dissenting:
We do not concur in the conclusion reached in the foregoing opinion. The finding of the Public Utilities Commission, in our judgment, in this proceeding is binding on the courts. The right to review the findings of the Public Utilities Commission in a proceeding such as this is limited to the questions whether the commission acted within the scope of its authority, whether the finding is without any foundation in the evidence, or whether a constitutional right has been infringed by such finding. (Chicago, Milwaukee and St. Paul Railway Co. v. Public Utilities Com. 268 Ill. 49; Inter-State Commerce Com. v. Union Pacific Railroad Co. 222 U. S. 541.) Orders of the Public Utilities Commission are entitled to great weight, and can only be set aside if found arbitrary or unreasonable or in clear violation of a rule of law. Clearly, it was not intended by this law that the courts should interfere with the orders and findings of the commission or review them further than is necessary to keep them within the law and protect the constitutional rights of the corporations over which they were given control. (People v. McCall, 219 N. Y. 84.) The law never intended the court to put itself in the place of the commission to try the matter anew as a legislative body, substituting its findings for those of the commission. If any such statute so provided it would be unconstitutional as a delegation to the. judiciary of non-judicial powers. The courts must not usurp legislative or administrative functions by setting aside a legislative or administrative order on their own conception of its wisdom. (State v. Great Northern Railway Co. 130 Minn. 57.) The courts will not interfere with an order of the commission when it does not appear from the record that such order is unlawful or unreasonable. (Settle v. Public Utilities Com. 94 Ohio St. 417.) If, as sometimes happens, two companies apply for a certificate to construct a road between the same points, and if public convenience and necessity require the construction of one road, that is a question to be determined, under the statute, and from necessity the railroad qommissioners have jurisdiction to determine, in the case of~c0nflicting applications, whether the certificate should be issued to both or only one, and if one, which one. (People v. Board of Railroad Comrs. 38 N. Y. Supp. 528.) In this last case it was stated, on page 533, that when it appears that public convenience and necessity require the construction of a road between given termini, then to hold that the persons first associated together to build the road between such termini are entitled to have the certificate, is to deprive the commissioners of a large part, if not all, of the discretion supposed to have been conferred upon them.
Under repeated decisions of the New York courts construing their public utilities statute it is clear that the Railroad Commission or Public Utilities Commission will not be interfered with by the courts in a matter of this kind, which rests in the discretion of such Public Utilities Commission, and it seems necessarily to follow that the Illinois Public Utilities act, being based largely upon the New York act, must be presumed to have been adopted with the understanding that the settled construction placed upon the New York act by the New York courts was to control in construing the Illinois act. Tatman v. Strader, 23 Ill. 439; People v. Griffith, 245 id. 532; Suburban Ice Co. v. Industrial Board, 274 id. 630.
It is urged by counsel for appellant, and seems, in part at least, to be so held in the opinion of the court, that the Chicago Motor Bus Company was entitled to the certificate, first, because of priority of application on the north side; second, because it received a franchise from the South Park board; and third, that to decide as did the Public Utilities Commission was taking the fruits of the labor from the Chicago Motor Bus Company. All these points were urged before the Public Utilities Commission and were matters that were properly urged there, to be passed upon within the sound discretion of the commission. The commission, in effect, decided that the public would be best served by a grant to the Chicago Stage Company. The chief consideration in a matter of this kind is, not which applicant was first in point of time, but which applicant, under the facts and circumstances, will best serve the public interests. Public Utilities Com. v. Bethany Telephone Ass’n, 270 Ill. 183.
We do not agree with the opinion that the Chicago Motor Bus Company was better able to take care of the proposed business on the south side of Chicago than was the Chicago Stage Company. Stated most favorably to appellant, we think from the record it is very doubtful whether the Chicago Motor Bus Company was anything more than a speculative proposition. The evidence of its principal promoters and officers is simply to the effect that they were promoting the scheme and were not intending to run the business after it was established. There is much evidence in the record that the people who were backing the Chicago Stage Company had had theretofore long and successful experience in other large .cities with the business here proposed to be carried on on the south side in the city of Chicago. At the most, this record, in our judgment, shows very clearly that the question which of these companies should be granted a certificate to do business in the city of Chicago was peculiarly, under the statute, one that should be submitted to the sound discretion and judgment of the Public Utilities Commission. In our judgment, on this record their decision cannot.be held to be in this case on erroneous legal principles, or that it is contrary to the clear weight of the evidence or that it is based on prejudice. If this court in this case can rightly substitute its judgment in a matter of this kind for the judgment of the Public Utilities Commission, we can hardly conceive of a similar case when the ultimate decision will not rest with the courts instead of the Public Utilities Commission, and under such a holding the courts will be called upon, in most cases heard before the Public Utilities Commission, to substitute the ■finding of the court for that of the commission. To construe the statute in this case as does the opinion of the. court seems to us unconstitutional, as a delegation to the judiciary of non-judicial powers.
In our judgment, also, the opinion is wrong in holding, in effect, that the reasonableness of orders and findings of the commission should be decided by the findings, if any are made, and not by the facts appearing in the record. There can be no question that under section 69 of the Public Utilities act the rules governing proceedings of this kind must be those applicable in chancery cases, and this court has held that where all the evidence is preserved in the record a decree will be sustained upon the facts appearing in such' record, irrespective of the findings of the trial court. (Williams Co. v. McCarthy, 284 Ill. 604; Pelouze v. Slaughter, 241 id. 215.) The opinion of the court seems, as a matter of fact, to be based upon the expediency or wisdom of the findings of the Public Utilities Commission, and in effect holds that on like testimony this court would not make a similar finding. This is not the correct way to construe a statute of this kind. Inter-State Commerce Com. v. Union Pacific Railroad Co. supra.