*1 SMITH, INC., Haulers, Inc., & Aggregate SMITH Clarkson Brothers Haulers, Inc., Chitwood, Machinery Jr., L. A. Santee Cement Car riers, Inc., Inc., George A. Company, Rheman and H. W. Bras ington Inc., Sand Company, & Respondents, Gravel v. The SOUTH COMMISSION, CAROLINA Westbury PUBLIC SERVICE Inc., Trucking Company, Trucking Company, Willms Lines, Inc., Harvin Truck Appellants.

(247 (2d) 677) Public S. C. Columbia, Bookman, appellant T. Robert Commission. Service Greenville, West- Smith, Jr., appellants *2 V. for

Jefferson Co., Inc., et al. Trucking bury Matthews, Jr., Gressette, respondents St. M. Lawrence Smith, et dl. Smith & H. W. Alexander, respondent Darlington, Allan

0. Co., Inc. Gravel Sand & Brasington 19, 1978. September

Ness, Justice: orders of the Public Ser- certain is to vacate action

This “E” transfer of four Class approving vice Commission The trial Necessity.1 Public Convenience Certificates issue to the remanded the transfers and set aside the notice. We affirm. 'with for a hearing, Commission In Commission received January applica- for the of two “E” from tions transfer Class Certificates Co., Co., Inc. Inc. to Willms Westbury Trucking Trucking Lines, “E” from Harvin Truck and two Class Certificates In without notice or Inc. to Westbury. February -the the Commission transfers. hearing, petition approved some of the respondents requesting This transfers was denied. on the public hearing “E” of Class Certificates action was then holders brought transfers vacated. The trial court set aside the Commission’s properly orders and remanded the matter for a We hearing. hold approving application, notice of proposed give public trans to the transfer; receipt proposed following protest hearing. shall conduct a fer, public the Commission furnish motor the holder “E” authorizes 1 A Class Ceertificate provisions with the irregular in accordance freight over routes service of the Certificate. the wide amount of discretion We vested recognize However, in Public Service Commission legislature. order to insure the wise of the Commission’s full where the true facts authority, surrounding revealed, 2 Am. transfers are is essential. See proposed Law, Bell Administrative Ohio Section 397. (2d), Jur. Ohio, Public Telephone Co. v. Utilities Commission of U. S. 57 S. Ct. 81 L. Ed. 1093 (1937), Justice Cardozo observed: need,

“All the more insistent is the has been so bestowed that the ‘inexorable freely, ... of a safeguard’ fair and in its open maintained . . . The hearing integrity to such a is one of ‘the rudiments of fair play’ . . . assured to the Fourteenth Amendment every litigant by 304-305, as minimal S. at requirement.” U.

at 730.

The Commission’s discretion does not extend to making unilateral determinations of the no- necessity affording tice. Considerations of due process that notice be require in given instance every to

the Commission. In the event such notice a provokes pro- test, the Commission must afford an all parties opportunity to be heard aat public hearing.

A transfer is a essentially granting certificate instance, first and the interests considered in the original application should be considered in transfer. The Commission’s here procedure cir effectively cumvented the entire theory regulated It industry. arbitrary in one hearings case where material rights are affected, potentially and then such deny safeguards cases similar involving Consolidated rights. Freightways, Inc. v. United Lines, Inc., Truck 216, 515, Or. 330 P. (2d) 522 Denied, 1001, Cert. 359 U. S. 79 S. Ct. 3 L. 1029 (2d) Ed. (1959). of the Commission to transfer of approve

a Certificate of Public Convenience and con- was Necessity

408 al., al. et et 213 S. Beard-Laney, Darby,

sidered the issue of notice S. E. While C. (2d) Court, addressed directly by and was hearing case. in that The following language was conducted hearing requirements the Court due process indicates assumed a transfer: before the were satisfied Commission approved the respondents the door was “We must assume that open establish, could, that the if pub- they and other protestants 213 S. at the transfer.” C. interests suffer from lic would at 568. We are tire that the unpersuaded by argument require- ment of notice will undue burden on place the Commission. be on

“There can no of convenience footing compromise desire to rid of or because a natural expediency, due (of minimal delay, when that harassing requirement Bell Tele been Ohio neglected ignored.” process) Co., at 731. supra, 301 S. at phone U. transfers mode this of approving assert

Appellants for many years. under Rule 37 has unchallenged gone The fact that the Commission relied on Rule 37 authorizing transfer of notice and certificates without without a and that this was procedure unchallenged either in court or neither lends legislature legality the Rule nor to the denial notice to be heard the right to these respondents. *4 are raise numerous other which

Appellants exceptions merit. without

Affirmed. C. J., J., concur.

Lewis, Rhodes, Littlejohn JJ., dissent. Gregory, Littlejohn, : (dissenting) Justice dissent and would the order respectfully reverse the circuit court. this of the Commission’s actions

To warrant a reversal denied the have been a find that plaintiffs to them either: granted by Commission, rule Public Service of the

(1) or the General Assembly, statute enacted by (2) state federal constitutional mandate. (3) are entitled not contended that they The plaintiffs reason of rule any to an trial adversary-type statute. search of reason any Commission or the are that rules and of the statutes indicates either of these. matter not entitled to be heard as of right court, Commission, The trial stated that reversing The it was not to reach the constitutional issue. necessary The based his order on “basic fairness.” majority judge court, circuit holds that: “Consid- opinion, sustaining every of due given erations that notice require process the Commission. instance of a transfer by In the event such notice provokes protest, heard at must afford all to be a pub- opportunity parties lic hearing.”

