(185 P.)

and furthermore express provision is made in section 44 of the law of 1919 that the repeal of the former act shall not "affect any act done, right established, or prosecution or proceeding commenced under and by virtue of" it.

If a precise and technical meaning were accorded to the word "plant," confining it strictly to include only such public utilities of this class which delivered water to consumers through the agency, at least in part, of machinery, as a pumping station or other mechanical apparatus, the intention of the Legislature would not, in our opinion, be effectuated. It would contravene the spirit of the act to assume that it was intended to make the right of the consumers served by public utilities of this character to the benefit of the commission's control over rates and service dependent entirely upon whether the water delivered flowed into the ditch or pipe, or was forced into the distributing channel by means of machinery, water wheel, or other apparatus. In Brennan v. Sewerage & Water Board, 108 La. 582, 32 South. 569, it was said that "a system of pipes intended for the distribution of water, but with no provision by which that distribution can be made," may with propriety be called a plant. The term "plant for the delivery of water

[2] Respondents assert that the order of the Public Service Commission is void, because no authority is given it by law to regulate the affairs of the Steamboat Canal Company, in that its canal, through which respondents are served with water, does not come within the meaning of the words "plant" or "equipment," used in the statute in defining certain public utilities over which the commission is given supervision. It is conceded that the statute does not otherwise designate the company's property as a public utility. It will be observed that this contention is a radical departure from the complaint, in which the legal right of the commission to supervise and establish water rates for the Steamboat Canal Company is distinctly recognized. In this respect it is alleged in the complaint that the Public Service Commission has authority to fix reasonable rates for public utilities operating within the state; that the Steamboat Canal Company is a public utility engaged in the delivery of water for agricultural and other purposes within this state; that the rate heretofore fixed by the Public Service Com- It is also contended by respondents that mission by an order duly made and entered the order of the commission establishing the pursuant to law is $6.50 per miner's inch, rate of $7.50 per miner's inch is void, for the and that the same is still in force. It is reason that the commission, in determining this rate, took into consideration evidence thus seen that respondents have formally asserted in their verified complaint the authority taken at former hearings and data on file with the commission relative to the Steamof the Public Service Commission to super-boat Canal Company in its dealings with the vise the water rates of the company, which it now contests. While the statute must control as the source of authority for the commission in this regard, the power to do an act should not be alleged by a party in his pleading and denied by him on appeal.

[3] Section 3 of the act of 1911 provides: "The term 'public utility' within the meaning of this act shall embrace every corporation, company, individual, association of individuals, their lessees, trustees or receivers appointed by any court whatsoever, that now or hereafter may own, operate or control any plant or equipment, or any part of a plant or equipment within the state for the production, delivery or furnishing for or to other persons, firms, associations, or corporations, private or municipal, heat, light, power in any form or by any agency, water for business, manufacturing, agricultural or household use, or sewerage service whether within the limits of municipalities, towns or villages, or else where; and the Public Service Commission is hereby invested with full power of supervision, regulation and control of all such utilities, subject to the provisions of this act and to the exclusion of the jurisdiction, regulation and control of such utilities by any municipality, town or village."

for agriculture or household use," as used in the statute, is sufficiently comprehensive in its meaning to apply to the canal and business of the Steamboat Canal Company as a public utility, subject under the statute to the supervision and control of the Public Service Commission.

water users. The following extracts from the record of hearing held on August 5th, showing statements made by the commissioners and Mr. Kearney, attorney for the protesting water users, have considerable bearing on the merit of this contention:

"Commissioner Bartine: There is no question of the value of the property. The commission has passed upon that, and determined that the property has a certain value. It is rather hard for me to see how we can depart from that, unless there is a showing made by the company that we are wrong. We will give you any opportunity that you desire to show that it is an overvaluation. You can take any reasonable time for it. These charges are largely a matter of bookkeeping, and when the decision is finally rendered it will cover the whole thing.

"Commissioner Simmons: I want to say for the commission that, in view of no testimony having been introduced in this case bearing upon the valuation of the ditch, the commission will avail itself of the data which it al ready has, and which are official, with reference to the value of the ditch. If you car show that there is a change in the value of the ditch, other than what we now have before us, then that will be given consideration. But

in view of the fact that the question of the [termination of a reasonable rate for water valuation of the ditch has not been gone into service. in this case, either by counsel or stipulation, we would use the data that we already have and which is available, in basing our opinion in the present case.

