Murphy v. Public Service Commission

CROCKETT, Justice

(concurring in result, with separate comments):

My view is somewhat different than as I understand the import of the main opinion concerning the degree of freedom with which a certificate of convenience and necessity, or a contract carrier permit, may be *370sold without let or hindrance from the Public Service Commission. This has to be considered in connection with whatever prerogative the Commission has to approve or disapprove transfers of such authority due to its responsibility to regulate such operations. It is my judgment that the main opinion states the proposition a bit too strongly in favor of an uninhibited right to transfer; and that this does not reconcile with the duty the law imposes upon the Public Service Commission to regulate the certification and operations of such carriers.!

I fully appreciate that a carrier who has well and faithfully performed, and thus built up value in going concern and good will of a business, should be entitled to benefit therefrom and therefore should presumptively be entitled to sell it; and in the absence of some good reason, the Commission should not withhold its approval of such a sale and transfer. Nevertheless, such an authority cannot properly be regarded as subject to bargain and sale in the same way as any other property or business.1

It has been legislatively determined that carrier service is so affected with a public interest that it is subject to regulation and control by the Public Service Commission, both as to who will possess the authority and the way the business shall be carried on.2 It has the responsibility of carrying out that mandate in such manner as to best assure efficient, economical and continuous carrier services. That is the reason the sale of such a business and the transfer of an operating authority to another can properly be done only upon obtaining the approval of the Commission. If in the judgment of the Commission there is any valid and substantial reason that it will not be in the best interests of providing the public with efficient, economical and adequate transportation facilities, it would be consistent with its responsibility and within its prerogative to refuse to approve such a transfer.

I commented on the irregular nature of the contract carrier authority here involved in my dissent in the prior case, Murphy v. P. S. C. (footnote 4, main opinion), and indicated my judgment as to its erroneous and inconsistent nature. The Commission’s later decision in this case was apparently an effort to get rid of this hybrid, anomalous, and I think one of a kind, contract carrier permit. It was derived on the basis of “grandfather rights,”3 passing to the widow, now 93 years of age; and on to Mr. Young, who, for his sake, I hope lives to a similar age; and then, I assume, on to his successor, and so on acj infinitum, if the Commission can never get rid of it.

Notwithstanding my firm belief that the prior decision was in error, I conceive it to be my judicial duty to accept that decision as settling that issue in this case; and that I should therefore be precluded from any further dissent on that issue. Accordingly, I have not done so, but concur in the result agreed upon by my colleagues, expressing the reservation as to free and uninhibited transfer of such authorities, believing it can properly be done only under the supervision of, and with the approval of, the Public Service Commission, subject only to the standard rule of review for arbitrariness.

.It was formerly expressly provided by statute, Sec. 76-5-4, U.C.A.1933, that such rights were assignable. But that section was repealed by See. 35, Chap. 53, S.Ii.U.1933, which seems to indicate a legislative intent that there should not be free and uninhibited assignment. Also, cf. our statute, Sec. 54-6-24, U.C.A.1953, provides for transfer in the event of death, but subject to certain conditions and the approval of the Public Service Commission.

. Sec. 54-6-4, U.C.A.1953.

. As authorized by Sec. 9, Chap. 65, S.L.U. 1935; and amdts., now in our code as Sec. 54-6-8, U.C.A.1953.