Prichard Transfer, Inc. v. W. S. Hatch Co.

HENRIOD, Justice

(dissenting) :

I have considerable difficulty in concurring in the reasoning and conclusions of the main opinion and hence dissent.

This case destroys a valuable franchise granted by the Commission by its order. The case seems to be based on a new concept: That an applicant can invade the certificated rights of an existing carrier by showing that a customer has approached him and says he can save some money if a certificate is granted, and by demonstrating that fact. The main opinion’s emphasis is directed to saving someone some money, without regard to the carrier’s rights under a franchise that cost him plenty in risk capital and equipment, and which quite obviously will result in a much greater loss to him than the saving resulting to the shipper.

Under this decision it would seem to be almost obligatory for the Commission to issue a certificate to any carrier who can make a showing as above, since it would seem somewhat inconsistent and discriminatory to do otherwise. It is not sufficient simply to say this is a unique case, and is decided on its own facts, since there must be dozens of situations where there are one-way haul carriers, with other carriers hauling one way in the opposite direction on the same highway.

The shipper’s suggestion that Prichard apply to the I.C.C. in an effort to duplicate Hatch’s southbound haul is a rather fatuous one to take Prichard’s business if the latter does not choose to follow the suggestion. Such suggestion should have no place in this case or the main opinion, being obviously a pressure play. The likelihood that Prichard could get the I.C.C. to grant him such authority seems almost nil, what with *110expense, delay and an attempt to take part of an interstate authority away from its owner by cutting away its Utah haul. It seems to me that Prichard would have been foolish to attempt a useless gesture.

The Commission in the first instance denied Hatch’s application, then granted it on petition for rehearing conducted orally and without any record having been made of it. Hence there really is nothing before the court indicating what specifically happened, except the record made in the original hearing.

The threat that Atlas might buy its own equipment is no firm commitment that it would. This also should not be a factor in the case or a reason in the opinion to justify the virtual destruction of Prichard’s certificate and his business based thereon.

I believe the letter and spirit of the act are two-fold: To provide good service at the best rates possible to the “public,” not just one shipper, as is the case here, and at the same time protect as arduously the rights of one holding a certificate and the enormous risk capital a carrier has invested. I think that the saving to this one shipper of $68,000 a year, is an opinion, and that even so, Prichard will experience a far greater loss when the protection of the franchise the ■ State issued to him is now withdrawn. The original denial of Hatch’s application should prevail.