"Mr. Kearney: In regard to that stipulation I would like to say that, if that testimony is used for the purpose of rehearing and reopening the old case, I would object to it. Commissioner Bartine: We do not intend to reopen the old case at all.

The facts recited do not bring the case within the ruling advanced in Interstate Commerce Commission v. Louisville Railroad Co., 227 U. S. 88, 33 Sup. Ct. 185, 57 L. Ed. 431, so much relied on by respondents. The government insisted in that case that, as an act of Congress provided that a carrier's rates should be set aside if, after a hearing, the commission shall be of the opinion that the charge was unreasonable, an order based on such opinion was conclusive, and could

"Mr. Kearney: As I understand it, the rate of $6 per inch was fixed upon as a reasonable return for a certain valuation found by the commission, after the testimony had been con-not be set aside, even if the finding was wholsidered. Now, then, I don't want the commission to reconsider that testimony, and find a different valuation at this time, without having an opportunity to be heard.

"Commissioner Bartine: I do not think it will ever be done; so far as I am concerned it will not be. So far as we have gone into this case, the question of valuation does not cut any figure. The application for an advance in rates is based on figures of cost of material and labor."

ly without substantial evidence to support it. It was further insisted that the commission was required by law to obtain information necessary to enable it to perform the duties and carry out the objects for which it was created, and, having been given legislative power to make rates, it could act, as could Congress, on such information, and therefore its findings must be presumed to have been supported by such information, even though not formally proved at the hearing. These contentions were denied by the court, and it was held that neither of these statutory provisions could in effect empower the commission to decide as to the reasonableness or unreasonableness of rates without a hearing required by the statute at which "all parties must be fully apprised of the evidence submitted, and must be given an opportunity to cross-examine witnesses, to inspect documents, and to offer evidence in explanation or rebuttal." With reference to the latter contention, as to the right of the commission to act upon information gathered for the purposes of investigation, the court said:

"But such a construction would nullify the right to a hearing, for manifestly there is no hearing when the party does not know what evidence is offered or considered, and is not given an opportunity to test, explain, or re

fute."

It is evident from these statements of the commissioners that the commission had fixed the company's property at a certain valuation at former hearings, and that they intended considering the evidence obtained for this purpose, and would make no change in such valuation without a showing made by the company or the water users. Under the circumstances, no prejudice could have resulted to any of the parties from the action of the commission. Certainly there was nothing in this regard, in view of the full hearing that was held and ruling made upon substantial evidence introduced, that could render the subsequent order of the commission a nullity. Notice of intention to use the former evidence, and the purpose for which it would be considered, was given to all parties at the beginning of the proceedings. They were all present either in person or by attorney, and were informed that ample time would be given for examination of the proposed evidence and data on file with the commission, or to make any showing against it. More than two [4] In the instant case the order of the months elapsed from the time notice was commission was not without substantial evigiven until the hearing was closed, and so far dence to support it, nor did the commission as the record discloses no effort was made by base its order upon extraneous evidence, as the water users to examine the evidence or was asserted to be the power of such adminrefute it in any way. Their knowledge of its istrative boards in Interstate Commerce Comgeneral character may be fairly assumed mission v. Louisville & Nashville Railroad from the fact that it was adduced at former Co., supra. As previously stated, a full hearhearings held by the commission to establishing was held, at which all parties were reprates for the Steamboat Canal Company. It resented, and cognizant of the evidence subwas therefore not extraneous evidence, unknown to the parties, but known, available, and specifically called to their attention in ample time for inspection, explanation, or contradiction, and we may assume, from the references made to it in the record, was in the main of a character essential to a proper de

The order of the commission was upheld, because there was substantial evidence to support it.

mitted, and given every reasonable opportunity to introduce witnesses, to cross-examine, to test, explain, or refute any evidence to be considered by the commission. The consideration of the testimony and data obtained at the former hearings, after due notice that it would be submitted and consid

(185 P.)

of 1911, and nowhere therein has the Legislature sought to confer upon the courts power to fix the rate of any public utility or change the rate established by the commission. Sec-12), which the Legislature has really exertion 26 reads in part:

9 Ann. Cas. 819; Reagan v. Farmers' Loan [ & Trust Co., 154 U. S. 397, 14 Sup. Ct. 1047, 38 L. Ed. 1014; Pond on Public Utilities, §§ 440-446, and cases cited; State v. Great Northern Ry. Co., 130 Minn. 57, 153 N. W. 247, Ann. Cas. 1917B, 1201.

