The following opinion was filed June 16, 1937 :
FowleR,'J.(dissenting in part). I concur in the affirmance of the judgment of the circuit"court in this case, but for a reason directly contrary to the opinion of the court as to the construction of the act under which attempt is made to *215form the instant power district. In my opinion the judgment of the circuit court should be affirmed because said act delegates legislative power to the Public Service Commission (hereinafter referred to as the “commission”) to create a corporation. This, as the opinion of the court states, the legislature cannot constitutionally do. The court holds that the act does not delegate such power, but affirms the judgment on the ground that the commission in “approving” the creation of the district failed of its duty under the act as the court construes it by failing in its order of “approval” to find as a fact that the creation of the district is “feasible.”
There is no language in the act that in express terms requires any finding of fact by the commission as a condition for or basis of its “approval” of the creation of a district. The opinion of the court holds not only that a finding of fact by the commission is necessary as a condition of its “approval,” but that such finding shall be that the district is “feasible,” and then goes on to define in a general way the word “feasible” which the legislative act itself does not purport to define in any way. This is a far reach. The court in effect holds that the act does not delegate legislative power to the commission because the court has the power to insert in the statute clauses that the legislature did not insert therein. This is legislation by the court. We do not avoid the constitutional objection of delegation of legislative power by substituting for legislation by the commission legislation by the court. The legislature can no more delegate to the court the legislative function of declaring what facts must be found by the commission as condition of its “approval” of a district than it can delegate such function to the commission. In re Incorporation of Village of North Milwaukee, 93 Wis. 616, 67 N. W. 1033.
As above stated, there is no language in the act that expressly requires that the commission shall find either “feasi*216bility” or the facts that constitute “feasibility.” The court reaches its conclusion that the commission is directed to find feasibility as a fact as a condition of its approval of the creation of a district merely upon two short and far separated statements contained in the act. The first statement is sec. 198.04 (2), Stats., which provides that within ninety days after notice of an application for the formation of a power district the commission “shall file in writing . . . its recommendations as to the feasibility or nonfeasibility of the proposed district with reasons therefor.” The other is a page or two farther on in the act, sec. 198.06 (5), Stats., and is to the effect that when part but not all of the municipalities in the proposed district have voted for the creation of the proposed district, then within ten days after the filing with the commission of a certificate showing the result of the election (he commission shall file with the secretary of state “its approval or disapproval of said district as created by said election” a district with boundaries different from the district proposed, and “from and after such filing . . . the creation and incorporation . . . shall be deemed complete, or the district shall be deemed dissolved, as the approval or disapproval of the commission shall determine.” The clause last quoted to my mind very clearly shows that the act places with the commission the power to “determine” whether the municipalities voting for the creation of the district as proposed themselves shall or shall not constitute a district consisting of a part only of the municipalities in the district proposed, and the only thing requisite to such determination is “approval” or “disapproval” by the commission of a district so comprised. The opinion of the court bases its conclusion upon the' intention of the legislature. “The intention of the law-making power must be ascertained from the language used to express that intention, and it is only when the language used is uncertain, indefinite, or ambiguous that *217resort may be had to construction.” Estate of Singer, 192 Wis. 524, 527, 213 N. W. 479. See also State ex rel. Associated Indemnity Corp. v. Mortensen, 224 Wis. 398, 272 N. W. 457. Each of the words “approve” and “disapprove” carries a meaning that is neither ambiguous, indefinite, or uncertain. Why construe them as comprising something aside from and beyond their plain, definite, and certain meaning? By the terms of the act the commission by merely writing “we approve” or “we disapprove” can make or prevent the making of a power district, without determining any fact whatever. It can “approve” or “disapprove” according to its discretion. Its approval or disapproval may result from mere whim or caprice. Its approval or disapproval may result from whether its members favor or are opposed to municipal ownership as a general proposition; whether they believe that nonmunicipal public utilities have or do not have too great powers; whether they believe as a general proposition that such utilities further or are inimical to public interests. If the legislature intended the creation of a district to depend on a finding of feasibility as a fact by the commission it might easily and presumably would have so said. It would have been as easy so to say as to say “approve” or “disapprove.” Why impute to the legislature the stupidity of concealing the meaning of .fact-finding by hiding it behind words in common use and commonly understood that neither carry nor imply such meaning ? Legislatures in these days of national codes, state codes, authorities, boards, commissions, and the like, are, as Mr. Justice Cardozo phrased it in A. L. A. Schechter Poultry Corp. v. United States (NRA Code Case), 295 U. S. 495, 553, 79 L. Ed. 1570, 1592, “running riot” in their willingness and attempts to delegate legislative power.
