I concur, but I shall approach the result in a somewhat different manner than does the opinion of the court. Where a party has a decision or order of an administrative or quasi-judicial body directed against him or the enforcement of it would involve a special, immediate, or a direct injury to him, he may, if the court sees fit in its discretion, sue out a writ of certiorari to have the proceeding reviewed whether or not he is a party to the record. Conversely, even if a party to the record, he has no standing where the order or decision does not directly injure him. The recent case of Alabama Power Co. v. Ickes,58 S. Ct. 300, 306, 82 L. Ed. 263 (adv.), decided January 3, 1938, written by Mr. Justice Sutherland, makes clear that the term "direct injury" is one which, used in the legal sense, involves the violation of a legal right. The inquiry then resolves itself into the question of what enforceable legal rights of the plaintiffs does the order of the Public Service Commission (Contract Motor Carrier's Permit No. 125), granting the Sims a permit to operate as a contract motor carrier over all the highways of Utah, invade or threaten? As shown in the Alabama Power Case, where the competition is not illegal and the damage suffered is by reason of it, there is no right of the sufferer invaded *Page 322 even though the competitor is able to compete because of the aid given by an act not in the power of the Legislature to pass or by the ultra vires act of a corporation.
In the case of New Orleans Railroad Co. v. Ellerman,105 U.S. 166, 26 L. Ed. 1015, Ellerman operated certain wharves under a contract with the city of New Orleans giving him the right to collect revenues derived therefrom He brought suit to enjoin the execution of a lease by a railroad of its wharves to others who would directly compete with Ellerman by mooring vessels not connected with nor incidental to the railroad. The Railroad Company was by its charter and by statute restricted to the use of the wharves for railroad purposes. The court said:
"But if the competition in itself, however injurious, is not a wrong of which he could complain against a natural person, being the riparian proprietor, how does it become so merely because the author of it is a corporation acting ultra vires? The damage is attributable to the competition, and to that alone. But the competition is not illegal. It is not unlawful for any one to compete with the company, although the latter may not be authorized to engage in the same business. The legal interest which qualifies a complainant other than the State itself to sue in such a case is a pecuniary interest in preventing the defendant from doing an act where the injury alleged flows from its quality and character as a breach of some legal or equitable duty. A stockholder of the company has such an interest in restraining it within the limits of the enterprise for which it was formed, because that is to enforce his contract of membership. The State has a legal interest in preventing the usurpation and perversion of its franchises, because it is a trustee of its powers for uses strictly public. In these questions the appellee has no interest, and he cannot raise them in order, under that cover, to create and protect a monopoly which the law does not give him. The only injury of which he can be heard in a judicial tribunal to complain is the invasion of some legal or equitable right. If he asserts that the competition of the railroad company damages him, the answer is that it does not abridge or impair any such right. If he alleges that the railroad company is acting beyond the warrant of the law, the answer is, that a violation of its charter does not of itself injuriously affect any of his rights. The company is not shown to owe him any duty which it has not performed." *Page 323
In the Alabama Power Company decision the case of Frost v.Corporation Commission, 278 U.S. 515, 49 S. Ct. 235,73 L. Ed. 483, is distinguished from the Ellerman Case:
"Appellant there owned a cotton-ginning business in the city of Durant, Okla., for the operation of which he had a license from the Corporation Commission. The law of Oklahoma, Comp. Laws 1921, § 3713 [17 Okla. St. Ann. § 42], provided that no gin should be operated without a license from the commission, which could be obtained only upon specified conditions. We held that such a license was a franchise constituting a property right within the protection of the Fourteenth Amendment; and that while the acquisition of the franchise did not preclude the state from making similar valid grants to others, it was exclusive against an attempt to operate a competing gin without a permit or under a void permit. The Durant Co-operative Gin Company sought to obtain a permit from the commission which, for reasons stated in our opinion, we held would be void and a clear invasion of Frost's property rights. We concluded that a legal right of Frost to be free from such competition would be invaded by one not having a valid franchise to compete, and sustained Frost's right to an injunction against the commission and the Durant company."
