(dissenting).
I respectfully dissent. Lake Transport, Inc., obtained its contract carrier permit in January, 1964, which authorized the transportation of commodities for United States Gypsum over the highways of this state. On June 22, 1970, Coastal Transport Co., Inc., filed an application with the Railroad Commission seeking a certificate as a specialized motor carrier to transport the same commodity for the same company in the same territory. In my opinion Lake is a “motor carrier or other party at interest” within the meaning of section 20, art. 911b, Vern.Tex.Civ.Stats. (1964),1 and should *786not have been denied the right to appear and protest the new duplicating authority.
Lake commenced serving Gypsum under its contract in 1964 and was still doing so at the time Coastal filed its application on June 22, 1970. Lake, after notice of Coastal’s application for the new authority, filed its protest and the Railroad Commission then set the hearing on the contested docket. The first setting was for August 31, 1970, but the hearing was postponed to November 4, 1970. The hearing was again postponed until December 8, 1970. There was and could be no question that Lake possessed standing to contest the new application during those early proceedings. The contract between Lake and Gypsum permitted either party to terminate the contract on thirty-day notice, and effective November 12, 1970, Gypsum did so terminate the contract with Lake. The majority now holds that Lake lost its standing when the contract ended.
Lake now owns a valid and subsisting permit according to the undisputed record before us. Its permit provides:
This permit to remain in effect from and after the date hereof, subject to the provisions of Chapter 277 Acts Regular Session of the Forty-second Legislature, 1931; the further orders of the Commission; and the rules and regulations of the Railroad Commission of Texas, heretofore prescribed or which may be hereafter prescribed under and pursuant to the authority conferred upon it by law.
As the holder of a contract carrier permit, Lake possesses rights which are not owned by the public generally. The permit may not be suspended, revoked or amended without prior notice to Lake and an opportunity for hearing, Sec. 12(b), art. 911b, and none of those procedures have been invoked against Lake. The permit may be sold, assigned, leased, transferred or inherited. Sec. 6(e), art. 911b. It is commonly known also that the holders of contract carrier permits frequently invest large sums of money in expensive equipment and supportive facilities. In my opinion Lake owns something whether we term it a right, a privilege, a license, or “the new property.” Schwartz, Crucial Areas in Administrative Law, 34 Geo.Wash.L. Rev. 401, 433-442 (1966); Reich, The New Property, 73 Yale L.J. 733 (1964). As Judge Burger wrote in Gonzalez v. Freeman, 118 U.S.App.D.C. 180, 334 F.2d 570, 574 (1964), the terminology is not so significant as is the requirement of basic fair dealing by the government with those who are dependent upon it.
In my opinion the denial to Lake of its standing to protect its permit is unfair. Lake had a valid interest in protecting its permit and its permitted business from new competition. Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed. 2d 184 (1970) ; Claiborne-Annapolis Ferry Co. v. United States, 285 U.S. 382, 52 S.Ct. 440, 76 L.Ed. 808 (1932); The Chicago Junction Case, 264 U.S. 258, 266-269, 44 S.Ct. 317, 68 L.Ed. 667 .(1924); Associated Industries v. Ickes, 134 F.2d 694, 705 (2 Cir. 1943); 2 Am.Jur.2d, Administrative Law § 576 (1962). In 3'K. Davis, Administrative Law Treatise, (1958) § 22.11, at 259-260, the author reaches these conclusions :
In none of the Supreme Court decisions denying standing under the Interstate Commerce Act was the petitioner a carrier. Even a mere competitive interest of a carrier is sufficient for enforcing the Act or for challenging action of the Commission.
The public also has an interest in respecting the standing of competing carriers. FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 60 S.Ct. 693, 84 L. Ed. 869 (1940). Justice Brandeis in Texas & Pac. Ry. v. Gulf, C. & S. F. Ry., 270 U. S. 266, 46 S.Ct. 263, 70 L.Ed. 578 (1926), said, “competition between carriers may result in harm to the public as well as in benefit; and . . . when a railroad inflicts injury upon its rival, it may be the public which ultimately bears the loss.” This further pertinent extract from 3 K. *787Davis, Administrative Law Treatise, § 22.-11 (1958), at 261, is helpful:
Once this Brandéis analysis is accepted, other decisions recognizing the standing of carriers follow easily. Thus, Western Pac. C. R. Co. v. Southern Pac. Co., 284 U.S. 47 (1931), held that the Southern Pacific as a competitor had standing to enjoin the Western Pacific from constructing an extension before the ICC had granted approval. The Court said: “It will suffice, we think, if the bill discloses that some definite legal right possessed by complainant is seriously threatened or that the unauthorized and therefore unlawful action of the defendant carrier may directly and adversely affect the complainant’s welfare by bringing about some material change in the transportation situation.”
