On Petition for Rehearing
JOHNSON, Judge.The appellant’s petition for rehearing is devoted solely to the contention that it has been deprived of a fair hearing.
Syllabi 4, 5 and 6 of the opinion filed in this case September 27, 1956, constitute our determination of the principal issues presented upon this appeal. Our determination of the right of the respondent to make the extensions complained of without a certificate of public convenience and necessity was based upon interpretation of the applicable statute, Section 49-0301(3), NDRC 1953 Supp. In other words the authority of the respondent to do what was done here rests upon the power granted by statute. Thus, after our determination that the Public Service Commission was without jurisdiction to construe, interpret, and enforce the agreement of July 21, 1952, the remaining issue involved the interpretation of the statute to ascertain what grant of power was involved and its application to the facts.
It is, of course, elementary that even in an administrative hearing the issues are limited to those raised by the pleadings and a hearing should be confined to the points at issue. Here primarily two points were at issue, did the Public Service Commission have the power to construe, interpret and enforce the agreement of July 21, 1952, and did the respondent have a statutory right to make the extensions complained of? Since the Commission did not have jurisdiction of the alleged contractual rights and obligations of the parties, then the authority of the respondent to malee the extensions was to be derived from the power granted by the statute, or it did not exist.
The appellant devotes considerable argument to the contention that somehow the material in the file relating to the approval of the service contract, entered into on October 12, 1953, between the Williston Basin Refining Corporation as the “customer” and the Montana Dakota Utilities Company, as the “company” had a bearing on the issue. It insists that our statement that:
"Second, the appellant contends that it was denied a fair hearing based on failure of the Commission in the course of the hearing to take notice of other proceedings concerning the respondent before the Commission, to which the appellant was not a party, without the production of the files of which the appellant wanted notice taken”,
was incorrect. If the quoted language is a misconstruction of the situation and of the record, it is, as we shall see, wholly immaterial. In dealing with this matter we did say:
“Its (referring to the respondent) right to construct the extension necessary to enable it to render such service must be based on the statute. The production of the entire file, therefore, would not establish the right of the utility to extend its service to the refinery * * *.”
Counsel for appellant had demanded the production of the file. He said:
*525“We want the file produced so that we can see the order which Mr. Gamble has testified has been entered.”
In the ensuing argument and comment, after this statement, the Commission indicated that it would take notice of this file. The file itself is not in evidence. The appellant insists that it is in evidence on the theory that the Commission had indicated that it would take notice thereof. While an administrative agency, or person conducting an investigation or a hearing, may waive the usual common law or statutory rules of evidence if such waiver is necessary to ascertain the substantial rights of all the parties to the proceedings, it may only consider and accept evidence of probative value. No information or evidence except as otherwise provided in Chapter 28-32, NDRC 1943,, “shall be considered.” Section 28-3206, NDRC 1943. Then follows Section 28-3207, NDRC 1943, dealing with the consideration of information not presented at a formal hearing. The Public Service Commission was without statutory authority to consider evidence or information in its possession or furnished by members of its staff or secured from any person in the course of an independent investigation by it, in addition to the evidence presented at the formal hearing, without compliance with the terms of this statute. We must presume that if “extra record” evidence or information was in the possession of the Commission bearing on the issue, that the Commission would have complied with the terms of the statute and thus have given opportunity to the appellant to cross-examine, answer or refute concerning such evidence or information or to meet it in some other way. Since this was not done, the presumption prevails that no “extra record” evidence or information entered into the decision of this proceeding by the Public Service Commission.
What has already been said would perhaps suffice to answer the appellant’s contention that the file in question was before the Commission by reference and that it did not have an opportunity to answer, explain, refute or cross-examine upon its contents; that consequently it has been denied a fair hearing. But assuming that its contents were examined and considered by the commission, although there is no evidence of that in the record or the findings and decision of the Commission, the question remains how its contents could have any possible relation to the primary issue involved. The appellant states that we cannot possibly tell because we do not know its contents. But we do know the primary issue in this proceeding was the matter of the application of a statute to an existing situation. The only facts material to the proper application and interpretation of the statute were those showing the locations of the extensions made and that the parties to whom the extensions had been made were not receiving similar service from that furnished by the respondent from another utility, or electric cooperative corporation, or that no certificate of public convenience and necessity had been issued to any other public utility. Those facts are all in evidence. Upon their consideration and the interpretation of the statute the decision was made. Inquiries as to other facts would of necessity lead to evidence unrelated to and outside of the issue. But because of the earnest contention made we will examine the question further.
The service contract is before us as Exhibit 23. It deals solely with the rights of the parties for the sale and purchase of electrical energy. Just what relevancy the proceedings leading up to the approval of the service contract could possibly have on the determination of the statutory interpretation involving the right of the respondent to make the extensions complained of without a certificate of convenience and necessity, the appellant does not explain. If they have no relevancy to the issue, they of necessity are of no probative or evidentiary value in the solution of the issue.
