reviewing administrative determinations of pure questions of law on direct appeal, the court sitting in equity may substitute its own judgment of the law and render such decree, applying the law to the facts found by the commission as disclosed in the record, as the commission should have rendered on such facts. Code 1940, Tit. 48, §§ 301(27), 82; Tit. 7, § 810; Equity Rule 67, Code, Tit. 7, p. 1101; 42 Am.Jur. 622; Avant Gas Serv. Co. v. Comm., 184 Okl. 583, 89 P.2d 291, 122 A.L.R. 189. Error on a question of law made by a court vested with the power to review and supervise orders of the commission in the exercise of this power, is reviewable only on appeal and not by collateral attack. Miller v. Thompson, 209 Ala. 469, 96 So. 481; Powell v. Union Bank Tr. Co., 173 Ala. 332, 56 So. 123; 31 Am.Jur. 177; 34 C.J. 564. Authority, public policy and justice alike require that in determining whether the record does disclose the jurisdictional facts the court should construe the language of the record most favorably for the maintenance of the decree. King v. Kent, 29 Ala. 542; Boyd v. Garrison, 246 Ala. 122, 19 So.2d 385. The commission having made express administrative decision recognizing and acquiescing in the decree of the Mobile Court, may revoke or change this decision only for statutory cause after notice to appellant and opportunity to be heard. Code 1940, Tit. 48, § 301(14) (10). Upon the commission's order denying a "grandfather clause" application being modified, suspended, set aside or stayed, the applicant may lawfully continue its operations carried on prior to and on the effective date of the Motor Carrier Act, as here expressly recognized in the decree of the Mobile Court authorizing continuance of these operations. The fact that the commission might fail to perform the clerical duty of issuing the actual certificate does not render unlawful the continuance of such operations, it is rather presumed that the commission will follow the court's decision on the challenged question of law, as here done by the commission. Maher v. United States, D.C., 23 F. Supp. 810; Code 1940, Tit. 48, § 301(8); Alton R. Co. v. United States, 287 U.S. 229, 53 S.Ct. 124, 77 L.Ed. 275. Finality to litigation is an end to be desired as well in proceedings to which an administrative body is a party as in exclusively private litigation. The party adverse to the administrative body is entitled to rely on the conclusiveness of a decree entered by a court to the same extent that other litigants may rely on judgments for or against them. International Union v. Eagle-Picher Co., 325 U.S. 335, 65 S.Ct. 1166, 89 L.Ed. 1649.

A. A. Carmichael, Atty. Gen., and MacDonald Gallion, Asst. Atty. Gen., for appellees.

Where a special authority in derogation of the common law is conferred by statute on a court of general jurisdiction, it becomes an inferior or limited court. Partlow v. Partlow, 246 Ala. 259, 20 So.2d 517; State v. Mobile G. R. Co., 108 Ala. 29, 18 So. 801; Goodwater Warehouse Co. v. Street, 137 Ala. 621, 34 So. 903; Gunn v. Howell, 27 Ala. 663, 62 Am.Dec. 785. The procedure of circuit courts in appeals from orders of the Public Service Commission is set forth by statute. Code 1940, Tit. 48, § 82. Where a court whose jurisdiction is questioned is one of limited jurisdiction, it must appear from the face of the proceedings that it has acted within the scope of its jurisdiction. Craig v. Root, 247 Ala. 479, 25 So.2d 147. Jurisdiction involves the question whether the character of a judgment rendered was of a class within the scope of the powers of the court. Want of jurisdiction may be raised on collateral attack. Avery Freight Lines v. White, 245 Ala. 618, 18 So.2d 394, 154 A.L.R. 732. The decree of a court acting without its jurisdiction is void notwithstanding its recital of jurisdictional facts. Craig v. Root, supra; Alford v. Clarborn, 229 Ala. 401, 157 So. 226; Cogburn v. Callier, 213 Ala. 46, 104 So. 330. A void decree will not support an appeal. Folmar v. First Nat. Bank, 223 Ala. 625, 137 So. 777; McMillan v. Gadsden, Ala.Sup., 39 So. 569; Ex parte Phillips, 231 Ala. 364, 165 So. 80. The decree of the Mobile Circuit Court was not in conformity with statutory law and is therefore void. Code 1940, Tit. 48, § 82.



