(dissenting).
I dissent. Inherent throughout the majority opinion is a critical attitude toward “Sun Valley Key’s monopoly position as an air carrier on the Boise to Hailey-Sun Valley run.” Acceptance and regulation of “monopoly” is a basic part of public utilities law. I had always assumed that public utilities were “monopolies” allowed to exist because of the necessity to accept the realities of “bigness” and dominance of a field in public service type business. Economic history indicates that business organizations would not invest money in large amounts to construct public service facilities for development, distribution or sale of energy in various forms to the public or the providing of ground, air or water transportation, or methods of communication. Without governmental franchising, which provided the investor with a monopoly position, competition might follow which would render the investment worthless. Investors were unwilling to take that risk without being assured of a monopoly position. In return for being granted that monopolistic position the business organization forfeited certain rights which it otherwise possessed in the world of competition. It had to agree that the government that gave it the monopoly position could also regulate the charges which it could assess against the public and the type of service that it would furnish the public.
In the instant case Key’s predecessor made the investment in property and equipment to furnish air transportation to the public between Boise and Hailey-Sun Valley on the basis that it would enjoy a monopoly position. The government who so enfranchised it regulated its rates, schedule, equipment and types of service.
The legislature has provided that in such a situation the carrier shall continue to enjoy a monopolistic position and when some other carrier seeks to invade that monopoly it can only be certificated for duplicate service if the government agency specifically finds that the certificated carrier [Key] “presently serving such route or territory has failed to conform to the terms of its certificate or has failed to comply with the provisions of this act or the orders, rules or regulations of the commission.”
Here there was no evidence and no finding that Key had failed to comply. The majority opinion reasons that because Key did not present that matter to the commission in a petition for rehearing that it has waived its rights under the statute. My conclusion is otherwise. Since Trans Magic did not show and prove what it was required to prove under the statute the commission had no jurisdiction to certificate Trans Magic for duplication of service over the route.
*115The commission specifically recognized that competition between the two airlines might force Sun Valley-Key out of business. I can only conclude that the certification of Key’s predecessor, together with their investment and operations over the route in conformance with the terms of its certificate established a firm and binding contract between Key, its predecessors and the' State of Idaho.
It is my opinion that when the commission in violation of the contract of franchise and in violation of the statute controlling its own jurisdiction certificated a competitive carrier to operate over the same routes with Key with the firm understanding that such would probably result in the death of Key, it was clearly erroneous. If nothing else, it certainly was a taking of property of Key without due process of law and is a strange way to regulate a public utility.
McQUADE, J., concurs in dissent.