Grover v. Ace Equipment Co.

• Citation: 496 P.2d 673,94 Idaho 674
• Decision Date: 27 April 1972
• Docket Number: No. 10993,10993
• Parties: Louis GROVER, Plaintiff-Appellant, v. ACE EQUIPMENT COMPANY, Inc., and Idaho Public Utilities Commission, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 673

496 P.2d 673

94 Idaho 674

Louis GROVER, Plaintiff-Appellant, v. ACE EQUIPMENT COMPANY, Inc., and Idaho Public Utilities Commission, Defendants-Respondents.

No. 10993.

Supreme Court of Idaho.

April 27, 1972.

E. W. Pike, Idaho Falls, for plaintiff-appellant.

Clemons, Cosho, Humphrey & Samuelsen, Boise, and Lino A. Marsillo, Missoula, Mont., for respondent Ace Equipment Co., Inc.

W. Anthony Park, Atty. Gen., and Gary L. Montgomery, Asst. Atty. Gen., Boise, for respondent Idaho Public Utilities Comm.

SHEPARD, Justice.

This is an appeal from an order of the Idaho Public Utilities Commission granting a common carrier permit to respondent Ace Equipment Company for heavy hauling in certain counties within the State of Idaho. Respondent Ace Equipment Company is based in Missoula, Montana and the counties of operation border on or are easily accessible from Missoula, Montana.

Common carrier permits are granted by the Idaho Public Utilities Commission under basic statutory provisions, I.C. § 61-801, et seq. I.C. § 61-802 provides:

'It shall be unlawful for any motor carrier, as the term is defined in this chapter, to operate any motor vehicle in motor transportation without first having obtained from the commission a permit covering such operation.

'A permit shall be issued to any qualified applicant * * * if it is found that the applicant is fit, willing, and able properly to perform the service proposed and to conform to the provisions of this chapter and the requirements, rules and regulations of the commission thereunder, and that they proposed service, to the extent authorized by the permit, is or will be required by the present or future public convenience and necessity.

'In considering public convenience and necessity the commission shall, prior to the issuance of a permit, consider the effect of such proposed motor carrier operation upon the operations of any authorized common carrier then operating over the routes or in the territory sought. The mere existence of a common carrier in the territories sought who possesses authority similar to that sought shall be insufficient cause to deny the issuance of the permit.'

Respondent Ace Equipment on June 27, 1970 applied for a common carrier permit and a hearing was held thereon before the Idaho Public Utilities Commission. At the hearing, Archie Remior, the owner of respondent Ace Equipment, and three other witnesses appeared and testified in favor of respondent's application. At that same hearing appellant Grover, who holds a common carrier permit and who operates out of Idaho Falls, appeared in opposition to the granting of the permit. On May 13, 1971, the Commission granted respondent a common carrier permit in the counties of Bonner, Kootenai, Shoshone, Clearwater, Idaho, Lemhi, Custer, Butte and Clark for 'transportation of heavy logging and mining equipment.' Thereafter appellant petitioned for a rehearing, which was denied. This appeal resulted.

Appellant Grover bases his appeal on three grounds:

1. That respondent Ace Equipment Company is not 'willing * * * to conform to the provisions of this chapter and the requirements, rules and regulations of the commission.'

2. That there is no evidence that the service 'is or will be required by the present or future public convenience and necessity.'

3. That appellant Grover will adequately serve any public need.

It is uncontradicted that respondent Ace Equipment has performed heavy hauling within the State of Idaho in the past without possessing an IPUC permit. Appellant asserts that the Commission could not therefore find that respondent Ace Equipment was willing to conform to the rules,...