Concurring Specially. — The opinion assumes the validity of the contract canceling the Beaver River Company franchise because appellant had the right to sell and respondent power company had the right to buy, a re*816lease of the option to purchase the duplicate equipment, reserved to appellant by the franchise. If the contract be valid I agree that said respondent has no right to charge the purchase price to the consumers in Boise or elsewhere. If the equipment has been put to proper use a just valuation of it may be included in the rate base. In no event can the purchase price be charged directly to the consumers.
The validity of the contract is not expressly before us for decision, no appeal having been taken from the order of the Public Utilities Commission which approves it, and the question not being within the issues. In the briefs certain questions are raised arguendo touching the validity of the contract. These questions should be passed upon when, if ever, they are directly raised in an appropriate proceeding. They should not be passed on, even inferentially, unless it is necessary to do so. I do not think it is for this reason. If the contract be invalid, the result is the same. If respondent company be not bound to pay the consideration to appellant by reason of invalidity of the contract, it certainly cannot do so and then charge it back to the consumers.
In any event the commission erred in making the orders appealed from. I concur in the conclusion reached.