I concur in the result of the majority opinion. I do so for the reason that the provisions of § 12, chapter 165, Laws of 1933, p. 610 (Rem. 1934 Sup., § 10458-6 [P.C. § 5527-12]), lodge in the department of public works an arbitrary discretion in requiring the payment by some utilities of the cost of investigation and dispensing others, in whole or in part, from the obligation.
I concede the right of the state to charge, generally and ratably, the public utilities subject to regulation with the cost of maintaining the department. This has been the policy of the state for many years past. Under Rem. Rev. Stat., § 10417 [P.C. § 5637-1], public utilities are required to pay to the department of public works an annual fee of one-tenth of one per cent of their gross operating revenue. These fees are paid into a fund in the state treasurer's office known as the public service revolving fund, and out of this fund appropriations are made by the legislature for the conduct of the department.
I concede that, in addition to this uniform levy based upon a percentage of their gross receipts, the legislature can impose the cost of a particular investigation upon the utility involved, if the burden is imposed upon all alike.
Under § 12, the department may charge the whole cost of the expense of investigation to the utility in one case, and, in another, such part of the cost only as the department determines to be necessary and reasonable, thus reposing in the department a power to discriminate in favor of one as against another. The possibilities of this section are illustrated by the present case, where some utilities are charged and some exempted.
A Wisconsin statute is cited, as well as the decision of the supreme court of that state upholding it. *Page 192 The Wisconsin law, after authorizing the commission to require payment of the expenses reasonably attributed to an investigation, appraisal or service, provides that the commission may exempt and relieve such public utility, power district, or railroad from the duty of paying such expenses, or a portion thereof, but only upon a finding that the public interest requires that such public utility, power district, or railroad be thus exempted and relieved.
While having the highest respect for the supreme court of the state of Wisconsin, and appreciating the fact that the public service regulatory laws of that state have pioneered the way, I cannot escape the conclusion that such a statute violates a principle fundamental in our government. The genius of our system is opposed to the lodgment of arbitrary power in any board or officer to bind one and dispense another. Our governmental system is one in which the obligations of the citizen are to be defined by equal and known rules, and not by a standard hidden in the official breast. It has been said that ours is a government of law, and not of men. Arbitrary and unregulated power has no place in such a government.