(dissenting from result) .
I dissent from the result and in doing so, and as a preliminary matter, believe the case should be reversed, if for no other reason, than that Welling, the person who started this whole litigation by filing an application for the service subject of this case, does not even pursue and attempt to protect his interests in this court, filing no brief herein and not appearing to make an oral argument. The Public Service Commission showed a similar disinterest, failing to defend its order by failing to file a brief in support thereof.
*121Also, as a preliminary matter, it is pointed out that the main opinion recognizes 1) that “the legislature has deemed it proper to grant monopolistic franchises and consequently subject them to general supervision and control” of the P.S.C.; that 2) “the duty and prerogative of the court are something more than a mere perfunctory rubber stamp"; 3) that the Commission cannot “make findings unless there is seme competent evidence to support them”', 4) that a “finding of fact cannot be based solely on hearsay evidence”; and 5) that the Commission must consider all pertinent factors “including protection of existing carriers whose services may become impaired or even destroyed by permitting competition,” with which observations I agree.
When the main opinion concedes that the legislature allows the issue of a monopolistic franchise, a corollary of such grant necessarily calls for protection, in the ordinary case, against its invasion if the license properly is being complied with and executed. More than this, and unlike the legislation found in all other states, so far as I am able to determine, the Utah statute,1 requires that the Commission take into consideration the adequacy of existing franchise holders when it says that “before granting a certificate * * * the commission shall take into consideration * * the existing transportation facilities * * ” That the Commission failed to adhere to this statutory interdiction seems apparent when it found that Welling’s proposed service was an “improvement,” and said that “evidence that the route is not at present adequately served is not necessary to the granting of an application for authority to institute an improved service,” — -erroneously concluding, in my opinion, that Welling’s proposed service was an “improved” and not a “new” service. I cannot see any logical or realistic escape from the fact that Welling’s proposed service was an added, not an improved service, when his request was to add nine points of departure and arrival to the two he had before. To say such a grant is an improvement is to de-nart from reality, since to stop and start nine additional times on an erstwhile 35-mile one-stop run, to my mind obviously represents a deterioration in service from a time, comfort and convenience standpoint, — and represents nothing akin to a real improvement in service such as installation of more comfortable facilities, cutting down on time schedules, employment of stewardesses, etc. The only improvement that possibly could inure to the benefit of anyone by virtue of such added stops, starts and delays, would be to the benefit of Welling’s personal financial operational interests, a circumstance which, I vouchsafe, would be no reason shared by any of the present commissioners or *122anyone else, to justify any incursion into the franchise rights of existing certificated carriers. This being so, there being no display or proof of inadequacy of existing services, there being an affirmative showing of readiness, ableness and willingness of plaintiff to- perform the service under an existing certificate authorizing it to do so, and there being a claim that Welling’s service will invade plaintiff’s franchise and injure the plaintiff, in my opinion constitutes this court, by this decision, the proverbial “perfunctory rubber stamp” that Mr. Chief Justice Crockett says it is our duty not to be.
If there be any suggestion that the Com- . mission may issue a certificate on a showing of convenience and necessity only, without taking into consideration existing facilities, as is required by statute, it should be dispelled by the previous pronouncements of this court, the most recent of which was made by the writer of the main opinion here, in Lake Shore Motor Coach. Lines, Inc., v. Bennett,2 where it was indicated that before another could invade-the field under our statute, existing carriers should have a reasonable degree of protection in the operations they maintain, and the applicant must show that existing services are in some measure inadequate.3-
Returning to the main opinion’s concession that findings cannot be made unless, supported by competent evidence, and cannot be made on hearsay alone, we find it justifying its conclusion by saying it prop-' erly cannot be said that Welling’s testimony was wholly hearsay, prefacing the remark, with another statement that Welling was experienced and knew the field, and by way of epilogue, musing that we don’t get all our knowledge from firsthand (and I suppose by this is meant competent, non-hearsay) evidence. This is-but an observation establishing nothing so far as the question in this case is concerned, since Welling’s. *123■knowledge and experience are one thing, ■and might constitute competent evidence if related, hut hearsay in the form of anonymous telephone calls where there is no opportunity to verify the extrajudicial utterances, is entirely another; and the fact that we gain knowledge “from many sources other than experiencing the primary facts themselves” may he a truism in daily life hut has no place in the courtroom if it is Tiearsay.
As to whether the Commission could is■sue an order of the kind here on hearsay evidence only, the main opinion is authority to the effect that it could not, and the authorities generally, and the pronouncements of this court, support such a conclusion,4 making the decision in this case difficult to understand.
As if to justify the decision, the main -opinion says some disinterested carrier -could have testified to conditions and need. There is no question but what Welling was interested, and although he could be believed, one might look somewhat askance at •self-serving testimony. But the cold facts ■are that so far as can he gleaned from this record, the order was based 1) on the testimony of one witness only — Welling, and 2) any and all the testimony he gave tending to show convenience and necessity was based on the most unsatisfactory kind of hearsay testimony, consisting of unidentified telephone calls by unidentified persons at unidentified times — without any competent evidence of any kind in support thereof.
