Dahlen Transport, Inc. v. Hahne , 261 Minn. 218 ( 1961 )

FrankT. Gallagher, Justice

(dissenting).

I agree with the dissenting opinion of Mr. Justice Otis.

Prior to 1957 the test of public convenience and necessity was not a requirement to the issuance of certificates of authority to petroleum carriers. Minn. St. 1953, § 221.49. In 1957 the legislature included the test in Minn. St. 221.071 governing the issuance of such certificates. Thereafter, on December 18, 1957, the commission granted the respondent authority to haul petroleum products from the new origin point.

It appears to me that when the legislature included the test of public convenience and necessity in the 1957 enactment as to petroleum carriers it did so for a purpose and that the term “necessity” as used in § 221.071 contemplated a definite public need for transportation service where no reasonably adequate public service existed. In my opinion the record here does not reasonably sustain the finding of the commission that public convenience and necessity required the granting of the respondent’s application.

I cannot find in Mr. Hahne’s testimony anything that would justify in itself a finding of public convenience and necessity. Instead it tends to show that if his application were not granted, it would affect his business rather than that of the public. He was asked on direct examination:

“Q. So that if you’re not granted this application you’ll lose 85 per cent of your petroleum carrier business?

“A. Yes, sir, that’s right.”

That statement appears to be only a conclusion on the part of Mr. Hahne. For example, Mr. Elwood Isaacs, traffic section supervisor for the Minneapolis Division of Phillips Petroleum Company, testified on cross-examination as follows:

“Q. Mr. Isaacs, if the application is not granted would this materially affect your company in any way?

“A. No, the product — we could get the product moved.

“Q. In other words are there sufficient carriers up there that could handle that if this application were not granted?

“A. Yes, I think so.”

In connection with public convenience and necessity, Mr. Isaacs was further questioned as follows:

“Commr. Rasmussen: But the Commission would like to find out from your testimony whether or not it is a matter of convenience. Of course, that term — you said, yes, it would be convenient for you to have them, but the law says public convenience and necessity. Then we would like to know if you need his services, and whether it would be to the interest of your company to have his service.

“The Witness: It would be to the interest of Phillips petroleum company to have his services, but it wouldn’t be of necessity.

* * * * *

“Commr. Rasmussen: Well, your over-all statement, then, with respect to that it would not be harmful to you if this application were denied, would you want that to stand on the record?

“The Witness: Yes, sir.”

It does not appear that the record here supports a finding that public convenience and necessity requires the granting of the application, or that the evidence reasonably sustains the findings of the district court that the order of the commission is lawful and reasonable. It is my opinion that in order to establish public convenience and necessity there must be evidence which is more convincing than the testimony of either Mr. Hahne or Mr. Isaacs.