The Commission cited the case Inc. v. Beard-Laney, 213 S. E. sub- Darby, C. 49 S. stantiate its Both the court and the position. circuit majority my cite the same case to reach a result. opinion contrary view, little, if to the issue relevance Beard-Laney any, before us. The which was court identified the issue with as follows: dealing,

“. . . clear-cut issue one of on the part [T]he referred Commission to order above to.” [The order directed the transfer certificate.] court’s was the Com- gravamen ruling mission did to transfer- certificates. other authority No issue was truly involved. that neither rules of concluded

Having reach nor statutes demand an we adversary-type *5 410 Is such an adversary mandated question: proceeding

either state or constitution The fifth federal ? amendment of the United States Constitution declares that no person life, shall “be of without due liberty, deprived property no of law.” The fourteenth amendment declares that process life, state shall of “deprive any person liberty, property I, 3 without due of law.” Article of South process § in- effect. In order to Carolina Constitution is to same clauses, it is neces- voke .the of the due protection process sary (plaintiffs first determine whether complainants the trans- Obviously, involved. here) property right ferrers and the transferee of the certificates have a property am, interest in however, the certificates. of opin- ion that the here do own a not property right their certificates. constitutional competitors’ Accordingly, due is involved. process the United States Su- Recently preme Court reiterated the obvious rule. Stewart Justice out pointed that “the interests of range protected by pro- cedural due look to see not infinite. . . . We must process if the interest is within the Fourteenth Amend- protected ment’s protection liberty Board property.” Regents Roth, 408 U. S. 33 L. Ed. 548 (2d) (1972).

In our recent case of First Federal Sav. and Loan Ass’n Walterhoro v. Board C., Bank Control S. 263 S. C. 59, 207 S. E. 801 we dealt with similar issue. We held that the fact other institutions banking might with the did not entitle compete applicant them to a to the trial-type hearing opposition application.

Kenneth Davis, a noted administrative law expert, put well when he said that freedom from economic competition is “an interest not Davis, to the rising dignity right.” Law, Administrative Sanders, 8.11 In F. F. C. v. § 309 U. S. S. Ct. 84 L. Ed. 869 (1940), Justice Roberts stated that: is not a rival injury economic [licensee]

“Resulting *6 convenience, of public from consideration itself, of apart and the an element or necessity, interest [Commission] broadcasting a for on an application ... passing weigh license.” the here a to Neither right compete. plaintiffs a

rules, statute, nor the constitution to them right the give their competitors the determine who to Commission help com- record, of the of the and especially will be. review They allege the concern of the identifies plaintiffs. plaint, 10: paragraph

“That each of the the is plaintiffs materially by affected the actions of defendant the authorizing transfer of the aforesaid in- Certificates since plaintiffs vested substantial sums in pursuant plant equipment the to them authority previously granted and to the and dormant allow reactivation of an abandoned sub- Certificate and the will divert creation of new carrier stantial ser- revenue existing and will plaintiffs impair from vice to the public.” (Emphasis added.)

There can be no serious of contention that the gravamen the is to the If the complaint protect interest of the public. transferee service, can render the the or better public equal have no the plaintiffs If the service which complain. worse, transferee renders is then would obviously be benefitted. When the certificates were issued it was de- termined that the necessity convenience and required public an ap- them. The sole issue before the Commission upon the render transfer is: Can transferees plication Inc. in Beard-Laney, service? This was out pointed needed the court said: Darby, supra, of franchise scope for an original “On an application of whole subject to a consideration extends the hearing considera- whereas necessity, convenience public tion an fran- 4Í2 consideration is limited Commission’s

chise scope of the proposed qualifications determination added.) (Emphasis transferee.” cases this held that: many “The construction of a statute with agency charged entitled to the is most consideration executing respectful and should not be overruled without reasons cogent [cites Faile v. South Carolina Sec. Employment Com- omitted].” mission, 536, 230 267 S. C.

The construction placed upon statute administrative agency authority merely one factor to be taken into consideration in interpreting statute. It is interesting *7 note that the system of certificates, transfers of handling fol- case, lowed in .this was in use for many before Beard- years Laney and inwas use after This years Beard-Laney. would to be appear the first assault Cer- upon procedure. tainly it is the first concern attempt give competitor’s constitutional dignity.

On 1976 all rules and July existing regulations sale, lease or other application, regarding transfer of motor carrier certificates were repealed Rules 103-130 These 103-141. new superseded by through rules notice and provide is filed with the Commission for the transfer of a motor car- rier certificate. The new were of these rules provisions effect, however, the certifi- at time of transfer of cates here. were rule involved Neither mandated .they any statute, then or constitutional provision. existing, court. would reverse the order lower J., Gregory, concurs.