The opinion
PofeenbaRGER, Judge,
(concurring)-.
. Upon applications under sec. 16 of chap. 9 of the acts of //1913, creating the Public Service Commission and defining its powers, the jurisdiction of this court is original, not appellate, and extends only to the prohibition of unauthorized acts on the part of the Commission and possibly to compulsion of performance of its duties.
That body is not in any sense a court with inherent common law powers. It is an administrative board of statutory origin, possessing quasi judicial and legislative powers. It derives its powers and jurisdiction wholly from the statute. Such power as is not given by the statute it does not have. Nor has it any power in those instances in which any statute or the common law or a constitution expressly or impliedly withholds or denies jurisdiction to it. Manifestly there are many limitations upon its jurisdiction, and that the legislature intended to vest power in this court to enforce them is plain. Instead of giving in terms the common law writ of prohibition to prevent acts in violation of the limitations, the statute says this court may suspend the Commission’s orders upon informal applications by petition, which in substance and effect amounts to the same thing. It gives the remedy without its formality.
Constitutional limitations: The Commission has no authority to confiscate the property of citizens natural or artificial, or to impair the obligation of an ordinary contract, or so to discriminate against persons as to deny them the equal protection of the law; because the federal and state constitutions withhold power to do any of these things and a good many others, from the legislature itself, the courts, the executive and every other officer and tribunal.
Statutory limitations: These are of less dignity but more numerous and equally binding. The Commission cannot *593 make an order affecting the rate or practice of a public service corporation without giving it notice and an opportunity to he heard, because the legislature has withheld from it the power to do so. Acts 1913 ch. 9, sec. 2. It cannot wholly disregard evidence adduced before it on such a hearing, because the statute under which it acts declares it shall regard the evidence. Action in disregard of t'be evidence is, therefore, action outside of and beyond the statutory authority of the Commission and void. It cannot act arbitrarily, because the statute says impliedly, if not expressly, it shall be governed in its action by the fair, honest and candid judgment of its members, and action otherwise would be a similar departure from the statute and an excess or abuse of jurisdiction. , ”A corporation may have a right under a statute or the common law that is not in any way repealed or limited by the act, creating the Commission and conferring and defining its powers, and which right is not brought within its power and jurisdiction. An attempt to interfere with that would be an act in excess of its powers. There are no doubt many instances in which the Commission will find it necessary to construe and interpret statutes relating to the rights of corporations and individuals and its own authority and, if, in any such case, it should mis-, construe or misinterpret the law, and, so proceeding in violation of law, should invade the legal rights of a citizen' or a corporation, the act would be in excess of its jurisdiction.
The precise question presented here is whether the Commission has power to alter a classification of its patrons for the purposes of rates, made.by a public service corporation, and that depends upon the intention of the legislature expressed in the act. Power to change rates, charges and tolls and to change or prohibit any practice, device or method of service in order to prevent undue discrimination is given. This may seem to include a measure of authority to classify patrons for rate purposes, but it does so, if at all, by implication only, for such authority is not expressly given. Section 6 impliedly recognizes a right of classification for such purposes in the corporations themselves. To give it to them and also to the Commission would be contrary and inconsistent. It would produce conflict. Hence legislative intent to confer *594 such authority upon both cannot well be supposed. Prior to the passage of the act, such corporations had this power, and the statute does not in terms take it away from them. It is a common* law right and the statute is one in derogation of the common law, such as is generally placed by the courts under the rule of strict construction. It seems- clearly to follow from this principle, silence of the statute as to power in the Commission to classify or prevent classification and recognition of the common law right of classification in the corporations, that the legislature did not intend to confer it upon the Commission; and likewise that it cannot disturb a classification made by a corporation upon a difference in service and under circumstances justifying it under the principles of the common law. Hence an attempt to do so would be an act in excess of the powers of the Commission preventable by prohibition, under a statute expressly conferring jurisdiction by that remedy. If the Commission is a purely ministerial body, the legislature certainly has power to subject its unauthorized acts to the remedy by prohibition.
Agreeing with Judge MillbR that the classification abolished by the Commission in this instance is not based upon any difference in service or circumstances constituting a common law basis of classification, I think it acted within its powers in abrogating it.
Within the numerous limitations upon its powers, all of which are perhaps not here enumerated or indicated, there lies a wide domain throughout which the Commission has discretionary power not reviewable by this court upon applications under sec. 16 of the act, and likely not at all by any court, and a right of review thereof is not essential to the validity of the act. The legislature has the same power to vest discretionary authority in a Commission of this kind, within well known limitations, that it has to clothe other officers and tribunals with it.