(concurring.) — I concur in the second paragraph of this opinion and in the result reached. To what extent I concur in the first paragraph, that which follows will indicate.
I think that paragraph one of the opinion of Woodson, C. J., in Railroad v. Public Service Commission, 266 Mo. l. c. 340, practically declares the law. My individual views are expressed in the per curiam on the motion for rehearing, because I prepared such per curiam. The contention in that case made, was that the findings of the commission were final and conclusive upon this court. To this contention the court refused to agree, and I am *166satisfied with that ruling. In my judgment the rulings of the commission, in these statutory certiorari proceedings, reach us with the presumption of right action upon the part of the commission, and as prima-facie valid, hut this presumption and prima-facie case may be overcome by the showing made in the record, and if so the duty of this court to so declare is clear. I do not understand that the opinion of Woodson, C. J., controverts these views, because' he says that we will give such findings just such consideration as we give the findings of a chancellor nisi in equity cases. In the per curiam opinion in that case, 266 Mo. l. c. 346, to which we all agree, we said:
“The original opinion holds these cases must be heard as cases in equity. Prom that opinion we do not desire to depart. The act says that they shall be so heard. That means that we will consider the evidence de novo. In equitable procedure-this court is not bound by the findings of fact made by the chancellor nisi. We may yield to the judgment of the commission on the facts (if the circumstances of the cause so appeal to us) as we may yield to the judgment of the chancellor nisi in equity, upon the facts, but not otherwise. There is no substance therefore in this ground of the motion for rehearnig.’’
Nor do I think that sections 123 and 124 of the Act of 1913 (Laws 1913, p: 647) compel this court to consider the findings of the commission in a manner different from the rule above indicated. The first section, supra, has no reference to court procedure at all. It simply says that the orders of the commission are prima-facie lawful and reasonable. So is a judgment of a circuit court when appealed from to this court. There is the presumption of right action upon the part of the circuit court, until error is pointed out.
But this section has no reference to procedure in á statutory certiorari to determine the reasonableness of the order. If the commission fixed a given rate for freight, and I was resisting the payment of that rate, then the order of the commission would be prima-facie lawful in that proceeding. So too as to telephone and other rates, as well as other orders.
*167If in the case mentioned last above the order of the commission was offered to show the lawfulness of the rate, I could at least respond, if I might not go further, by showing that the rate had been declared unlawful and unreasonable by some court. So in my judgment this section does not affect the matter at all, but if it did, reasonable effect is given thereto by the rule we have established.
Now as to section 124. The rule we have established does no violence to this section. If this section applies to procedure here, our rule proceeds upon the theory that it must clearly appear that the order is unlawful or unreasonable. The section evidently applies to many kinds of attacks upon the order of the commission, and is not confined solely to the attack made by the statutory certiorari which brings cases, such as the present, to the circuit courts.
The majority opinion in Lusk v. Atkinson, 268 Mo. 109, uses some rather broad and forceful language, but when fairly interpreted, I take it, does not go further than Railroad v. Commission, 266 Mo. l. c. 340 and 346.
All considered I think the rule established in Railroad v. Commission, 266 Mo., supra, is correct.