Peterson v. Livestock Commission

• Decision Date: 06 May 1947
• Docket Number: 8665.
• Citation: 181 P.2d 152,120 Mont. 140
• Parties: PETERSON v. LIVESTOCK COMMISSION.
• Court: Montana Supreme Court

181 P.2d 152

120 Mont. 140

PETERSON v. LIVESTOCK COMMISSION.

No. 8665.

Supreme Court of Montana

May 6, 1947

Appeal from District Court, Fourth District, Lake County; C. E Comer, Judge.

Proceeding by Frank J. Peterson on application to the Livestock Commission for a license to operate a livestock market. From judgment for applicant on appeal from decision of commission refusing a license, the commission appeals.

Judgment affirmed.

T. B. Weir, W. L. Clift, Enor K. Matson and Newell Gough, all of Helena, for appellant.

T. H MacDonald, T. R. Delaney, F. N. Hamman, Lloyd I. Wallace, and R. H. Weidman, all of Polson, for respondent.

Cedor B. Aronow and Paul T. Keller, both of Shelby, amicus curiae.

ANGSTMAN Justice.

Frank Peterson on March 28, 1945, made application under Chapter 52, Laws of 1937, to the Livestock Commission for a license to operate a livestock market at Polson. Hearing was held before the commission on April 9. The hearing was informal and no record was kept of the proceedings. The application was denied on April 10th and on April 11th a letter was sent to Peterson's attorney advising him of the action taken by the commission. The letter was as follows:

'After considering the application submitted by you in behalf of Mr. F. E. Peterson, the Livestock Commission at its meeting held April 10th denied your application on the following motion duly made, seconded and passed at the meeting: 'That the applications received from Polson and Kalispell be denied on the ground that the policy expressed by the last Legislature was that the Livestock Commission should not grant licenses to markets in local areas that are contiguous to markets which have been established in the state and which are sucessfully operating and that the Livestock Commission feels that unless the Legislature indicates that a different policy be adopted that the Livestock Commission continue to refuse to grant such licenses.'

'The Livestock Commission felt that there already existed sufficient facilities to handle the sale of livestock from your neighborhood. However, the Commission instructed me to advise you that if it is your desire, you may file a new application if it can be shown that a livestock market may be established in your city and that it may be operated under the conditions set up in Chapter 193 of the Laws of Montana, 1945.'

Chapter 193, Laws of 1945, was not yet in effect and did not become effective until July 1, 1945.

On April 18th, Peterson filed notice of appeal to the district court of Lake county. The commission filed what it called aresponse to the appeal in which it set out that the financial statement submitted with the application showed that applicant is insolvent, and that he at no time filed with the commission a written statement of financial responsibility satisfactory to the commission as required by Chapter 52, Laws of 1937; that Peterson failed to submit adequate proof that a sufficient number of cattle and horses would be handled by him at the proposed market to justify its establishment or to warrant the commission in maintaining a livestock inspector at such place and to furnish him with brand records for his use and that Peterson failed to guarantee to the state of Montana or to the commission sufficient revenue from inspection fees at the proposed market to defray the cost of preparing a set of brand records within one year for use in such market; that because of other established markets nearby the proposed market would serve but a very limited territory and would draw such a limited number of livestock buyers that the highest price or actual value would not be obtained for the cattle on that account and that it would not be to the best interests of livestock owners and growers; that the commission acted entirely with sound discretion and within the jurisdiction and authority vested in it.

When the matter came on for hearing before the district court on July 17th, Peterson moved to amend the financial statement which he had submitted to the commission, by changing the figure $1,800 which was shown to be the value of real estate owned by him to the figure of $18,000, stating that the figure of $1,800 was entered on the statement through mistake. Counsel for the commission objected to this amendment upon the ground that the statement would then show that the applicant was solvent whereas the only application before the commission disclosed on its face that he is insolvent. The court permitted the amendment to be made and, over objection of the commission, permitted evidence to be introduced showing the need for a livestock market at Polson. The commission likewise submitted proof in support of the allegations made in its response to the appeal.

The court made findings of fact and conclusions of law in favor of applicant and entered judgment to the effect that Peterson is entitled to a license to establish and operate a livestock market at Polson as defined in Chapter 52, Laws of 1937, upon executing a bond in the sum of $10,000 with sureties to be approved by the commission, conditioned among other things upon the payment of all money received less expenses and commissions to the rightful owner or owners of livestock and conditioned that he would warrant title to the purchaser of livestock and that he would pay all costs and expenses incurred in preparing the brand records and all expense of inspection incidental to the operation of the market.

From this judgment the commission has appealed to this court.

The first question presented is whether the court erred in entertaining jurisdiction of the proceeding in view of the fact that the application before the commission disclosed on its face that the applicant was insolvent whereas the amended statement presented to the court showed otherwise. It is the contention of the commission that the case as presented to the court by reason of the amended financial statement was a case wholly different from that presented to the commission in that the financial statement before the commission showed total assets in the sum of $8,180 and liabilities in the sum of $9,550, whereas the amended statement presented to the court shows assets in the sum of $24,380 and liabilities in the sum of $9,550.

The record shows, however, that no useful purpose would have been subserved in renewing the application before the commission after the financial statement had been amended because it sufficiently appears that even though the commission had before it the amended financial statement it would still have rejected the application on the erroneous belief that it could resort to the legislative policy set out in Chapter 193, Laws of 1945, and petitioner's failure to comply therewith, as a reason for rejecting the application. This sufficiently appears from the order made by the commission denying the application. It was specifically based upon the legislative policy stated in Chapter 193, Laws of 1945. Moreover the order denying the license shows on its face that the financial statement of Mr. Peterson was not considered. If it had been considered and found insufficient then certainly the commission would have ended all dealings with Peterson instead of inviting him to file a new application under Chapter 193, Laws of 1945. The invitation to make a new application under the new law was tantamount to a finding that he was financially responsible so far as that question was concerned.

The order denying petitioner's application is the only official action of the board itself that appears in the record.

The secretary of the board, Mr. Raftery. when asked whether the financial status of the applicant was considered at the hearing, said: 'No, I don't believe there was much argument at all.' He also was asked as an expert witness with years of experience with the Montana Livestock Commission whether in his opinion on the facts submitted at the hearing in court the license should be granted and he answered, 'No.'

Mr. Warrant, the only member of the board who testified before the court, said he would vote against granting the license on the evidence before the court.

Lyman Brewster, another member of the board, had written a letter to Mr. Delaney, one of counsel for Peterson, before the hearing in court. That letter was introduced in evidence and is as follows: 'Thanks for the statement concerning the application for a market license. I regret that we have been unable to secure a meeting of the Commission but it seems that everyone is awfully busy. Anyhow, I wish to attend the hearing and am planning to do so, and I wish to do so because it was I who made the motion for denial of the license and I particularly set out the basis, so that if the matter came to issue the question involved would be clear. Between you and me and the gate post, and speaking individually, I believe that the only question involved (at least should be) is the one as to whether additional markets should be authorized in areas contiguous to presently established markets and I am hopeful for a court decision one way or the other, based on that question alone. If I can go to Helena, then on to the hearing, I will suggest to our attorney that the other points be waived and I hope he will agree. You see--there will be other applications from similar farm areas in the future and so the whole question of the Commission policy should be determined at the time of the hearing. It can be said as a matter of fact that the Commission would like to hold down the number of markets, so that the existing markets would really be markets. The situation in some other of the states has gotten out of bounds, and we don't believe that a considerable number of markets in the state will be in the interest...