Lusk v. Atkinson

BLAIR, J.

(concurring) —The statute enjoins upon the circuit court and this court the duty to hear and determine eases of this kind “as suits in equity.” This implies the employment of all rules applicable on review in equity, including that concerning the deference due the finding when the trier of the facts, in the first instance, was for any legal reason in better position -to weigh correctly the evidence. When it is construed to accord with this view I agree to paragraph one of the opinion. Further, the final sentence in the opinion exhausts our statutory power in remanding the cause, and what is said in paragraph five respecting the test to be applied in determining what ties fall within the'inter*141state commerce classification, I understand to be a mere suggestion and not a direction to the P’ublic Service Commission as to tbe orders it may hereafter make. The suggestion itself I except from my concurrence, not believing correct the test proposed. In other respects I concur in the opinion and the result reached.