16.

Points Decided.

The legislature may not delegate its purely legislative power to a commission, but having laid down by law the general rules of action under which a commission may proceed, it may require of that commission the application of such rules to particular situations and conditions and authorize an investigation of facts by the commission with a view to making orders in a particular matter within the rules laid down by such law.

17. Power to regulate public utilities presupposes an intelligent regulation and necessarily carries with it the power to employ the means necessary and proper for such intelligent regulation.

18. Under the law the standard by which rates, services, etc., must be fixed clearly contemplates reasonable rates, services, etc., which is a legislative matter and cannot be delegated; but the authority to determine what is a reasonable rate is purely administrative and can be delegated and was delegated to the commission in our public utilities act, and the several acts authorized to be performed by the commission may be reviewed by this court on a writ of certiorari or review, as provided by sec. 63a of said act, and under the provisions of that section all orders made by the commission may be reviewed by this court, and this court has the authority to determine whether such orders are unlawful.

19. The contract right given to a public utility corporation by ordinance of a city does not come within the contract clause of the constitution of the United States, in that it can in no manner be affected by the police power of the state, and when a corporation acquires a franchise for the purpose of carrying on a corporate business within a city, it is accepted subject to the police power.

20. It is provided by sec. 48a of said act that no electrical corporation shall "henceforth" begin the construction of an electrical plant, etc., without having first obtained a certificate of convenience and necessity from the commission; and a public utility corporation cannot slip in between the passage and approval of such act and its going into effect and procure an ordinance that would deprive the state of its right to regulate it in its operations under the police power of the state, especially where such corporation had not begun actual construction work and was not prosecuting such work in good faith and uninterruptedly and with reasonable diligence in proportion to the magnitude of the undertaking, as provided by sec. 48b of said act; for under the facts of this case the plaintiffs had not begun actual construction work on their system in either of said cities.

21. The last proviso of sec. 48a provides that power companies may, without such certificate, increase the capacity of existing plants or develop new generating plants and market the product thereof. That proviso must not be so construed as to nullify the

Argument for Plaintiffs.

clear object and purpose of said act. If construed to give such corporations the power to establish new plants and lines and enter into new fields for the sale of their products, then the main object and purpose of said act would be nullified and defeated; and if that proviso be construed in that way, it must be held as nugatory and be disregarded.

22. It was not the intention of the legislature under the provisions of sec. 48b to permit such corporations to extend their lines into territory already occupied by a similar utility corporation, without first securing a certificate of convenience and necessity from said commission.

23. Held, that the power of regulation as provided by said act is not required to be specifically conferred by the provisions of the state constitution, and that there is no inhibition in the constitution upon the legislature prohibiting the enactment of such law.

Original proceeding in this court for a writ of review to determine the validity of the order of the public utilities commission, requiring the plaintiffs to refrain from constructing their proposed plants in either the city of Twin Falls or Pocatello, on the ground that such companies have not obtained a certificate of public convenience and necessity requiring such service. The order and action of the commission affirmed.

Hawley, Puckett & Hawley and H. R. Waldo, for Plaintiffs. The provision requiring a written acceptance of a city franchise is merely one of the conditions subsequent which may be waived and the acceptance may be evidenced by acts. (4 McQuillin on Mun. Corp., sec. 1650; Postal Tel. Cable Co. v. Newport, 25 Ky. Law Rep. 635, 76 S. W. 159; City of Allegheny v. People's Natural Gas etc. Co., 172 Pa. 632, 33 Atl. 704, 705; City Railway Co. v. Citizens' Street R. R. Co., 166 U. S. 557, 17 Sup. Ct. 653, 41 L. ed. 1114; Lincoln & Kennebec Bank v. Richardson, 1 Greenl. (Me.) 79, 10 Am. Dec. 34; Illinois River R. Co. v. Zimmer, 20 Ill. 654.)

And it has ever been held that an acceptance will be presumed from the fact that the franchise was granted on the application of the grantee. (City of Atlanta v. Gate City Gas

Idaho, Vol. 26-15

Argument for Defendants.

Light Co., 71 Ga. 106; State v. Dawson, 22 Ind. 272; Perkins v. Sanders, 56 Miss. 733.)

The effect of a franchise granted on conditions subsequent is to vest the estate in the grantee subject to be defeated by the omission to perform the conditions. (Hook v. Bowden, 144 Mo. App. 331, 128 S. W. 261; Brooklyn Cent. R. Co. v. Brooklyn City R. Co., 32 Barb. (N. Y.) 358, 364.)

"The court has frequently determined that except with reference to local affairs, a legislature may not delegate its powers of deciding questions of public policy." (Reeder, Validity of Rate Regulations, p. 62.)

"The power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority." (Cooley, Const. Limitations, 2d ed., p. 163; Board of Harbor Commrs. v. Excelsior Redwood Co., 88 Cal. 491, 22 Am. St. 321, 26 Pac. 375; O'Neil v. American Fire Ins. Co., 166 Pa. 72, 45 Am. St. 650, 30 Atl. 943, 26 L. R. A. 715; Schaezlein v. Cabaniss, 135 Cal. 466, 87 Am. St. 122, 67 Pac. 755, 56 L. R. A. 733; Noel v. People, 187 Ill. 587, 79 Am. St. 238, 58 N. E. 616, 52 L. R. A. 287; Barto v. Himrod, 8 N. Y. 483, 59 Am. Dec. 506.)

The scope of the writ of review cannot be enlarged now beyond the scope of the writ as it was at the time the constitution was adopted. (Camron v. Kenfield, 57 Cal. 550; Pacific Telephone etc. Co. v. Eshleman, 166 Cal. 640, 137 Pac. 1119, 50 L. R. A., N. S., 652.)

