*340On Petition for Rehearing.
Lairy, C. J.— On petition for rehearing, appellee complains of the action of this court in basing its opinion on the evidence without discussing a preliminary question presented by the briefs which, if decided in favor of appellee, would have precluded a consideration of the evidence on appeal.
4. In its brief in answer to the assignment of errors, appellee took the position that the bill of exceptions purporting to contain the evidence discloses on its face that it does not contain all the evidence given at the trial. If appellee were correct in this position, the court could not consider the evidence for the purpose of determining whether or not it sustained the finding. McMurran v. Hannum (1916), 185 Ind. 326, 113 N. E. 238; Wagner v. Wagner (1915), 183 Ind. 528, 109 N. E. 47.
The matter thus presented was considered by the court but was not discussed in the opinion, it being assumed that a decision based on the evidence would imply that the preliminary question mentioned had been decided adversely to appellee. It could hardly be assumed that a court would overlook a matter so vital to the decision rendered.
The record shows that a transcript of the evidence taken before the Public Service Commission on the hearing was filed with the clerk of the court in which the action was brought in accordance with the provisions of §69 of the act creating the commission. Acts 1913 p. 167, §10052a el seq. Burns 1914. On the trial, parts of the evidence contained in the transcript so filed were offered and admitted in evidence, and the parts so introduced are embodied in the bill of exceptions as a part of the evidence. The transcript as a whole was not offered or read in evidence, and the parts not offered in *341evidence are not set out as a part of the evidence in the bill of exceptions.
5. Appellee takes the position that, in an action brought to set aside an order of the Public Service Commission, the evidence on which the order was based as taken before the board, when filed with the clerk of the court In which the action is brought in accordance with §69, supra, becomes a part of the evidence at the trial; and that the court trying the cause is required to consider all of the evidence contained in the transcript so filed even though it is not offered in evidence at the trial. Appellee therefore insists that all the evidence" contained in the transcript filed with the clerk should have been embodied in the bill of exceptions as a part of the evidence heard at the trial, and that a bill of exceptions containing only the parts offered and admitted in evidence at the trial is incomplete.
Section 70 of the act cited provides, that: “A transcript copy of the evidence and proceedings, or any'Specific part thereof, on any investigation taken by the stenographer appointed by the commission, being certified under oath by such stenographer to be a true and correct transcript of all the testimony on the investigation of a particular witness, or of other specific part thereof, carefully prepared by him from his original notes, and to be a correct statement of the evidence and proceedings had on such investigations so purporting to be taken and transcribed, shall be received in evidence with the same effect as if such reporter were present and testified to the effect so certified.”
It is apparent from the plain provisions of the act that the purpose of the legislature in requiring the transcript to be filed with the clerk of the court in which the action to set aside the order is pending before the case is reached for trial was to make such transcript *342available to either party at the trial, so that the whole or any part of the evidence contained therein might be introduced at the trial if authenticated in such a way as to make it admissible under the provisions of §70, supra. There is nothing in the act to indicate that the legislature intended that the mere filing of the transcript with the clerk of the court should have the effect of making the evidence contained therein a part of the evidence at -the trial. The position of appellee on this point is untenable.
At the 1918 session of the legislature an act was passed amending §6 of the act creating the railroad commission. This section as amended provides a method of procedure in cases to be brought by any carrier or other party dissatisfied with any final order made by the commission. This section provides that in all actions in the courts of this state authorized by this act the rules of evidence shall be the same as in the trial of civil cases as now provided by law, except as otherwise provided in this act. The act of which this section is a part makes no provision for the filing of any transcript of the proceedings of the commission on which an order is based with the clerk of the court in which an action is filed to suspend or set aside the order.
5. If the question were presented the court would be required to decide whether the provisions of §§69, 70 and 81 of the Public Utilities Act apply to actions brought under the provisions of §6 of the Railroad Commission Act, as amended. The court does not hold, nor does it intend to intimate by anything said in this opinion, that the sections of the Public Utilities Act providing a method of procedure in actions to set aside orders of the commission regulating public utilities as defined in that act are to be applied to the proceedings brought under the provisions of amending §6 of the Railroad Commission Act. The holding is that any *343part of 'the transcript of the proceedings before the commission which is not put in evidence at the trial in the ordinary way cannot be considered as a part of the evidence heard at the trial, and should not be embodied in the bill of exceptions containing the evidence to be used on appeal.
Petition denied.
Myers, J., concurs in a separate opinion. •