Dissenting. — It seems to me that the construction placed on the statute by the opinion of my associate thwarts and sets at naught the intention of the legislature and renders meaningless the plain language of the statute.
Two things are made perfectly plain by sees. 48a and 48b of the act. First, that a power company that was engaged in business in the state when the act went into effect should not be required to secure permission from the commission to continue in business or to “increase the capacity” of an existing plant “and market the products thereof”; and, second, that the commission could not prevent a company going ahead and completing its plant and works and serving customers where it had secured a permit or franchise from the proper authorities prior to the utilities act going into effect and had commenced actual construction and prosecuted the same with reasonable diligence thereafter.
It is worthy of note that the statute, sec. 48a, closes with the following proviso: “Provided that power companies may, without swch certificate, increase the capacity of existing generating plants or develop new generating plants and market *266the products thereof.” And there is immediately added the following provisó in section 48b, “Provided, that when the commission shall find, after hearing that a public utility has heretofore begun actuad construction work and is prosecuting such work in good faith, uninterruptedly and with reasonable diligence in proportion to the magnitude of the undertaking, under any franchise or permit heretofore granted but not heretofore actually exercised, such public utility may proceed to the completion of such work, and may, after such completion, exercise such right or privilege.”
The foregoing scarcely admits of construction,- the layman can understand that as well as the lawyer. The majority opinion, however, seems to hold these provisos to the statute as “nugatory” and that they should be “disregarded.”
The commission itself originally took the same view of the statute I have above expressed, in a case designated as “Ashton & St. Anthony Case. No. F-5.” There the company secured a franchise from Ashton on March 18, 1913, and from Marysville April 7, 1913, which was only a short time before the utilities act went into effect. The company did some trivial work on its power site a couple of miles outside of the city prior to the going into effect of the utilities act. The commission held that, “Under this clause of the statute and under the facts so found, it would seem that the Ashton & St. Anthony Power Company, Limited, may proceed to the completion of its work and may after such completion exercise the rights and privileges granted to it by these franchises. It would appear from the statute and from such findings that no certificate of public convenience and necessity is required from the commission in order that the applicant company may proceed to the completion of its works, and after such completion may exercise the rights and privileges granted by the franchises aforesaid.” The commission appears to have receded from the view there expressed in the present ease.
Let us now see what the facts are in the case under consideration. In 1908 the predecessor of the plaintiff secured from the state engineer a permit for the diversion of 1,000 *267second-feet of water from the Malad river in what is now Gooding county. That work has been prosecuted diligently ever since and diversion works have been constructed and power plants erected so that about 7,500 horse-power has been developed and utilized, and approximately 20,000 horsepower can be developed under this permit and diversion; that in the construction of diversion works and power and generating plants, $600,000 has been expended, and the total expenditure made by the company in constructing diverting works, power and generating plants and transmission and distribution lines aggregates about $1,500,000. It is claimed that more than one million of this investment had been made when the utilities act was passed. Prior to the time the utilities .commission was created by act of the legislature, plaintiff’s predecessor, the Beaver River Light & Power Company, had constructed a transmission line from the power plant on the Malad river by way of Glenns Ferry and Mountainhome to Boise, a distance of something like 86 miles, and was theii furnishing light and power in Boise City and towns along the course of the transmission line. The stipulation shows that even all these points did not consume all the electricity that plaintiff was then prepared to generate, and it had not yet developed more than about one-third of its waterpower possibilities under its permit from the state and the diversion made thereunder. In the meanwhile, many other towns were much closer to its power and generating plant than Boise and other towns already supplied, Twin Falls being only thirty miles away. It is also stipulated that the plan of development and purpose of plaintiff and its predecessor is and has been to develop the entire available power of the Malad river as rapidly as possible and as fast as the terms of their water permit would require, and to seek a market for the product of the plants.
The utilities act went into effect on May 8, 1913, and prior to that date the plaintiff’s predecessor, the Beaver River Power Company, secured a franchise from the city of Twin Falls to construct transmission lines through the city and to deliver light and power to the city and its inhabitants, but *268had not commenced any actual construction work within the city limits.
It is admitted, however, that it was already equipped with a sufficient plant to supply all the electricity that would be needed or could be used at this place. In the meanwhile, the Great Shoshone and Twin Falls Water Power Company was supplying electricity to Twin Falls and neighboring towns.
