(dissenting)'. The opinion filed on behalf of the court in this case contains so much with which I heartily concur that I am perforce driven to a statement of certain personal views inconsistent with some parts thereof as I apprehend their meaning.
I approach the construction of this very important legislation with the assumption that its purpose was to confer upon the Commission powers and duties which could be delegated to it by the legislature and that the decisions authorized to be made by the Commission referred to in sec. 16 of the act (Laws of 1905, ch. 362) were such as to be capable of judicial review.
To accomplish the first purpose the delegation must not include any essential and peculiar function of legislation. All such power is confided by the constitution to the immediate representatives of the people, with no permission to pass it over to boards or individuals not so chosen. The very essential and distinguishing characteristic of legislative action is choosing between different policies on grounds of expediency, and, when choice is made, in declaring for the future a rule of conduct embodying that policy. There is nothing essentially legislative in'ascertaining tire existence of a fact or a condition as a basis for such considerations of policy. That is a mental process, common to all the branches of government, executive and judicial as well as legislative. *173Dowling v. Lancashire Ins. Co. 92 Wis. 63, 65 N. W. 738; In re North Milwaukee, 93 Wis. 616, 67 N. W. 1033; Adams v. Beloit, 105 Wis. 363, 81 N. W. 869; Nash v. Fries, 129 Wis. 120, 108 N. W. 210; Field v. Clark, 143 U. S. 649, 12 Sup. Ct. 495.
Confronting the question of prescribing services to be rendered and rates to be charged by railways, obviously there arise almost innumerable considerations of policy. Should liberal returns on investment be offered to invite construction and resulting development of agriculture or other hinds of business ? Should low rates be made on raw products to promote their sale and shipment at high prices, or is it better policy to impose high rates on the raw products to promote their consumption or manufacture into finished articles at or near home? These are the simplest of illustrations of the multitude of complicated questions of general policy to be decided. The choice of policy in the face of such com siderations is legislative and we must presume is not intended to be delegated to the Commission, for the constitution forbids.
Primarily, of course, the owner of a railroad, whether individual or corporation, has the right to conduct his business as he chooses, subject, however, to the limitation, both by common law and by statute, that his charges shall be reasonable. State v. Milwaukee E. R. & L. Co., post, p. 179, 116 N. W. 900; Interstate C. Comm. v. C. G. W. R. Co. 209 U. S. 108, 28 Sup. Ct. 493. The word “reasonable” in this rule of law is used in its ordinary and usual acceptation, such that its antithesis is “unreasonable.” Any rate which is not unreasonable is reasonable and permissible, and the question whether any given rate is unreasonable is to be determined by a process exactly similar to that pursued by courts, which, however, may be exercised by any one or by any official. Independently of statutes the courts can ascertain whether or not such rate be unreasonable. Madison v. Madison G. & *174E. Co. 129 Wis. 249, 108 N. W. 65. Obviously in this mental process tbe conclusion is reached by ascertaining tbe highest rate which can be considered reasonable. Only when an existing rate exceeds that is it unreasonable. When this point is fixed, however, there is in the nature of things ordinarily a more or less extended field within which rates may vary below that limit of reasonableness until the point is reached which even the legislature cannot impose because so low as to be noncompensatory, or, in the language of the decisions, confiscatory.
The legislature perhaps has full power to forego consideration or decision whether rates charged by a railroad company are unreasonable and may at once arbitrarily impose such rate as they may think promotive of public good, so long as it does not result in depriving the carrier of compensation for its service. State v. Redmon, 134 Wis. 89, 114 N. W. 131. But under present constitutions it cannot delegate that power to a commission or to a court. By the statute now under consideration the legislature empowered the Commission first to ascertain whether a rate selected and charged by the railroad is unreasonable, and this is the same function exactly as might have been committed to the courts, indeed which the courts already have by common law upon .their judicial power being invoked in a suit brought by any one injured by the unreasonable rates. Madison v. Madison G. & E. Go., supra. It is an entirely proper subject of delegation, for it is the ascertainment of a fact or condition; vastly complicated, it may be, but still ultimately a conclusion of fact. I think it clear that the law does not authorize any further action by the Commission until or unless the fact is established that the railroad has committed a breach of its duty by charging an unreasonable rate or furnishing a not reasonably adequate service. The law evidently contemplates, and to be valid must contemplate, that, when this fact of unreasonableness exists, the Commission shall de*175•clare the reasonable rate; and right here is my point of divergence from wbat I understand to be tbe view expressed in tbe opinion of tbe court. I think that tbe two words — “unreasonable” as applied to tbe rate charged by tbe railroad ■company and “reasonable” as applied to tbe duty of tbe 'Commission to ascertain and declare one — are exactly antithetic expressions, and that tbe fields relatively described by them are coterminous, namely, tbe field of unreasonableness ■of a rate terminates where reasonableness begins and that tbe function of tbe Commission is to ascertain this exact line ■of demarkation. They are not merely to declare that the rate charged by tbe railroad is unreasonable, but they are to ■define that rate, excess over which is unreasonable. That, •of course, in tbe matter of rates, means tbe highest rate consistent with reason. Eor example, when tbe three-cent passenger rate in this state was attacked, tbe duty of the Commission was to proceed to consider, first, whether it was so unreasonable, and, second, bow far it transcended that which would be reasonable. Presumably their mental action in fixing a rate at two and one-half cents was in response to this •duty, and their order established, by a judicial and not legislative process, that anything in excess of two and onefialf ■cents would be unreasonable. So considered, the statute became effective and declared that two and one-half cents should be charged. But this in no way precluded the distinctly legislative act subsequently performed by the legislature of declaring that public policy required the rate to be two cents, subject only to the right of courts to ascertain whether the lower rate would result in confiscation. Unless this is the duty imposed upon the Commission, their act is in no sense the ascertainment of a fact and cannot be reviewed by a court de novo. If the Commission, recognizing and deciding that two and one-half cents would be within the limits of reasonableness, had then determined that from ■considerations of public policy two cents only should be *176charged, they would have done that wbicb no court could review and which the constitution requires shall be done only by the legislature.
