### IN THE SUPREME COURT OF THE STATE OF MONTANA

In the Matter of the Application of O.J. 

### Galt, Stanford, Montana, for Authority to Sell Certificate of Public ConvenienceNo. 1390, Sub. A, To Marvin E.Mintyala d/b/a City Garage and Mr. "M" 

### Disposal, Lewistown,Montana.

Appeal from: District Court of the First Judicial District, In and for the County of Lewis and Clark Hon. Gordon Bennett, Judge presiding. Counsel of Record: For Appellant: William E. O'Leary argued, Helena, Montana For Respondent: 

### Alexander and Baucus, Great Falls,Montana Neil Ugrin argued, Great Falls,Montana Rob Smith, PSC,Helena,Montana

Submitted: December 3, 

### 1981 ~ecided:January 21, 1982Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of the Court. Appellants, 0. J. Galt and Marvin E. Mintyala appeal from

an order of the FirstJudicial District, entered October 15, 1980. This order affirmed a previous order of August 1, 1980, which declared that Class "D" CertificateNo. 1390(A) issued by the Public ServiceCommission (PSC) to 0. J. Galt

on November 18, 1977, was null and void for allpurposes. On May 15, 1936, the PSC granted Galt 

### a Class "C" Certificate, No. 1390, authorizing motor transport of "property" inthe town of Stanford, Montana, and within a 70-mile radius. This certificatewas issued pursuant to section 3847.2, R.C.M., 1935 (recodifiedas section 8-102, R.C.M., 1947), of theMontana Motor Carriers Act. In 1977, section 8-102, R.C.M., 1947 (section69-12- 301, MCA), 

### was amended to include an additional classification of motor carrier, Class "D," for the transportation and disposal of garbage, waste and refuse. The legislature also enacted a new provision, section 8-102.1, R.C.M., 1947 (never codified inMCA). This was an implementation section providing that: "All Class D motor carriers, whether property carriers or otherwise, who have conducted 

### a motor carrier transportation service for hire utilizingmotor vehicle equipment and appropriate disposal 

### sites consistent with the laws of this state and rules of the commission and the department of health and environmental sciences shall, upon written proof consisting of prior business records reflecting a transportation service for 1year prior to the effective dateof this act, which business records shallbe submitted tothe commission inan informal manner, receive a certificate of public convenience and necessity as a Class D carrier authorizing transportation of the above-described commodities within the geographical area described inthewritten proof submitted. Such proof must be submitted to the commission within 4 months following theeffectivedate of this act; and the commission shall issue such Class D certificates within an additional 90 days, and thereafter, no Class A, B, or C carrier

### willbe authorized orpermitted totransport ashes, trash, waste, refuse, rubbish, garbage, ororganic and inorganic matter within the Stateof Montana." In response tothisprovision, the PSC mailed a form to certificateholders todetermine whether the holder desired tohaul garbage and if so, requesting business records establishingpast transportation of garbage. Galt answered the PSC on the form provided, stating that he didwant tohaul garbage. Galt listed fivebusiness

names on the letter as 

### a response tothe requested business records. No business records 

### were supplied. On November 18, 1977, the PSC issued Galt Class "D" CertificateNo. 1390(A), authorizing transportation of garbage in the same geographical area as the prior Class "C" certificate, i.e., the town of Stanford and a 70-mile radius. On May 3, 1978, Galt applied tothe PSC for authority totransfer the Class "D" Certificate toMarvin Mintyala. The application was noticed and a June 7, 1978 deadline 

### set for protests. On June 

### 5, 1978, F. L. Green, owner of a certificatetohaul garbage inGreat Falls and 

### a 10-mile radius thereof, joined by the Palagis who proposed tobuy the Green certificate, filed 

### a protest with the PSC on the grounds that the Galt certificate conflicted with the Green operating area. A hearing was 

### set for September 7, 1978. On September 5, 1978, Green and Palagis filed a motion toquash the hearing and any further proceedings on the Galt transfer, and a motion to invalidate Galt's Class "D" certificate. Both motions were made on the ground that Galt had not complied with section 8-102.1, R.C.M., 1947, supra, with regard to the filingof prior business records to supportthe application.  he hearing was held on September 7, 1978. The PSC subsequently issued order No. 2657, declaring the Galt certificatenull and void as topoints beyond themunicipal 

### limitsof Stanford, Montana. Galt was granted 

### timeto submit proof, via business records, reflecting garbage transportation for one year prior toJuly 1, 1977 (the effective date of section 8-102.1, R.C.M., 1947). Galt's proposed transfer was held inabeyance. Galt filed a motion for reconsideration of this order with the PSC on January 15, 1979. Reconsideration

