On Petitions for Rehearing.
The petitions for rehearing of the commission and respondent are supported by excellent and able briefs. Errors pointed out, we have corrected in the foregoing opinion.
In summary, respondents urge that this court erred in considering the assignments and issues presented by appellant, for the reason that the court had no jurisdiction to do so. Respondent Idaho Natural Gas Company contends that the function of the commission in certification proceedings is purely administrative, and distinguishes between the scope of review in such proceedings and proceedings involving constitutional rights where the commission exercises a judicial or quasi-judicial function,, such as in rate cases; and urges that in administrative proceedings the legislature has invested complete discretionary power in the commission, and that there is no room for judicial intervention. In its brief, respondent says:
“Ño constitutional question is here involved; in fact, no question of law is involved. * * *; however, it is not only clear that certification or any permissive right is purely- administra--tive but that there, is not involved any judicial function.”
To be consistent with this view, respond-' ent should have moved to dismiss the ap- ■ peal on the ground there was nothing presented which the court had jurisdiction to: review. On the contrary, respondent briefed and argued the issues presented by appellant.
Assuming (but not deciding) the distinction is a proper one and that the function of the commission in this case is purely administrative, respondent’s conclusion •• is not warranted. The constitution provides this court with jurisdiction to re-' view “any order of the public utilities commission.” Art. 5, § 9. The statute likewise provides for an appeal “from any order” of the commission. § 61-627, I.C. True, the legislature has limited the scope of the appeal. § 61-629, I.C.
We have reviewed the evidence and the record in this case only to the extent nec-" essary to determine the ultimate question as to whether the commission regularly pursued its authority. The conclusion that the commission’s orders should be set aside is not based upon weight of' evidence or creditability of witnesses, nor is it' based upon “the size of the pipe, the number of feet of pipe, the number of customers it may attach, rates to be charged, the amount of consumption of gas per customer, or the ¿mount of gas to be allowed to each customer”, as respondent contends.
*204The question as to whether the commission’s orders are supported by competent evidence, or are contrary to the evidence, or whether its action may have been arbitrary, are embraced within an investigation of the charge that it has not regularly pursued its authority. This court’s review and determination of such issues is neither an assumption of the prerogatives of the commission, nor a substitution of the judgment of the court for that of the commission.
Petitioners again assert that there is no limit to the amount of gas available for southern Idaho, and that our conclusion to the contrary is unwarranted. We were in error in saying that the allocation of 33,149 Mcf of peak day gas was allocated for use in -Idaho by the FPC. That error we have corrected. The fact is, the allocation was made by the pipeline corporation in its market estimates which were submitted to, and approved by, the FPC. In its order the FPC, after referring to the pipeline company’s utility and industrial estimates, said:
“In addition Pacific will have available 8,350,800 Mcf of gas in the third year with a maximum day volume of 15,000 Mcf for which no market has been definitely assigned.” FPC Order No. 271
This appears to mean that 33,149 Mcf peak day gas is definitely assigned to the Idaho market, and that the balance of the pipeline’s available gas (except the 15,000 Mcf) has been definitely assigned to other markets. It is to be noted that the FPC corrected its order some two weeks after it was made, by adding the word “definitely” in the sentence here quoted. Also, it should be noted that the full amount of gas thus assigned to Idaho may not be available until the third year of the pipeline’s operation. The federal commission’s order shows that the pipeline’s estimates reach their maximum in the third year. That is the year in which respondent estimated its sales at 63,608 Mcf.
On this subject, respondent’s expert, Mr. Carpenter, testified there was no question but that it would be necessary to go before the FPC to get a larger allotment. The conclusion is inescapable that the record before the commission shows only 33,-149 Mcf of peak day gas is to become available for the Idaho market within the first three years of the pipeline’s operation.
Respondent now urges the court to judicially notice an application made May 23, 1955 — amended July 18, 1955 — by the pipeline company to the FPC for authority to import gas from Canada, estimating an additional 71,509 Mcf per day to be sold in the area already covered by its existing certificate. We are urged to notice this application because it is published in the Federal Register. Even so, we cannot, nor can the commission, speculate as to any proportionate amount of such additional *205gas which may eventually be made available to Idaho.
Moreover, petitioner correctly urges upon us that the commission, not the court, is the fact finding body. We cannot take testimony or receive additional evidence. The legislature has specifically limited our review in that respect.
“No new or additional evidence may be introduced in the Supreme Court, but the appeal shall be heard on the record of the commission as certified by it.” § 61-629, I.C.
A rehearing might be helpful in clearing up fringe areas of confusion and disagreement, and we would be inclined to grant a rehearing in such an important case but for the fact that it is now apparent the case must go back to the commission for further proceedings by it, in accordance with §§ 61-629 and 61-624, I.C. Oregon Short Line R. Co. v. Public Utilities Commission, 47 Idaho 482, 276 P. 970. A rehearing in this court would only further postpone the ultimate conclusion of a matter vital to the public interest.
Rehearing denied.
PORTER and SMITH, JJ., concur.