The opinion of the court bases its inference of intent of the legislature to impose on the commission a finding of *218feasibility upon the provision that on the filing of an application for a power district the commission must within ninety days report in writing “as to the feasibility or nonfeasibility” of the district as proposed. But a report of finding of feasibility is not necessary to the creation of the district as proposed. If all the municipalities comprised in the proposed district vote for its creation, it is created although the report of the commission is that it is not feasible. The opinion of the court concedes this. Why impute a finding of feasibility as condition of creation in case only part of the municipalities vote favorably when such finding is not essential when all so vote? “Feasibility” as defined by the court is as desirable and as necessary in the former case as in the latter. As the legislature negatived intent of “feasibility” in the former, why imply it in the latter? Plainly, the legislature’s intent was that if a majority of the voters in each of the municipalities wanted a power district they should have it. Just as plainly, to my mind, it intended that if a majority of the voters in a part but not all of the municipalities wanted a power district they should have it providing the commission wanted to let them have it.
The opinion of the court does not stop with reading into the statute a finding of feasibility not contained therein, but goes on to define in a general way feasibility, which the act itself does not purport to define, even in connection with the initial report of the commission “as to feasibility or nonfeasibility.” In the first instance the commission is plainly left to use its own interpretation of “feasibility.” The commission in its initial report and in its final order of approval, as the opinion of the court discloses, inferred that the legislature intended it to use its own interpretation of the word. The commission was perhaps closer to the legislature, and better informed as to its actual intent, than the court. That the legislature did not intend to lay down a definition *219of feasibility, or understand that it was laying down a definition, is indicated by the provision respecting the preliminary report of the commission “as to feasibility or nonfeasibility” that in the report the commission should give its “reasons therefor.” The commission is to give its own reasons; not limit its report on feasibility to consideration of any standard or definition of feasibility declared by or contained in or implied from the act itself.
If the statute be construed as implying that the “approval” of the commission must rest on a finding of “feasibility,” there is still no definition of “feasibility” in the act to supply a standard on which to base an “approval.” The dictionaries give several meanings to the word “feasible:” “Capable of being done, executed, or effected; possible of realization; . . . successful in operation.” Webster. If the last phrase quoted be taken as the meaning of the word, does “successful” mean capable of furnishing service at a reasonable rate, at a rate the consumers will pay, capable of being self-supporting, capable of operation if supported by taxation as the act implies it may be, or successful if existing utilities within the district be taken over by the district as the act provides may be done? And how would the commission know which of these meanings to give to the word “successful.” The court steps in here by its opinion and endeavors to help out the commission in future cases, if any there be, by covering part but not all of the hypotheses above stated. But how can the court, any more than the commission, know which of the several meanings of the phrase “capable of successful operation” the legislature intended, and what right has the court to say which one the legislature intended, when as matter of fact it does not and cannot know, even if it assumes that the legislature had some specific definition of the phrase “successful in operation” or the wo'rd “feasible” in mind when it passed the act ?
*220The provision that the commission must within ten days approve or disapprove indicates to my mind, as the opinion of the court shows the commission thought, that the legislature could not have intended any specific finding of feasibility in the sense that the court defines it, because it gave no time to it for ascertaining the basic facts on which a finding of feasibility as defined by the court must rest.
It was held in the Schechter Case, supra, that legislative power was unconstitutionally delegated which purported to authorize the making of a code by the "approval” of the President without setting up any standard aside from the general aim of “rehabilitation, correction and development of trades and industries.” The word “feasibility”- in the statute indicates nothing more at most than a general aim, if it implies that. The mere “approval” of the commission can no more create a municipal corporation, than that of the President can create a code. In my opinion there cannot be a delegation of power to make a finding of feasibility without stating the facts which constitute feasibility. If a term be used which has only one meaning, or a meaning fixed by common use or by a statute, then the term supplies a standard. It seems to me that our own Tavern Code Authority Case (Petition of State ex rel. Attorney General, 220 Wis. 25, 264 N. W. 633) illustrates what may and what may not be a sufficient delegation of power. The court there held that as to delegating power to prohibit “unfair” trade practices, the delegation was sufficient because what constitutes “unfair” trade practices is indicated in statutes and decisions under them relating to trade practices. But that as to determining what constitutes “fair” trade practices, the statute neither directly nor by inference or- implication furnished a standard for making such a determination, and the statute was void so far as it attempted to delegate such power. It seems to me that the phrase “successful operation” less *221definitely indicates its meaning than does the phrase “fair trade practices.” Common knowledge affords at least some capability for determining what is “fair” in trade practices. It affords no capability for determining whether a public service corporation can successfully operate in a given territory. In my opinion the court has no right to say what facts the legislature had in mind if it did have in mind and intend that the commission should find feasibility as a basis of its approval. To do so is not merely to declare what the language of the legislature means or implies, which is the sole function of the court in construing a statute. It is going a long way beyond that. The court is furnishing a standard that the legislature failed to furnish. It is putting in the statute a defining phrase, “successful in operation,” that the legislature not only did not put into it, but did not indicate that it meant to put into it and then defining the meaning of that phrase.