This is an appeal from a final declaratory judgment of the Circuit Court of Montgomery County, wherein it was adjudged and declared that the "Avery Freight Lines, Inc." (appellant), "did not have the right and privilege to operate as an irregular common carrier of property on all roads in the State of Alabama in accordance with the terms of the decree of the Circuit Court of Mobile County, in Equity, dated September 30, 1941." The suit was instituted in the Circuit Court of Montgomery County by Avery Freight Lines, Inc. against the members of the Public Service Commission. Georgia Motor Express Co. Inc. and others intervened as parties defendant.

For an understanding of the case it is necessary to consider the effect of the decision of this court when the case was here previously on appeal. Avery Freight Lines v. White et al., 245 Ala. 618, 18 So.2d 394, 154 A.L.R. 732. On that appeal this court held in effect that the case called for a determination of the legal rights of the Avery Freight Lines, Inc. under the decree of the Circuit Court of Mobile County, in Equity. This court further held that such questions could not be settled until answer had been made. Accordingly the case was remanded to the lower court for such further proceedings. After answer was made, final decree was rendered, as aforesaid.

We think it unnecessary to restate all the facts which are set forth in the opinion on the first appeal. For present purposes it is sufficient to set forth the following. Avery Freight Lines, Inc. made application to the Public Service Commission for a certificate of public convenience and necessity under what is known as the "grandfather clause" of § 8 of the Act of 1939, p. 1069, now § 301(8), Title 48, Code of 1940, Pocket Part. On July 8, 1941, the Public Service Commission denied the same. Avery Freight Lines, Inc. appealed from the order to the Circuit Court of Mobile County as provided by the statute.

On appeal the Circuit Court of Mobile County, in Equity, entered its decree in pertinent part as follows:

"* * * the Court having considered all of the evidence certified by the said Alabama Public Service Commission, being all of the evidence in the cause, and the cause having been argued at length by the respective parties and the Court understanding the evidence and the issues presented, is of the opinion that the findings of facts as set forth in the report of the Commission, including the finding that, 'Immediately after applicant took over these operations, it commenced a more extensive service. It operated some of its equipment as a common carrier over regular routes, though it had no proper authority to do so, and knew at the time it did not have such authority,' did not warrant the Commission in entering its order denying applicant 'Grandfather' rights. The Court is further of the opinion that the Commission erred to the prejudice of applicant's substantial rights in its application of the law to such facts, and that said order here appealed from should be modified to the extent herein provided, wherefore it is by the Court:

"Ordered, Adjudged and Decreed, as follows, the order entered by the Alabama Public Service Commission dated July 8th, 1941, in this matter is modified to provide that the applicant, Appellant, Avery Freight Lines, Inc., is entitled under the provisions of the Alabama Motor Carrier Act of 1939 and more specially Title 48, Paragraph 301(8) Code of Alabama 1940, to have a certificate of convenience and necessity under the proof and petition heretofore filed with the Alabama Public Service Commission, to operate as an irregular common carrier to the extent provided in the motor carrier permit issued to the appellant by Honorable Matt A. Boykin, Judge of Probate of Mobile County, Alabama, on the 22nd day of August, 1940, which gave and allowed applicant, appellant, here the right to operate as an irregular common carrier of property on all roads in the State of Alabama.

"The said order of the Commission is hereby further amended to provide that the Avery Freight Lines, Inc., appellant, may continue the operation of its said business as an irregular common carrier of property on all roads in the State of Alabama."

In holding that this case calls for a determination of the legal rights of the Avery Freight Lines, Inc. under the aforesaid decree of the Circuit Court of Mobile County, in Equity, this Court on the first appeal said: "* * * We think this not a case of judicial interference in matters committed by law to the Commission, but a case for adjudicating, as between the Commission and the plaintiff, the legal rights of the plaintiff under the decree of the Mobile Court. This, in turn, involves a construction of that decree, a determination whether it is void in toto or in part; whether errors in that decree, if any, were errors reviewable only on appeal, or were jurisdictional; to what extent, if any, the decree was without the jurisdiction of the court and void; and, finally, what rights, if any, were adjudicated." Avery Freight Lines v. White, 245 Ala. 618, 18 So.2d 394, 400, 154 A.L.R. 732.