I cannot succumb to the conclusion that such evidence, unassailable by cross-examination and which in the nature of things is quite irrefutable, should he made the vehicle for an invasion of territory quite adequately served by others who hold valuable franchise property rights, whose risk capital no doubt was expended in a not unreasonable reliance upon some kind of reasonable protection against such invasion. Our statute and decisions are friendlier to such risk capital than to- ignore adequacy of existing services simply because it could be made to appear that new and additional services might or would benefit the public. If such were the case, certificated entrepreneurs could be made impotent and bankrupt by a larger and wealthier operator’s proffer to perform the service at a lesser rate,- — certainly a benefit to the public. It must be noted that the applicant must show convenience and necessity, not just convenience or necessity.5
*124So saying, this writer does not mean to suggest that if existing services are adequate, the Commission cannot authorize under any circumstances, new and additional services. Each case has its own solution based on reason and common sense in the light of existing or foreseeable facts, keeping in mind the constant tussle in a progressive community between the fostering of public interest and protecting private franchises and personal property rights adjunc-tive thereto. Any authority granted that represents an unreasonable, unfair and hurtful incursion into existing fields supported by the risk capital mentioned, cannot be justified within the spirit and letter of our statutes and decisions, albeit some resulting benefit to the public might be shown, unless that public benefit is so urgent, compelling and important for the welfare of the community as a whole, that existing operators, in all good reason and good sense, functioning in an atmosphere created by present exigencies, future growth, orderly communal progress and other factors too numerous to mention, should yield, at least partially, to the impact of that progression. This is about the best rule we can enunciate in the field of public utilities in this state of rapidly changing economy where the past might have to bow to the future or the future to the past depending upon the fac-tualities of each case, and where the adequacy of yesterday or today may be the in-adeqt acy of tomorrow. What I say is that we cannot subscribe to the suggestion that once a public benefit becomes demonstrable if a new service were inaugurated, existing certificated operators can be ignored. They are entitled to be heard and their existing facilities recognized as an important weight on the side of private rights on the scales that balance them against the public welfare. Unsupported hearsay has no place in weighting those scales
The Commission statutorily is ordained to consider all important factors touching each individual case, including the adequacy or inadeqiiacy of existing facilities, after which it concludes that the service proposed shall be authorized or prohibited, after which such conclusion will not be disturbed if it is based on competent evidence, and is not arbitrary or capricious or the result of misconception of the basis for an order.
In the instant case, had there been any substantial independent evidence to support Welling’s testimony, another look would be justified but the quantum and quality of proof here convinces me that the Commission was in error in relying on inferior evidence, that does not measure up to that type justifying an encroachment upon existing rights and facilities. The words “arbitrary” and “capricious” hardly are apropos here, since the Commission did not ignore anything, but became wedded, in my opinion, to an inferior and incompetent type of unsupported evidence.
*125Although the main opinion says “it is clear that the Commission did in fact consider the existing services and the effect the new operation would have upon them and upon the public,” saying that the Commission found “there is no service similar in character to that proposed by applicant,” there is nothing pointed out in the record by this decision to justify the conclusion or the Commission’s finding since the plaintiff here, without contradiction, had authority to perform this service and was ready, able and willing so to do if any such service were requested. The main opinion’s statement as to what plaintiff has been doing or not doing can only mislead the reader into believing plaintiff had no authority to perform the service.
When the main opinion’s final observation is that “the added convenience to the public, justifying the Commission’s view that ‘public convenience and necessity require the institution of such service,’ is obvious,” it reflects only the payment of lip service to the various principles it claims to espouse, ignores the evidence which does not show convenience and necessity except by way of hearsay, and proves it hardly could have meant what it said when it asserted that this court could not be a vehicle for “perfunctory rubber stamping.” On the contrary, in my opinion, the court in truth has become a perfunctory rubber stamp insofar as this particular case is concerned.
The matter should be reversed. (Italics mine.)
WORTHEN, J., heard the argument but died before the opinion was filed.. Title 54-6-5, Utah Code Annotated 1953.
. 1958, 8 Utah 2d 298, 333 P.2d 1061.
. See also Mulcahy v. Public Service Comm., 1942, 101 Utah 245, 117 P.2d 298, 305, where it was said that when the question of public convenience and necessity is before it “the commission under the statute may and should take into consideration the existing transportation facilities,” and that where one desires to enter a new territory he must show that from the standpoint of public convenience, “existing service is not adequate and convenient, and that his operation would eliminate such inadequacy and' inconvenience,” and that “the interests of the existing certificate holder should be protected so far as that can be clone without injury to the public.” See also Goodrich v. Public Service Comm., 1948, 114 Utah 296, 198 P.2d 975; Uintah Freight Lines v. Public Service Comm., 1951, 119 Utah 491, 229 P.2d 675; Utah Light & Traction Co. v. Public Service Comm., 1941, 101 Utah 93, 118 P.2d 681, 683; Gilmer v. Public Service Comm., 1926, 67 Utah 222, 247 P. 284; Lorain-Amherst Transit v. Public Service Comm., 1947, 147 Ohio St. 376, 71 N.E.2d 705; Virginia Stage Lines v. Commonwealth, 1947, 186 Va. 1066, 45 S.E.2d 318; West Suburban Transp. Co. v. Chicago & W. T. Ry., 1923, 309 Ill. 87, 140 N.E. 56.
. See also: Ogden Iron Wks. v. Industrial Comm., 1942, 102 Utah 492, 132 P.2d 376; Columbia Steel Co. v. Industrial Comm., 1937, 92 Utah 72, 66 P.2d 124; Garfield Smelting Co. v. Industrial Comm., 1918, 53 Utah 133, 178 P. 57; Frederickson v. Industrial Comm., 1926, 68 Utah 206, 249 P. 480.
. Union Pac. R. Co. v. Public Service Comm., 1943, 103 Utah 459, 135 P.2d 915.