(dissenting):
The thesis upon which the plaintiff must prevail in order to reverse the order of the Commission is stated as point 1 of her brief, that:
The Commission erred in not ruling plaintiff holds general contract carrier authority, unlimited as to any shipper.
There are two propositions which stand as insuperable obstacles to the position thus contended for by the plaintiff. The first is this proposition of law: There is no basis whatsoever in law for any such “open-end” contract carrier authority as the plaintiff contends for. The second is this proposition of fact: That even if there were, the plaintiff has not shown that she in fact has any such authority, nor even any reasonable semblance thereof.
The plaintiff’s position is that she (actually her successor Max W. Young to whom plaintiff had entered into an agreement to sell the operating rights, and who is in fact operating the business) has the right to file and haul under new contracts without the approval of the Commission. There is not cited nor does this writer believe there can be found any statutory or decisional authority to support any such “open-end” contract carrier authority. On the other hand, it is contrary to the statutory and decisional law dealing with the distinctions between the common carrier as *146contrasted to the contract carrier.1 To say or to conclude that a contract carrier has an “open-end” authority is simply a contradiction in terms. By whatever title he may be called, a “contract carrier” with unlimited authority to haul for anyone who would engage his service would not be a “contract carrier,” but a “common carrier.”2
Plaintiff’s argument is based upon certain statements of the commerce attorney for the Commission, called as a witness on her behalf, as to what he understands has been the practice of the Commission. There are admittedly one or two statements which looked at separately provide some plausibility to her argument. But in other parts of his testimony he clearly and solidly supports the ideas projected herein. One of the new commissioners questioned him:
COMMISSIONER W.: Mr. Sohm, do you know what the practice of this Commission has been in regard to contract carriers entering into new contracts? . has there been a practice to require a hearing to show public convenience and necessity ? What’s your experience been in that regard ?
A. In regards to a transfer from one contract carrier to another, or an original application ?
COMMISSIONER W.: No, an existing contract carrier entering into new applications or new contracts.
A. Oh, in every instance where a contract carrier authority is issued, and it is issued to serve a particular shipper, in order to add another shipper, the Commission must have another hearing and a proof of need must be made. The term that is used is not a showing of convenience and necessity, because the term’s used only with common carriers, but “a showing of need” must be made, and existing service inadequate.
, If this case is to be decided on the basis of the testimony of the attorney, (which it should not be, but upon the law and the facts), then it should be upon the basis of the standard rules of review: That the adverse parties are entitled to the most favorable aspects of his testimony; and more importantly, that this court should assume that the Commission believed the testimony favorable to its decision. But whatever value this testimony may have, neither the testimony, nor the evidence, shows that the *147plaintiff has any such “open-end” authority. The evidence is clear and certain to the contrary; and so are the findings and determination made by the Commission.
Turning to the question of fact: It is equally clear that even under the erroneous concept of an “open-end” contract carrier permit, the plaintiff has not shown that she has any such authority.
It perhaps should be stated that some lack of clarity may exist in this case arising from the fact that plaintiff’s husband, prior to his death in November of 1953, had a Certificate of Convenience and Necessity, No. 684, as a common carrier, and also a Contract Carrier Permit, No. 130. Pursuant to appropriate proceedings to transfer these operating rights of her husband to the plaintiff, some language is used which may leave something to be desired as to keeping these operating rights clear and separate. However, it is of the utmost importance on the issue here confronted that in that proceeding the Commission’s Report and Order transferring the authorities of plaintiff’s husband to the plaintiff lawfully and properly imposed certain conditions:
IT IS FURTHER ORDERED, that the above described Certificate and Permit shall become effective twenty (20) days from the date thereof upon the condition that applicant files the necessary insurance and tariffs, or contracts with respect to the permit, in accordance with the Commission’s rules and regulations.
It is further significant that there was never any objection to nor appeal from that Order. It therefore became as final as any other judgment would be. The plaintiff accepted it and recognized its validity by requesting an extension of time to file the required tariffs and contracts. This request was granted, and within the time allowed, in December 1954, the plaintiff filed only two contracts, one with Campbell Soup Company and the other with Industrial Supply Company. No other contracts were filed with respect to this contract carrier permit until 18 years later, in March of 1972, when the plaintiff (her successor, purchaser of the business, Max W. Young) filed the contracts in controversy here, upon which it initiated service, and insists upon the right to serve without approval of the Commission.
As I see the situation, the plaintiff has no just complaint against the order of the Commission. It places her in exactly the same position as every other authorized contract carrier. It states:
That before Mary A. Murphy, dba Pickering Transfer Company, can contract with additional shippers pursuant to the Contract Carrier Permit No. 130, she must obtain the assent of the Commission in accordance with 54-6-8 Utah Code Annotated 1953, as amended.
*148It is submitted that this provision is not only in harmony with, but required by the statutory and decisional law on this subject;3 and with the rules of the Commission.
The necessity and desirability of the Commission having the authority to require a contract carrier to file its proposed contracts for approval is so obvious as to require nothing more than brief mention here.4 It has the responsibility of protecting all existing carriers and seeing that the public has not only efficient and economical but continuous service. To allow any one “contract carrier” to have an open-end authority, as contended for by the plaintiff, to canvass shippers for the favorable, regular and profitable hauls, and leave the rest to the common carriers, who are obliged to serve all shippers, large or small, short or long haul, would be destructive of that purpose.
From what I have said above, it is my opinion that the decision of the Commission was well advised; that it is amply supported by the record; and that there is no basis whatsoever for any reasonable conclusion that its action was capricious or arbitrary. (All emphasis added.)
. See Sections 5T-6-1 to 54-6-8, U.C.A. 1953.
. E. g., as to common carriers, see Uintah Freightways, Inc. v. Public Service Comm., 15 Utah 2d 221, 390 P.2d 238; as to contract carriers, see Uintah Freight Lines, et al. v. Public Service Comm., 119 Utah 491, 229 P.2d 675; as to the distinction between common motor carrier and contract carrier, see discussion in McCarthy, et al. v. Public Service Comm., 111 Utah 489, 184 P.2d 220, particularly separate concurrence of Justice Wolfe.
. Sec. 54-6-11, U.C.A.1953, imposes the duty upon the Commission to supervise and regulate contract carriers. That the Commission can refuse to approve proposed new contracts, see Goodrich v. Public Service Comm., 114 Utah 296, 198 P.2d 975; or refuse increased service, where to do so would be detrimental to other interests of competing carriers and hence to the public, see Milne Truck Lines, Inc. v. Public Service Comm. of Utah, et al., 13 Utah 2d 72, 368 P.2d 590.
. E. g., see Barton, etc. v. Public Service Comm., 29 Utah 2d 392, 510 P.2d 927; and Goodrich v. Public Service Comm., footnote 3 supra; and also see statement of Justice Henriod in dissent, Williams v. Public Service Comm., 29 Utah 2d 9, 504 P.2d 34.