(dissenting).
I respectfully dissent in the view that the orders of the Railroad Commission under *326attack do not comport with the statutory-duties and responsibilities of the Commission under Article 911b, Vernon’s Ann.Civ. St., the Texas Motor Carrier Act.
An analysis of the controlling provisions of Article 911b, and of the orders of the Railroad Commission shown in the record, together with their legal import, is required.
The public policy represented in the Texas Motor Carrier Act was declared by the Legislature in Section 22b of Article 911b, as follows:
“Declaration of Policy. The business of operating as a motor carrier of property for hire along the highways of this State is declared to be a business affected with the public interest. The rapid increase of motor carrier traffic, and the fact that under existing law many motor trucks are not effectively regulated, have increased the dangers and hazards on public highways and make it imperative that more stringent regulation should be employed, to the end that the highways may be rendered safer for the use of the general public; that the wear of such highways may be reduced; that discrimination in rates charged may be eliminated; that congestion of traffic on the highways may be minimized; that the use of the highways for the transportation of property for hire may be restricted to the extent required by the necessity of the general public, and that the various transportation agencies of the State may be adjusted and correlated so that public highways may serve the best interest of the general public.”
The general duties of the Railroad Commission under Article 911b are strongly stated in Section 4(d):
“The Commission is further authorized and empowered, and it shall be its duty, to supervise and regulate motor carriers in all matters whether specifically mentioned herein or not so as to carefully preserve, foster and regulate transportation and to relieve the existing and all future undue burdens on the highways arising by reason of the use of the highways by motor carriers, adjusting and administering its regulations in the interests of the public.”
The certificates of convenience and necessity involved in this case authorize operations as Specialized Motor Carriers pursuant to Section Sa of Article 911b. Among other things, the Legislature emphatically declared the following in Section 5a (d):
“The Commission shall have no authority to grant any application for a certificate of convenience and necessity authorizing operation as a ‘Specialized Motor Carrier’ or any other common carrier unless it is established by substantial evidence (1) that the services and facilities of the existing carriers serving the territory or any part thereof are inadequate; (2) that there exists a public necessity for such service, and (3) the public convenience will be promoted by granting said application.”
Section 5a (a) authorizes the sale, lease, assignment or transfer of Specialized Motor Carrier certificates, subject to the approval of the Railroad Commission. It is specifically provided, as relevant here, that the Railroad Commission is authorized to disapprove a “proposed sale, assignment, lease, or transfer [which] is not best for the public interest.” The statutory duty of the Railroad Commission to disapprove a proposed sale and transfer of a certificate if not best for the public interest is clear; as a corollary, orders of the Commission approving proposed sales and transfers inconsistent with, and contrary to, the basic purposes and policies of the Motor Carrier Act should be held invalid.
At times prior to 1956, and pursuant to Section 5a of Article 911b, the Railroad Commission issued four certificates of public convenience and necessity authorizing the motor carrier services of four separate specialized motor carriers in transporting *327household goods, used office furniture and equipment, as follows:
Certificate No. 8848 authorizing the transportation of household goods and used office furniture and equipment from any point within a SO-mile radius of Olney, Texas, to all points in Texas, and vice versa;
Certificate No. 9233 authorizing the transportation of household goods and used office furniture and equipment from all points within a 25-mile radius of Wichita Falls, Texas, to all points and vice versa; excluding the transportation to or from Harris County, Texas;
Certificate No. 16472 authorizing the transportation of household goods, used office furniture and equipment from points within a 50-mile radius of Seymour, Texas, to all points in Texas, and vice versa; and
Certificate No. 16473 authorizing the transportation of household goods and used office furniture and equipment from all points within a 25-mile radius of Henrietta, Texas, to all points in Texas, and vice versa.
Each of these four certificates was issued after the filing of applications therefor, hearing by the Commission of public convenience and necessity, and findings by the Commission pursuant to the three requirements set forth in Section 5a (d), namely, (1) that the services and facilities of the existing carriers serving the territory or any part thereof were inadequate; (2) that there existed a public necessity for such services; and (3) that the public convenience would be promoted by the granting of the applications. Thereupon the public had available — and the Railroad Commission had found such to be needed and required by the public — four separate motor carrier services, the authorized operating territories of which overlapped in certain respects. The overlapping territories afforded the public a choice of multiple carriers subject to call for the specialized motor carrier service of transporting household goods and used office furniture and equipment. For example, a family residing in Wichita Falls moving to another point in Texas could call any one or all of four carriers to obtain the best available service from the standpoint of time and equipment; a family in Seymour could call either or both of two carriers; a family at Henrietta either or all of three carriers; a family at Throckmorton either or both of two carriers. Thus is illustrated the availability of services to the residents of all the cities and towns in the overlapping territories of the certificates. The important consideration at this point is that the Railroad Commission at the time of the issuance of these four certificates was required by the statute to determine and find that the public needed and required these multiple services; otherwise, the Commission was without statutory authority to authorize the services and issue the four certificates.
