February 17, 1976
Mr. Emil Mueller
Counsel to Public Utilities Commission
State Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 76-22
Changing class B motor carrier permits to allow 50 mile radius of operation, rather than 20 mile radius
Dear Mr. Mueller:
You have requested an opinion from this office as to whether or not the Public Utilities Commission can make a general finding of public convenience and necessity under SDCL 49-28-14, applying to all present class B motor carrier permit holders, which would expand the radial area of such permit holders from the present twenty-mile radius to a fifty-mile radius of operation.
SDCL 49-28-14, which is the key to resolving the question you pose, provides:
If after hearing upon application for a certificate or permit, the public utilities commission shall find, upon the evidence, that public convenience and necessity require the authorization of the service proposed, or any part thereof as the commission shall deter mine, a certificate or permit therefor shall be issued. Such certificate or permit shall authorize the applicant to operate as a motor carrier from the date thereof until the first day of January next following.
It is my opinion that SDCL 49-28-14 does not contemplate the retracting or expanding of permits for all present class B permit holders in one general investigation or rule change. SDCL 49-28-14 is drafted in the context of a hearing upon an application for a certificate or permit and that the commission shall find upon the evidence in such case that public convenience and necessity require the granting of a permit. In the procedure seemingly contemplated by the commission, as described in your letter, the commission would either conduct an investigation such as they did in 1938 or they would pass a rule which would, in effect, expand the permit area from the present twenty miles to a fifty-mile area.
It is my opinion that neither of these procedures would satisfy the requirements set forth in SDCL 49-28-14 cited above.
I realize that recent energy problems have placed new considerations into the decisions to be made on the granting of permits to motor carriers. This does not, however, change the law, which, in my opinion, requires a finding of convenience and necessity for each granting or modification of a permit. Modification of all present class B permit holders does not appear to me to be a legally defensible procedure through either the investigation method used in 1938 or through passing a rule under SDCL 1-26. In my opinion, legislative change would be necessary to provide for such a departure from the prescribed statutory requirement of finding public convenience and necessity with regard to each permit.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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