I. Duffey & Son Co. v. Kemmer
| Decision Date | 14 November 1941 |
| Docket Number | 16622. |
| Citation | 37 N.E.2d 274,110 Ind.App. 116 |
| Court | Indiana Appellate Court |
| Parties | I. DUFFEY & SON CO. v. KEMMER et al. |
Condo Van Atta, Batton & Harker, of Marion, and Raymond Brooks of North Manchester, for appellant.
Bowers Feightner & Bowers and Arthur J. Palmer, all of Huntington, John R. Browne, of Marion, for appellees.
The appellees, R. V. Kemmer and John Minton, filed a petition with the Department of Commerce and Industries, Live Stock License Division, of the State of Indiana, for a certificate of public convenience and necessity, authorizing the operation of a concentration point at Huntington, Indiana. A hearing was had upon this petition and a certificate was issued.
The appellant appealed from this order of the Live Stock License Division to the Huntington Circuit Court, and, on change of venue, the matter was finally tried before the court in Grant County. The Grant Circuit Court confirmed the action of the Live Stock License Division and the certificate of convenience and necessity was granted and ordered issued.
A motion for new trial was filed and overruled, and this appeal has been perfected. The only error assigned in this court is the alleged error in overruling the appellant's motion for a new trial. Under this assignment of error, the appellant challenges the sufficiency of the evidence to sustain the decision of the court, and also charges that the court erred in the exclusion of certain testimony.
The statute, under which this proceeding was instituted, reads in part, as follows: "No buyer as defined in this act shall engage, continue or permit another in his or its employ to engage or continue, in the business of the buying of live stock within this state, until after there shall have been obtained from the administrative officer by written application, a separate certificate for each separate concentration point to be operated by such buyer, declaring that public convenience and necessity require the operation of the business of buying live stock by such person, and no certificate shall be issued except as hereinafter provided, until after a public hearing and a consideration of the service rendered by other buyers, concentration points, and stock-yards doing business in the territory applied for in said application for a certificate." Sec. 42-916, Burns' Ind.Statutes 1933, Sec. 3923-7, Baldwin's Ind.Statute, 1935 Supplement.
The appellant contends that the evidence fails to show that public convenience and necessity require the operation of the business of buying live stock in the Huntington area. The appellant admits, however, that the evidence does disclose some convenience to a few farmers living in close proximity to the city of Huntington, which will be afforded by the establishment of a concentration point.
The record in this case discloses that the appellees were not seeking permission to engage in the business of buying live stock only; they were seeking permission to establish a concentration point at Huntington, Indiana. The statute defines concentration point as follows: "(c) The words 'concentration point' whenever used in this act, shall be construed to mean any stockyards, community sale, auction, place, establishment or facility, where any series of sales, exchanges or purchases of any live stock, is made at regular or irregular intervals at an established place or places, in this state, by any person directly or indirectly, for or on account of the producer or consignor thereof, except that this term shall not apply to sales, purchases or exchanges, at a stockyards which is posted as a stockyards by the secretary of agriculture of the United States of America, as defined herein." Sec. 42-911, Burns' Ind.Statutes 1933, Sec. 3923-2, Baldwin's Ind.Statute 1935 Supplement.
The record discloses that these appellees were asking permission to engage in the business of "buying and selling live stock." By...
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