The opinion of the court cites Milwaukee v. Ruplinger, 155 Wis. 391, 145 N. W. 42, and Pinkerton v. Buech, 173 Wis. 433, 437, 181 N. W. 125, in support of its contention that the instant act supplies a standard by which the commission is to determine feasibility. In the former the matter involved was simply whether the mayor of a city could determine the fitness of a person to run a junk shop. Common knowledge would supply the facts reasonably necessary to determination whether a license should be granted an applicant. The opinion of the court in that case is in effect that there is no need to put into an ordinance as basis for licensing what common knowledge and common sense indicate must constitute the basis. In the latter the application for a license as a detective was required by the licensing statute to state the city wherein the applicant proposed to do business and “such further facts as will show the good character, competency and integrity” of the applicant. The language quoted *222is manifestly a specific statement of the qualifications deemed by the common council necessary for the granting of a license. The mere granting of licenses to follow a trade or to carry on a business seems to me far different from the matter here involved. Determination of fitness, where vested by ordinance in a specified licensing officer, is held to be a ministerial, not a legislative, function. Wright v. May, 127 Minn. 150, 149 N. W. 9; State v. Briggs, 45 Or. 366, 77 Pac. 750, 78 Pac. 361; Racine v. District Court, 39 R. I. 475, 98 Atl. 97. It is stated in 17 R. C. L. p. 535, § 52, that—
“. . . The authorities are directly to the purport that in the regulation and licensing of trades, occupations, callings, and professions which affect the public welfare the legislature must enact the law necessary to accomplish the object in view; but it may be carried into execution by some officer or board appointed for that purpose, and such officers or board may be authorized to prescribe the qualifications of those desiring to follow such callings or professions.”
More to the point of the instant case is our Tavern Code Authority Case, supra, and the Schechter Case, supra, and State ex rel. Adams v. Burdge, 95 Wis. 390, 70 N. W. 347. The case last cited holds that a statute by its terms conferring on the state board of health power to make such regulations “as may in its judgment be necessary for the protection of the people” from contagious diseases and to' designate what diseases are “contagious or dangerous to the public health” delegates legislative power. What is said in the opinion of the court in the instant case about the commission being a body of experts and competent to’ do what the opinion says it should have done might as fittingly be said about the state board of health and its doing what the statute involved in the Burdge Case said it might do.
The plaintiff in the instant case contended; not only that the statute involved delegated legislative power, but that it is unconstitutional because it violates the contract clause and *223the due process clause of the United States constitution. The court ruled against the plaintiff on its first proposition, and declined to mention the others except to say that the statute “bristles” with legal questions. Perhaps in view of the importance of these “bristling” questions, affecting as some one or more of them conceivably may every public utility, every municipality, and every taxpayer in the state, they not only ought not to be decided herein because in this case a ruling could not be obtained on the federal questions involved by the supreme court of the United States, but some of the more important of them ought to be specifically stated.
Has an existing utility, and has the municipality in which it is located, any contract obligations under the indeterminate permit provisions of the utility law; and if so, does the instant act, in violation of the contract clause of the United States constitution, impair any such obligation?
Does the declaration of the statute that a power district is a municipal corporation make it such when it has no governmental functions, except the power of taxation to enable it to furnish the service it is created to supply, if the power of such taxation may be constitutionally granted to it, or is such a district, despite the declaration, merely a business corporation devoted to a public service like any other utility under the public utility law ?
Can the legislature, in the exercise of the state’s power of eminent domain, after conferring on an existing utility the power of eminent domain and devoting it to the furnishing of a particular public service within a municipality, confer on a power district the right to take over under the public utility law such utility, to be devoted to the same public service for the district that the utility is satisfactorily supplying to the municipality?
If, as the act by its terms provides, a power district can take over under the public utility law a utility within its limits, *224can the legislature empower the district to take over any part of the utility’s property less than the whole, as the act purports to empower the district to do, without violating the due process or the contract clause of the United States constitution ?
Can the legislature, as the act by its terms provides, prohibit an existing utility within the limits of a power district from extending or making additions to its plant without procuring a permit from the power district in the cases in which under present provisions of law the utility is required to get a permit from a local municipality or the commission?
Can the legislature, as the act provides, constitutionally subject all property within a power district to taxation for the debts of the district regardless of whether the owner receives the benefit of the service the district is created to supply ?
Some but not all of the questions above stated with which the power district act “bristles” were discussed in the briefs submitted to the court. The questions are here propounded without indicating the opinion the court may now or eventually have upon any one of them, but solely in the hope that the legislature may give them consideration in case it amends the existing act.
I am authorized to state that Mr. Justice Faiechild concurs in this opinion.