Concurring. — -I concur in the conclusion, reached by the Chief Justice in this case.
The jurisdiction of the supreme court to issue the writ of certiorari is granted by the state constitution.
*59“It is settled that affirmative words in a constitution, that courts shall have the jurisdiction stated, naturally include a negative that they shall have no other.” (Lake v. Lake, 17 Nev. 230, 30 Pac. 878.)
“The legislature cannot confer upon courts jurisdiction beyond that given, or authorized to be given, them by the constitution.” (People v. McKamy, 168 Cal. 531, 143 Pac. 752.)
The principles announced in the above quotations appear to have been quite uniformly followed as the law, and as applicable to a state constitution granting jurisdiction to courts as well as to the federal constitution, since the decision in the ease of Marbury v. Madison, 1 Cranch, 137, 2 L. ed. 60, see, also, Rose’s U. S. Notes. See the case of Ex parte Cox, 44 Fla. 537, 33 So. 509, 61 L. R. A. 734, where many authorities are cited. In the case of Boggess v. Buxton, 67 W. Va. 679, 21 Ann. Cas. 289, 69 S. E. 367, it was held that the legislature had power to enlarge the scope of review in mandamus when issued by the supreme court of that state. However, the following observation of Williams, J., in his dissenting opinion in that case, seems to be well founded:
“If it be true that the legislature has power to confer original jurisdiction on this court in this case, by enlarging the writ of mandamus, as held in the majority opinion, it would necessarily follow that it has power to confer original jurisdiction in almost any case, simply by enlarging the scope of writs and remedies.”
In Stein v. Morrison, 9 Ida. 426, 75 Pac. 246, the court had under consideration its power to issue the writ of prohibition. It was held that the power granted by the constitution was the power to issue the common-law writ of prohibition. This is persuasive authority for the conclusion that the supreme court is vested by the constitution with jurisdiction to issue only the common-law writ of certiorari. (See, also, Dewey v. Schreiber Imp. Co., 12 Ida. 280, 85 Pac. 921.) While it is difficult to find an exact definition of the powers exercised under the common-law writ of certiorari, it may be stated that it is almost universally held that at common law cer*60tiorari, in civil causes, was available only to determine whether the inferior court, body or tribunal was regularly pursuing, the authority vested in it by law. The proceedings under review might be quashed in case the inferior court or tribunal was acting without or in excess of its jurisdiction, or was not exercising its authority according to the established course of law. For practical purposes our statutory writ of review may be considered as coincident with the common-law writ of certiorari. (See Whitney v. Board of Delegates, 14 Cal. 479.)
The common-law writ was directed to the inferior board or tribunal and brought up for review the record only. (Cass v. Duncan, 260 Ill. 228, 103 N. E. 280; State v. Live Oak, Perry & Gulf R. R. Co., 70 Fla. 564, 70 So. 550; In re Dance, 2 N. D. 184, 33 Am. St. 768, 49 N. W. 733.) The supreme court of this state, however, has held that the evidence may be certified to this court in cases where certain facts were necessary to the exercise of the jurisdiction to determine whether or not jurisdictional facts existed. (Sweeny v. Mayhew, 6 Ida. 455, 56 Pac. 85; Cummings v. Steele, 6 Ida. 666, 59 Pac. 15.) I think it is clear, however, that in no event can evidence be examined, under this writ, further than to determine whether the facts necessary to give the inferior tribunal jurisdiction existed or did not exist.
The judgment in certiorari, at common law, is either that the writ be quashed or that the proceedings reviewed be quashed. (11 C. J., p. 88, sec. 2; Cass v. Duncan, supra.) Under Eev. Codes, sec. 4969, the judgment may either affirm, annul or modify the proceedings below. I think, however, that the modification of the proceedings below could only consist of annulling or setting aside such portions of the proceedings as are in excess of the jurisdiction of the lower tribunal, or not according to the regular course of law.
