I cannot concur in denying the motion to dismiss the appeal herein. It being conceded that "the purpose of an application for a rehearing. . . . is to afford an opportunity to the parties to bring to the attention of the Commission any error claimed to have been committed in such former determination, and thereby afford the Commission an opportunity to rectify any mistakes made by it," and C. S., sec. 2503, providing that "the Commission shall grant and hold such rehearing if in its judgment sufficient reason therefor be made to appear," then unless such application does point out or claim errors, there is nothing for the Commission to determine and no "sufficient reason" for a rehearing "made to appear."
The purpose of an application for rehearing, in contemplation of this statute, is no different than in proceedings before the courts, that is, to point out specifically in what respect the original decision is erroneous. (4 C. J., p. 622, *Page 776 sec. 2479, p. 635, sec. 2507.) The application is confined to matters urged at the original hearing, and may not include new points, raised for the first time, or matters not in the record when the case was decided. (4 C. J., p. 627, sec. 2488, p. 629, secs. 2494, 2495.)
Briefly stated, the steps in this proceeding were as follows: August 14 and 15, 1922, a valuation hearing was had. November 4, 1922, what is designated as Order No. 865 fixed the valuation of the appellant's utility at $194,000, to become effective December 1, 1922. November 27, 1922, appellant filed a petition for rehearing upon seven specified grounds. November 28, 1922, the Commission, by Order No. 871, granted a rehearing as to some of the questions decided which were recited in the application for rehearing. December 8, 1922, a rehearing was had. At the rehearing, the appellant injected into the hearing an attempt to establish going value, although this element of value had not been proven in the previous hearing, nor proof offered, nor was this specified as one of the grounds of error in the application for rehearing. February 6, 1923, the Commission entered Order No. 881 on the rehearing, raising the valuation to $224,050. In this order and decision the Commission considered the showing made by appellant as to going value, but made no allowance therefor, saying:
"The order granting the rehearing did not specifically open the case as to going value. However, at the rehearing this company attempted to introduce testimony on going value, which testimony is a statement that in the opinion of the witness 10% is a reasonable allowance for going value. This Commission has decided in prior cases that going value is made up of two elements, namely, the cost of business development and the cost of property development.
"There is no evidence submitted, nor was there an attempt to submit evidence showing or tending to show that this company had actual expenditures not included in their appraisal for either property development or business development. The amount allowed for going value must be determined upon facts and not upon assumption. The valuation *Page 777 herein determined is the value of the property as a system in which valuation there is an allowance for general overheads. It is not the desire of the Commission to refuse to consider property development and business development, providing the company produce the evidence to sustain such, but until this is done the Commission will not find any amount for property development or business development."
This order was served upon the appellant February 8, 1923. By its terms it was to become effective immediately. No appeal was taken within thirty days from this order, nor, in my opinion, was any application for rehearing made. Upon March 8, 1923, appellant filed with the Commission a paper entitled, "Application for Revaluation," simply reciting that it "serves notice on the Honorable Public Utilities Commission" that it "will make application for revaluation of its property." This notice was not directed to any party to the proceeding, nor is any service thereof shown upon, or admission of service by, the city, the intervenors, or the assistant attorney general for the Commission, all of whom had appeared in the proceeding up to that time.
On April 24, 1923, the appellant filed a paper designated, "Petition for Revaluation," reciting in part:
"Comes now Consumers' Company, Limited, and files this, its petition for a revaluation of a portion of its property, the original valuation having been determined by your Honorable Commission in Order No. 881 in case No. F-499.
"In said Order No. 881, your Honorable Commission in passing upon the element of your petitioner's property known as 'Going Value' made use of the language as follows": (quoting the matter quoted above from that order).
Further reciting that appellant did spend large sums of money for these purposes which "are not included in the value of other properties either as presented to your Honorable Commission or in the valuation of other elements of property as found by your Order No. 881 fixed as value of your petitioners' property. . . . And your petitioner is now prepared and ready to submit testimony showing these facts," and ending with a prayer that the Commission fix a *Page 778 time for a hearing "upon this element of value of your petitioner's property."
The application and petition for revaluation did not bring "to the attention of the Commission the fact that it had in its second order (No. 881) failed to place a going concern value on appellant's property." It had not "failed" to do so, but had made a decision that no competent evidence of going value had been shown, nor did the appellant claim any error, but offered to "submit testimony" and asked for a hearing "upon this element of value." This petition does not amount to an application for rehearing, and does not fill any of the requirements in pointing out errors committed. It appears to concede frankly that no evidence was offered at the previous hearing of either property development or business development or going value.