As said in the case of Baltimore & Ohio R. R. Co., appellant, v. Public Service Commission, 66 Pa. Super. Ct. 403, and commended in Ben Avon Borough v. Ohio Water Co., 260 Pa. 289, 296, 103 Atl. 744, by the Supreme Court of that state:

"Establishing a schedule of the rates or tolls that a public service company may lawfully demand is one of the most complicated and important * * tasks imposed by the Legislature on the Public Service Commission. The proper determination of such questions necessarily involves the consideration of many matters and things far removed from the atmosphere of an appellate court."

That the court cannot fix the rate itself, however, but is limited in its jurisdiction in determining whether a rate, when fixed, is reasonable and proper, is the generally accepted rule as expressed in the case of Nebraska Tel. Co. v. State, 55 Neb. 627, 76 N. W. 171, 45 L. R. A. 113, decided in 1898, as fol

lows:

"Here the court determines that the respondent shall perform for the relator a specific service for three months for a specific sum of money. This in effect was a determination by the court that $3 per month was a reasonable compensation for the service required to be rendered by the respondent, and a fixing of the compensation for such service at that price for the future. We think the history of the legislation of the entire country shows that the power to determine what compensation public service corporations may demand for their services is a legislative function and not a judicial one."

If it were conceded that the courts of this state could fix or revise the rates a public utility could charge, would not the Legislature have performed a vain act in establishing another administrative body for the same purpose? But the courts are precluded by the Constitution from performing legislative functions, and the framers of the organic law recognized that power to fix the compensation for common carriers or public utility service was a legislative one. Section 20, art. 4, of the state Constitution, which precludes the Legislature from exercising certain powers, also provides:

* *

"But nothing in this section shall be construed to deny or restrict the power of the Legislature, to establish and regulate the rates of freight, passage toll, and charges of railroads, toll roads, ditch, flume and tunnel companies incorporated under the laws of this

And it is quite clear that the Legislature has acted upon the theory that this power to fix the compensation of common carriers and public service corporations is one vested in it by the Constitution. This is evident from its creation of commissions for that purpose, and the powers conferred upon them as well as from the provisions limiting the courts in review. Nebraska Tel. Co. v. State, supra.

[9] It results from what we have said that the district court was without authority to revise the order of the Public Service Commission in this case and fix the rate of service at $6.50 per miner's inch per annum. We also conclude that the court was likewise wrong in vacating the order of the commission establishing the rate of $7.50 per miner's inch and restraining its collection by the Steamboat Canal Company. As already pointed out, section 26 provides:

"That all rates fixed by the commission shall be deemed reasonable and just, and shall remain in full force and effect until final determination by the courts having jurisdiction."

The lower court disregarded this provision of the statute in vacating the order of the commission and in granting an injunction pendente lite. No reason for this action appears from the record, but as the statute is mandatory, and as counsel for respondents insists in this court that it is unconstitutional, we assume that the lower court entertained the same view.

*

* *

[10, 11] It is contended that the proviso is violative of section 8 of article 1 of the Constitution, guaranteeing that "no person shall be deprived of property, without due process of law," and of section 6 of article 6 of that instrument which confers "original jurisdiction in all cases in equity" upon the district courts. It is urged that the proviso deprives the district court of its equitable powers in this class of cases. We do not share these views and apprehend that they may arise partially from a misconstruction of the provision. It is insisted that it is meant by the proviso that the rates shall remain in full force and effect until final determination in the Supreme Court. The proviso does not contain the words "court having appellate jurisdiction" or designate the Supreme Court; yet these would have been natural and appropriate expressions, if the construction claimed by respondents should prevail. guage is "until final determination by the courts having jurisdiction," and we are persuaded that it was meant to declare that the rates should be maintained pending a final determination by the district courts.