Now in this case, in proceeding to review the order of the-Commission, I think the court must start with the assumption that they have performed this duty and decided that in-their opinion the service required of the railroad company by the order assailed marks the minimum limit of that service which they find to be reasonable, and upon that assumption review of their decision is an entirely judicial function which can legitimately be performed by the courts, and if' the court finds, after consideration of all evidence,, giving, due deference to the perhaps superior expert knowledge of the members of the Commission, that a less service would be-within the field of reason, the order should be held unlawful, because an erroneous decision of a concrete question of fact. If, however, we must start with the assumption merely that the Railroad Commission have kept within the field of reasonableness, and in exercise of their judgment upon questions of general policy and expediency have merely selected-some .point within that field, then the court is given no practical or efficient review of the Commission’s real decision;, for the court can only inquire, as is said in the opinion,, whether the service ordered or the rate fixed is unreasonable-in the sense that it is outside the field of reason.
I find in the opinion of the court the following:
“This law establishes, and thenceforth assumes, the existence of rates, charges, classifications, and services discoverable by investigation, but undisclosed, which are exactly reasonable and just. . . . The law intends that there is only one rate, charge, or service that is reasonable and just. . . ^ But the theory and mandate of the law is that this point always exists under any combination of conditions, and is always discoverable although not always discovered. Until it is discovered and made known the former rates and service-prevail. The order of the Commission is prima facie evi-*177denee that the rate, charge, or service found and fixed by it is the particular rate, charge, or service declared by the legislature in general terms to be lawful and to be in forcq.”
In this to my mind lurks solecism. If it be a fact, as seems to me unquestionable, that there is no fixed point of reasonableness, that there is almost invariably a broad field-wherein any one of several-points would be reasonable, the legislature cannot by mandate or ipse dixit change that fact. Courts cannot by act of legislature be deprived of their judicial knowledge of those facts which in the course of nature exist. They must take note of the fact that the sun rises in the east, notwithstanding legislative fiat to the contrary and notwithstanding power may in terms be conferred upon some tribunal to establish the opposite. Where, as seems to me undeniable, the existence of any fixed point in this field of reasonableness, other than the two extremes, can be ascertained only by exercise of choice based on policy or expediency, the courts cannot shut their eyes to the fact that a delegation of authority to find and declare that point is a delegation of authority to exercise legislative choice. Dowling v. Lancashire Ins. Co. 92 Wis. 63, 65 N. W. 738. The court’s opinion seems to me to concede that the duty of the Commission in selecting and declaring a specific rate or service involves something more than mere discovery of a fact, for it proceeds to assert the inability of courts to review such act of the Commission. It is there said that the court can only inquire whether the point fixed by the Commission is “within the field of reasonableness,” thus implying that more than one such point might have been selected within such field. If the fiat of the legislature can, as said, be effective to create some one definite and fixed rate which is reasonable to exclusion of all others, and that such exact point can be ascertained by processes not legislative, why cannot such fact be ascertained by the court as well as the Commission ? If, as said, there is then only one reasonable rate *178or service, any variation from that ideal is of course legislatively unreasonable, and tbe court, if convinced by the proof that the ideal is something different from the Commission’s order, obviously must adjudge that order unlawful.
I think, therefore, that this law should be so construed as to indicate to the Commission a duty to find the reasonable rate which is antithetic to the unreasonable one which the law condemns, and that point of reasonableness is the maximum rate or minimum service consistent with reason. So construed and conscientiously applied, I fully agree in the constitutionality of the law and in the hope of high value to the public of the services of an able and expert commission. If that be the construction, I find no longer any difficulty with the purpose of protection against injustice to the railroad companies afforded by a judicial review de novo of the very fact which the Commission finds and decides. This construction recognizes the reserved right in the legislature, performing its constitutional duty, to impose other rates than this maximum reasonable one, and preserves to the people and to the railroad companies the assurance that the resolution of questions of expediency and public policy shall rest with the representatives of the people responsible directly to them at the ballot box.
My dissent from the judgment announced is upon the ground that I cannot convince myself that the service rendered by the railroad company at the time of the complaint to the Commission was other than reasonably adequate. I deem this a jurisdictional fact essential under the statute to the Commission’s authority to prescribe any service or rate. Interstate Commerce Comm. v. C. G. W. R. Co. 209 U. S. 108, 28 Sup. Ct. 493. Neither the Commission nor the court below has made any finding upon that subject. Since my view cannot prevail in the case, I deem it wholly unnecessary to discuss the evidence and considerations bearing upon the reasonable adequacy of that service.