Dissenting. — The attorney general filed with the public utilities commission a complaint, in which it was alleged that the plaintiffs were common carriers engaged in operating a ferry upon the waters of Snake River for compensation, but that they failed and refused to furnish adequate facilities for the use of the public or to serve the public as common carriers. The plaintiffs answered the complaint, denying that they were common carriers and admitting.that they failed and refused to furnish facilities to serve the public in the use of the ferry, and setting out affirmatively that the ferry owned and operated by them had always been a private means of transportation, that it would be unlawful for them to operate a public ferry at the place where they crossed Snake River, since they and their predecessors had obtained no franchise or license to operate a public ferry, as required by Rev. Codes, sec. 1045; that there was no public approach or public highway either to or from the landing; that to compel them to operate as a common carrier would amount to confiscation of their property, since there is not sufficient business to warrant the necessary expenditure involved in doing so.
Upon a hearing had before the commission, the following order was made:
“It is therefore ordered, That the defendants, .... owners of that certain ferry across the Snake River, in the State of *64Idaho, .... be required to furnish such facilities and perform such services as may be requisite and necessary to meet all just and reasonable demands which may be made in the use of said ferry, and forthwith to file with the Public Utilities Commission of the State of Idaho a schedule of rates and charges for the transportation of persons and property thereon.”
This proceeding was brought for the purpose of reviewing by writ of certiorari the decision and order above set out, as provided in sec. 63(a) of thé Public Utilities Act.
.Upon the argument of this cause, the only question submitted to. thii? court for its decision was whether plaintiffs were operating a public utility, but after the cause had been submitted, and taken under advisement,' questions involving the constitutionality of various sections of the Public Utilities Act were submitted to counsel.
The majority opinion appears to take the position that sec. 63(a) is unconstitutional, being in contravention of art. 5, see. 9, of the constitution; and that the relief sought cannot be obtained under the constitutional writ, for the reason that that writ cannot be issued because there is a plain, speedy and adequate remedy at law.
Section 63(a) is as follows:
• “Sec. 63(a). Within thirty days after the application for a rehearing is denied, or if the application is granted, then within thirty days after the rendition of the decision on rehearing, the applicant” may apply to the Supreme Court of this State for a writ of certiorari or review (hereinafter referred to as a writ of review) for the purpose of having the lawfulness of the original order or decision or the order or décision on rehearing inquired into and determined. Such writ shall be made returnable not later than thirty days after the date of the issuance thereof, and shall direct the Commission to certify its record in the case to the court. On the return day, the cause shall be heard by the Supreme Court, unless for a good reason shown the same be continued. No new or additional evidence may be introduced in the Supreme Court, but the cause shall be heard on the record of the *65Commission as certified by it. The review shall not be extended further than to determine whether the Commission has regularly pursued its authority, including a determination of whether the order or decision under review violates any right of the petitioner under the Constitution of the United States or of the State of Idaho and whether the evidence is sufficient to sustain the findings and conclusions of the Commission. The findings and conclusions of the Commission on questions of fact shall be regarded as prima facie just, reasonable and correct; such questions of fact shall include ultimate facts and the findings and conclusions of the Commission on reasonableness and discrimination. The Commission and each party to the action or proceeding before the Commission shall have the right to appear in the review proceeding. Upon the hearing the Supreme Court shall enter judgment either affirming or setting aside the order or decision of the Commission. The provisions of the Code of Civil Procedure of this State relating to writs of review shall so far as applicable and not in conflict with the provisions of this Act, apply to proceedings instituted in the Supreme Court under the provisions of this section; Provided, That the writ of mandamus shall lie from the Supreme Court to the Commission in all proper cases.”
