ON PETITION FOR REHEARING,
(May 28, 1941)
HOLDEN, J.(Stating his views on the petition) — The foregoing opinion was filed December 19, 1940. January 8, 1941, a petition for rehearing was filed. March 12, 1941, appellant filed its brief on petition for rehearing. April 15, 1941, respondent filed its brief on the petition for rehearing, and April 26, 1941, appellant filed a reply brief. Much space is devoted by the respective parties to a discussion of the theory on which the case was tried before the Commission, the theory on which appellant relied on appeal, as well as the theory on which this court decided the case. Appellant states:
“The theory of the Supreme Court decision was not the theory of the appellant on the hearing or of the commission in its refusal to grant increased rates. If we understand and correctly analyze the decision of this Court, it is based upon the theory that the appellant had applied to the Commission for increased rates which would bring to it a fair rate of return upon the fair value of the appellant’s property used and useful in the Idaho public service —that the burden of proof showing necessity and right for such increase was upon the appellant — that the Commission rightfully found that the appellant had not borne *579the burden of proving that it was entitled to increased rates which would bring a fair return upon the value of its Idaho property; ergo, the Commission’s decision must be sustained.”
“Issues Actually Involved — This Court, as we analyze its decision, concluded that the appellant was seeking a rate which would yield a fair return upon its investment —this rate, of course, would include operating expenses and a fair return on the value of the property of appellant used and useful in Idaho. That major premise of the court is incorrect — we understand, now that we have given further consideration to the opinion and briefs, just how the court was led into its erroneous viewpoint, and we will touch upon it later, but it is a fact that neither the appellant nor the Commission ever had any idea, as this Court finds, that the appellant was seeking a rate which would make a return on its property.” (Italics mine.)
In its application filed with the Commission March 22, 1988, petitioner alleged:
“That the exchange rates, charges, and rentals set forth in Exhibit ‘F’ (the proposed new schedule of rates) and which said rates, charges, and rentals this applicant seeks an order from this Commission authorizing this applicant to place in effect on the first billing dates subsequent to April 22, 1938, when placed in effect will, in the belief of the applicant, enable the applicant to meet its operating expenses and taxes in the State of Idaho and in addition obtain a return upon the cost of its property in the State of Idaho devoted to the public service but that such return will be less than one per cent either during the year 1938 or so far as can now be estimated or determined during the year 1939.” (Italics mine.)
It will be observed appellant alleged in its application the “rates, charges, and rentals this applicant seeks an order from this Commission authorizing this applicant to place in effect... will... enable the applicant to meet its operating expenses and taxes in the State of Idaho and in addition obtain a return upon the cost of its property in the State of Idaho devoted to the public service.” From which it is clear appellant sought rates which not only *580would enable it to meet its operating expenses and taxes but which also and “in addition” would give it a return upon its investment in the State of Idaho — the return being estimated (whether correctly is not important so far as the point under discussion is concerned) at less than one per cent for the years 1938 and 1939. It thus appears the application completely refutes appellant’s contention “that neither the appellant nor the Commission ever had any idea, as this Court finds, that the appellant was seeking a rate which would make a return on its property.” (Italics mine.)
Furthermore, appellant originally complained, as pointed out in the foregoing opinion:
“The Commission erred particularly as follows in denying through its order No. 1718, the application of the appellant to put into effect its schedule of increased rates:
(A) In its finding No. Ill, in the statement that the hearing was in no wise a valuation hearing and that the valuation of appellant’s property was not necessary, proper, or material to a fair and complete determination of the application, which statement is sharply at variance with and contradictory of the first portion of said Finding No. Ill wherein the Commission found correctly that the hearing was one for an increase of rates sufficient to enable appellant to meet its operating expenses and taxes and, in addition thereto, obtain a return upon the fair value of its property in Idaho devoted to the public service and of necessity in this broad statement requires fixation of the fair value of appellant’s property used and useful in Idaho.” (Italics mine.)
The portion of Finding No. Ill, above referred to as being correct, is:
“That the hearing pursuant to the scope of the application, was one for an increase in rates, sufficient to enable applicant to meet its operating expense and taxes, and in addition thereto obtain a return upon the cost of its property in Idaho devoted to the public service;... ”
Moreover, appellant further earnestly urged the Commission erred in that it “did not make any finding of a fair rate of return to which appellant is entitled for its services as a telephone company in the State of Idaho.” *581(Italics mine.) It was not insisted then, as it is now, that appellant was prevented from showing what a fair return would be. Then, appellant was contending the Commission erred in not finding a fair rate of return, which contention, of course, would have had no merit whatever if, as appellant now urges, the Commission rejected its evidence. In other words, the only basis upon which that contention could have been made would necessarily be that appellant had proved a fair rate of return but that the Commission, nevertheless, failed to make a finding demanded by such proof.
However, after this court affirmed the order of the Commission (upon the ground appellant had failed to prove what a fair rate of return would be), comes the contention in the brief on petition for rehearing that:
“there is the more impelling fact that regardless of evidence, the Commission refused to consider fair return and fair value, claiming that the hearing toas limited to proving operating expenses were less than revenues, and that fair value and fair return had no place in the hearing.”
As above stated, originally appellant contended the Commission “found correctly the hearing was one for an increase of rates sufficient to enable appellant to meet its operating expenses and taxes and, in addition thereto, obtain a return upon the fair value of its property in Idaho devoted to the public service”; but now it is vigorously contended “the hearing was limited to proving operating expenses were less than revenues, and that fair value and fair return had no place in the hearing.”
Furthermore, in its brief in support of its petition for a rehearing appellant for the first time contends:
“When appellant tried to comply with the Idaho rule by supplying the reproduction cost, the Commission’s attorney objected.... The Commission sustained this objection, so if it were error on appellant’s part, as this Court has stated, to fail to show the Commission what a fair return would be, that failure was not due to the appellant for it had the evidence and tried to present it to the Commission and that body flatly refused to allow it to be introduced. Surely, the error, if any, was the result of the Commis*582sion’s failure to listen to necessary evidence of value— not the failure of appellant to prove that value. Noj plaintiff could ever successfully bear the burden of proving his case if the court just point blankly refused to admit the necessary and competent evidence.”
It is true the Commission, on motion of its attorney, struck from the record the testimony of the Company’s witness, I. F. Dix, relating to cost of reproduction, cost of replacement and fair valuation of appellant’s Idaho property. However, a careful examination of appellant's briefs filed in this court on the original hearing discloses that this ruling of the Commission was not assigned as error. And it may be added that an examination of the transcript discloses that every exhibit offered by appellant in support of its application, with the single exception of Exhibit No. 16 (which was neither rejected nor admitted), was received in evidence; and this includes petitioner’s exhibits in regard to cost of reproduction (Ex. No. 26) and cost of replacement (Ex. No. 24).
For the above stated reasons the petition should be denied.
Budge, C. J., Morgan and Ailshie, JJ., concur in denying a rehearing.