dissenting.
The dispositive issue in this case is whether PUC has the authority to order the refund. The majority correctly determines that PUC lacks express statutory authority to do *312so under ORS 759.185(4) but concludes that authority must be implied under ORS 756.040.116 Or App at 310. Although I agree with the majority that “an agency has such implied powers as are necessary to enable the agency to carry out the powers expressly granted to it,” the majority fails to recognize that we cannot imply a power under a general grant of authority that exceeds the scope of a specific grant of authority. Because the majority does just that, I dissent.
In Sunshine Dairy v. Peterson et al., 183 Or 305, 193 P2d 543 (1948), the court examined the relationship between general and specific grants of authority. In that case, the plaintiff challenged the authority of the Director of Agriculture to establish a minimum price differential between milk products sold in single serving containers and those sold in larger containers. The defendant claimed that the action was authorized by OCLA § 34-1003, which provided that the defendant had the authority
“(c) to supervise and regulate the milk industry of the state, including production, * * * transportation, manufacture, storage, distribution and sale of milk; * * * (g) to adopt and enforce all rules, regulations and/or orders necessary to carry out the provisions of this act; (h) to exercise such other powers as hereinafter are specified.”
The court rejected the defendant’s contention. It concluded that the determination of whether the general grant of authority authorized the minimum price differential was a question of legislative intent that required consideration of the statute as a whole. One of the other statutes concerning the defendant’s authority provided, in part:
“The board shall ascertain what prices for milk in each locality and market area of the state will best protect the milk industry and insure a sufficient quantity of pure and wholesome milk in the public interest. The board shall take into consideration all conditions affecting the milk industry, including the price necessary to produce a reasonable return to the producer and to the milk dealer.
“After making such investigation the board shall, by order, fix the minimum wholesale and retail prices to be charged for milk handled and sold within the state for human consumption in fluid form, and including the following classes:
*313“(a) By producers or associations of producers to milk dealers; (b) by milk dealers to stores for consumption on the premises, or for resale to consumers or to others; (c) by stores to consumers or to others except for consumption on the premises where sold; (d) by producer-distributor and distributor for deliveries to homes of consumers; provided, that based upon differences in cost of said various services, if any, the board, upon facts found by it, may establish differentials in prices between house-to-house sales by dealers, house-to-house deliveries by stores, and sales on credit and the over-the-counter sales by stores for cash.” OCLA § 34-1012.
Because that statute specifically addressed the defendant’s authority to fix prices, the court concluded that the legislature did not intend the general grant of authority to confer any power to fix prices beyond that conferred by the specific grant. 183 Or at 321. It viewed the specific provision
“ ‘not as an impairment or qualification of the general powers of the board, but as an amplification and extension thereof, and we are of the opinion that the authority to fix prices is to be found only in that article.’ ” 183 Or at 320, quoting Supplee-Wills-Jones Milk Co. v. Duryee, 116 NJ Law 75, 181 A 908 (1935).
In short, the specific provisions of a regulatory scheme can confer powers beyond those conferred by a general provision. Conversely, the general provisions of a regulatory scheme do not impliedly confer powers that exceed the powers inherent in a specific provision.
“ ‘It is a well established principle of statutory construction that when a specific power is granted by a statute and the limits of such power are therein marked out, the section granting the power and not general provisions in other sections of the statute must be looked to in ascertaining the effect and extent thereof.’ ” 183 Or at 338, quoting Lucerne Cream and Butter Company v. Milk Commission of Virginia, 182 Va 490, 129 SE2d 397 (1944).
Similarly, in Safeway Stores v. State Bd. Agriculture, 198 Or 43, 255 P2d 564 (1953), the court considered whether a general grant of authority authorizing the defendant to “supervise and regulate the milk industry” determined the extent of the defendant’s licensing authority or, rather, if that power was limited by more specific provisions of the regulatory scheme. After acknowledging that that was a *314question of legislative intent, the court reiterated the rule that
“definite provisions in a statute relating to the subject under consideration control general provisions, in the absence of language which requires a contrary holding.” 198 Or at 69.