Art. 5, sec. 9, of the constitution is as follows:
“See. 9. The Supreme Court shall have jurisdiction to review upon appeal, any decision of the District Courts, or the Judges thereof. The Supreme Court shall also have original jurisdiction to issue writs Of mandamus, certiorari, prohibition and habeas corpus, and all writs necessary or proper to the complete exercise of its appellate jurisdiction.” It is insisted that sec. 63(a) seeks to broaden and extend the scope of the writ of certiorari, thereby attempting to confer upon this court jurisdiction in excess of that conferred by the constitutional provision above quoted; and that the writ of certiorari mentioned in the constitution must be held to be the writ as defined and limited by the Revised Statutes of the Territory of Idaho, 1887, secs. 4961, 4962 and 4968. The case of Stein v. Morrison, 9 Ida. 426, 75 Pac. 246, is cited, *66and an analogy drawn between the scope of the writs of prohibition and certiorari. From my examination of Stein v. Morrison, I am unable to see wherein this analogy supports the reasoning of the majority opinion. A similar contention was made in the earlier case of Williams v. Lewis, 6 Ida. 184, 54 Pac. 619, and this court in that case held that art. 5, sec. 9, of the constitution, in providing for the issuance of writs of prohibition, contemplated the issuance of such writs with the functions declared and defined under the existing territorial laws, but the later ease of Stein v. Morrison overruled the case of Williams v. Lewis, and it was expressly held that the writ of prohibition authorized by the constitution is the common-law writ. Following the same reasoning, we should reach the conclusion that the writ of certiorari provided in the constitution is also the common-law writ.
The rule stated in the majority opinion was followed substantially by the supreme court of California in People ex rel. Church v. Hester, 6 Cal. 679, but the Hester case was expressly overruled on this point, and it was held that the California statute, from which our territorial statute was taken, was affirmatory of the common law (Whitney v. Board of Delegates, 14 Cal. 479, decided in 1860), and this was the rule recognized in California at the time our statute was adopted. s It is, therefore, apparent that the writ of certiorari is the common-law writ.
The majority opinion recites that no ease has been examined which gives the writ such a broad scope as is contemplated by see. 63(a): The latter section, however, falls far short of being so broad and extensive as the writ known to the common law. (See Commonwealth v. Balph et al., 111 Pa. St. 365, 3 Atl. 220, where the scope of the writ is elaborately reviewed.)
The language of sec. 63(a), supra, which is suggested as extending the' scope of the writ, is that part reading as follows:
“ .... including a determination of whether the order or decision under, review violates any right of the petitioner under the Constitution of the United States or the Constitu*67tion of the State of Idaho, and whether the evidence is sufficient to sustain the findings and conclusions of the Commission. ’ ’
The majority opinion in support of its holding cites the case of Pacific Telephone & Telegraph Co. v. Eshleman, 166 Cal. 640, Ann. Cas. 1915C, 822, 137 Pac. 1119, 50 L. R. A., N. S., 652, and while it is true that the opinion of Henshaw, J., would seem to support that view, a careful examination of the whole case reveals the fact that no such principle of law can be regarded as established by the decision. Sloss, J., who wrote the concurring opinion, a portion of which is also quoted in the majority opinion herein, expressly took the view that sec. 67 of the California act — substantially the same as our sec. 63(a), supra — did not extend the scope of the writ or the jurisdiction of the court thereunder, as vested in the court by the constitution, and pointed out that in so far as questions raised should relate to the jurisdiction of the commission the court might necessarily have to determine whether an order deprived a party of any right secured to him by the constitution of the United States or of that state, and that the court would possess the same power to issue the writ, and that the hearing upon the writ after it was issued would have the same scope under the constitutional provision, whether sec. 67 had been written into the act or not. It should be noticed that two of the justices, Lorigan and Melvin, concurred in the views of Henshaw, J., and two of the justices, Shaw and Angellotti, agreed with the views of Sloss, J., so that upon this question the California court was equally divided, and it is the established rule in California, “that any proposition or principle stated in an opinion is not to be taken as the opinion of the court unless it is agreed to by at least four of the justices.” (Delmar Water, Light & Power Co. v. Eshleman, 167 Cal. 666, 140 Pac. 948.) The latter quotation is from an opinion on rehearing, where it was held that an opinion written in the case on original hearing as a concurring opinion “contains the only propositions which are to be considered as decided,” for the reason above given. It is apparent, therefore, that the case relied upon *68by the majority opinion does not hold, and cannot be regarded as authority for the proposition that sec. 67 of the California act — substantially the same as sec. 63(a) of our own act — enlarges the scope of the writ of certiorari or the jurisdiction of the court under the writ.
