Baker Sales Barn, Inc. v. Montana Livestock Commission

MR. JUSTICE ADAIR:

I dissent. By denying the respondent, Baker Sales Barn, Inc.’s application for a certificate of public convenience and necessity, the appellant, Montana Livestock Commission, abused its discretion and failed to act according to law.

Section 46-909, R.C.M.1947, quoted by the majority, in effect provides that the Commission “shall” issue a certificate of public convenience and necessity if it finds “from the evidence that public convenience and necessity require the authorization of the proposed livestock market.” So reads the first sentence of that section. The next provision is intended as a guide for the Livestock Commission in determining public convenience and necessity and it directs that, in passing upon an application, the Commission shall consider (1) “the service rendered by other existing livestock markets in the state”; (2) “the effect upon them [the other existing livestock markets] if the proposed livestock market is authorized”; and, (3) “the likelihood of the proposed service being permanent and continuous throughout twelve (12) months of the year.”

First: Taking these step by step, we will consider the service rendered by other existing livestock markets in the state. At the time of the hearings herein, there were fourteen livestock markets in Montana. These were located at Hamilton, Missoula, Great Falls, Havre, Glasgow, Butte, Bozeman, Lewis-*18town, Miles City, Glendive, Sidney, Shelby and two at Billings. However, only two of the fourteen markets can be considered as being available to the livestock producers operating-in the Baker area, namely, the market at Glendive, and the one at Miles City, both of which are approximately eighty miles from Baker.

Carter County and over half of Fallon County lie south of Baker and at a considerable distance from both the Glendive and the Miles City markets. Ekalaka, the county seat of Carter County, lies approximately thirty-six miles south of Baker on Highway No. 7. Ekalaka has no railroad. Its nearest railroad is at Baker, which is serviced by the Chicago, Milwaukee- and St. Paul Railroad. Carter County proper extends some seventy miles to the south of Ekalaka, hence, livestock producers from the Ekalaka area would be required to travel from 115 to 185 miles to reach the markets at Glendive and Miles City, depending on the location of the producer’s ranch. Livestock producers operating in the east and southeast portions, of Fallon County would be required to travel from 90 to 110 miles to reach either the Glendive or Miles City markets.

The evidence shows that of the 46,780 head of cattle marketed from Fallon and Carter counties in 1957, only 3,529 (or less than eight percent) went to the Miles City and Glen-dive markets. It is obvious that these two markets were not rendering adequate service to livestock producers operating-in the Fallon and Carter County areas. According to the testimony this situation was due to the great distances the livestock producers in Fallon and Carter counties were required to travel to reach a market.

Second: "What effect would it have upon the presently available markets if a market were established at Baker? Since the evidence shows that the Miles City and Glendive markets together were receiving less than eight percent of the cattle marketed from Fallon and Carter counties, it is clear that ninety-two percent of the livestock produced in these two coun*19ties went to other markets. There is likewise no evidence indicating that the Miles City and Glendive markets will not continue to enjoy the same percentage of the Fallon and Carter County livestock business that has come to them in the past.

Of the 3,529 head of cattle going to Miles City and Glendive in 1957, all but approximately 600 went to Miles City. The record shows that the operator of the Miles City livestock auction market, as a protesting witness, admitted that the loss of all the approximately 2,900 head of cattle from Fallon and Carter counties would have no material effect on the operation of the Miles City auction. Similarly, the record shows that a witness representing the Glendive market admitted that the proposed market at Baker would not materially affect the Glendive market.

The operator of the Sidney market, the next nearest market (approximately 133 miles from Baker), also admitted that a market at Baker should have no material effect on the operation at Sidney. The figures introduced at the various hearings indicate no movement of cattle from Fallon and Carter counties to the Sidney market.

Third: The statute requires that the Commission shall give due consideration to the likelihood of the proposed service being permanent and continuous throughout twelve months of the year. There is no evidence in the record to indicate that a market at Baker would not operate on a twelve month per year basis. In fact, the testimony of the officers of the respondent, Baker Sales Barn, Inc., as well as that of the witness, Kenneth Thompson, under whose management the Baker market would be placed, all show that the Baker market would be a full-time operation. The respondent, Baker Sales Barn, Inc., is well aware that its market, when established, would have to be a full-time operation or that it would face the possibility of being closed by order of the Commission.

The evidence further shows that, in the event a certificate *20and license is granted, an expenditure in excess of $75,000 would be made by the respondent, Baker Sales Barn, Inc., in establishing a market at Baker. It does not appear to be at all probable that the respondent, Baker Sales Barn, Inc., would make such an investment if it anticipated only a part-time operation.

Permanent and continuous service throughout twelve months of the year, within the meaning of R.C.M.1947, § 46-909, does not require that there must be a sale in each and all of the fifty-two weeks of each year. The statute merely contemplates that throughout the year sales will be had and conducted with reasonable regularity and without substantial interruption.

It is common knowledge that all of Montana’s livestock markets are subject to both rush and slack seasons. All sell more livestock during the rush season than during a slack season. However, these markets are still considered to be operating permanently and continuously throughout the year. It is clear from the evidence introduced before the Commission that the service of the proposed market at Baker would be permanent and continuous throughout twelve months of the year, and therefore in compliance with the requirements of the statute.

The last provision of section 46-909, supra, requires: (1) a showing that revenue from inspection fees will be equal to at least seventy-five percent of the cost of maintaining a resident livestock inspector at the proposed market; or, in lieu thereof, (2) a bond guaranteeing the payment of such minimum revenue.

The appellant Commission in denying respondent’s (Baker Sales Barn, Inc.) application listed among its findings of fact, the following:

“(3) That the revenue derived from inspection fees will be less than seventy-five percent (75%) of the cost to the State in maintaining a resident livestock inspector at the proposed market.”

The evidence fails to sustain the above-quoted finding. The *21evidence is to the effect that pursuant to and in compliance with the plain provisions of section 46-909, the respondent, Baker Sales Barn, Inc., repeatedly assured the Commission of both its ability and willingness to furnish either a bond guaranteeing the payment of such minimum revenue or to supply any other bond that the Commission should require.

In my opinion, the Commission acted beyond and in excess of its authority: (1) in its determination of the effect and influence which a modest livestock market located at Baker would have on the markets outside the state of Montana; and, (2) in ruling that there would not be a sufficient number of cattle from the area to be served by the Baker market to support and sustain an economically sound market there.

The evidence clearly shows that the proponents of the Baker market at all times have been anxious, ready, willing, and fully able to back their judgment and proposed market with cash, while those who prophesy failure for the project apparently rest their arguments upon conjecture and a defeatist attitude. In my view, the district court had ample evidence before it to warrant its decision and order reversing the Commission for which reason I would affirm the decision and order of the district court.