dissenting, in which McFADDEN, Chief Justice, concurs.
I dissent from that portion of the majority opinion which in effect places upon the appellant, the applicant for a transfer of a motor carrier permit, the burden of producing evidence that the prior holder, the transferor, has furnished services as authorized by such permit. I feel that this interpretation of I.C. § 61-809 is wrong and is a denial of due process. This Court in Allied Van Lines v. Idaho Public Utilities Commission, 79 Idaho 220, 312 P.2d 1050 (1957) and Grover v. Idaho Public Utilities Commission, 83 Idaho 351, 364 P.2d 167 (1961) stated that an order to show cause proceeding was insufficient to deprive a permit holder of his permit. This Court in these cases held that there must be a definite charge, the matter set for hearing, notice given and proof must be adduced supporting the charge before a permit could be revoked under I.C. § 61-808. All of these requirements should apply equally to a hearing under I.C. § 61-809. In this case the requirements were met except proof supporting the charge. In Arrow Transportation Co. v. Idaho Public Utilities Commission, 85 Idaho 307, 379 P.2d 422 (1963), this Court held that before a permit may be altered or revoked that not only must a hearing be held upon proper notice but that it must be proved that the holder has violated or refused to observe some order, rule or regulation of the commission or some law applicable to the permit holder and that these are jurisdictional requisites. The same rule should apply with respect to restriction of scope of a permit in transfer provisions. Although an administrative construction of an ambiguous statute carries great weight, it must be disregarded where it is erroneous and inapplicable. Idaho Compensation Co. v. Hubbard, 70 Idaho 59, 211 P.2d 413 (1949). Further where the language of the statute is unambiguous a clear expressed intent of the legislature must be given effect and it is no occasion for construction. In re Potlatch Forests, 72 Idaho 291, 240 P.2d 242 (1952); Tway v. Williams, 81 Idaho 1, 336 P.2d 115 (1959); State v. Lawler, 81 Idaho 171, 338 P.2d 264 (1959); State v. Riley, 83 Idaho 346, 362 P.2d 1075 (1961) ; State v. Prince, 64 Idaho 343, 132 P.2d 146 (1942); Blue Note, Inc. v. Hopper, 85 Idaho 152, 377 P.2d 373 (1962); Knight v. Employment Security Agency, 88 Idaho 262, 398 P.2d 643 (1965); Roe v. Hopper, 90 Idaho 22, 408 P.2d 161 (1965). In my opinion there is no ambiguity in the last sentence of I.C. § 61-809 which states:
“ * * * The commission may on its own motion or on objection or protest to a transfer restrict the scope of any permit upon a showing of an intentional failure to furnish the service authorized by such permit.”
This sentence authorizes a restriction in the scope of the permit upon a motion or objection being made for intentional failure to render the services authorized by the permit. Thus the requisite showing of an intentional failure to furnish the services authorized clearly lies with the commission or with the person filing an objection or protest to the transfer. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. See 2 Am.Jur.2d 197, Administrative Law § 39; Walker v. San Gabriel,, 20 Cal.2d 879, 129 P.2d 349 (1942); Philadelphia Co. v. Securities & Exchange Commission, 84 U.S.App.D.C. 73, 175 F.2d 808 (1948); Alaska Alcoholic Beverage Control Board v. Malcolm, Inc., Alaska,. 391 P.2d 441 (1964).
This erroneous construction of I.C. § 61-809 is further compounded by the Idaho' Public Utilities Commission’s presumption that inability to prove that a particular-commodity has been transported during the-past three years constitutes an intentional *625failure to render the service authorized with respect to that commodity. It could well be that no shipper requested that the particular commodity be shipped by the carrier during the past three years and thus there would be no intentional failure and yet under the I.P.U.C. construction of the statute the permit would be limited. It should be noted in this case that the transferor, the trustee in bankruptcy, appeared, testified and furnished a list of commodities and the freight bills as requested by the commission. If the commission did not think that this was sufficient evidence or was not properly authenticated, it should have continued the hearing and used its subpoena power to produce the documents and records and attendance of witnesses having knowledge thereof from the bankrupt Avery Trucking Co. or given the appellant an opportunity to do so. I feel that the decision of the Idaho Public Utilities Commission should be reversed with instructions to the commission to have a further hearing for the production of the documents which the commission feels are necessary and to give the appellant an opportunity to rebut this evidence if it so desires.