An examination of the language of sec. 63(a), supra, convinces me that the criticism thereof does not rest upon sound principles of statutory interpretation. The provision that “the review shall not be extended further than to determine whether the commission has regularly pursued its authority” is admittedly proper, as that is the language of sec. 4968, in existence at the time the constitution was adopted, and it is well settled that the clause “whether it has regularly pursued its authority” is the equivalent of “whether it has exceeded its jurisdiction.” (Concurring opinion of Sloss, J., in Pacific Telephone & Telegraph Co. v. Eshleman, supra; Central P. R. Co. v. Board of Equalization, 43 Cal. 365; Quinchard v. Alameda, 113 Cal. 664, 45 Pac. 856.)
And so as to the language under criticism, in determining whether or not the commission has exceeded its jurisdiction, the court will determine whether the order or decision under review violates any right of the petitioner under the federal or state constitutions, and this determination under the plain language of the section is to be confined solely to its bearing upon the question of whether the commission has exceeded its •jurisdiction. Upon this point, reference is again made to the concurring opinion of Sloss, J., supi'a. So, also, as to the last clause under criticism, to the effect that in determining whether the commission has exceeded its jurisdiction, the court may examine the evidence to determine if it is sufficient to sustain the findings and conclusions of the commission. This examination of the sufficiency of the evidence, in connection with the findings and conclusions, is clearly limited by the language of the act to its bearing upon whether the commission has exceeded its jurisdiction. This is not a new principle, but is one which has been repeatedly asserted by this court in its decisions upon certiorari, and this court has held that it may review the evidence at least in so far as it is *69essential to determine the jurisdictional question. (Sweeney v. Mayhew, 6 Ida. 455, 56 Pac. 85; First National Bank of Weiser v. Washington County, 17 Ida. 306, 105 Pac. 1053; Lansdon v. State Board of Canvassers, 18 Ida. 596, 111 Pac. 133; Salt Lake City v. Utah Light & Traction Co. (Utah), 173 Pac. 556.)
This jurisdiction to review the evidence essential to determine the jurisdictional question is full and complete, and no finding of the commission with respect to a jurisdictional question is binding upon this court. The purpose of the writ is to ascertain, first, whether the commission had any jurisdiction ; second, whether it exceeded its jurisdiction if it had any. If this court is to be bound by the findings of the commission upon the question of jurisdiction, one of the prime objects of issuing the writ would be eliminated entirely from our consideration. This question, it seems to me, has been put to rest by the supreme court of California, in the Whitney case, supra, where the court said:
“ .... the cases are numerous to the effect that the review may be extended to every issue of law and fact involved in the question of jurisdiction, and that not only the record, but the evidence itself, when necessary for the determination of this question, must be returned. The latter is the more reasonable, and, we think, the true rule. The reasons upon which it is founded are well stated by the Court of Appeals of New York, in the case of The People ex rel. Bodine v. Goodwin (1 Selden [5 N. Y.] 568). The ease arose under a statute of that State, by which the Commissioners of Highways were empowered, under certain circumstances, to lay out and open roads, but were prohibited from opening a road through any building without the consent of the owner. The question was, whether the Court could, upon a common law certiorari, review the evidence upon an issue in the case, as to whether the consent of the owner had in fact been obtained; and it was held, that as this was a jurisdictional fact, the existence of which was absolutely essential to give any validity to the proceedings of the Commissioners, the evidence in relation to it was properly returned, and was entitled to be *70considered-. ‘Neither the Commissioners of Highways,’ said the Court, ‘nor the referees on appeal from their decision, have power to lay out a road, public or private, through any building without the consent of the owner. There was a barn standing on the land laid out for the highway in controversy; and unless the owner’s consent was given that the highway should be so laid out, the referees in laying it out acted without authority, and their proceedings were void for want of jurisdiction. Inferior magistrates, when required by writ of certiorari to return their proceedings, must show affirmatively that they had authority to act;. and where, as in the present case, their authority and jurisdiction depend upon a fact to be proved before themselves, and such fact be disputed, the magistrate must certify the proofs given in relation to it, for the purpose of enabling the higher Court to determine whether the fact be established. The decision of the magistrate in relation to all other facts is final and conclusive, and will not be reviewed on a common-law certiorari. But the main object of this writ being to confine the action of inferior officers within the limits of their delegated powers, the reviewing Court must necessarily re-examine, if required, the decision of the magistrate on all questions on which his jurisdiction depends, whether of law or of fact. The evidence, therefore, to prove the consent of the" owner of the land to the laying out of the road was properly stated in the return, and is properly examinable here.’ In view of the great conflict of authority upon this subject, we content ourselves with the expression of our concurrence in the reasoning and conclusions of the Court in that case.” (Whitney v. Board of Delegates, 14 Cal. 479 at 500.)
