Application of Jones

• Decision Date: 31 July 1975
• Docket Number: No. 11506,11506
• Citation: 231 N.W.2d 844,89 S.D. 191
• Parties: Application of Herman Fredrick JONES, Rapid City, South Dakota, for authority to operate as a Class 'A' Motor Carrier of Persons, for hire.
• Court: South Dakota Supreme Court

Page 844

231 N.W.2d 844

89 S.D. 191

Application of Herman Fredrick JONES, Rapid City, South

Dakota, for authority to operate as a Class 'A'

Motor Carrier of Persons, for hire.

No. 11506.

Supreme Court of South Dakota.

July 31, 1975.

Franklin J. Wallahan, Hanley, Wallahan & Murray, Rapid City, for applicant and respondent.

Gene R. Bushnell, Costello, Porter, Hill, Nelson, Heisterkamp & Bushnell, Rapid City, for protestant, Jack Rabbit Lines.

George Beal, George Beal Law Offices, Rapid City, for protestant and appellant, Black Hills and Western Tours.

WINANS, Justice.

This case is here on appeal from a finding of the Honorable Thomas Parker, Presiding Judge of the Seventh Judicial Circuit Court, of Pennington County, dated June 27, 1974, that 'the Public Utilities Commission in granting the applications of Herman Fredrick Jones * * * acted within its constitutional and statutory powers and that its decision is supported by substantial evidence and is reasonable and not arbitrary.'

Herman Fredrick Jones of Rapid City applied to the South Dakota Public Utilities Commission for authority to operate two separate routes as a Class 'A' motor carrier for hire, one route to run from Rapid City to the Race Track of the Black Hills Racing Association and the other route to run from Rapid City to the Mount Rushmore National Memorial with stops at several tourist spots along the way. Both operations were classified by the applicant as of the mass transit variety, nonluxury buses hauling passengers and baggage to and from these local designated points at frequent regular intervals. Hearings were held on both applications jointly at Rapid City by the Commission on January 3 and 4 and on February 1, 1974, and on April 8, 1974 the Commission issued orders granting Jones the two Class 'A' authorities requested. Appearing at the Commission hearings to protest the petitions were Black Hills and Western Tours, Inc. (holding the Gray Line franchise); Denver, Colorado Springs, Pueblo Motorways, Inc., dba Continental Trailways; Yellow Cab Company and Jack Rabbit Lines, Inc. Protestants' petition for a rehearing by the Commission was denied. On May 6, 1974, through its counsel George Beal, Black Hills and Western Tours, Inc., appealed the Commission's orders to the Circuit Court of Pennington County, pursuant to SDCL 49--14--3. Presiding Judge Parker heard the appeal May 29, 1974, and on June 27, 1974 he affirmed the Commission's orders in a memorandum decision. A judgment was signed that day and filed the next whereupon applicant's counsel flew immediately to Pierre where the P.U.C. at once issued the permits to operate the two routes. Upon the circuit court's denial of a motion to vacate judgment Black Hills and Western Tours, Inc., appealed to this court.

Appellant questions the circuit court's affirmation of the Public Utilities Commission's finding of 'public convenience and necessity' and of Jones' financial and other abilities to render proper service. Appellant further suggests the Commission failed to give reasonable consideration to the effect the grant of requested authority would have on Appellant and states both that Appellant ought to have been offered first opportunity to provide services offered to Jones and that some of the service at least authorized to Jones should be voided because it duplicates already existing services provided by Appellant. Finally, counsel for Appellant argues that the circuit court conducted an improper ex parte hearing in signing the judgment absent Appellant's counsel and that Appellant's rights on appeal were prejudiced.

We find for the applicant Jones on all issues and affirm the judgment of the circuit court.

Our review of the circuit court judgment challenged here is not a review of the findings of fact, conclusions of law and judgment of an action tried to the court. It is a review of the action of the Commission without regard to the circuit court judgment. State ex rel. Dakota Savings and Loan Assoc. v. Brosz, 1964, 81 S.D. 64, 131 N.W.2d 69. The ultimate question in regard to each of the first three issues presented by Appellant is whether or not the orders of the Commission are unreasonable or arbitrary or lack substantial support in the evidence. Application of Dakota Transportation, 1940, 67 S.D. 221, 291 N.W. 589. We think not.

A careful reading of the record of the Public Utilities Commission's hearing and of its report presents ample evidence that testimony was presented and that it was considered on the matter of public convenience and need for the proposed services, on the matter of Jones' financial and other abilities to provide the services and on the question of the effect the proposed services would have on all aspects of services then offered by Appellant and other protestants. Certainly this latter consideration was the motivation for refusing Jones Rule 17 permission to offer special or chartered service. It has been said that the problem for the reviewing court is not only to avoid a substitution of judgment and...