It seems clear to us that decision in this case must turn on the construction to be given the decree of the Mobile Circuit Court, in Equity, in the light of the statutes under which appeal was taken to that Court. Section 301(27), Title 48, Code of 1940, provides for an appeal from any final action or order of the Public Service Commission as follows: "Appeals. — From any final action or order of the commission in the exercise of the jurisdiction, power, authority, conferred upon the commission by this article, an appeal shall lie to the circuit court of the county of the carrier's residence, or in which he has his principal place of business or to the circuit court of Montgomery County, Alabama, sitting in equity, and thence to the supreme court of Alabama. Such appeals must be taken within thirty days after the date of such final action or order, and such appeals and the supersedeas and stay of action or order appealed from in other respects shall be governed by the provisions of the law now in force, or hereafter enacted, respecting appeals in other cases from the final order and actions of the commission."

It will be noted that the appeal "shall be governed by the provisions of law now in force, or hereafter enacted, respecting appeals in other cases from the final order and actions of the Commission." Accordingly the foregoing statute must be taken in connection with § 82, Title 48, Code of 1940 (North Alabama Motor Express Co. v. Rookis, 244 Ala. 137, 138, 12 So.2d 183), as follows: "Proceedings on appeal. — The commission's order shall be taken as prima facie just and reasonable. No new or additional evidence may be introduced in the circuit court except as to fraud or misconduct of some person engaged in the administration of this title and affecting the order, ruling or award appealed from, but the court shall otherwise hear the case upon the certified record and shall set aside the order if the court finds that: the commission erred to the prejudice of appellant's substantial rights in its application of the law; or, the order, decision or award was procured by fraud or was based upon a finding of facts contrary to the substantial weight of the evidence. Provided, however, the court may, instead of setting aside the order, remand the case to the commission for further proceedings in conformity with the direction of the court. The Court may, in advance of judgment and upon a sufficient showing, remand the cause to the commission for the purpose of taking additional testimony or other proceedings."

Under the foregoing statutes, omitting consideration of a remand in advance of judgment because that is not here involved, the circuit court can do only three things. (1) It can affirm the order of the Public Service Commission. (2) It can set aside the order of the Public Service Commission. (3) It can remand the case to the Public Service Commission for further proceedings in conformity with the direction of the court. The legislature evidently did not intend "that the reviewing court should put itself in the place of the commission, try the matter anew as an administrative body, weigh the evidence and substitute its finding and judgment on the merits as that of the commission." State v. Public Service Commission, 234 Mo. App. 470, 134 S.W.2d 1069, 1076; Id., 348 Mo. 613, 154 S.W.2d 777; 51 C.J. p. 758. See Alabama Public Service Commission v. Crow, 247 Ala. 120, 22 So.2d 721. The case of Avant Gas Co. v. Comm., 184 Okl. 583, 89 P.2d 291, 122 A.L.R. 189, cited by appellant, does not appear to be an authority against the position here taken, because in Oklahoma, the state constitution expressly authorizes the court to substitute such order, as in its opinion, the commission should have made. Oklahoma Cotton Ginners' Ass'n v. State, 174 Okl. 243, 51 P.2d 327.

Accordingly, while the circuit court is ordinarily a court of general jurisdiction, in the particular proceeding now before us, it is made a court of limited jurisdiction by the statutes. "It is the settled rule that where a special authority, in derogation of the common law, is conferred by statute on a court of general jurisdiction, it becomes quoad hoc, an inferior or limited court. A compliance with the requisitions of the statute is necessary to its jurisdiction, and must appear on the face of its proceedings." State v. Mobile G. R. Co., 108 Ala. 29, 18 So. 801. See Goodwater Warehouse Co. v. Street, 137 Ala. 621, 34 So. 903; Gunn v. Howell, 27 Ala. 663, 62 Am.Dec. 785; Partlow v. Partlow, 246 Ala. 259, 20 So.2d 517; Craig v. Root, 247 Ala. 479, 25 So.2d 147.

Before we proceed to a construction of the Mobile decree, we want to be careful to show the limitations of our inquiry. The case is not here on appeal from the Circuit Court of Mobile, in Equity. Accordingly, it is not our function to determine whether or not that court acted correctly or erroneously in making the findings authorized in § 82, Title 48, Code of 1940. We are only concerned here with (1) the legal power or jurisdiction of the court to render its decree and (2) the rights, if any conferred by the decree. Avery Freight Lines, Inc., v. White, supra; 49 C.J.S., Judgments, § 428, p. 851. It seems clear to us that the last paragraph of the court's decree in which it provides that the carrier "may continue the operation of its said business as an irregular common carrier of property on all roads in the State of Alabama" undertakes an adjudication which is beyond the powers of the court and is void. With exception not here applicable, no carrier can operate in intrastate commerce on the highways of the state unless it first secures the proper certificate or permit and that certificate or permit must be issued by the Public Service. Commission. Sections 301(8), 301(11), Title 48, Code of 1940, Pocket Part.