See, also, on this point, In re Dance, 2 N. D. 184, 33 Am. St. 768, 49 N. W. 733, and cases cited in note to Whitney v. Board of Delegates, Book 5, Pac. St. Rep. 718.
It is apparent, then, that sec. 63(a), supra, does not extend or enlarge the jurisdiction of this court, and, therefore, does not contravene the constitutional provision referred to in the majority opinion, viz., art. 5, sec. 9.
*71In the majority opinion the question is propounded:
“Does see. 63(a) of the public utilities act seek to broaden and extend the scope of the writ of certiorari, thereby rendering it a different writ than that recognized and understood when jurisdiction to issue it was conferred upon this court, and if so, does it for that reason conflict with art. 5, sec. 9, of the constitution?”
There is but one writ of certiorari, and that is the constitutional writ, and the constitutional investiture of jurisdiction to issue it is a limitation upon the power of the legislature and in the nature of a grant of power to the courts. Sec. 63(a) is descriptive of the writ, but neither adds to nor detracts from the power of the court. Should it become necessary, the entire section may be disregarded, and the constitutional right to issue the writ, and the powers thereunder, would be neither curtailed nor enlarged. (Public Service Gas Co. v. Board of Public Utility Commrs., 87 N. J. L. 597, 92 Atl. 606, 94 Atl. 634, 95 Atl. 1079, L. R. A. 1918A, 421.)
This is a proceeding in certiorari, and not an appeal, and is brought" for the sole purpose of determining whether the public utilities commission exceeded its jurisdiction. There is no appeal provided by statute from an order or decision of the public utilities commission. Neither is the writ mentioned in sec. 63(a) in the nature of an appeal. While it is true that this court in the case of Idaho Power Co. v. Blomquist, 26 Ida. 222, at 256, Ann. Cas. 1916E, 282, 141 Pac. 1083, 1094, said: “This court is there [referring to sec. 63(a)] given substantially the same authority in reviewing such orders as on appeal, ’ ’ the language there used is clearly obiter dictum, as such a holding was not essential to a decision of the case, nor necessarily involved in the conclusion reached.
If, as insisted in the majority opinion, this court is without jurisdiction to issue the writ prayed for, and has no authority to issue the constitutional writ because plaintiffs have a plain, speedy and adequate remedy at law, it becomes necessary to determine whether there is a plain, speedy and adequate remedy at law, of which plaintiffs may avail them*72selves. Since I have reached the conclusion that there is but one writ, viz., the constitutional writ, and that this court has power to issue the writ for the purpose herein stated, it wiE be necessary to determine whether the plaintiffs have a plain, speedy and adequate remedy at law.
The examination into the jurisdictional questions on certiorari or review is limited to eases where there is no appeal, nor in the judgment of the court any plain, speedy and adequate remedy. The first clause may be eliminated from consideration, for it cannot be successfully contended that any appeal from the orders of the public utilities commission has been provided. Is there any plain, speedy and adequate remedy? The majority opinion takes the position that there is an adequate remedy, for the reason that whenever the commission begins an action in the district court to enforce its orders, the utility may defend its rights and have them determined, and further that untü such an action is commenced no remedy is needed.
If it wei’e established in an action to enforce the. commission’s order that the commission had jurisdiction, then, under the sections of the statute hereafter cited, and without now passing on the legality of the same, the company would not only be required to obey the order of the commission, but, under the provisions of sec. 72(a) of the act, would subject itself to a penalty of “not more than $2,000 for each and every offense,” and under the provisions of sec. 72(b) every violation is a separate and distinct offense, and “in case of a continuing violation each day’s continuance thereof shall be and be deemed to be a separate and distinct offense.” The law further provides that “every officer, agent or employee of any public utility who violates or fails to comply with, or who procures, aids or abets any violation by any public utility,” etc., “is guilty of a misdemeanor and is punishable by a fine not exceeding one thousand dollars, or by imprisonment in a county jail not .exceeding one year, or by both such fine and imprisonment.”
