(concurring specially): I agree that plaintiffs were entitled to a fair hearing, of their application by the public service commission — that the legislature, in providing for such hearings, did not contemplate that the commission should act arbitrarily. But, authority to build or enlarge dams in the navigable streams of this state is a privilege; a matter of grace, rather than a right. In determining whether such privilege shall be granted, questions other than engineering problems may well be considered. The legislature has not stated what questions (engineering questions or others), shall be considered, nor has it given rules for their consideration. Evidently it is contemplated that all matters which suggest themselves to the members of the commission, or which may be suggested to them, bearing upon an application for the granting of such a privilege, should be fairly considered. Because it is alleged that the action of the commission was unreasonable and arbitrary, which allegations are in effect admitted (for the purpose of the motion) by the motion to quash, the motion should be overruled. But I wish to make it clear that I think this court has no authority to review the evidence and pass upon the question of whether plaintiff's application should or should not be granted. Authority to grant or to refuse such an application is given to the public service commission, not to this court. All this court should do in the matter is to see that plaintiff has a fair hearing.
*147APPENDIX.
The following are full copies of the two sections of the statute relating to the approval by the public service commission of plans and specifications of dams across navigable rivers:
“Any municipality, corporation, person or individual desiring to construct .a bridge, dam or other obstruction for either public or private purposes, or to repair or maintain a bridge, dam or other obstruction already constructed, over any of the navigable rivers of the state, shall prepare plans and specifications, together with the data upon which the same are based, and shall, when such bridge or dam forms part of a public highway, submit the same to the state highway commission for its inspection and approval, and when such bridge or dam does not form a part of a public highway such plans and specifications, together with the data upon which the same are based, shall be submitted to the public utilities commission for its inspection and approval; and when said plans and specifications are approved by the state highway commission or the public utilities commission, as the case may be, then said municipality, corporation, person or individual is authorized and empowered to construct, repair and maintain said bridge or bridges, dam or dams, or other obstructions according to the plans and specifications approved .by the state highway commission or the public utilities commission and under the direction and supervision of the commission approving said plans! and ¡specifications: Provided, That no plans for the construction of any such dam .shall be approved, and no such dam shall be constructed unless it contain flood gates or openings that can be opened in times of high water, so as to prevent the overflow of lands in the vicinity of said dam.” (R. S. 68-1502.)
“Any municipality, corporation, person or individual who has already constructed any bridge or bridges, dam or dams or other obstructions in, over or across any of the navigable rivers of the state, shall make application and submit the plans, specifications and construction of said bridge or bridges, dam or dams or other obstruction to the state highway commission when such bridge or bridges, dam or dams or other obstruction forms a part of a public highway, for its inspection and approval, and when said bridge or bridges, dam or dams or other obstruction does not form a part of any public highway, then such plans, specifications and construction of said bridge or bridges, dam or dams or other obstruction shall be submitted to the public utilities commission for its inspection and approval. The commission to which such plans, specifications and construction are submitted shall act upon said application as soon as practicable. Upon the approval of said plans, specifications and construction of said bridge or bridges, dam or dams or other obstruction, by the state highway commission or the public utilities commission as the case may foe, then immediately, said bridge or bridges, dam or dams or other obstruction shall become established and the right to maintain the same in, over or across said navigable rivers, confirmed and made permanent to the same extent and effect as if said right had been originally obtained and granted as provided by the preceding section, but all rights and privileges granted by this act shall be subject to the future wants and needs of the government of the United States and of the state of Kansas.” (R. S. 68-1503.)