dissenting: It is evident that the majority who have determined the issue in this case are not agreed on the right of the applicant to appeal. Conceding this right, my dissent, concisely stated, is from the holding of the majority that the prima facie presumption raised by the statute requires any stronger evidence to rebut it than any other presumption, prima facie on its face, intended merely to require evidence from the party on whom the burden rests or run the risk of non-persuasion and an adverse finding upon the issue.
If it requires more evidence, the court has no authority, ipso facto, to take over at that point and pass upon its weight and sufficiency against the uniform practice of this Court from time immemorial, and, I think, against the plain terms of positive law which we have so long meticulously respected. Even in those cases in which the evidence is required to be “clear, strong and convincing” the power of the court goes *696only so far as to authorize an instruction to' the jury that the evidence must be of that character to justify the relief demanded.
There is no policy of the State in any danger by submission of the facts to jury trial. The real controversy is over the question of public convenience and necessity, and the policy of the Legislature, as plainly expressed in the statute, is to throw around the Commission the restraint of review, and, as it has in so many similar matters, has chosen to submit the facts bearing on the main issue to the more popular device of trial by jury.
The applicant has not contended here that the ultimate choice of means to remedy the want of adequate public service may not rest with the Utilities Commission after the issue as to the necessity has been determined — whether by removing the restriction in the existing franchise, or granting a franchise to another person or concern, or requiring the respondent to improve or enlarge its facilities used in the particular service, which are now, from the evidence, at the point of saturation. If the plea of “policy” upon which the main opinion seemingly rests has any force, it should be concerned with this alone — the choice of the franchise holder or the means of remedying the condition of such inconvenience if it is found to exist — it should not affect the mode of trial upon the facts as provided in the statute. Decision should not be based on an ideology as to the comparative fitness of the court on the one hand and the jury on the other to deal with the issue presented. It should be referred to the warrant of statutory authority. The Legislature has not designated the court as a policy making agency any more than it has the jury. The policy is made by the Legislature, as expressed in the statute.
I disagree with the majority as to the significance to be attached to the evidence. I must refer to the record itself, as space forbids its reproduction here. In my opinion, it discloses a condition upon which the Commission might well have taken some action. The case comes to us from a section where the wheels of industry turn fast and transportation is an exponent of progress. I think the service is inadequate. From my point of view, upon this question, “convenience” and “necessity” are the same thing. For relief it is not necessary that the public be put on the rugged edge of exigency. This question, to which the whole law is pointed, requires no judicial acumen to decide, and might well be decided by intelligent laymen, and I repeat my conviction that the statute, whatever the form of the issue by which it may be determined, intended to leave it to the jury.
I think the case should have been submitted to the jury on issues addressed to the facts, and with appropriate instructions. Any procedural prerogatives of the Commission could be respected in the judgment.