But the fact that we have condemned the aforesaid portion of the court's decree does not necessarily require us to invalidate the entire decree. Avery Freight Lines, Inc., v. White, supra; 49 C.J.S. Judgments, § 450, p. 881. In construing the remainder of the decree, we should consider the legal effect rather than the mere language used. 34 C.J. p. 502; 49 C.J.S., Judgments, § 436. Also that construction will be adopted which will support the decree rather than destroy it. 34 C.J. p. 502; 49 C.J.S., Judgments, § 436. It is obvious that the portion of the Mobile Court's decree now under consideration neither affirms the order of the Public Service Commission nor remands the cause for further proceedings in conformity with the direction of the court. It cannot be regarded as a substitute for the order of the commission. Authorities supra. Does it in effect set aside the order of the Public Service Commission? We think it does. The order of the Public Service Commission denied the certificate of convenience and necessity. The Mobile Court found that the finding of facts by the Public Service Commission did not warrant its order denying the certificate and further that the Commission erred to the prejudice of substantial rights of the carrier in the application of the law to the facts. The Mobile Court, therefore, held to the contrary of the Commission when the Mobile Court held that the carrier was entitled to a certificate as set forth in its decree. When considered in substance the decree of the court in effect set aside the order of the Public Service Commission.

It will be noted that in setting aside the order of the Public Service Commission the Mobile Court did not remand the case to the Public Service Commission for further proceedings in accordance with the direction of the court. The effect of the decree accordingly is that the case is now before the Public Service Commission for further proceedings without direction from the court. However, the decree of the Circuit Court of Mobile County, in Equity, whether correct or erroneous, became the law of the case so far as the Public Service Commission is concerned and the Public Service Commission cannot in a subsequent hearing deny the application of Avery Freight Lines, Inc. for a certificate of public convenience and necessity or permit, if the facts remain substantially the same as those appearing on the former hearing before the commission. State v. Public Service Commission, supra; 34 C.J. p. 905; 50 C.J.S., Judgments, § 712b.

The decree appealed from is correct in declaring appellant has no present right to operate and it is due to be affirmed. We might add, however, that under what is declared in the decree of the Mobile Circuit Court, in Equity, as we have above indicated, appellant does have the right, unless the facts should now be found to be different, to have said certificate issued by the Public Service Commission.

Affirmed.

GARDNER, C. J., and FOSTER and LAWSON, JJ., concur.


On Motion for Rehearing.


It is urged on application for rehearing that we failed to recognize and give effect to the following provision contained in § 301(8), Title 48, Code of 1940 (Pocket Part), "Pending the determination of any such application the continuance of such operation shall be lawful." The contention is that the last paragraph in the decree of the Mobile Court upheld the right of the carrier to operate without a certificate of public convenience and necessity pending determination of the rights of the carrier under the grandfather clause. We quite agree that the foregoing clause in the statute gives appellant the right to operate without the certificate pending determination of its application under the grandfather clause and it was not our purpose to disturb such right.

However, as we interpret the decree of the Mobile Court, that court was attempting a final decree, disposing of the final rights of the parties and not dealing with temporary rights. Under this view the Mobile Court could not decree that appellant could continue its operations without a certificate of convenience and necessity.

Opinion extended; rehearing overruled.


Summaries of

Avery Freight Lines, Inc., v. Persons

Supreme Court of Alabama
Dec 18, 1947
250 Ala. 40 (Ala. 1947)

In Avery Freight Lines, Inc. v. Persons, 1947, 250 Ala. 40, 32 So.2d 886, 889, the Supreme Court of Alabama, in holding that an appeal to the Circuit Court under the statutes concerned was judicial and not legislative or administrative, observed: "Under the foregoing statutes * * * the circuit court can do only three things.

Summary of this case from Southern Ry. Co. v. Alabama Public Serv. Commission

favoring construction of a judgment that will support it rather than require reversal

Summary of this case from James River Corp. v. Franklin
Case details for

Avery Freight Lines, Inc., v. Persons

Case Details

Full title:AVERY FREIGHT LINES, Inc., v. PERSONS et al

Court:Supreme Court of Alabama

Date published: Dec 18, 1947

Citations

250 Ala. 40 (Ala. 1947)
32 So. 2d 886

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