It is an elementary rule of evidence that matters offered must be relevant *526to the issue of the case and tend to establish or disprove them. Irrelevant facts and circumstances, that is those which do not throw any light upon, or have no logical relation to the facts in issue, which must be established by one party or disproved by the other, or which are remote and collateral, are not properly admissible in evidence. This principle is applicable to records as evidence. See 20 Am.Jur., Evidence, Section 246, pages 239 and 240. Here the primary issue was whether or not, under the statute, the respondent could make the extensions complained of without a certificate of convenience and necessity. It is perfectly obvious that if the respondent had no right to make the extensions under the statute, without such certificate, it was in no position to render service to the Williston Basin Refining Corporation. The execution of the service contract by the parties thereto and its approval by the Public Service Commission would thus be wholly immaterial to the issue. The provisions of the service contract and the evidence leading to its approval could not possibly bear upon the issue. Any inquiry concerning matters relating to the service contract would of necessity be collateral to the primary issue involved in this proceeding. Inquiry must end somewhere.
Where inquiry must of necessity lead to the pursuit of evidence upon a collateral matter to the issue under consideration, inability to pursue such inquiry will not result in the denial of a fair hearing. The term "fair hearing”, does not imply the right to have witnesses summoned for questioning on irrelevant matters. 35 C.J.S., Fair Hearing, p. 483. The fact that the Commission indicated that it would take notice of the contents of the file, is not to say that it did in fact do so. The record indicates that it did not take any cognizance of the contents of the file. It determined the issue before it by stating that it had no jurisdiction over the alleged contractual rights and obligations of the parties under the agreement of July 21, 1952, and that the extensions made were not unlawful.
We are entirely in accord with the rule noted by the appellant from 42 Am.Jur., Public Administrative Law, Section 140, pages 483 and 484, which states:
“A party to an administrative hearing is entitled to know the witnesses and the evidence against him. There is no hearing when the party cannot know what evidence is offered or considered and is not given an opportunity to test, explain, or refute.”
“Supreme Court decisions on official notice, properly interpreted, form a highly satisfactory body of doctrine, perfectly consistent with the thesis that the sole test of the validity of administrative resort to extra-record materials is whether or not the parties have adequate opportunity to meet those materials in the appropriate fashion.” Davis on Administrative Law, Section 156, page 510.
It is apparent here that no “extra record” evidence was considered by the Public Service Commission in arriving at its decision.
One of the cases upon which the appellant seems to rely heavily, Ohio Bell Teleph. Co. v. Public Utilities Commission, 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093, is not in point here. That case involved telephone rates. In that case it was held that a denial of due process of law resulted where the basis for an order requiring a telephone company to refund to its patrons “excess” earnings collected during a series of years, a state commission valued the company’s property for each of these years by applying to the value in an earlier year, which it had determined on hearings, price trend percentages said to have been derived from evidence of which the Commission took official notice, but which it withheld from the records and refused to reveal. This evidence had a direct bearing upon the issue *527which was the main purpose of the investigation. Here we have an entirely different situation. The determination of the issue involved depended upon statutory interpretation. No matter what the files which appellant insists are in evidence by reference contained, such evidence could have no possible bearing, nor would it aid or assist in the interpretation of the statute from which we deduced that the power existed authorizing the extensions made and complained of in this proceeding.
What has been said here with reference to the file leading to the approval of the service contract between the Willis-ton Basin Refining Corporation and the respondent also applies to Case No. 1-1935. The appellant complains that it was not furnished copies of the documents involved in that case. The only document which the respondent requested be noted by reference was the certificate of convenience and necessity issued in Case No. 1-1935. It is true no copies were furnished but the original certificate is in evidence. It was introduced by the respondent to show that it had been serving Ole Qualey in Section 28-154 — 101 under authority of the certificate. Ole Qualey was located in territory contiguous to that of some of the parties to whom the respondent had made extensions. In other words the purpose of the certificate was to show that the extensions were made to territory that was within the terms of the statute. We referred to this exhibit in our main opinion. The appellant had an opportunity to cross-examine concerning it. If it was desirous of obtaining other evidence from the file in which this certificate was contained, there is no reason why it could not have had access to it. The file apparently was available at the time. The Commission had the file at the hearing. If the appellant felt that the file was of any material value or constituted proper proof in connection with this case, there was no reason why it could not have requested a recess for the purpose of examining the file to determine what, if anything, therein contained was material, and then ask leave to use it and substitute certified or photostatic copies of the evidence thus submitted. At any rate it is very difficult to comprehend why the contents of this particular file would have any bearing upon the essential issue here, that of interpretation of a statute. The certificate was issued nearly sixteen years before the appellant obtained its authority to construct, operate and maintain its electric lines. It was not incumbent upon the respondent to furnish copies to the appellant of a record available to it and the failure of the respondent to furnish copies does not in itself constitute a denial of a fair hearing. To render a hearing unfair the defect or the practice complained of must be such as might lead to a denial of justice, or there must be an absence of one of the elements deemed essential to due process of law. 42 Am.Jur., Public Administrative Law, Section 138, page 481. The evidence or information in the files referred to was not before the Commission. There is nothing in the record to show that such evidence or information was considered. No right of the appellant to test, explain or refute material evidence upon the issue was denied. A fair hearing was afforded the appellant. We adhere to our decision.
The petition for rehearing is denied.
BURKE, C. J., and SATHRE, GRIM-SON, and MORRIS, TJ., concur.