(specially concurring). I agree with the conclusion of the opinion of the court, as written by Mr. Justice Birdzell, which holds, in effect, that the alleged order of the Board of Bailroad Commissioners, under consideration in this proceeding, was not, in fact or in law, the order of that board, and that the pretended order is invalid and illegal, and of no force nor effect.
After hearing motion for modification.
Birdzell, J.The relator filed a motion in this court for a modification of the foregoing opinion and order. In response to the motion the cause was again set down for hearing upon phases not covered by the previous opinion, and a restraining order was issued which restrained the putting into effect of any rates, fares, or charges in excess of those *325permitted by our former decision. The additional hearing having been had, we are of the opinion that the equities of the case require the disposition presently to be indicated.
This court assumed original jurisdiction under a petition setting forth various grounds upon which it was alleged that the order complained of was void, and that rates in excess of the legal rates were being put into effect contrary to law. In the decision of the matter it appeared to the court that the purported order was clearly void for the reasons stated in the opinion; and, owing to the probability that our opinion upon the other grounds alleged would be of no practical value, any further expression was deemed unnecessary. It now seems advisable, however, to express our views of the additional equitable considerations which must enter into the final disposition of the case in this .court.
Complaint is made that there was not an adequate notice of the hearing before the Railroad Commission, and that, as a result, the public was not properly represented, and lacked opportunity to present the facts bearing upon the application from its standpoint. There is no statute requiring any other or different notice than such as was given in this case; and, from the general structure of the statutes regulating procedure before the Board of Railroad Commissioners, it is readily to he inferred that the board itself, as a public agency, is charged primarily with protecting the interests of the public. In view of the invalidity of the board’s action, however, for the reasons already stated, and of the existence of other facts within equitable cognizance, it may be proper to order an additional hearing now, notwithstanding the sufficiency of the original notice. ■!
In this instance, though it is apparent on the record that its decision upon the merits of the application would involve the determination of some close questions of law as well as of fact, it does not appear that the commission called to its aid the attorney general of the state, who is by statute made the legal adviser of the board. Aside from the representatives of three commercial clubs and an employers’ association, there was no one in attendance representing the public as such. The sole representation of the public (with the exceptions heretofore noted) was by the one commissioner who presided at the hearings. The affidavits further show that at the time the original order was made one *326commissioner, who had not attended the hearings, yielded his assent without having heard the evidence and without having read it, acting, apparently, on the supposition that the previous action of the Interstate Commerce Commission had made his duty merely perfunctory. This is not the character of consideration required by § 10 of chapter 194, Session Laws of 1919, and neither is the commissioner’s supposition warranted either by the terms of the Transportation Act of the Congress of the United States or by anything known to us in connection with the application before the Interstate Commerce Commission for increases upon interstate traffic.
The present Public Utility Act attaches a greater degree of importance to the record made before the Board of Bailroad Commissioners than any heretofore existing in this state. By § 43, chapter 192, Sess. Laws 1919, it is provided that the findings of the commission shall bo admissible as evidence in proceedings before the commissioners or in any court, and that they shall be conclusive evidence of the facts therein stated as of the date and under the conditions then existing. By § 35 of the same chapter it is provided that upon appeal the lawfulness of the decision of the commissioners shall be inquired into and determined on the record-of the commission as certified to by it, and that no new evidence shall be taken on such appeal or introduced by any party. The importance which thus attaches to the record made before the Board of Bailroad Commissioners renders it imperative that full opportunity be accorded to all interests affected to make a complete showing before the board.
In North Dakota there is a peculiarity in the intrastate rate situation that perhaps is not present to complicate matters in any other state in the Union. A brief' statement of this peculiarity will suffice for present purposes. Chapter 194, Sess. Laws 1919, was enacted for the avowed purpose of classifying freight and fixing maximum rates and charges. This law was enacted during the period of Federal control; and, by reason of such control and the Federal Transportation Act, it is conceded that it did not become applicable as a rate statute prior to September 1, 1920. It was stated on the argument that the rates therein prescribed and the classifications were substantially the same as the prewar rates in effect in our sister state of Minnesota. Also that the same differ materially, both in regard to rates and classifications, from *327the schedules previously obtaining, and which were in force in North Dakota as the war rates. Section 10 of this act is the section which specifically authorizes th'e Board of Railroad Commissioners to permit carriers to charge higher rates than those prescribed in the law, provided they malee the requisite showing before the commission.
It is apparent that the action of the commission in the instant case entirely ignores the general scheme of rates provided for in the law, and that it authorizes the increases based upon pre-existing schedules filed. To what extent this action subverts the policy of the statute (chap. 194) we are not prepared upon this record to say. But since, prima facie, the statute has been ignored, and the rates adjusted without reference to it, it has in effect been nullified. We cannot say now to what extent it might have been necessary to depart from the plan of this law in order to give to the carriers the relief which the statute itself contemplates. This can scarcely be determined in the absence of a record from which it will be possible to ascertain the relationship between interstate and intrastate rates, so that discrimination may he avoided. It is quite as serious a matter for an administrative board to contravene a fixed legislative policy with respect to a matter which is purely legislative, as it is for a court to invalidate legislation on constitutional grounds, and when a commission is acting under the broad powers given it to authorize compensatory rates above the maximum provided by statute, it should act upon a record that shows the necessity for such action, and we have no hesitancy in saying that it should, so far as possible, observe the declared legislative policy.
The fact that the new rate statute goes into effect following a period of Federal control, and at the expiration of the period fixed in the Transportation Act within which rates could not be lowered, may give rise to extreme difficulty. But this does not, in our judgment, justify either a court or a commission in assuming that the difficulties are insurmountable. On the contrary, it points to the necessity of a more complete showing before the commission than might otherwise be required.
Against the foregoing considerations the carriers urge that they have, in good faith, attempted to comply with the laws of North Dakota in making their application and substantiating it by the showing required; that they have been deprived for approximately thirty days *328of the benefit of increased earnings from intrastate business to which the commission found them entitled; and that they should not suffer further hardship through delay. This court fully appreciates the situation from the standpoint of the carriers, but nevertheless, in view of the fact that approximately only one eleventh of their business in North Dakota is affected by this litigation, and the further fact that the war-rate schedules are not disturbed, we would hardly be justified in permitting the case to be closed before the Railroad Commission until there is the best assurance obtainable that a full record has been made upon which the legality of its final order can ultimately be determined. The short delay now required for this purpose, in our judgment, weighs less in the scale which determines the balance of inconvenience than would a present change in status which might ultimately be followed by new hearings, and in turn possibly by rescission of the earlier action with the attendant impossibility of reparation.
Without further expression concerning the merits of this controversy at present, and with no intention to indicate what action the commission should take when the record is completed before it, the further order of this court is that the Board of Railroad Commissioners be and is hereby required to open Case No. 1592 for further hearing; that the board publish notice of the time and place of hearing in accordance with § 585, Comp. Laws 1913, and mail a copy of such notice to the relator herein; that at such hearing the relator and all other interested parties be permitted to adduce evidence, examine witnesses, and submit depositions ; and that all of the respondents herein be and they are hereby directed to co-operate to the end that a full hearing be had and a complete record thereof be made as required by law.
The writ and restraining order previously issued herein will remain in effect pending full compliance with the foregoing order and the final disposition of Case No. 1592 by the Board of Railroad Commissioners.
Christianson, Ch. J., and Bronson and Robinson, JJ., concur.