It would seem to be apparent that the so-called remedy which the utiEty has by way of defense — and the same penal*73ties might apply to a small as well as a large operator of a public utility — is beset by such dangers^ in case the decision or order of the commission should be ultimately upheld, that as a practical matter no utility, or no officer or agent of such utility, would dare question or disobey an order of the commission in the first instance. Can it be said, then, that a utility has a plain, speedy and adequate remedy, when such remedy can only be had by way of defense to an action brought against the utility, and when, if the case were decided adversely to it, both the utility and its officers and agents might thereby be subjected to enormous fines and imprisonment, incident to testing the rightfulness of the commission’s order or decision? To decide this in the affirmative, would be virtually to deprive a utility of the power to test the lawfulness of the commission’s order or decision, and to give the commission unlimited power, which was clearly not intended by the act. (Wadley Southern Ry. Co. v. Georgia, 235 U. S. 651, 35 Sup. Ct. 214, 59 L. ed. 405, see also, Rose’s U. S. Notes.)
While, upon the other hand, should the public utilities commission authorize a utility to establish and collect exorbitant rates for services rendered the public, the delays in bringing about a correction of the wrong thus imposed would result in unnecessary hardships to the patrons of the utility, which would necessarily follow if the procedure indicated in the majority opinion is correct. The very purpose of the utilities act was to bring about a speedy and final determination of all disputed matters that might arise between utilities and the patrons thereof.
“It is a rule of general application that certiorari is not an appropriate remedy if efficient relief can be, of could have been, obtained by a resort to other mailable modes of redress or review.” (6 Cyc. 742.) It cannot be said that the remedy by way of defense is available to the utility. It is not a remedy which may be asserted affirmatively against the commission, but is contingent on the aetion of the commission in enforcing such order.
*74“So too where such other remedy is inadequate, and more expeditious and efficient relief can be afforded by this writ, it may be granted, although another mode of redress is available.” (6 Cyc. 745.)
The rule is stated by the supreme court of Missouri in the following language:
“An adequate remedy is a remedy which is equally beneficial, speedy and sufficient, not merely a remedy which at some time in the future will bring about a revival of the judgment in the lower court complained of in the certiorari proceeding, but a remedy which will promptly relieve the petitioner from the injurious effects of that judgment and the acts of the inferior court or tribunal. (People ex rel. v. Commissioners, 66 How. Pr. (N. Y.) 293; Kirby v. Superior Court, 68 Cal. loc. cit. 605, [10 Pac. 119]; Havemeyer v. Superior Court, 84 Cal. loc. cit. 398, [18 Am. St. 192, 24 Pac. 121, 10 L. R. A. 627]; People ex rel. v. Head, 25 Ill. 325; King v. Railroad, 2 B. & Ald. 646; People v. Mayor, 10 Wend. (N. Y.) 395; People v. State Ins. Co., 19 Mich. loc. cit. 396; North Alabama Dev. Co. v. Orman, 71 Fed. 764, [18 C. C. A. 309]; Memphis & C. R. Co. v. Brannum, 96 Ala. 461, [11 So. 468] ; State ex rel. v. Elkin, 130 Mo. 90, [30 S. W. 333, 31 S. W. 1037]; State ex rel. v. Rost, 49 La. Ann. 1454, [22 So. 421] ; State ex rel. v. Hirzel, 137 Mo. 447, [37 S. W. 921, 38 S. W. 961]; State ex rel. v. Aloe, 152 Mo. 466, [54 S. W. 494, 47 L. R. A. 393], and many other authorities.” (State ex rel. Hamilton v. Guinotte, 156 Mo. 513, 57 S. W. 281, 50 L. R. A. 787, and note. See, also, State ex rel. Garth v. Switzler, 143 Mo. 287, 65 Am. St. 653, 45 S. W. 245, 40 L. R. A. 280.)
The purpose of the utilities act was to regulate public utilities, to avoid unnecessary delay in the interest of public service, and to grant speedy and adequate relief from oppressive orders of the commission. All orders of the commission vitally affect both the public and the utility. While the commission, under the act, has authority to bring an action to enforce its orders or decrees, there is no like remedy to which a utility may affirmatively resort to determine whether *75the orders of the commission are lawful and binding. Should the commission find that a utility absolutely refused to serve the public or a portion thereof, or in serving the public charged an exorbitant and unreasonable rate, to deny the utility the authority to make application to this court for writ of certiorari, and deny this court the power to issue the writ and review the proceedings of the commission for the purpose herein indicated, would be a denial of a speedy and adequate remedy to the public and to the utility as contemplated by the act.
