*1 rehearing I believe petition should be in order to make known whether deviation theories on which a case founded in trial court is when possible degree so, it if flexibility reaches this court and what change permitted presenting the case in this court urged from that in the trial court. funda- problem is system mental to our whole of trial and Failure appeal. may wrestle it with result chaos appellate pro- cedure.

McDonough, j., concurs. TANZOLA, & Inc. al. v.

CANTLAY et PUBLIC SERVICE COMMISSION et al. (233 344.) Decided June

No. 7599. 1951. P. 2d *2 S., Vehicles, transportation, See 60 J.C. Motor sec. 90. Motor jurisdiction having Jur., service commission as over. 37 Am. Transportation, 26; Motor sec. 103 A. L. R. 268. Lamoreaux, Watkiss, David Warwick C. K. Salt Lake City, for plaintiffs. Vernon, Atty. Gen.,

Clinton D. Gibson, J. Lambert Dep- uty Atty. Gen., Mark Boyle, Atty. Gen., K. Asst. /. Richard Bell, Atty. Gen., Skeen, Asst. Worsley, Thurman & Salt City, Lake L. Montgomery, Heber, C. for defendants. WOLFE, Justice. Chief to review and order of the Public Service

Certiorari granting a contract motor carrier Sander, Inc. to haul petroleum products City Vernal, Inc., Sander, prede- Utah. I. or its *3 gasoline cessor, Sander, has and fuel oils transported City in bulk for Oil between Standard Salt Lake Company Roosevelt, (152 miles) and Utah for 20 approximately years. gasoline the Applicant to Roosevelt in transports gallon either its 5500 or 7000 semi-trailer and there outfits gas the unloads into It its bulk has a contract carrier plant. gallon. for this and 1 receives cents The per 85/100 bulk at plant Roosevelt serves all Standard stations in the Basin, Uintah but 35 to of retail sales are made in 40% Vernal. From Roosevelt to 34 Vernal miles. Applicant distributes plant from its Roosevelt bulk to retail stations hauling gas by gallon wagon. in Vernal the 1400 its tank It takes 29 approximately a month at an of trips expense per trip supply by $8.40 Vernal stations. If allowed the Public Service directly Commission to haul to Vernal large with its transports, would applicant construct an- other bulk in Vernal plant and from there. For distribute City this Salt Lake haul, to Vernal it would be paid 12/100 gallon, cents per an additional revenue of of a cent 27/100 gallon. per would Applicant still receive the same compen- sation under its distribution contract with Standard Oil would elim- he wagon'trips the tank of the expense and Co. saving of resulting approximately

inated, in a Roosevelt The traffic between month. per $243.60 for transport to one trip reduced would be wagon loads. Thus every tank four or five found that prod- shipments petroleum transportation load of bulk “said direct Vernal, prove City, Utah would Utah and Salt Lake ucts between greater efficiency in applicant, as well as facilitate expensive to less also, prove operations burden- operations; direct would less its trips highways number of of Utah in that some to the be lessened.” and Vernal would

between Roosevelt Cantlay that protestants, further found The Commission Co., Lang Tanzola, Inc., Collett Tank Transportation common car- Lines are as operating Tank Lines Clark City and between products riers petroleum Vernal, of equip- and have listed numerous pieces Utah none of ment available But said operation. that are have ever hauled for Stan- products protestants petroleum City Lake and Roosevelt dard Salt Company Oil between or Vernal and showing ample “although protestants have evidence introduced Company, Oil facilities are available to Standard nevertheless evidence shows that rather than use services any herein, protestants Company prefers of the said Standard Oil presently and will in the future use the limited authorized but service of the applicant.” this court for a writ of review protestants petition

