Application of Transport, Inc. of South Dakota

• Decision Date: 15 May 1954
• Docket Number: No. 9392,9392
• Parties: Application of TRANSPORT, Inc. OF SOUTH DAKOTA.
• Court: South Dakota Supreme Court

Page 313

64 N.W.2d 313

75 S.D. 340

Application of TRANSPORT, Inc. OF SOUTH DAKOTA.

No. 9392.

Supreme Court of South Dakota.

May 15, 1954.

Boyce, Warren, Murphy & McDowell, Sioux Falls, for appellant.

Stordahl, May & Boe, Sioux Falls, for respondent.

Herman L. Bode, Pierre, Ralph A. Dunham, Atty. Gen., for Public Utilities Commission.

ROBERTS, Judge.

This is an appeal from a judgment of the Circuit Court of Minnehaha County affirming an order of the Public Utilities Commission.

The order of November 6, 1952, approved a request of Transport, Inc. of South Dakota, for transfer to it of three motor carrier permits (Nos. 6336, 6337 and 6456) issued to Transport Service, Inc., and a motor carrier permit (No. 7254) issued to Transport, Inc. of Moorhead, Minnesota. The three class B motor carrier permits issued to Transport Service, Inc. authorized it to transport petroleum products from Sioux Falls and Yankton to all points in the state east of the Missouri River and from Sioux Falls to a limited area west of the Missouri River adjacent to U. S. Highways 16 and 18. The class B carrier permit No. 7254 authorized the holder to transport petroleum products to all points in the state east of the Missouri River and north of U. S. Highway 14. The order authorizing the transfers contains the following restriction: 'That Transport Inc. of South Dakota desist and abstain from transporting petroleum products loaded or originating at Watertown, South Dakota (pipeline area) to any point south of U. S. Highway 14 in South Dakota, or any point west of the Missouri River in South Dakota.'

Dan S. Dugan, doing business as a motor carrier under the name of Dugan Oil and Transport Company, resisted the granting of the applications.

A petition for rehearing before the Commission was denied and as we have indicated the judgment of the Circuit Court on appeal affirmed the order of the Commission. Protestant and appellant insists that the order approving the transfers should be reversed because (1) there is no finding of convenience and necessity, and (2) the evidence is insufficient to support the findings of the Commission that the transfers are consistent with and will promote the public interest and that transferee corporation is able, ready and willing to assume the status and obligations of a motor carrier.

Statutory directions as applied to transfers of permits or certificates held by motor carriers are embodied in SDC Supp. 44.0412: 'Any right, privilege, permit, or certificate held, owned or obtained by any motor carrier may be sold, assigned, leased, transferred, and inherited as other property only by the authorization of the Commission. Provided that the sale, assignment, lease, transfer or acquisition through operation of law, of any right, privilege, permit or certificate shall not be approved unless, the Commission shall find that such sale, assignment, lease, transfer or acquisition is consistent with and will promote the public interest.'

The establishment of a class B motor carrier service or the extension of an existing service is governed by SDC Supp. 44.0410: '* * * If after hearing upon application for a certificate or permit, the Commission shall find, upon the evidence, that public convenience and necessity require the authorization of the service proposed, or any part thereof as the Commission shall determine, a certificate or permit therefor shall be issued. Such certificate or permit shall authorize the applicant to operate as a motor carrier from the date thereof until the first day of January next following. In determining whether or not a certificate or permit should be issued, the Commission shall give reasonable consideration to the transportation service being furnished or that will be furnished by any railroad, or other existing transportation agency, and shall give due consideration to the likelihood of the proposed service being permanent and continuous throughout twelve months of the year and the effect which such proposed transportation service may have upon other forms of transportation service which are essential and indispensable to the communities to be affected by such proposed transportation service or that might be affected thereby.'

It appears from these statutory provisions and a reading of the entire act that the legislature was primarily concerned with the creation and maintenance of adequate motor transportation service to the public. What is required for adequate, eonomical, efficient and necessary service and in furtherance of the public...