dissenting:
I think the judgment of the trial court should be affirmed.
I concur with the majority that the district judge erred in declaring the appellate section of section 46-917, R.C.M.1947, unconstitutional. However, I think the trial court had sufficient evidence before it on which to base its conclusion that the Board abused its discretion in denying the application of Baker Sales Barn, Inc., and it failed to act according to law.
I see no necessity of reviewing all the evidence in the record. It is sufficient to point out that it appears from the record that Fallon and Carter Counties, the service area of the proposed market, marketed 46,780 head of cattle in 1957. Out of this number only 3,529 head were marketed at Glendive and Miles City, the two points where the principal opposition appears. This is less than eight percent of the total number of cattle marketed from these two counties. It follows that the Miles City and Glendive markets do not render service to Fallon County and Carter County and would not be substantially affected if they lost this eight percent and the operator of the Miles City market so admitted, so far as the Miles City market is concerned. Aside from that there was no showing that these two markets would lose this eight percent if a market were established at Baker.
I also think the Commission acted beyond its authority when it ruled that the number of cattle from the serviceable *17area are insufficient to support and sustain an economically sound market at Baker. The statute does not in terms give the Board authority to consider that question.
Proponents of the Baker market are willing and able to back their judgment with cash, whereas those who prophesy failure are merely making a guess. I think Judge Flachsenhar had ample evidence before him to overturn the decision of the Commission and that the judgment of the district court should be affirmed.