In the instant case the railroad plaintiffs at least had more than a license. They have a franchise. And such franchise is protectable against competition from those not having a valid license. The plaintiffs who have a license or a franchise would suffer the invasion of a legal right as in the Frost Case, and therefore a "direct injury," if one not having a valid license were permitted to compete. The question then resolves itself into one to determine whether Sims' permit was valid. If so, plaintiffs have no standing to sue out the writ. If not, they have. The plaintiffs claim the permit is not valid because no hearing was had, and the order of the Commission does not rest on any substantial evidence; that the Commission's action is therefore arbitrary and without jurisdiction. The respondents assert, among other things, that no hearing is required; that the Commission, on application, may make its own investigation in its own manner without giving notice, without holding a hearing, or specifying the evidence revealed by the investigation *Page 324 on which it forms its order. Thus, we see that the question of whether the plaintiffs have a standing depends on the question of whether notice and hearing are required. A solution of the second question will solve the first question.
The question may be thus posed: Has a common carrier by motor or rail, operating in a territory over, through or in which an applicant under the first two paragraphs of section 9, c. 65, Laws of Utah 1935, desires a permit to operate as a contract motor carrier, a right to a hearing in reference to such application?
I do not think the act expressly requires such notice and hearing. In fact, section 9 not only fails to provide for such notice and hearing, but states, "The Commission shall grant onapplication to any applicant who was a contract carrier as defined by this act on the fifteenth day of March, 1933," etc. It further states the Commission "shall furthermore grant on application to any applicant who received a permit to operate as a contract motor carrier between the fifteenth day of March, 1933, and the date on which this act takes effect, a permit to continue to operate in the same manner and over the same highways as the terms of said permit allowed."
I think the act goes further than failing to provide for notice and a hearing because in section 9 in the very next paragraph to that just above quoted, it specifies, "The commission upon the filing of an application for a contract motor carrier's permit by any other person than those referred to above in this section shall fix a time and place for hearing thereon and shall give the same notice as provided in section 6 hereof." Thus, it seems to have intentionally omitted as a requirement for those who were licensed as contract motor carriers before December 31, 1935 (the date when the act went into effect), the notice and hearing required by those who were not licensed to operate before said date. But there must be some way to determine whether the Commission granted a license on the conditions laid down by the statute. *Page 325 Those applicants who were not licensed before December 31, 1935, would be required to meet other conditions than those who were so licensed. Those that were so licensed need only show that they were granted permits to operate as contract motor carriers before December 31, 1935, in which case the Commission would be obligated to grant them permits to "continue to operate in the same manner and over the same highways as the terms of said permit [the permit issued before December 31, 1935] allowed." But somewhere someone must be permitted to question whether such permits were previously granted and the manner in which and highways on which such permits allowed operation. Otherwise, the Commission would be supreme. It could arbitrarily, without determining such question or in fact in the face of discovery that no such permit had been issued, issue a permit to carry on the business of a contract motor carrier where the conditions laid down for such permit in the first two paragraphs of section 9 had never been met.
I am not prepared to say that granting the Commission such a power without requirement of notice or hearing might be lack of procedural due process of law. In section 11, provision seems to be made for the granting of temporary, seasonal or emergency permits without notice or hearing. But I am inclined to the view that if permits which were not seasonal or for emergencies were granted under the guise of this section 11, some recourse could be had by those whose property rights were invaded.
I do not think that in the first instance under section 9 the Commission is required to give notice and hold a hearing to determine whether the applicant is one of those entitled under the first two paragraphs of section 9 to a permit, but I think when a common carrier by motor or rail, whose territory is affected by the permit, intervenes by application for a rehearing (the only opportunity it would have to intervene) and asks a reconsideration and a hearing on the permit granted, such hearing must be granted. Such *Page 326 hearing was not granted in this case, and it is the order denying such hearing that plaintiffs want reversed. I think the carriers whose property rights might be invaded if the permits might not be valid had the right to demand and obtain a hearing on the question of whether the permits had been validly issued, i.e., whether the conditions which applicant had to meet in order to obtain such a permit had been met. I think the Commission in denying such hearing upon the application of one so situated as above set out acted in excess of its authority. I concur on the ground that when one situated as above asks for a hearing on whether a permit was properly granted under the provisions of the first two paragraphs of section 9, it must be granted.