contending erroneously the Commission *4 statute, 76-5-21, 1943, our permit U. C. A. because Section by 1945, as amended the of Laws of Chapter page Utah (with was not with. The statute numerical complied added) provides sub-divisions part; “If, testimony hearing, from all the offered at said the commission shall determine operate highways applicant over the desires to that which the “[1] unduly burdened; are not unduly granting application interfere that the the will not oí “[2] traveling public; with the application granting the of not be detri- and that the will “[3] people to the of the of state Utah mental best interests the of and/or served; to the localities to be existing transportation provide and if the not facilities do “[4] adequate service, grant or the such reasonable commission shall permit.” The fourth the 1945 was added amendment. provision findings only The the first state statutory three record provisions were with. The complied existing facilities for the plain hauling of petroleum products adequate charge

are and reasonable. Therefore protestants regularly authority that the Commission not did its pursue issuing the permit. good The Commission followed the dictates of common sense in order to permit eliminate the wagon Vernal, wasteful tank between trips Roosevelt and reducing thereby highway, traffic on that of the portion allowing besides to conduct its business in a more efficient manner. What protestants have overlooked is the fact that service in transporting to Roose- distributing velt and from there to Vernal has been and currently existing part transportation facilities By Vernal. its combined procedure operations applicant has years. existing served shipper several The facilities are because Sander Inc. has been furnishing trucking a of such portion service. provision

The fourth affirmatively states the Com grant existing mission shall a when permit facilities adequate. not, are however, not It does mandatorily re quire the deny Commission to every instance unless four are provisions found in favor of charge applicant. protestants do not

222 distributing Roose- in activities the unlawful, simply oppose but been have to

velt Vernal hauls. Ob- and distribution the transport, consolidation here involved of the statute viously fourth provision fourth provision This a situation. in such not is applicable 1, 13 of in Article Section in substance enacted was first deleted from It was laws. the 1933 session 53 of Chapter 1945, 65, revision, Chap. re-adopted then Chap. 1935 regulate com- to 76-5-21, 1945. 105, A. Its purpose U. C. community trans- have will that each so petition, facilities, yet and public the shippers protect portation Granting competition. results of excessive from the baleful com- case not increase in this does to the applicant a permit volume of busi- protestants’ nor does it decrease petition, any way. found Standard The Commission ness Sander, Inc. I. because to deal with Company prefers Oil distributes own from which it the latter owns its bulk plant which three stations in and also is a lessor of service buy Thus the Commission’s and sell Standard Oil products. findings states: only applicant’s application be effect of a denial of would

“that compel present combined to it to continue its arrangement although remunerative same would be less distribution applicant, efficient, to as well as less and more burdensome to public highways; applicant’s permit that all of such restrictions of greater compelling applicant operate efficiently ex- less and at obviously penses placing greater public highways as well as burden on not in are interest.” a contend that denial of Protestants Commission’s similar for a filed an Sander as application 1948, binding July adjudicata individual is res on the Commission in the This present proceeding. recently court held that decisions of this Com prior necessarily adjudicata mission are not res to a as subsequent Mulcahy application, v. Public Service Commis sion, 101 Utah P. 2d 298. The doctrine of res adjudicata judicial only hearing applies decisions and a rights before this does not conclude such exercising judicial it deemed parties to be *6 function as that term is construed reference courts. with Section 21.7 of the rules Applicant complied of the Public practice procedure Service Commis- refiling year, sion which within one an prohibits applica- concerning subject any tion matter ruled upon proceed- ing. case,

In where consolidation of the trans applicant’s arrangement portation and distribution would sub stantially highway, reduce the burden on the elim unnecessary inate wasteful practices business, and would not decrease protestante’ revenues or away any business, take of its it was for the Com proper grant mission to the permit.

The order is affirmed. Costs awarded to applicant. WADE, LATIMER McDONOUGH, JJ., concur. CROCKETT, (concurring). Justice I concur (4) and add this comment: I think Subsection concerning referred to in the main opinion “ex- isting facilities” means public carriers. The haul from prior Roosevelt to Vernal Sander was not as question contract carrier under No permit. was raised given no legal consideration is to the status prior haul.