The lan

[12, 13] A statute should be construed so as to give effect if possible to all its parts; and this construction harmonizes the proviso

(185 P.)

for trial and judgment in the district court and gives a reasonable effect to the proviso itself, notwithstanding its language is not exactly accurate in expressing the legislative intent. An absurdity in legislative language is never presumed, nor found by the courts, unless revealed in clear and unmistakable terms. Any reasonable construction which the phraseology of a statute or a part of a statute will bear, must be drawn to avoid an absurd meaning, upon the theory that legislators are men of ordinary good sense. If we should construe the proviso to mean that the rates fixed by the commission shall remain in full force and effect until final determination by the Supreme Court, we should charge the Legislature with a gross absurdity in providing for a trial in one part of section 26 and defeating the purpose of the trial in another part of the section.

Section 26 provides that a party, dissatisfied with an order of the commission fixing a rate, may commence an action in the district court "to vacate and set aside any such order" on the ground that the rate is unlawful and unreasonable, and that "judgment shall be rendered upon such original order," or upon any modification, alteration, or amendment of the original order which may be made by the commission pending the trial of the case. Manifestly it was not intended to provide in section 26 for a trial in the district court to test the reasonableness of a rate fixed by the commission giving the court power to vacate the order of the commission fixing it, and then by the proviso to prevent a judgment in case the rate is found to be unreasonable. The purpose of the proviso is, we think, reasonably apparent to maintain the rate during the pendency of the trial and until final judgment in the district court. And this provision does not, in our opinion, trench upon the constitutional guaranty of due process of law. The provision objected to must be taken in connection with the entire act of which it is a part when considered as to its encroachment upon the constitutional guaranty of due process of law. The ultimate purpose of the act is to regulate and control certain classes of business impressed with a public interest.

body to meet the changing conditions, which make the rates a public utility may lawfully charge for its service vary in value from time to time. These exigencies were met by the Legislature in the formation of the governmental agency designated, in the act creating it, as a Public Service Commission. The law presumes that the members of the commission shall be men trained in those lines of business in which public utilities are engaged, and who can fairly and intelligently adjust the complex questions that constantly arise. Necessarily to make the act effective to answer the purposes of its enactment, the commission has been clothed with broad discretionary powers; and to further accomplish these purposes the orders of the commission as to rates and charges have been made prima facie lawful from the date of the order until changed or modified by the commission, or until found to be unreasonable in pursuance of section 26 of the act. Section 25.

"In all actions under this act the burden of

proof shall be upon the party attacking or resisting the order of the commission to show by clear and satisfactory evidence that the order is unlawful, or unreasonable, as the case may be." Section 26, subd. (e).

In

[14] It was not intended that the courts should interfere with the commission or review its determinations, further than to keep it within the law and protect the constitutional rights of the public service agencies over which it has been given control. view of the salutary public policy of the act, and the ample provision made for notice and full hearing before the commission, at which the public utility complained of and the complainant are entitled to appear by counsel, and the ample provisions made for the production and presentation of their proofs, it was competent for the Legislature to prescribe that the rates fixed by the commission should abide during the temporary season of a trial to test their reasonableness. The

rates fixed by the commission are not conclusive. The courts are open for a review of the proceedings of the commission and the right given to the parties to adduce evidence in addition to that introduced on the hearing before the commission. In order to facilitate the trial to the end that a speedy determination of the question of the reasonableness of the rates may be obtained, it is provided in section 26 that:

The Public Service Commission Act is the direct outgrowth of an urgent and persistent public demand for prompt, intelligent, and effective public control of public utilities. It is founded on necessity and convenience. Competition did not prove effective in preventing monopoly by public utility companies, and its consequent burden on the public in "All actions brought under this section shall the different classes of public service ren-have precedence over any civil cause of a difdered by them. It is recognized, also, that the rate-making power and the power to regulate and control these enterprises, vested by the Constitution in the Legislature, could not be conveniently exercised by that

ferent nature pending in such court, and the court shall always be deemed open for the trial thereof, and the same shall be tried and determined as other civil actions."

"Due process of law merely requires such tribunals as are proper to deal with the sub