The writ of certiorari and review has in this state only common-law powers. (Stein v. Morrison, 9 Ida. 426, 75 Pac. 246.)

J. H. Peterson, Atty. Gen., J. J. Guheen and E. G. Davis, Assts., for Defendants.

The whole question of the delegation of power by the legis lature has recently been before the U. S. supreme court in the case of Union Bridge Co. v. United States, 204 U. S. 364, 27 Sup. Ct. 367, 51 L. ed. 523. The opinion in that case reviews the authorities. (See, also, Stone v. Farmers' Loan & Trust Co., 116 U. S. 307, 6 Sup. Ct. 334, 388, 1191, 29 L. ed. 631; Atlantic Coast Line R. Co. v. North Carolina

Argument for Defendants.

Corp. Commission, 206 U. S. 1, 27 Sup. Ct. 585, 51 L. ed. 933, 11 Ann. Cas. 398; Kansas City v. Union Pac. Ry. Co., 59 Kan. 427, 53 Pac. 468, 52 L. R. A. 321; Minneapolis etc. R. Co. v. Railroad Commission, 136 Wis. 146, 116 N. W. 905, 17 L. R. A., N. S., 821; Oregon R. & Nav. Co. v. Campbell, 173 Fed. 957; Chicago B. & Q. R. R. Co. v. Jones, 149 Ill. 361, 41 Am. St. 278, 37 N. E. 247, 24 L. R. A. 141.)

Just as it cannot be contended that the legislature itself has not the power to prescribe rates, it is no longer open to question that this power may be delegated, within certain clearly defined limits, to a rate-making body. (Reeder, Validity of Rate Regulations, p. 67.)

The question of the economic policy of attempting to substitute the regulation of public utilities by a commission for the old style method of regulation by competition is one for the legislature to determine. (Des Moines Water Co. v. Des Moines, 192 Fed. 193; La Crosse v. La Crosse Gas & Electric Co., 145 Wis. 408, 130 N. W. 530; Calumet Service Co. v. City of Chilton, 148 Wis. 334, 135 N. W. 131; State v. Kenosha Electric R. Co., 145 Wis. 337, 129 N. W. 600; Weld v. Board of Gas & Electric Light Commrs., 197 Mass. 556, 84 N. E. 101; Attorney General v. Walworth Light etc. Co., 157 Mass. 86, 31 N. E. 482, 16 L. R. A. 398; State ex rel. Webster v. Superior Court, 67 Wash. 37, Ann. Cas. 1913D, 78, 120 Pac. 861.)

"If the legislature had no power to alter its police laws when contracts would be affected, then the most important. and valuable reforms might be precluded by the simple device. of entering into contracts for the purpose. No doctrine to that effect would be even plausible, much less sound and tenable." (Kentucky & Indiana Bridge Co. v. Louisville & N. R. Co., 34 Am. & Eng. R. R. Cas., O. S., 630; Parsons on Contracts, 6th ed., 675; Jones, Tel. & Tel. Companies, art. 214; City of Dawson v. Dawson Tel. Co., 137 Ga. 62, 72 S. E. 508; Chicago B. & Q. R. R. Co. v. State, 170 U. S. 57, 18 Sup. Ct. 513, 42 L. ed. 948; Louisville & N. R. R. Co. v. Mottley, 219 U. S. 467, 31 Sup. Ct. 265, 55 L. ed. 297, 34

Argument for Defendants.

L. R. A., N. S., 671; Chicago I. & L. Ry. Co. v. United States, 219 U. S. 486, 31 Sup. Ct. 272, 55 L. ed. 305.)

"When the first clause of a section conforms to the obvious policy and intention of the legislature, it is not rendered inoperative by later inserted clauses which do not conform to this policy and intention. In such cases the latter clause is nugatory and must be disregarded." (McCormick v. Village of West Duluth, 47 Minn. 272, 50 N. W. 128; 2 Lewis, Sutherland, Stat. Const., secs. 350, 352; State v. Williams, 8 Ind. 191; Savings Inst. v. Makin, 23 Me. 360, 1 Kent's Com. 462; Folmer's Appeal, 87 Pa. 133; Kansas Pac. Ry. Co. v. Wyandotte County Commrs., 16 Kan. 587; Renner v. Bennett, 21 Ohio St. 431, 445.)

"A proviso in a statute is to be strictly construed. Its province is not to enlarge or change the purpose of the enacting clause and its terms may be limited by the general scope of the enacting clause to avoid repugnancy." (Greathouse v. Heed, 1 Ida. 494.)

S. H. Hays, for Great Shoshone & Twin Falls Water Power Co.

"So far as the municipality is concerned, the granting of a franchise to use the streets is not binding on it until the grant has been accepted." (McQuillin's Mun. Corp., sec. 1670.)

A grant of a franchise "does not become a contract or a vested right so as to be protected by the constitution of the state or of the United States until the company has, to say the least, begun to do the thing required by the charter as the consideration for the grant of such privilege." (Capital City Light & Fuel Co. v. Tallahassee, 186 U. S. 401, 22 Sup. Ct. 866, 46 L. ed. 1219; Pearsall v. Great Northern R. R. Co., 161 U. S. 646, 16 Sup. Ct. 705, 40 L. ed. 838; Atchison St. Ry. Co. v. Nave, 38 Kan. 744, 5 Am. St. 800, 17 Pac. 587.)

Subject to such limitations as are expressly or impliedly imposed by the federal and state constitutions, a state has plenary power to legislate on all subjects. (St. Joe Imp. Co.