I am in entire agreement with the construction of Acts 1939, 86-2-5a, discussed in the majority opinion, but I am of the opinion that the Commission committed what should be regarded as a fatal procedural error in treating both the application and the protest as though the matter under consideration was service upon either a regular or an irregular route, carrying that method of procedure into its final order by a recital that the protestant *Page 19 had been given the opportunity to remedy the inadequacy of its service and had breached its duty to the public by failing to do so. I agree that on the basis of the testimony in this record they reached a correct conclusion, but the subject matter of the hearing appears to have been entirely incongruous with that of the application, the protest and the Commission's orders. It seems to me that it is only indulging in surmise to conclude that in a properly conducted investigation the proof and outcome would have been the same. The Commission, of course, is not bound by the technical rules of pleading and procedure, but at the same time it should not depart entirely from the designated route. Neither is it necessary for the parties before the Commission to appear and plead with common law nicety.
In this matter their inquiry should be as to the service of the territory around Keyser and their record should at least show nothing to the contrary, as I think it now does. I think the Commission's order should be set aside and the case sent back with direction to reopen with leave to amend both the application and the protest and to take further proof, if that is desired by either the applicant or the protestant, and for a finding not based upon the non-performance of its public duty on the part of Mac's, but upon the requirement of additional taxi service in the Keyser area.
If Mac's Taxi has actually "failed in their duty to the public," which the Commission's order indicates is the basis of its finding, the interests of the public, which it is the duty of the Commission assiduously to guard, demand more than the issuance of another certificate for the same territory.Mewha v. Public Service Commission, 122 W. Va. 305, 309,9 S.E.2d 868, 870. *Page 20