(dissenting) :
I respectfully dissent and would reverse the order of the circuit court.
*409To warrant a reversal of the Commission’s actions this court must find that the plaintiffs have been denied a right granted to them by either:
(1) a rule of the Public Service Commission,
(2) a statute enacted by the General Assembly, or
(3) a state or federal constitutional mandate.
The plaintiffs have not contended that they are entitled to an adversary-type trial or hearing by reason of any rule of the Commission or by reason of any statute. A search of the rules and of the statutes indicates that the plaintiffs are not entitled to be heard as a matter of right by either of these.
The trial court, in reversing the Commission, stated that it was not necessary to reach the constitutional issue. The judge based his order on “basic fairness.” The majority opinion, sustaining the circuit court, holds that: “Considerations of due process require that notice be given in every instance prior to approval of a transfer by the Commission. In the event such notice provokes a protest, the Commission must afford all parties an opportunity to be heard at a public hearing.”
The Commission cited the case of Beard-Laney, Inc. v. Darby, 213 S. C. 380, 49 S. E. (2d) 564 (1948), to substantiate its position. Both the circuit court and the majority opinion cite the same case to reach a contrary result. In my view, Beard-Laney has little, if any, relevance to the issue before us. The court identified the issue with which it was dealing, as follows:
“. . . [T]he clear-cut issue is one of power on the part of the Commission to grant the order above referred to.” [The order directed the transfer of a certificate.]
The gravamen of the court’s ruling was that the Commission did have authority to transfer- certificates. No other issue was truly involved.
Having concluded that neither rules of the Commission nor statutes demand an adversary-type hearing, we reach *410the question: Is such an adversary proceeding mandated by either the state or federal constitution ? The fifth amendment of the United States Constitution declares that no person shall “be deprived of life, liberty, or property without due process of law.” The fourteenth amendment declares that no state shall “deprive any person of life, liberty, or property without due process of law.” Article I, § 3 of the South Carolina Constitution is to the same effect. In order to invoke .the protection of the due process clauses, it is necessary to first determine whether the complainants (plaintiffs here) have a property right involved. Obviously, the transferrers and the transferee of the certificates have a property right interest in the certificates. I am, however, of the opinion that the plaintiffs here do not own a property right in their competitors’ certificates. Accordingly, constitutional due process is not involved. Recently the United States Supreme Court reiterated the obvious rule. Justice Stewart pointed out that “the range of interests protected by procedural due process is not infinite. . . . We must look to see if the interest protected is within the Fourteenth Amendment’s protection of liberty and property.” Board of Regents v. Roth, 408 U. S. 564, 92 S. Ct. 2701, 33 L. Ed. (2d) 548 (1972).
In our recent case of First Federal Sav. and Loan Ass’n of Walterhoro v. Board of Bank Control for S. C., 263 S. C. 59, 207 S. E. (2d) 801 (1974), we dealt with a similar issue. We held that the fact that other banking institutions might have to compete with the applicant did not entitle them to a trial-type hearing in opposition to the application.
Kenneth Davis, a noted administrative law expert, put it well when he said that freedom from economic competition is “an interest not rising to the dignity of a right.” 1 Davis, Administrative Law, § 8.11 (1958). In F. F. C. v. Sanders, 309 U. S. 470, 60 S. Ct. 693, 84 L. Ed. 869 (1940), Justice Roberts stated that:
*411“Resulting economic injury to a rival [licensee] is not in and of itself, apart from consideration of public convenience, interest or necessity, an element the [Commission] must weigh ... in passing on an application for a broadcasting license.”
The plaintiffs here have a right to compete. Neither the rules, the statute, nor the constitution give to them a right to help the Commission determine who their competitors will be. A review of the record, and especially of the complaint, identifies the concern of the plaintiffs. They allege in paragraph 10:
“That each of the plaintiffs is materially affected by the actions of the defendant Commission in authorizing the transfer of the aforesaid Certificates since plaintiffs have invested substantial sums in plant and equipment pursuant to authority previously granted to them by the Commission and to allow the reactivation of an abandoned and dormant Certificate and the creation of a new carrier will divert substantial revenue from plaintiffs and will impair existing service to the public.” (Emphasis added.)
There can be no serious contention that the gravamen of the complaint is to protect the interest of the public. If the transferee can render the public equal or better service, the plaintiffs have no right to complain. If the service which the transferee renders is worse, then plaintiffs would obviously be benefitted. When the certificates were issued it was determined that the public convenience and necessity required them. The sole issue before the Commission upon an application for a transfer is: Can the transferees render the needed service? This was pointed out in Beard-Laney, Inc. v. Darby, supra, when the court said:
“On an application for an original franchise the scope of the hearing extends to a consideration of the whole subject of public convenience and necessity, whereas in the consideration of an application for approval of the transfer of a fran*412chise the scope of the Commission’s consideration is limited to the determination of the qualifications of the proposed transferee.” (Emphasis added.)
In many cases this court has held that:
“The construction of a statute by the agency charged with executing it is entitled to the most respectful consideration and should not be overruled without cogent reasons [cites omitted].” Faile v. South Carolina Employment Sec. Commission, 267 S. C. 536, 230 S. E. (2d) 219 (1976).
The construction placed upon a statute by an administrative agency or authority is merely one factor to be taken into consideration in interpreting a statute. It is interesting to note that the system of handling transfers of certificates, followed in .this case, was in use for many years before BeardLaney and was in use for 30 years after Beard-Laney. This would appear to be the first assault upon the procedure. Certainly it is the first attempt to give to a competitor’s concern constitutional dignity.
On July 1, 1976 all existing rules and regulations of the Commission regarding the application, sale, lease or other transfer of motor carrier certificates were repealed and superseded by Rules 103-130 through 103-141. These new rules provide for notice and a hearing when an application is filed with the Commission for the transfer of a motor carrier certificate. The provisions of these new rules were not in effect, however, at the time of the transfer of the certificates involved here. Neither were .they mandated by any rule then existing, statute, or constitutional provision.
I would reverse the order of the lower court.
Gregory, J., concurs.