specially concurring:
I concur in tlie final result of Mr. Justice Castles’ opinion as I have no alternative. The trial court and Mr. Justice Adair both ignore the credible testimony before the Commission, all of which is a part of the voluminous record herein.
However, if it were possible to do so, I would reverse the trial court and remand the matter to the Montana Livestock Commission for further hearing on the very narrow question of necessity and would require the Commission to confine their inquiry to the State of Montana only and to a 200 mile radius of Baker, Fallon County, Montana. I am cognizant that as this appeal is presented to us, we are not at liberty to make such an order.
The first application of the Baker Sales Barn is dated June 16, 1958. It is now November 1961, and three and one-half years have passed. This writer has no factual knowledge of the conditions now existing but it is certainly within the realm of possibility that the conditions have changed insofar as the facts anent the several applications are concerned. I believe a new application is now indicated and that there should be a new hearing held by the Montana Livestock Commission that would fairly, devoid of partisanship and in conformity with the accepted rules of legal procedure, be had.
The Commission should carefully consider only the pertinent statutes which provide legislative guide-lines for the granting or the refusal of a certificate for a sales yard. The instant cause is a borderline ease. In my opinion there was credible evidence either to grant a certificate of convenience and necessity, or to reject the application. I believe under our free enterprise system, where as here, the applicants are willing to invest a substantial sum of money in a business venture with a possible opportunity of making a success of such endeavor (and without harm to other existing livestock sales markets) *16that the Montana Livestock Commission would be wise to grant such an application, thus absolving itself from any implication of aiding an alleged monopoly. However, within the legal restrictions placed on this court, we are not in the position to substitute our judgment for that of the Livestock Commission. I do express my sincere distaste for any arbitrary legislation which stifles opportunity, initiative, and boldness in a venture that, if successful, would be an addition to a progressive community such as Baker, Fallon County, Montana.