The court then concluded that the specific grants of authority controlled over the general grant, because
“[t]he very fact that each of [the specific] provisions is cast in exact terms would render the situation anomalous if the legislature intended that other phases of licensing should be governed by a grant of power as lacking in definiteness as the provision ‘to supervise and regulate the milk industry.’ ” 198 Or at 72.
Although Sunshine Dairy and Safeway are older cases, both of which involved the same agency, the rules applied in them remain valid and are applicable, regardless of which agency’s authority is challenged. For example, in Ochoco Const, v. DLCD, 295 Or 422, 667 P2d 499 (1983), the court considered whether the Department of Land Conservation and Development had the authority to challenge local land use decisions made after a comprehensive plan acknowledgment. Because the department did not have the express authority to do that, it argued that it had implicit authority:
“[T]he Department argues that an examination of its general statutory authority, considered in light of the purpose of ORS chapter 197, compels a construction which grants it the authority it claims. Specifically, the Department relies on ORS 197.045(4) which grants power to the [department] to ‘[plerform other functions required to carry out ORS 197.005 to 197.430 and 469.350.’ ” 295 Or at 434.
The court disagreed. After examining the statutory scheme as a whole, it concluded that
“such responsibility is conspicuously absent in light of the breadth of responsibility with which the Department expressly is charged during the planning stage. Furthermore, none of the responsibilities expressly delegated to the Department are in any way frustrated by its inability to challenge land use decisions made after comprehensive plan acknowledgment.” 295 Or at 434.
*315The court further noted that, subsequent to the date that the case arose, the legislature amended one of the specific statutes governing the department’s authority. That amendment allowed the department to review and act upon some local land use decisions after plan acknowledgment by issuing a compliance order. The court concluded that that
“specific grant of power to the Department * * * further supports our conclusion that the 1979 Legislature did not intend impliedly to grant the power claimed here to challenge individual land use decisions before LUBA.” 295 Or at 435 n 14.
Because a specific grant of authority specified when the department could do the challenged act, the department was not impliedly authorized to do that act other than under the specific circumstances.
ORS 756.040(1) provides:
“In addition to the powers and duties now or hereafter transferred to or vested in the commission, the commission shall represent the customers of any public utility, telecommunications utility, railroad, air carrier or motor carrier, and the public generally in all controversies respecting rates, valuations, service and all matters of which the commission has jurisdiction. In respect thereof the commission shall make use of the jurisdiction and powers of the office to protect such customers, and the public generally, from unjust and unreasonable exactions and practices and to obtain for them adequate service at fair and reasonable rates.”
The majority contends that that statute impliedly authorizes PUC to order a refund, even though it does not have the specific authority to under ORS 759.185(4)1 or any of the other statutes governing refunds.2 Because that conclusion *316conflicts with the rule that a specific grant of authority limits the authority that can be implied under a general grant, I dissent.3 .
Richardson and Edmonds, JJ., join in this dissent.Although ORS 759.185(4) is -written in terms of when a utility must refund revenues, PUC is the only agency that can compel compliance with that directive. Consequently, as the majority recognizes, the statute provides PUC the authority to order refunds under the stated circumstances. If that were not true, the majority would not have had to analyze whether the refund PUC ordered was authorized by that statute.
Although I agree with the majority that ORS 759.200(2) also authorizes the PUC to order refunds, those refunds are specifically limited to increases in revenues or decreases in expenses directly associated with one of the events specified in ORS 759.200(2)(a) through (j). None of those events is involved here. Consequently, that statute does not authorize PUC to order the refund that it ordered.
In Union Pac. R. R. Co. v. Bean, 167 Or 535, 119 P2d 575 (1941), the court held that PUC could not suspend proposed reduced rates filed by railroad carriers, because the statute authorizing PUC to suspend rates specified the PUC could suspend a proposed rate increase. At that time, PUC’s general grant of authority was as broad as it is today. See OCLA § 112-105. Although the court did not specifically base its opinion on the rule that a specific grant of authority controls over a general, the decision does indicate that PUC’s power is not as plenary as the majority contends.