Now, the question arises: Did the legislature, when writing and enacting into law the above-quoted sections of the statute, intend to permit the utilities commission to exclude either one of these companies, or any company already in the field, from continuing to operate and seek a market for its products? To my mind, it is clear that the legislature intended to allow them to continue to operate and seek every available market for the products of their plants to the extent of the full capacity of their power and generating possibilities and to confer on the commission plenary power to regulate the service and fix rates. The chief thing the legislature had in mind toas to confer the power to regulate ptiblic service corporations and 'fix rates to be charged consumers. They had no idea of discriminating between public service companies already in the field with their money invested and plants in operation; neither did they intend to make a pet monopoly out of one and wreck another that already had hundreds of thousands in cash invested■ in the state. I cannot conceive that lawmakers attempting to legislate for the people of the state could have meant any such thing, and it seems to me that they made it very, plain by the above-quoted provisos that they did not intend such a thing.
It is said that because the plaintiff company had not commenced work within the corporate limits of Twin Falls, it had not done any work under its franchise. That is like saying that the man who shoves his hand through the window and takes your coat off the hook didn’t steal the coat from your dwelling-house because the motive and will power were outside the house.
yke don’t generally have great water-power sites in the city. We rather have to go out and build power and generating *269plants where the streams flow and then convey the current long distances over transmission lines to places of consumption, and we find the bulk of consumers in the town and cities. The diversion of the water and construction of plants at. the power site is as much a part of the work of supplying a city and its inhabitants with light and power as is the building of distributing lines. Again, it would seem to me that a plant large enough to generate current for transmission 86 miles to supply a city of twenty-five or thirty thousand people is certainly within the "same “field” of operation comprising a city of nine or ten thousand that is only thirty miles distant.
Again, it would be the height of folly-to say they can enlarge or increase existing plants and generate more electricity and still they cannot build more transmission or distributing lines but must carry the additional load and distribute it over- existing lines or not at all. The mere statement of such a proposition refutes the claim. New and additional consumers must be served over other and different lines.
The fact that the plaintiff, Idaho Light & Power Company, had not filed an acceptance of the terms of the ordinance granting it a franchise prior to the time the utilities act took effect is without shadow of merit. That the franchise was granted on the company’s application was itself an acceptance and would bind it to the terms of the ordinance granting the same so long as the ordinance provided the exact terms proposed by the company soliciting the franchise. It is well settled that doing work'under the terms of a franchise is an acceptance of its terms and conditions. (City of Allegheny v. People’s Natural Gas Co., 172 Pa. 632, 33 Atl. 704, 705; City Railway Co. v. Citizens’ Street R. R. Co., 166 U. S. 557, 17 Sup. Ct. 653, 41 L. ed. 1114, 1118; Lincoln & Kennebec Bank v. Richardson, 1 Greenl. (Me.) 79, 10 Am. Dec. 34; Illinois River R. Co. v. Zimmer, 20 Ill. 654; City of Atlanta v. Gate City Gas Light Co., 71 Ga. 106, 117; State v. Dawson, 22 Ind. 272, 274.)
*270If the utilities act is valid and constitutional, then there can be no question about the right of the commission to regulate the service of the plaintiff and all other like concerns and to fix the rates it may charge, but it has no right to exclude it from the field and grant its competitor an exclusive monopoly of the business.
Entertaining, as I do, the opinion of this case just expressed, it would be useless for me to enter into any discussion as to the constitutional questions presented, and I accordingly refrain from any consideration of that phase of the ease, or the expression of any opinion thereon.
It has been iterated and reiterated by counsel for the state and counsel for the utilities commission, and also by counsel for both corporations here represented, that the public utilities act of this state does away with competition in Idaho so far as all public service corporations are concerned, and that it provides for the creation of monopolies in all public utilities regulated by a commission. The opinion by Mr. Justice Sullivan adopts the same view and asserts that this statute provides for regulated monopolies. I cannot concur in all the views advanced on this phase of the question, but I Ihink it well that the construction to be placed on this law is made plain so the people may know and understand the scope and purpose of the law as viewed by the court and the utilities commission.
What I have said with reference to the Twin Falls case is equally applicable to the Pocatello case. There it was proposed to generate electricity by means of a Diesel Internal Combustion oil engine, and a franchise was procured from the city prior to the utilities act going into effect, and plans and specifications were made and the company paid for publication of the ordinance and did some preliminary work in the way of investigations and survey of the field. Thereafter, and prior to commencement of proceedings before the commission, the company ordered and had constructed a 500 horse-power engine, which it installed in the city of Pocatello, and all together incurred an expense of about $50,000, and still in the face of this state of facts, the utilities com*271mission contend that they have the power to exclude this company from supplying light or power to the people of Pocatello. I repeat that the commission has the undoubted power to fix the rates to be charged by this company and to regulate the service by it, but the legislature never dreamed of vesting the commission with the power to exclude the company from serving the people of Pocatello under these conditions and to confer a monopoly on the company already there.
The order of the commission is clearly erroneous and ought to be vacated and set aside.