I dissent. I concur generally with the concurring opinion of Mr. Justice WOLFE, and with what he says in regard to the kind of permits and the circumstances under which they may be granted to contract carriers. But I am not prepared to hold that before the commission can grant a certificate of convenience and necessity to a common motor carrier there must be a showing that adequate services of the type proposed could not be furnished by contract motor carriers. *Page 504 This is what I understand to be the narrow grounds on which Mr. Justice WOLFE bases his concurrence.
The services which these applicants proposed to render to the public as common motor carriers are almost identical with the services which they have been rendering in the past and which they could render as contract motor carriers were they to apply for and be granted a permit to do so. Practically the only difference would be that as common motor carriers they would hold themselves out and be obligated to serve any person who may choose to employ them whereas as contract motor carriers they would be able to choose their customers. Of course a common carrier must submit to more detailed regulations by the commission than a contract carrier. But the showing under our statutes which a common motor carrier must make in order to obtain a certificate of convenience and necessity is almost identical with the showing required of a contract motor carrier in order to obtain a permit to so operate.
Sec. 76-5-18, U.C.A. 1943, with respect to a common motor carrier in order to obtain a certificate of convenience and necessity, provides:
"* * * If the commission finds from the evidence that the public convenience and necessity require the proposed service or any part thereof it may issue the certificate as prayed for, or issue it for the partial exercise only of the privilege sought, and may attach to the exercise of the right granted by such certificate such terms and conditions as in its judgment the public convenience and necessity may require, otherwise such certificate shall be denied. Before granting a certificate to a common motor carrier, the commission shall take into consideration the financial ability of the applicant to properly perform the service sought under the certificate and also the character of the highway over which said common motor carrier proposes to operate and the effect thereon, and upon the traveling public using the same, and also the existing transportation facilities in the territory proposed to be served. If the commission finds that the applicant is financially unable to properly perform the service sought under the certificate, or that the highway over which he proposes to operate is already sufficiently burdened with traffic, or that the granting of the certificate applied for will be detrimental to the best interests of the people of the state of Utah, the commission shall not grant such certificate." *Page 505
Sec. 76-5-21, U.C.A. 1943, as amended by Sec. 3, Chap. 105, page 209, Laws of Utah, 1945, with respect to granting a permit to operate as a contract motor carrier, provides:
"* * * If, from all the testimony offered at said hearing, the commission shall determine that the highways over which the applicant desires to operate are not unduly burdened; that the granting of the application will not unduly interfere with the traveling public; and that the granting of the application will not be detrimental to the best interests of the people of the state of Utah and/or to the localities to be served, and if the existing transportation facilities do not provide adequate or reasonable service, the commission shall grant such permit."
Under these statutes about the only difference in the requirements to obtain a certificate of convenience and necessity, in order to operate as a common motor carrier, and the requirements in order to obtain a permit to operate as a contract carrier, is that in the former the commission must be satisfied of the applicant's financial ability to render the service sought, and in the latter there is no such requirement. But there is here no claim that the evidence is insufficient in that respect.
As pointed out in Mulcahy v. Public Service Comm.,101 Utah 245, 117 P.2d 289, in order to obtain a certificate of convenience and necessity, there must be a showing that the necessity and convenience is for the benefit of the public generally, rather than that of only a few individuals. Such a showing in this case in my opinion was sufficiently made. The showing here was to the effect that they had been serving the public generally, that wherever there was work to be done of their type they proceeded to do it, and that their services were not confined to a few individuals. I think that the fact that in the past such service has been satisfactorily performed as contract motor carriers, does not prevent the commission from concluding that there is a public necessity therefor. Much of the evidence in my opinion tended to show that the public would be better served by these same carriers as common carriers than it has been in the past as contract carriers. As common carriers *Page 506 they will be required to do their work under approved rate schedules which they are not required to do as contract carriers, this the evidence tends to show would be an advantage to the public.
Mr. Justice WOLFE holds as a matter of law that the applicants have failed to make sufficient showing of convenience and necessity for what he calls the increased service of a common motor carrier. The only reason pointed out in his opinion for such holding is that in the past the services rendered by these applicants as contract carriers has been adequate. In my opinion that is tantamount to holding that in all cases if the proposed services can be adequately furnished by a contract carrier then there is not sufficient showing to authorize the commission to grant a certificate of convenience and necessity for a common motor carrier. This I do not think is the correct test. I think that where the services required by the public can be equally as well supplied by the same truckers either as contract carriers or as common carriers, as long as there is a necessity for one or the other then if the truckers desire to operate as common carriers and meet the requirements therefor which are different from those of a contract carrier it is within the discretion of the commission to grant them a certificate of convenience and necessity and we cannot under the circumstances say as a matter of law that no necessity exists therefor.
I therefor think the decision of the commission should be sustained. *Page 507