Vander Werf v. Bd. of Railroad Comm’rs

• Decision Date: 21 September 1931
• Docket Number: 7238
• Parties: CHRIS VANDER WERF, Petitioner, v. BOARD OF RAILROAD COMMISSIONERS OF SOUTH DAKOTA, Respondent.
• Court: South Dakota Supreme Court

58 S.D. 586

237 N.W. 909

CHRIS VANDER WERF, Petitioner,

v.

BOARD OF RAILROAD COMMISSIONERS OF SOUTH DAKOTA, Respondent. South Dakota Supreme Court Original Proceeding #7238Affirmed Parliman & Parliman, Sioux Falls, SD Attorneys for Petitioner. M. Q. Sharpe, Attorney General Herman L. Bode, Assistant Attorney General, Pierre, SD Attorneys for Respondent. Opinion filed Sep 21, 1931

RUDOLPH, J.

The petitioner, Chris Vander Werf, applied to the board of railroad commissioners for a certificate of public convenience and necessity to operate a class A motor carrier in the transportation of property, for hire between Sioux Falls, S. D., and Colton, S. D., upon a regular schedule. After a hearing the railroad commission denied the application, and the case is now before us on a writ of certiorari. The facts disclosed upon the hearing are as follows: The town of Colton is located approximately 25 miles distant from Sioux Falls and is served by the Chicago, Milwaukee, St. Paul & Pacific Railway Company, and the Great Northern Railway Company and the Railway Express Agency; the Milwaukee furnishes daily, except Sunday, service, carrying mail and express between Sioux Falls and Colton, leaving Sioux Falls at 1:15 p. m., arriving at Colton at 2:00 p. m., and leaving Colton at 10:33 a. m., arriving at Sioux Falls at 11:20 a. m. There is a daily, except Sunday, freight service which leaves Sioux Falls at 2:45 a. m. and arrives at Colton at 4:35 a. m., and since January 1, 1930, this railway has provided a hot and cold car service daily, except Sunday. There is a freight train operating daily which leaves Colton at 8:10 p. m., and arrives at Sioux Falls at 9:40 p. m. The Great Northern Railway provides a daily, except Sunday, passenger train service by which baggage, cream, mail, and express is carried. This train leaves Sioux Falls at 2:50 p. m., arrives at Colton 3:39 p. m., leaves Colton 11:49 a. m., arrives Sioux Falls 12:40 p. m. The Great Northern freight train service is also daily, except Sunday, leaving Sioux Falls at 7:00 a. m., arriving at Colton at 8:35 a. m.; leaving Colton at 2:25 p. m., arriving at Sioux Falls 4:10 p. m. The Great Northern provides refrigerator and heated car service which leaves Sioux Falls on Wednesdays and Fridays and Watertown on Tuesdays and Saturdays.

Prior to the enactment of chapter 224 of the Laws of 1925, the petitioner, Vander Werf, operated a general trucking business in the vicinity of Colton and between Colton and Sioux Falls. In April, 1925, he filed an application for a class A certificate, seeking authority thereunder to operate between Sioux Falls and Colton, which application was denied by the board. In October, 1928, Vander Werf again applied for a class A certificate which was again denied. The present application was filed on March 24, 1930, and a hearing held thereon at Colton on August 6, 1930, and which was denied December 23, 1930. At the hearing upon this present application a large number of witnesses testified, among them were several retail merchants in the city of Colton and the members of several wholesale distributing firms of Sioux Falls, all of whom expressed a desire for the establishment of motor carrier service between Colton and Sioux Falls. It was shown by this evidence that motor carrier service is more direct than rail service, that the merchant can order in the morning and get his goods in the afternoon, and is relieved from going to the station to get his goods, which are delivered to his door by truck. From the record it appears that the merchants in Colton are in accord in desiring that this class A motor truck service be installed.

In the case of In re Sioux Falls Traction System, 181, this court in reviewing an order of public convenience and necessity, said:

“The petitioner does not point out wherein the ruling of the Railroad Commission is arbitrary, and we find nothing in the record indicating that the commission acted arbitrarily or unreasonably. The contention that the ruling of the commission is not in accordance with the evidence cannot be considered by this court so long as the order is not shown to be arbitrary or unreasonable.”

In reviewing the order under consideration, the only function of this court is therefore to determine whether or not the order is arbitrary or unreasonable. If, after a consideration of the evidence and the law, the order is considered arbitrary or unreasonable, it should be set aside, otherwise it should be sustained. Section 10 of chapter 224, Laws of 1925, provides as follows:

“If after hearing upon application for a certificate or permit, the Board shall find, from the evidence, that public convenience and necessity require the authorization of the service proposed, or any part thereof as the Board shall determine, a certificate or permit therefor shall be issued. ... In determining whether or not a certificate or permit should be issued, the Board 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 (12) 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...