At various times in 1956 the respondent James H. Jeter, the owner of one of the certificates described above, entered into contracts with the owners of the other three certificates to purchase the operating rights represented thereby, subject to the approval of the Railroad Commission as required by Section 5a(a) of Article 911b. Jeter severally and at different times applied to the Railroad Commission for approval of his acquisition of the three certificates and the Commission did so by appropriate orders. The obvious result was that thereafter only one carrier was available to render the service to the public previously found by the Commission to require four separate carriers. Since the necessary legal effect of Section 5a (a) is to impose on the Commission the duty of disapproving certificate sales not “best for the public interest,” it would seem clear that the order of the Commission approving the acquisition by Jeter of the three certificates — with the resulting reduction in the services available to the public — constituted a finding by the Commission that the public convenience and necessity no longer required the previously *328authorized separately operating motor services.
There is, then, no question to be raised, and none is raised, of the validity of the action of the Railroad Commission in approving the acquisition by Jeter of the three separate operating rights and the performance thereafter by Jeter of the motor carrier services authorized by the four certificates involved. But the majority has overlooked the legal significance and import of the acts of the Commission in so doing.
We come now to the orders of the Commission under attack in this case. Following approval by the Commission of the acquisition by Jeter of the three certificates, and upon Jeter’s application, the Commission consolidated the four certificates in a master certificate numbered 9233, dated October 21, 1957. Thereafter, and until the events now to be reviewed, Jeter alone held himself out to render the motor carrier services authorized by the master certificate.
On March 28, 1960, Jeter filed an application with the Commission “to create a new certificate to be numbered 18421 which will contain the authority to transport household goods, used office furniture and equipment, from all points within a 25-mile radius of Wichita Falls, Texas, to all points and vice versa, excluding the transportation to or from Harris County, Texas.” Contemporaneously therewith, Jeter and his purchaser also filed application for approval by the Commission of the sale and transfer of the new certificate No. 18421 to the newly purchasing carrier, Alex J. Haffmeis-ter, d/b/a Moore Moving and Storage.
Similarly, on January 30, 1961, Jeter filed an application with the Commission “so as to create a new certificate to be numbered 19121 which will contain the authority to transport household goods, used office furniture and equipment from all points within a 25-mile radius of Henrietta, Texas, to all points in Texas and vice versa.” Contemporaneously therewith, Jeter and his purchaser filed an application for approval of the sale and transfer of the new certificate to the second new carrier, Wayne K. Horton, d/b/a Abbott Moving and Storage.
Similarly, on May 5, 1961, Jeter filed an application with the Commission “so as to create a new certificate to be numbered 19377 which will contain authority to transport household goods, used office furniture and equipment from points within a 50-mile radius of Seymour, Texas, to all points in Texas and vice versa,” and contemporaneously therewith he and his purchaser filed application for approval of the sale and transfer of the new certificate to the third new carrier, R. C. Albert, d/b/a Albert Van and Storage.
The Railroad Commission by several orders approved all of the foregoing applications without hearing evidence upon, or considering, or finding that the services and facilities of the existing carriers were inadequate, or that there existed a public necessity for the new services, or that the public convenience would be promoted by the new services. These are the orders of the Commission brought under attack in the case at bar.
It is my view that the orders are contrary to the express provisions and reasonable intendments of Article 911b, the Texas Motor Carrier Act, and are invalid. It is wholly inconsistent with the duties of the Commission to approve the elimination of previously authorized motor carrier services, with the necessary implied finding that the public convenience and necessity no longer required the separate services, and then, some three years later, permit the original purchasing carrier to establish three new motor carrier services by the sale of the new certificates. It was unquestionably the duty of the Commission to consider the adequacy of the existing motor carrier services at the time of the sale of the three certificates to new carriers, together with the question of whether or not the public convenience and necessity required the new services. It can certainly be said that Jeter, the original purchasing, and later selling, *329carrier, and not the Commission, has been permitted to control the nature and extent of the household goods and used office furniture and equipment specialized motor carrier services available to the public in the territories involved.
