dissenting. Because the Public Utilities Commission’s order dismissing the appellant’s protests is unreasonable and unlawful, I respectfully dissent.
It is clear that the commission has ignored the law in this action. There can be no doubt that the protesting carriers have a statutory right to appear and protest Sandridge’s application. This right is implicit pursuant to R.C. 4921.09. See D.G. & U. Truck Lines, Inc. v. Pub. Util. Comm. (1953), 158 Ohio St. 564, 572, 49 O.O. 447, 481, 110 N.E. 2d 587, 592. R.C. 4921.09 provides in pertinent part:
“Upon application for a certificate when intrastate operations are proposed, the public utilities commission shall give written notice of the filing of such application to all like motor transportation companies operating between fixed termini or over a regular route, street railways, interurban railroads, and railroads operating in' this state, and upon application for a certificate to operate over an irregular route when intrastate operations are proposed, the commission shall give additional written notice of the filing of such application to all motor transportation companies holding irregular route certificates at the same location proposed by the applicant.
“The commission shall, after the filing of any such application, fix a date for hearing upon it. When a date for the hearing of an application for a certificate to operate between fixed termini or over a regular route is fixed, the commission shall give the applicant, all other like motor transportation companies operating between fixed termini or over a regular route, street railways, interurban railroads, and railroads operating in this state at least ten days’ notice of such hearing. When a date for the hearing of an application for a certificate to operate over an irregular route is fixed, the commission shall give the applicant, all motor transportation companies holding irregular route certificates from and to the same location proposed by the applicant, and all motor transportation companies operating over regular routes, street railways, interurban railroads, and railroads operating in this state, at least ten days’ notice of such hearing.”
R.C. 4921.10 also provides in relevant part:
“The commission may, after notice and hearing, when the applicant requests a certificate to serve in a territory already served by a motor transportation company holding a certificate of public convenience and necessity from the commission, grant a certificate only when the existing motor transportation company or companies serving such territory do not provide the service required or the particular kind of equipment necessary to furnish such service to the satisfaction of the commission. * * *
“Before granting any certificate the commission shall take into consideration other existing transporta*189tion facilities in the territory for which a certificate is sought. If it appears from the evidence that the service furnished by existing transportation facilities is reasonably adequate, the commission shall not grant such certificate.”
While the commission has not yet granted such a certificate in the cause sub judice, the appellants do have a right to be heard and their views would be highly significant to any determination as to whether or not a certificate should be granted. It is difficult to conceive how an intelligent determination can be made without such views.
In its order, the commission nullifies R.C. 4921.09 and 4921.10 with an “estoppel” argument. The commission made the following findings in its order of May 27, 1987:
“8) * * * Having taken the position in Continental that there is an ongoing need for the unlimited availability of such state-wide service, the protestants are estopped from taking the inconsistent position in this-subsequent proceeding that such a need does not exist. Stated in terms of the statute on which they rely, the protestants cannot now claim that the present service is ‘reasonably adequate.’ Thus, equity demands that the protestants be precluded from using the authority granted in Continental to protest this application.
* *
“9) Although the applicant based its motion, in part, on the theory that the protestants waived their right to protest subsequent applications for authority identical to that granted in Continental, the Commission, without rejecting such argument, believes that the law of estoppel applies to the facts presented. It is on this basis that the applicant’s motion to dismiss all protests should be granted. * * *”
Today’s majority overlooks this basis for the commission’s dismissal and finds the estoppel issue “unnecessary to address.” It is unnecessary to address because such an argument is without basis in reason. Proof of this is that the commission abandons the estoppel argument that it used as a basis for its decision, in the brief it filed before this court.
Assuming that the Continental order was controlling in this case, the majority also ignores the cogent argument that the applicants in Continental agreed only for that proceeding not to protest each other’s applications for authority to transport. Finding number eight of the Sandridge entry of May 27, 1987 provides in part: “The applicants [in Continental] moved to consolidate the seveniy-plus cases into one proceeding, and agreed not to protest each others’ [sic] request for the identical authority.” (Emphasis added.) The commission fails to provide any evidence that the Continental order was designed to prevail over the applicants for an indefinite period of time. This raises the question as to how long the commission will use the Continental order in its efforts to silence protesting carriers.
In my view, the commission ignored the law in its effort to reach the result it was seeking. Unfortunately, today’s decision encourages such a practice. The appellants should be permitted to protest Sandridge’s application. Accordingly, I respectfully dissent.
Wright and H. Brown, JJ., concur in the foregoing dissenting opinion.