It will be remembered that the constitutionality of the act creating the commission is not involved, but the. original jurisdiction of this court to review the orders and decisions of the commission in a proceeding in certiorari is questioned. It is insisted in the majority opinion that this court is without authority to issue the writ defined in the act or to review the proceedings of the utilities commission for the purpose of determining its jurisdiction, by writ of certiorari, and it is suggested that the right to review the orders and decisions of the public utilities commission is vested in the district court in the first instance. This may or may not be true. The question of the jurisdiction of the district court is not before us in this proceeding for determination.
Upon another phase of the ease, the majority opinion says:
“The questions presented to the Public Utilities Commission and here sought to be reviewed are: Were plaintiffs common carriers engaged in operating a ferry; could they lawfully operate a public ferry; would an order compelling them to operate a public ferry amount to a confiscation of their property ?
“These are purely judicial, not legislative nor administrative, questions, and can only be adjudicated in a court invested with judicial powers. The Public Utilities Commission is not such a court. All of the judicial power of the State is vested in ‘A court for the trial of impeachments, a supreme court, district courts, probate courts, courts of justices of the peace, and such other courts, inferior to the *76supreme court, as may be established by law, for any incorporated city or town.’ Const., Art. 5, See. 2.” j
While it is true that the determination of these questions necessitates the exercise of judicial functions, they are questions which the public utilities commission must determine, and in their determination the commission must ex necessitate act in a judicial manner, but these questions are all preliminary so far as the administrative function of the commission is concerned, viz., the ascertainment -of what is reasonable service and what are reasonable rates, and the entering of the commission’s order calculated to carry these ultimate findings into effect. The investiture of all the judicial power of the state in the certain designated courts does not to any extent militate against the necessary exercise of such judicial functions as are involved in the determination of these preliminary questions, but the fact that the commission does exercise judicial functions clearly gives this court jurisdiction to intervene and to supervise and control, in a proceeding upon certiorari, the acts of the commission, whenever that body acts either without or in excess of its jurisdiction.
The authorities are many and well considered that judicial functions may be exercised by bodies possessing no judicial power whatever, and no attempt will be made to make an exhaustive citation of the authorities so holding. One of the leading cases is Drainage Dist. Commrs. v. Griffin et al., 134 Ill. 330, 25 N. E. 995, where many instances are given.
The distinction between an investiture of judicial power and the exercise of a judicial function was pointed out by the supreme court of the United States in an early case, where the court said:
“The powers conferred by these Acts of Congress upon the judge as well as the Secretary, are, it is true, judicial in their nature. For judgment and discretion must be exercised by both of them. But it is nothing more than the power ordinarily given by law to a commissioner appointed to adjust claims to lands or money under a treaty; or special powers to inquire into or decide any other particular class of con*77troversies in which, the public or individuals may be concerned. A power of this description may constitutionally be conferred on a Secretary as well as on a commissioner. But it is not judicial in either case, in the sense in which judicial power is granted by the Constitution to the courts of the United States.” (United States v. Ferreira, 13 How. 40, 48, 14 L. ed. 42, at 45, see, also, Rose’s U. S. Notes.)
In an early case, this court expressly held that:
“The state board of equalization, in exercising the functions conferred upon it by law, was exercising judicial functions. (People v. Goldtree, 44 Cal. 323; Mayor v. Comptroller, 92 N. Y. 604).” (Orr v. State Board of Equalization, 3 Ida. 190, 28 Pac. 416.)
The latter case was quoted as authority by the supreme court of Alabama in a recent case. In the Alabama ease a contention, identical in principle with the position taken by the majority opinion herein, was made, based upon sec. 43 of the Alabama constitution, which provides that:
“43. In the government of this State, except in instances in this constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.”
The court said:
“It must be noted that the State Tax Commission have the authority 'to set aside a final assessment made by the commissioners ’ court, and in doing this there is no invasion by one department of the state of the province of another, as prohibited by section 43 of the Constitution. If the act of the board of revenue or commissioners’ court in fixing the valuation is a judicial act, then the act of the state board in vacating same and reassessing the property is also a judicial act. On the other hand, if we concede the appellee’s contention that the action of the state board is not judicial, but is a ministerial act of legislative or executive character, the eon-*78cession would put the petitioner .... out of court..... We think, however, that the action of both boards is judicial in character, and that the Legislature is not prohibited by section 43 of the Constitution from authorizing one to'revise, review, or annul the action of the other, and this authority is given the State Tax Commission with reference to all other subordinate boards or officers charged with the duty of assessing taxes and valuing property. ‘The State Board of Equalization, in exercising the functions conferred upon it by law, is exercising judicial functions.’ Orr v. State, 3 Ida. (Hasb.) 190, 28 Pac. 416.” (State Tax Commission et al. v. Bailey & Howard, 179 Ala. 620, 626, 60 So. 913, at 915.)
