Appellant has filed a petition for rehearing in which it does not particularly complain of the opinion as far as it goes, but says that the second assignment of error:
"The commission erred in holding that it was not vested with discretion and jurisdiction to deny the application upon it appearing that the territory was adequately served by existing transportation facilities.", is not sufficiently treated or elucidated.
Appellant urges that Commissioner Thompson at the conclusion of the hearing before the Public Utilities Commission indicated that the commission having eliminated, and properly so, as we have herein held, any consideration of the requirements for a certificate of convenience and necessity, did not have any discretion under paragraph (c), sec. 2, chap. 267, Sess. Laws 1929, now sec. 59-804, I. C. A.
The order was in part as follows:
"This extension requested is between Idaho Falls, Idaho, and Butte, Montana, and part of the service in said extension involves an interstate business, which this Commission is without power to deny when the applicant has complied with the state law with reference to a permit, and the issuance to the applicant of an interstate permit to operate over the highways in Idaho and not grant it the right to do intrastate business would by so doing deny to the people of the state the right to freight motor transportation service between points in the state of Idaho. . . . . *Page 207
"That the applicant having complied with the provisions of the law as to the issuance of permits is entitled to include in its Second Amended P. U. C. I. Permit No. 14 the right to operate freight motor propelled vehicle service between Idaho Falls, Idaho, and Butte, Montana, via Roberts, Hamer and Dubois, Idaho."
Keeping in mind the paragraphs of the order, and reference to the order in the Gem State Transit Company case mentioned by Commissioner Thompson, and conceding without holding that his remarks indicated the commission's attitude, and were in effect reflected in the final order, it is uncertain whether Commissioner Thompson referred to the portion of the Gem State Transit Company case relative to the interstate commerce feature, that involving a certificate of convenience and necessity, or the phrase, "upon good cause shown," as appearing in sec. 59-804, supra, because it appears in the Gem State Transit Company case that the commission felt bound to followBuck v. Kuykendall, 267 U.S. 307, 45 Sup. Ct. 324,69 L. ed. 623, 38 A.L.R. 286, and Bush Sons Co. v. Maloy,267 U.S. 317, 45 Sup. Ct. 326, 327, 69 L. ed. 627, on the theory that interstate commerce was involved, and the applicant having shown compliance with the state statutes, a permit could not be refused.
However, as to the words, "upon good cause shown," the commission said this:
"There are many elements to be considered in a determination as to whether or not good cause has been shown. In such determination there must be considered all the facts, conditions and circumstances presented in evidence, and after a consideration of all the facts, conditions and circumstances presented, this Commission is of the opinion and finds: . . ..
"2. That good cause has been shown and the applicant is entitled to a permit to operate a passenger and express motor propelled vehicle intrastate service over the route described in Finding No. 1 in Idaho in conjunction with its *Page 208 interstate operations, and that the protest of the Columbia Gorge Motor Coach System should be dismissed."
In the case at bar, all evidence offered by appellant was admitted. This evidence, however, did not in any way indicate that respondent had not fully complied with the requirements of sec. 59-804, I. C. A.
It would seem, therefore, and we are justified in concluding (Boise Valley Traction Co. v. Ada County, 38 Idaho 350,222 P. 1035; Smith v. Canyon County Con. School Dist., 39 Idaho 222,226 P. 1070; Blandy v. Modern Box Mfg. Co., 40 Idaho 356,232 P. 1095; State. v. Dawson, 40 Idaho 495, 235 P. 326), that the commission in the instant case did exercise such discretion as is granted by, and expressly stated in, sec. 59-804, I. C. A., in connection with the phrase, "upon good cause shown." In their judgment the applicant had shown compliance with the requirements of said section; in other words, "good cause" for the issuance of the permit, which, being true, the permit would perforce be issued, which was done.
Petition for rehearing denied.
Budge, C.J., and Morgan, Holden and Wernette, JJ., concur.