(dissenting)—The record shows that the award of the arbitrator was dated July 3, 1947. The statement of Captain Peabody, arguing that there would be additional operating costs in the amount of $933,936.88, resulting from the award, was dated July 21, 1947. On the same day, July 21,1947, appellant filed in the superior court its petition for review of the proceedings before the department, alleging, among other things, that the failure to consider Captain Peabody’s statement was a denial of due process.
It should be borne in mind that no additional testimony was to be introduced following the award of the arbitrator, but merely that Captain Peabody’s statement (which was to be an argument) would be considered. The testimony was all in. At the hearing Mr. Lor dan stated:
“The evidence of the record has already closed as to basic testimony relative to hours worked and man hours and everything with respect to these boats. I take it that there would be no objection to them expressing their opinion as to what that additional award, if any, would amount to, but from this record and from the award itself, I think that computations could be made by the Department.”
The cases cited in the majority opinion are not in point as to the issue under consideration. In those cases the commissioners went outside the record and based their decision as to the facts on such information thus obtained. Naturally, such procedure deprived the appellants of due process.
Here, the appellants received notice of the hearing; they' were represented by counsel; they presented evidence and were permitted to cross-examine witnesses. Then, after the evidence was all in the department considered it and *493rendered its decision, based on the evidence alone. There was no denial of due process.
The proper procedure for the review by the courts of an order of a rate-making body is set out by the supreme court in St. Joseph Stock Yards Co. v. United States, 298 U. S. 38, 80 L. Ed. 1033, 56 S. Ct. 720, speaking through Mr. Chief Justice Hughes:
“In view, however, of the discussion in the court’s opinion, the preliminary question should be considered. The fixing of rates is a legislative act. In determining the scope of judicial review of that act, there is a distinction between action within the sphere of legislative authority and action which transcends the limits of legislative power. Exercising its rate-making authority, the legislature has a broad discretion. It may exercise that authority directly, or through the agency it creates or appoints to act for that purpose in accordance with appropriate standards. The court does not sit as a board of revision to substitute its judgment for that of the legislature or its agents as to matters within the province of either. San Diego Land & Town Co. v. Jasper, 189 U. S. 439, 446; Minnesota Rate Cases, 230 U. S. 352, 433; Los Angeles Gas Corp. v. Railroad Commission, 289 U. S. 287, 304. When the legislature itself acts within the broad field of legislative discretion, its determinations are conclusive. When the legislature appoints an agent to act within that sphere of legislative authority, it may endow the agent with power to make findings of fact which are conclusive, provided the requirements of due process which are specially applicable to such an agency are met, as in according a fair hearing and acting upon evidence and not arbitrarily. Interstate Commerce Comm’n v. Louisville & Nashville R. Co., 227 U. S. 88, 91; Virginian Ry. Co. v. United States, 272 U. S. 658, 663; Tagg Bros. & Moorhead v. United States, supra, p. 444; Florida v. United States, 292 U. S. 1, 12. In such cases, the judicial inauiry into the facts goes no further than to ascertain whether there is evidence to support the findings, and the question of the weight of the evidence in determining issues of fact lies with the legislative agency acting within its statutory authority.
“But the Constitution fixes limits to the rate-making power by prohibiting the deprivation of property without due process of law or the taking of private property for public use without just compensation. When the legislature acts directly, its action is subject to judicial scrutiny and *494determination in order to prevent the transgression of these limits of power. The legislature cannot preclude that scrutiny and determination by any declaration or legislative finding. Legislative declaration or finding is necessarily subject to independent judicial review upon the facts and the law by courts of competent jurisdiction to the end that the Constitution as the supreme law of the land may be maintained. Nor can the legislature escape the constitutional limitation by authorizing its agent to make findings that the agent has kept within that limitation. Legislative agencies, with varying qualifications, work in a field peculiarly exposed to political demands. Some may be expert and impartial, other subservient. It is not difficult for them to observe the requirements of law in giving a hearing and receiving evidence. But to say that their findings of fact may be made conclusive where constitutional rights of liberty and property are involved, although the evidence clearly establishes that the findings are wrong and constitutional rights have been invaded, is to place those rights at the mercy of administrative officials and seriously to impair the security inherent in our judicial safeguards. That prospect, with our multiplication of administrative agencies, is not one to be lightly regarded. It is said that we can retain judicial authority to examine the weight of evidence when the question concerns the right of personal liberty. But if this be so, it is not because we are privileged to perform our judicial duty in that case and for reasons of convenience to disregard it in others. The principle applies when rights either of person or of property are protected by constitutional restrictions. Under our system there is no warrant for the view that the judicial power of a competent court can be circumscribed by any legislative arrangement designed to give effect to administrative action going beyond the limits of constitutional authority. This is the purport of the decisions above cited with respect to the exercise of an independent judicial judgment upon the facts where confiscation is alleged. The question, under the Packers and Stockyards Act is not different from that arising under any other act, and wé see no reason why those decisions should be overruled.
“But this judicial duty to exercise an independent judgment does not require or justify disregard of the weight which may properly attach to findings upon hearing and evidence. On the contrary, the judicial duty is performed in the light of the proceedings already had and may be *495greatly facilitated by the assembling and analysis of the facts in the course of the legislative determination. Judicial judgment may be none the less appropriately independent because informed and aided by the sifting procedure of an expert legislative agency. Moreover, as the question is whether the legislative action has passed beyond the lowest limit of the permitted zone of reasonableness into the forbidden reaches of confiscation, judicial scrutiny must of necessity take into account the entire legislative process, including the reasoning and findings upon which the legislative action rests. We have said that ‘in a question of rate-making there is a strong presumption in favor of the conclusions reached by an experienced administrative body after a full hearing.’ Darnell v. Edwards, 244 U. S. 564, 569. The established principle which guides the court in the exercise of its judgment on the entire case is that the complaining party carries the. burden of making a convincing showing and that the court will not interfere with the exercise of the rate-making power unless confiscation is clearly established. Los Angeles Gas Corp. v. Railroad Commission, 289 U. S. 287, 305; Lindheimer v. Illinois Telephone Co., 292 U. S. 151, 169; Dayton Power & Light Co. v. Public Utilities Comm’n, 292 U. S. 290, 298.” (Italics mine.)
Here, the trial judge may not have agreed with the findings of the department. But he recognized that he had no right to substitute his judgment for that of the department, whose province it was to make this determination.
The judgment of the trial court is correct and should be affirmed.
Mallery, J., concurs with Schwellenbach, J.