This Court is committed to the proposition that the Railroad Commission is required to consider the public convenience and necessity in Motor Carrier Certificate divisions and sales which change the character of the motor carrier service available to the public, departmental construction to the contrary notwithstanding. We said in Railroad Commission of Texas v. Jackson, 157 Tex. 32, 299 S.W.2d 266:
“The authorities seem to establish the proposition that when no ‘new service’ is established by the mere transfer of a permit, the issues before the Commission are those indicated by the Court of Civil Appeals, namely, good faith, adequate equipment, financial ability and willingness to abide with the law and the Commission’s regulations. However, when the transfer will result in establishment of a substantially different service from that theretofore existing, we think the principle of the Red Arrow re-routing cases is applicable and that an issue of public convenience and necessity arises for the initial determination by the Commission. Railroad Commission of Texas v. Red Arrow Freight Lines, Tex.Civ.App., 96 S.W.2d 735, 738.”
Houston & North Texas Motor Freight Lines v. Johnson, 140 Tex. 166, 166 S.W.2d 78, involved an originally issued common carrier certificate authorizing a through service from Dallas to Rising Star via Fort Worth. The owning carrier sought Commission approval of a division of the certificate so as to authorize two routes — one from Dallas to Fort Worth and one from Fort Worth to Rising Star so as to sell the route from Dallas to Fort Worth to another carrier. The controlling fact was that there would be a difference in the service available to the public resulting from the proposed: division and sale. The Commission originally found that the public convenience and-necessity required a one carrier through service between Dallas and Rising Star; as contemplated by the proposed division and sale, there would be two carriers with segments of the route involving, among other things, an interchange of freight at Fort Worth. In such situation, this Court recognized that the division of a certificate may present such a change in service to the public that the Railroad Commission is required to consider the question of the impairment of service to the public “in order to authorize the division of the existing certificate into two parts and the sale of one of the parts.”
The majority cites L. A. Norris Truck Line v. Railroad Commission, Tex.Civ.App., 245 S.W.2d 746, wr. ref., as strongly persuasive, which, together with departmental construction, is determinative. Norris is not in point. The case merely considered orders of the Commission authorizing the division and sale of that part of an existing specialized motor carrier certificate authorizing the transportation of oil field equipment. Prior to the division and sale there was one carrier authorized to transport oil field equipment, together with other unrelated commodities. After the division and sale there was one carrier transporting oil field equipment and one carrier transporting the remaining commodities. There was no duplication or increase in the service to the public or in the use of the highways. No additional carrier service was created as to any commodity. There was no overlapping of territories or commodities. There was no significant change in the character of the service offered the public.
We cannot say that the statutory authorization for disapproval of certificate sales by the Commission when not in the public interest is meaningless, and that the orders of the Railroad Commission are to be upheld in every instance of approval of certificate division and sales, regardless of the public interest. If we do not say this, then *330we must say that if certificate divisions and sales are contrary to the public interest, and to the reasonable intendments of the Motor Carrier Act, it is the duty of the Commission to disapprove. Here it appears that the Commission held no hearing and required no evidence upon, or considered, the effect of the certificate divisions and sales on the sales of the existing carriers, or whether the public convenience and necessity required the services authorized by the certificates created anew for purposes of sale.
The denial by the majority here of the application of the principles heretofore announced by this Court rests on the misconception that there was no change in the character of the motor carrier service available to the public when the operations of the one carrier, Jeter, under authority of the consolidated certificate, were converted into operations of four separate carriers under the orders of the Railroad Commission approving Jeter’s divisions and sales, which are the orders under attack here. The majority can reach this view only by disregarding the legal effect of the previous orders approving Jeter’s acquisition of all the certificates and the consolidation of the four certificates into one single service by Jeter, thereby looking to the original four certificates and the separate carrier services thereunder as if there had been no intervening orders of the Commission authorizing the change in the character of the original authorized services from four separate carriers to one. It is at this point that the majority view breaks down.
The majority does not hold that the action of the Commission approving the instant certificate divisions and sales is reasonably supported by the facts as not against the public interest. It holds that the Commission was under no duty to require evidence establishing public convenience and necessity which, under Article 911b, is the essence of the public interest. The fallacy of the majority is in the holding that although additional carriers are created there is “no change effected in the character of the service to be rendered.” This is the crucial point of difference. I maintain that there is a substantial difference in the service to the public between that of the one carrier Jeter from the time of his certificate acquisitions and the services to the public of the four carriers, authorized to operate in the overlapping territories as a result of the three new certificates and the sales of these certificates to the three new carriers. The validity of the approval orders of the Commission under attack should be determined in the light of this fact, and the doctrine of Jackson and Johnson is applicable.
I would reverse the judgments of the courts below and hold that the orders of the Railroad Commission under attack here are invalid.
WALKER and NORVELL, JJ., join in this dissent.