I think the main opinion is in error in the statement that "The Commission construed together the application and petition for a revaluation and gave them the same effect as an application for a rehearing."
A minute entry of the Commission recites that public necessity requires a hearing upon the question of amount to be allowed appellant for going value, and fixes May 15, 1923, as the date for such hearing. It was not ordered as a rehearing. A further minute entry of May 15th recites a hearing "upon the petition of the Consumers' Company for revaluation." Order No. 960 says: "The Consumers' Company, Limited, made application for a revaluation," and proceeds to consider the evidence offered, concluding:
"After a consideration of all the elements submitted, the Commission is unable to find wherein the showing made would justify a finding that any of the items claimed should be allowed as a basis upon which 'going value' should be computed, and the Commission so finds."
C. S., sec. 2503, provides that "If a rehearing shall be granted, the same shall be determined by the Commission within 30 days after the same shall be finally submitted."
The fact that the Commission entitled this in the same case or gave it the same number is of no value or effect. *Page 779 The Commission did not treat this as an application for rehearing but as for revaluation. The matter was finally submitted May 15, 1923, and was not determined by the Commission until June 30, 1924. No application for rehearing on Order No. 960 was made at any time. July 28, 1924, appellant appealed to this court from Order No. 865, the first order fixing valuation; from Order No. 881, the order of February 6, 1923, on rehearing; and from Order No. 960, denying the revaluation on going value.
It is unnecessary to determine herein whether the appellant must of necessity, or could, make another application for rehearing as to Order No. 881, to be entitled to appeal therefrom, or what matters would be brought up by such appeal.
"A second application for a rehearing is generally refused, at least where it is made by the same party and on the same grounds as a former application that has been considered and denied. . . . ." (4 C. J., p. 640, sec. 2526.)
But it cannot be doubted that it must either appeal from Order No. 881 or make a timely application for rehearing thereon in order to appeal. Neither of these things was done. The time for taking an appeal is jurisdictional, and if an appeal or application for a rehearing must have been made, the proceedings and steps taken by appellant do not fulfil those requirements.
By C. S., secs. 2471 and 2514, the Commission has power, from time to time, to cause further hearings and investigations to be had for the purpose of making revaluation. Such hearings shall be had on the same notice, conducted in the same manner, and the findings made shall have the same force and effect as original hearings and findings. The appellant made an application for a revaluation after the time when it could file an application for rehearing or appeal from the original order. On a revaluation, only those things are to be considered which are properly presented in the application for revaluation, and the order made on such application is appealable the same as any other order, after an application is made for rehearing thereon. But certainly the making of an application for revaluation, which by statute *Page 780 is specifically provided for, does not keep alive the right to appeal from a previous order which did fix the valuation after a rehearing once had. If the time to apply for a rehearing can be permitted to run along, or the time for appeal be extended, by the fact that some time later a party makes an application for revaluation, then nothing would become final by any order, nor would an appeal, or the right of appeal, ever lapse, if such appeal could be taken from an order long since made, by simply making an application for revaluation which, as the main opinion says, was considered as an application for rehearing.
Two rules applicable to appeals from the district court seem to me equally applicable here (Sess. Laws 1921, c. 72, sec. 8): First, the time within which an appeal may be taken is jurisdictional (Glenn v. Aultman Taylor Machinery Co.,30 Idaho 719, 167 P. 1163); and, second, an appeal will not lie from an order denying a motion to reconsider or set aside a previous order which was itself appealable (State v. Griffin,4 Idaho 459, 40 P. 60). In the practice on appeals from the district court, notice of intention to move for a new trial must be given within ten days or such time as the court may grant. An appeal must be taken within the designated time. It would not be contended that an appeal from the district court could be perfected without these steps, or after the time for taking them, nor that when a judgment or other appealable order or decision was made, or a motion for new trial denied, the appellant could make a still further motion, and appeal from a second order denying the same thing.
In this case, in the rendition of the decision on rehearing, the Commission flatly denied going concern value. No appeal was taken from that, nor was any application for rehearing made, pointing out any errors in the previous ruling. The appellant simply made an application for a revaluation, stating that it was prepared to furnish proof which it had not theretofore furnished, and asked for a revaluation, — a new, or at least a supplemental, proceeding. If an application for rehearing was necessary, then, in any event, in *Page 781 this matter the appeal from the first two orders should be dismissed, for there is nothing in the record except an appeal from a disallowance of going concern value, and that only as to the last order; and as to the last order, no application has been made for a rehearing, pointing out any errors therein. Therefore, the whole appeal should be dismissed.