The writ issues only to inferior courts or tribunals exercising judicial functions. There is no doubt that the public utilities commission exercises, and must, in the performance of its duties, exercise judicial functions. It cannot, of course, exercise judicial powerk This court would have power, *61therefore, to issue the writ of certiorari to the public utilities commission should a proper case therefor arise.
On account of the limited scope of review permitted under the common-law writ of certiorari, this court cannot grant all of the relief provided for in section 63 (a) of the public utilities law. (Pacific Telephone & Telegraph Co. v. Eshleman, 166 Cal. 640 Ann. Cas. 1915C, 822, 137 Pac. 1119, 50 L. R. A., N. S., 652.) The concurring opinion of Sloss, J., in that case cannot aid us in the consideration of our statute, because of the much more extended review provided for in our statute. Under section 67 of the California statute, under consideration in that case, it is provided that the findings and conclusions of the commission on questions of fact shall be final and shall not be subject to review. Under our statute the review provided for is extended to the question of whether the evidence is sufficient to sustain the findings and conclusions of the commission, including its findings and conclusions on reasonableness and discrimination. The office of the common-law writ cannot be extended to a determination of whether the evidence is sufficient to sustain the findings and conclusions of the commission while acting within its jurisdiction. This proposition requires no citation of authorities, and is generally conceded.
Section 63 (b) of our statute is as follows:
“If the Supreme Court shall decline on constitutional grounds to exercise the jurisdiction in this act specified, either generally or in any class or classes of cases or in any particular case arising under this act, then and in that event but not otherwise the district court within and for the county wherein any hearing has been had, or if had in more than two counties, the district court within and for the county where the hearing was commenced, shall have jurisdiction to issue a writ of review in the same manner, returnable within the same period, with the same effect and subject to the same limitations specified in section 63 (a)
If no provision were made for review, except that which might be had by the supreme court under the writ of certiorari which it has power to issue, it would follow that all *62orders made by the public utilities commission, within its jurisdiction, are final and conclusive and not subject to review or modification, unless subject to attack on constitutional grounds. The legislature intended that the action of the commission.should be subject to further investigation in the courts, and that the correctness of its conclusions and orders under the evidence should be inquired into. Under our constitution, as at present written, in cases in which it is desired that the propriety of the action of the commission be inquired into by the court, when the commission is acting within the scope of its jurisdiction, the writ must be issued out of the district court, which, under the constitution, may be vested with the power of review provided for in this act. This court can acquire jurisdiction in such matters only by appeals from the district courts, or the judges thereof. (Const., art. 5, sec. 9.) District courts are vested by the constitution with original jurisdiction in all cases of law and in equity, and with such appellate jurisdiction as may be conferred by law. (Const., art. 5, sec. 20.) The constitution further provides that the legislature shall regulate by law, when necessary, methods of procedure in the exercise of their powers of all the courts below the supreme court, so far as the same may be done without conflict with the constitution. (Const., art. 5, sec. 13.) Under these provisions of the constitution, the legislature may enlarge the scope of review which may be had by district courts in cases of certiorari to such extent as it deems ^advisable, or may provide for the exercise of powers incident to appellate jurisdiction in connection with what is termed a writ of review.
The writ will not issue in cases where there is an appeal, or in the judgment of the court, any other plain, speedy and adequate remedy. Section 63 (b), quoted above, authorizes a review not only as adequate as that which, could be had under a writ of certiorari issued by this court, but one wider in its scope, and provision is also made in such cases for appeal to this court. The power exists in district courts, under the act in question, its exercise being conditional upon the action of this court.
*63This being a prerogative and discretionary writ, no absolute or fixed rule, can exist by which it may be determined in every instance whether another plain, speedy and adequate remedy does exist. But the fact that, upon the determination of this court that it cannot exercise the jurisdiction provided in section 63 (a), the act itself provides for a review broader than this court could exercise in case it should issue the common-law writ of certiorari,'is a cogent reason for declining to issue the writ which this court has jurisdiction to issue. Indeed, the act appears not to authorize this court to proceed at all under section 63 (a) unless it can exercise the jurisdiction therein specified.