ON MOTION FOR REHEARING. The record shows my concurrence in a separate opinion in the result reached in the majority opinion in this case. When the motion for rehearing was passed on I had concluded that I was in error in concurring in the result and voted to sustain the motion for rehearing, and as no opinion was written in support of the court's action in overruling the motion *Page 461 for rehearing I feel constrained to state my reasons for favoring such rehearing.
The majority opinion holds and the order entered requires that respondent must approve bonds issued or to be issued under the terms of relator's first mortgages to reimburse relator for certain expenditures made more than five years prior to the date of the application filed with respondent for authority to issue same.
The Legislature has not empowered respondent to approve bond issues for expenditures for such improvements completed more than five years before the date of the application. Respondent has no powers not conferred upon it by the Legislature and this court has no power by judicial action to extend or broaden those powers and should not undertake to compel respondent to perform any act it is not empowered by the Legislature to perform.
The Legislature attempted to provide a period of grace for the approval of bonds issued to reimburse railroads for money expended out of income for certain proper purposes prior to five years before the filing of the application, if such application be filed before January 1, 1914. [Sec. 10466, R.S. 1919.] Relator was prohibited by the very terms of its mortgage and the state of its earnings from taking advantage of such period of grace. Of course, the Public Service Commission Act could not thus ruthlessly cut off relator's right to issue bonds provided for by its first mortgage antedating such enactment. Such legislation is violative of our Constitution as an impairment of existing contracts.
I think we should have denied the permanent writ, and held the issue of bonds sought by relator to be valid under the peculiar circumstances here existing without application to or order from respondent.
For these reasons, I desire to withdraw my separate concurring opinion, and to be noted as dissenting to the majority opinion, and also marked as dissenting to the action of my brethren in overruling respondent's motion for rehearing. *Page 462