The United States Supreme Court faced this question of the standing of a contract carrier in American Trucking Associations, Inc. v. United States, ICC., 364 U.S. 1, 80 S.Ct. 1570, 4 L.Ed.2d 1527 (1960). At issue was the application of the phrase “party in interest” as used in’ the Interstate Commerce Act. Sec. 305(g), 49 U.S.C.A. Certain existing contract carriers possessed permits to haul and had contracts to haul automobiles for General Motors in the Pacific Coast area. The existing carriers protested Pacific Motor Trucking Company’s application to the Interstate Commerce Commission for authorization also to operate as a contract carrier to haul automobiles for General Motors over some of the territory already served by existing carriers. General Motors was the only shipper involved. American Trucking Associations, Inc. v. United States, 170 F.Supp. 38, 41-12 (D.D.C.1959). The district court had ruled that the existing carriers lacked standing to appeal from the Interstate Commerce Commission’s order.
The Interstate Commerce Commission, in support of its order granting the new authority to haul for General Motors, found that General Motors, if the new permits were not authorized, would, nonetheless, refuse the continued services of the existing protesting carriers. This is the same situation upon which the majority relies for its no-contract-no-standing holding.2 The United States Supreme Court rejected this reasoning and ruled that the competitor contract carriers had standing. The court wrote at 364 U.S., 17, 18, 80 S.Ct. at 1580:
Although the three-judge court concluded that the Commission had not exceeded its authority in this case, two members of the court also believed that “there was no showing of actual or anticipated direct injury such as would entitle [the appellants] to institute this action.” 170 F.Supp. at 48. In support of this conclusion, appellees rely principally upon Atchison, T. & S. F. R. Co. v. United States (D.C.Mo.) 130 F.Supp. 76, affd per curiam 350 U.S. 892, 76 S.Ct. 152, 100 L.Ed. 785. That decision held that certain railroads had no standing to challenge a Commission order authorizing acquisition by one motor carrier of others. Since the lower court in Atchi-son stressed the fact that the Commission there had not created any additional motor carrier service, the decision clearly is not in point. In the instant case, not only has the Commission created new operating rights, but they are rights in which appellants have a stake. And surely the statement by General Motors that it would not in any event give the business to any appellant cannot deprive appellants of standing. The interests of these independents cannot be placed in the hands of a shipper to do with as it sees fit through predictions as to whom its business will or will not go. The de-*788cisión we believe to be controlling is not Atchison, but rather Alton R. Co. v. United States, 315 U.S. 15, 62 S.Ct. 432, 86 L.Ed. 586, where the Court confirmed the standing of a railroad to contest the award of a certificate to a competing trucker. We conclude, then, that appellants had standing to maintain their action to set aside the Commission’s order under the “party in interest” criterion of § 205(g) of the Interstate Commerce Act, 49 Stat. 550, 49 U.S.C. § 305(g), . . . . [Emphasis added.]
In my opinion, Lake had the right to protest an application which could and did put it out of business, and it is my further opinion that recognition of Lake’s right to protest would be in the public interest. I would reverse the judgment of the courts below.
WALKER and JOHNSON, JJ., join in this dissent.
. “If any motor carrier or other party at interest be dissatisfied with any decision, rate, charge, rule, order, act, or regulation adopted by the Commission, such dissatisfied person, association, corporation, or party after failing to get relief from the Commission may file a petition setting forth the particular objection to such decision, rate, charge, rule, order, act or regulations, or to either or all of them in the District Court in Travis County, Texas, against said Commission as defendant. In all trials under this section the burden of proof shall rest upon plaintiff, who must show by the preponderance of evidence that the decisions, rates, regulations, rules, orders, classifications, acts, or charges complained of are unreasonable and unjust to it or them.”
. The manager for Gypsum testified before the Railroad Commission, as found by the examiner, “that the outcome of the proceeding would have no effect on the future use of Lake Transport. As far as USG is concerned, the contract with Lake has been cancelled and the company would enter into private carriage in the event the application is denied.”