### was granted. After reconsideration, thePSC issued Order No. 2657a granting authority to transfer the Galt certificateto Mintyala. This order was issued on November 27, 1979. On December 10, 1979, the Palagis (towhom F. L. Green had sold his business and transferred his Class "D" certificatewith PSC approval on February 2, 1979) filed a petition forjudicial review and a motion totemporarily stay the transfer of the Galtcertificate. The staywas granted. The FirstJudicial DistrictCourt declared the Galt Class "D" CertificateNo. 1390(A)tobe null and void for allpurposes. Issues presented on appeal are: (1) Whether the District Court lacked jurisdiction to review the issuance of the Galt Class "D" Certificate? (2) Whether the Galt Class "D" Certificate issued by thePSC on November 18, 1977, is void? (3) Whether the order of the DistrictCourt deprives Galt and Mintyala of due process of law? (4) Whether theDistrictCourt usurped the authority of the PSC tocancel motor carrier certificates?(5) Whether the District Court erred ingranting a permanent stay against the proposed transfer of the Galt Class "D" Certificate? We find issues one and two tobe dispositive of this appeal. Appellants, Galt and Mintyala, contend that the District Court lacked jurisdiction todecide the validity of the Galt Class "D" Certificate for two reasons. First, the implementationprovision, section 8-102.1, R.C.M., 1947, contains a
seven month timetable beginning July 1, 1977, and ending on January 31, 1978. Galt and Mintyala argue that section 2-4- 702, MCA, a provision of the Montana Administrative Procedure Act, required appeals relating tocertificatesissued pursuant to section 8-102.1, R.C.M., 1947, tobe perfected within 30 days of the termination of the seven month time limitation. Galt and Mintyala contend that since no such actionwas taken within the 30 day period beginning January 31, 1978, the validity of the certificatecould not 

### later be raised before and decided by the District Court. Secondly, Galt and Mintyala argue that the sole issue before the PSC regarding theproposed transfer of the Galt Class "D" Certificatewas the fitness of Mintyala tooperate under that certificate. Alltestimony received by the PSC atthe hearing on September 7, 1978, related only tothe fitness of Mintyala. Galt and Mintyala argue that, as a result of the limited nature of thishearing, the only issue that the DistrictCourt could properly review on appeal was Mintyala's fitness. Both contentions arewithout 

### merit. Section 2-4-702, MCA, relating to appeals from administrative decisions, pertains to the initiation of judicial review in contestedcases. The certificate issuing process conducted by the PSC with regard to this new Class "D" Certificate did not constitute

a contested case. Therefore, the 30-day appeal limitation contained insection 2-4-702 (2)(a)

## , did not apply tothe issuance of the Galt Class "D" Certificate and the District Court was not precluded jurisdiction todecide the validity of that certificatewhen the issuewas raised ata later date.Section 2-4-702 (1) (b)

## , MCA, provides that a 

# ".

. . party may not raise any other question not raised before the agency 

# . . ." A review of the record clearly establishes that the issue of thevalidity of the Galt Class "D" Certificate

was raised before the PSC prior to the hearing on September 7, 1978, 

### was taken under advisement by the PSC, was thoroughly briefed by counsel for allparties, and was, infact, the basis for the original PSC decision inthematter. The validity question plainly 

### was raised before the PSC and became an issuewhich could be heard and decided by the District Court upon judicial review. The DistrictCourt did not exceed 

### its scope of judicial review. The issue of the validity of the Galt Class "D" Certificate, hinges upon the requirements setforth inthe implementationprovision, section 8-102.1, R.C.M., 1947. This statute required submission of 

# ".



# . . written proof consisting of prior business records reflecting a transportation service for one year prior tothe effective date of this act (~uly 1, 1977)

# . . ." These records were tobe submitted inan informal manner within four months of July 1, 1977. Upon completion of this requirement parties received 

# ".

. . a certificate of public convenience and necessity as a class"D" carrier authorizing transportation of the above-described commodities within the geographical area described inthe proof submitted." To implement this statute, the PSC mailed a form to motor carriers. Galt returned his form completed as follows:

II NAME : ADDRESS : TELEPHONE NUMBER: AUTHORITY NO: "IV. Areyou presently operating under the certificate issued toyou by the Montana Public ServiceCommission (this means each and every certificate)?

YES

"1II.If you do NOT intend to actively participate ingarbage hauling we 

### willrestrictyour current Class C and/or B authority against transporting garbage.

I do NOT 

### -want totransport garbage. Do not issue

### me Class 

### D authority. You may restrict my current certificate(s) against transportation of garbage.

I DO want totransport garbage. Listed below arebusiness records proving that I have hauled or attempted tohaul garbage. Pump Bar Lyle's Bar Presbyterian Church Galt'

### s Hardware Galt's Garage "We haul for anyone who wants us tobut most people here

haul their own now. Inpast years 

### we hauled for allthe businesses & a lotof the local people.

"IN ANY EVENT (REGARDLESS OF WHAT YOU CHECK ABOVE), SUBMIT

THE APPROPRIATE CERTIFICATE(S) OR AN AFFIDAVIT STATING THAT ITHAS BEEN LOST, BY NOVEMBER 1, 1977.
"Oliver J. Galt Certificate Holder"On the basis of this answer, the PSC issued Galt Class "DM CertificateNo. 1390(A),authorizing transportation of garbage inStanford and a 70-mile radius thereof. Wehold that this answer submitted by Galt did not sufficiently comply with the requirements of section 8- 102.1, R.C.M., 1947. The listing of fivebusiness names without designation of location, serviceprovided, or dates of service clearly 

### is not the submission of business records required by the statute. Admittedly, the statutecalled for informal submission, but Galt's answer failstoachieve the status of even informal response. The failuretocomply with section 8-102.1, R.C.M., 1947, necessitates a finding thatClass "D" CertificateNo. 1390(A),issued by the PSC on November 18, 1977, is void. In accordance with the foregoing opinion, the judgment of the District Court 

### is affirmed.

WeConcur: 

# ~~49, 

# W,@ Chief Justice