The writ was entertained by this court in a proceeding against the state wagon road commissioner. (Dunn v. Sharp, 4 Ida. 98, 35 Pac. 842.)
And in McKnight v. Grant, 13 Ida. 629, at 637, 121 Am. St. 287, 92 Pac. 989, 990, this court made use of the following pertinent language:
“On the other hand, section 13, of article 5, of the constitution was never intended to prohibit other departments of the state government than the judicial from exercising some judicial or quasi judicial functions. We think by this provision it was rather intended to preserve to the judicial department of the state government the right and power to finally determine controversies between parties involving their rights and upon whose claims some decision or judgment must be rendered or determination made. (23 Cyc. 1613-1623, and notes; In re Saline Co. Subscription, 45 Mo. 52, 100 Am. Dec. 337; De Camp v. Archibald, 50 Ohio St. 618, 40 Am. St. 692, 35 N. E. 1056; In re Walker, 74 N. Y. Supp. 94, 68 App. Div. 196; State v. Le Clair, 86 Me. 522, 30 Atl. 7; Century Dictionary, ‘Judicial Power.’) It is a matter of common knowledge to every student of the law that in this country, notwithstanding this constitutional provision to be found in all the states, nevertheless almost every executive, ministerial and administrative officer has, in many instances, to exercise judgment and discretion of a quasi judicial nature, and yet the citizen or party who may deem himself aggrieved thereby *79still has his remedy in the courts. No one has claimed, however, that such officers may not exercise those necessary powers in the discharge of their duties. The exercise of such power is in no respect an invasion of the judicial power reserved to the courts by the constitution.”
While the court in the latter case had under consideration sec. 13 of art. 5, the principle involved is identical with the one discussed by the majority opinion in connection with sec. 2 of art. 5. x
In every case before the public utilities commission, it must, in the first instance, determine from the evidence before it whether the utility with which it is seeking to deal is a public utility, for unless it be a public utility, the commission is without any jurisdiction over it whatsoever, and this determination can only be made by the exercise of judicial functions. The importance of this fact in connection with our jurisdiction under the writ of certiorari, and the extent to which our supervision upon this jurisdictional question must extend, has already been sufficiently considered.
The Public Utilities Act was held constitutional by this court in Idaho Power Co. v. Blomquist, supra, a proceeding brought and disposed of in this court under see. 63(a). Similar proceedings have been instituted and jurisdictional questions involved in orders of the public utilities commission reviewed under this section in Federal Mining & Smelting Co. v. Public Utilities Commission, 26 Ida. 391, 143 Pac. 1173, L. R. A. 1917F, 1195; Murray v. Public Utilities Commission, 27 Ida. 603, 150 Pac. 47, L. R. A. 1916F, 756; Coeur d’Alene v. Public Utilities Commission, 29 Ida. 508, 160 Pac. 751.
While it is true, as stated in the majority opinion, “that the constitution may only be amended in the manner therein provided for, and that its mandates are obligatory upon this court, even though some of them have been for a time overlooked, and, therefore, disregarded”; still entertaining as I do the views herein expressed, I am unable to see wherein the statement quoted, applies to this ease. In issuing the writ, we are well within the constitutional investiture of power m *80this court, and we owe the same duty to preserve the constitutional powers of this court that we owe to the enforcement of any other constitutional provision, and for my part I am unwilling that this court should voluntarily surrender any of its constitutional authority.
For the reasons above given, I am of the opinion that this ease should not be dismissed, but is here for examination and determination upon every jurisdictional question presented, and that it is the duty of this court in pursuing its investigation to go fully into the record and the evidence bearing upon the jurisdictional question, whether or not the utility in question is in fact a public utility, for if the plaintiffs are not in [act operating a public utility, the commission is wholly without jurisdiction, and its order should be vacated.