
    ALABAMA PUBLIC SERVICE COMMISSION, et al. v. HURTSBORO TRUCKING COMPANY, INC.
    89-380.
    Supreme Court of Alabama.
    June 1, 1990.
    
      S. Powers Lambert, Montgomery, for appellants.
    T. Dudley Perry, Jr. of Perry & Perry, Montgomery, for appellee.
   STEAGALL, Justice.

The issue in this appeal is whether the trial court erred in reversing an order of the Alabama Public Service Commission (hereinafter “APSC”) that denied the application of Hurtsboro Trucking Company, Inc. (hereinafter “Hurtsboro Trucking”), for authority to institute a new operation as a common carrier over irregular routes.

On May 5, 1988, Hurtsboro Trucking filed an application seeking authority to institute a new operation as a common carrier by motor vehicle over irregular routes. Nine other companies protested the application. Thereafter, the application was amended, and all but two protestants withdrew their opposition. After a hearing, the administrative law judge found that Hurtsboro Trucking had shown that the public convenience and necessity required its services. He then held that because there was evidence that Hurtsboro Trucking had filed a previous application with the APSC and had continued to operate without authority after that application was denied, Hurtsboro Trucking failed to meet the fitness requirement of the dual test of fitness and public necessity in Ala. Code 1975, § 37-3-11(a), and recommended that the application be denied. Adopting the hearing officer’s recommendation, the APSC denied the application. Hurtsboro Trucking appealed that denial to the Circuit Court of Russell County, and that court reversed the APSC’s order. The APSC then appealed to this Court.

While there is no presumption of correctness of a circuit judge’s order in APSC cases, Alabama Public Service Comm’n v. Lane Trucking, Inc., 395 So.2d 14 (Ala.1981), we find that the facts in this case do not support the administrative law judge’s holding. See the guidelines in Purolator Courier Comp. v. Alabama Public Service Comm’n, 514 So.2d 832, 835 (Ala.1987). The fact of a prior violation is not continuing evidence of unfitness in light of Hurtsboro Trucking’s stated willingness to now comply with the rules and regulations of the APSC and in light of the APSC’s authority to monitor Hurtsboro Trucking’s ongoing operations and to revoke its authority in the event of future violations.

Therefore, we hold that it was unreasonable for the APSC to deny Hurtsboro Trucking’s application for common carrier authority, and we affirm the circuit court’s judgment granting that authority.

AFFIRMED.

JONES, ALMON, SHORES, ADAMS and HOUSTON, JJ., concur.

HORNSBY, C.J., and MADDOX and KENNEDY, JJ., dissent.

MADDOX, Justice

(dissenting).

Because I am of the opinion that the trial court did err in substituting its judgment for that of the APSC, I must dissent.

As this Court stated recently in Alabama Public Service Comm’n v. M.D. Weeks Trucking Co., 547 So.2d 531 (Ala.1989):

“When this Court reviews the judgment of a trial court setting aside an order of the APSC, it does so without any presumption as to the correctness of that judgment. Ross Neely Express, Inc. v. Hornady Truck Lines, Inc., 387 So.2d 782 (Ala.1980); Alabama Pub. Serv. Comm’n v. Consolidated Transp. Co., 286 Ala. 323, 239 So.2d 753 (1970). An order of the APSC shall be taken as prima facie just and reasonable. Ross Neely Express, Inc. v. Alabama Pub. Serv. Comm’n, 431 So.2d 1214, 1218 (Ala.1983). As this Court has stated:
“ ‘Further, this court may not overturn that order unless it finds the Commission erred to the prejudice of [the applicant’s] substantial rights in the application of the law or finds that order based upon findings of fact contrary to the substantial weight of the evidence. Section 37-1-124, Code 1975. It must be kept in mind that the bottom line in these cases is that the final test of the validity or invalidity of the Commission’s order is whether, when all the relevant and material circumstances regarding the order are considered as are duly presented, the order is reasonable or unreasonable.’
431 So.2d at 1218.”

547 So.2d at 532-33.

The law regarding the granting of certificates of public convenience and necessity for common carrier authority is contained in Ala. Code 1975, § 37-3-11(a), which provides in part:

“[A] certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operations covered by the application, if it is found, after public hearing of the application, that the applicant is fit, willing and able to properly perform the service proposed and to conform with the provisions of this chapter and requirements, rules and regulations of the commission thereunder, ...; otherwise, such application shall be denied;.... ”

The first requirement of § 37-3-11(a) is that the applicant be “fit, willing and able to properly perform the service proposed and to conform with the provisions of this chapter and requirements, rules and regulations of the commission thereunder.” (Emphasis added.) A failure to show fitness mandates a denial of the application. There is abundant evidence in the record from which the hearing officer could have properly found that Hurtsboro Trucking Company was not fit to provide this service. The evidence showed the following: Hurtsboro Trucking had operated an unlicensed and illegal operation for approximately 20 years; it had filed a previous application with the APSC and had continued to operate without authority after that application had been denied; and its owner said that he would continue to operate illegally if this present application was denied.

In light of the evidence of Hurtsboro Trucking’s lack of fitness, it was reasonable for the APSC to deny the application; therefore, I would reverse the judgment of the trial court and remand this cause to the trial court for it to enter an order affirming the order of the APSC. Because the majority condones this applicant’s knowing defiance of the statutes and APSC regulations, I must dissent.

HORNSBY, C.J., concurs.  