(dissenting).
The majority opinion is so far reaching in its consequences that it would, I think, be a disrespect upon my part to that scholarly opinion and to the extensive learn*608ing and experience of my Associates concurring therein should I fail to record the reasons which compel me to a reluctant dissent.
The whole ease turns upon the effect, if any, to be given Chapter 261 of the Public Acts of 1951 amending Code Section 9014. As that section stood prior to the enactment of the 1951 Act, the Chancellor was directed, in reviewing the fact findings of an administrative board, to “reduce his findings of fact # * * to writing and make them parts of the record.” The 1951 Act proposes to amend this provision of Section 9014 so as to provide that “In making such findings of fact the Chancellor shall weigh the evidence and determine the facts by the preponderance of the proof.”
Prior to the enactment of the 1951 Act the fact findings of the Railroad and Public Utilities Commission were not disturbed by the Courts in reviewing orders of the Commission, if such fact findings were supported by any substantial evidence. Throughout the hearing of this case in the Chancery Court, and in the Court of Appeals, and in this Court, until after the granting of the petition to rehear, it seems to have been the opinion of all the lawyers, the Chancellor, all members of the Court of Appeals and all members of this Court that the effect of the 1951 Act is to change the procedure so as to require the Chancellor, when proceeding under Sections 9008-9018 of the Code, to determine whether the fact findings of the Railroad and Public Utilities Commission are supported, not by substantial evidence, as theretofore, but by a preponderance of the evidence. This fact is mentioned only because such heretofore unanimous construction of the Act strongly supports the thought that such must be its natural construction. It should be *609added that the Chancellor declined to give the Act effect because it was enacted after this suit was started.
However, in considering the merits of the petition to rehear, it has been concluded by the majority of this Court, and so expressed in the majority opinion, that the proper construction of the 1951 Act is to require the Court, in reviewing fact conclusions of the Public Utilities Commission “to determine by a preponderance of the evidence, whether the Commission had acted beyond its jurisdiction, arbitrarily, fraudulently or illegally.” That is, according to the majority opinion, the 1951 Act requires the Court, in reviewing a fact conclusion of the Public Utilities Commission, to determine by a preponderance of the evidence whether such fact conclusion is supported by any substantial evidence. Such a construction, as I see it, of the 1951 Act is to reduce it to an absurdity in that it proposes to require the Court to do that which is impossible.
Testing that immediately above said by the fact issue in this case, the statute directs the Railroad and Public Utilities Commission to determine “from the evidence” (emphasis supplied) whether the public convenience and necessity will be promoted by the issuance of the certificate of public convenience and necessity for which Robinson has applied. Code Section 5501.5(a). Several witnesses testified that public convenience and necessity would be promoted. Now, this testimony is substantial evidence of that fact, no matter how many witnesses testify to the contrary. It is, therefore, impossible for the Court to determine by the preponderance of the evidence that there is no substantial evidence. There is substantial evidence, regardless of how great the preponderance to the contrary is.
*610■ Thus, I am not able to rid my mind of the conviction that the proper construction of the 1951 Act is that it requires the Chancellor in proceedings under Sections 9008-9018 of the. Code to determine whether the fact conclusion of an administrative hoard or commission is supported by a preponderance of the evidence. I think that is what the Legislature intended.
But the majority opinion says that the construction just stated “ would render the Act unconstitutional for the reasons stated in the opinion In re Cumberland Power Co., supra’’,147 Tenn. 504, 249 S. W. 818, in that such construction requires the Court “to perform an administrative or legislative function, which is beyond its competency.” As authority for the last statement in quotations, the majority opinion says " Sec. 2, of Art. II, forbids the e'xercise by one (of the three departments of State) of the function of another department.”
This holding of the majority opinion requires consideration of three questions, to wit: (A). What does the case of In re Cumberland Power Company, supra, decide? (B). What is the function which the 1951 Act purports to require of the Court? (O). Does Section 2 of Article II “forbid(s) the exercise by one (of the three departments of State) of the function of another department”, as stated in the majority opinion?
- (A). In the ease of In re Cumberland Power Company, supra, the statute provided for appeal directly to our Supreme Court from the orders of the Railroad and Public Utilities Commission. This Court held that act unconstitutional, because appeals may come to the Supreme Court only from orders or decrees of a court. The Railroad and Public Utilities Commission is not a Court. It is an administrative body. Hence the statute undertaking to allow an appeal directly from the order of that *611.administrative body to this Court was held unconstitutional.
In so far as I am able to see, the question decided in Cumberland Power Company case, supra, is not relevant to the question with which we are here concerned. As a matter of fact, every board or commission functioning-under the laws of this State whose orders are reviewed by the Chancery or Circuit Court when proceeding under Code Sections 9008-9018 is an administrative board or commission. The question is whether such administrative board or commission in performing its duties and powers did at any stage of the proceedings exercise a judicial function in reaching the conclusion sought to be reviewed. If so, the Court in reviewing the commission’s exercise of such judicial function is likewise exercising a judicial function. Bouldin v. Lockhart, 62 Tenn. 262, 269.
(B). What is the function which the 1951 Act purports to require of the Court? Is it an administrative function! Section 9014 provides that the Chancellor shall hear the case “on the proof” before the Commission and “such other evidence as either party may desire to introduce ’ ’ and “shall reduce his findings of fact and conclusions of law to writing and make them parts of the record. ’ ’ Then comes the 1951 amendment providing that the Chancellor shall weigh the evidence and determine the facts by the preponderance of the proof.” So it is that the function required of the Chancellor or Circuit Court by the 1951 Act is that in reviewing a Board’s or Commission’s conclusion of fact the Chancellor or the Circuit Court shall weigh the evidence and determine the question “by the preponderance of the proof.” Is that a non judicial function?
*612Weighing evidence and determining questions of fact by the preponderance thereof has always heretofore been regarded as a judicial function. The Circuit Judge in every non-jury case which he hears, and in many others, and the Chancellor in the cases heard by him on oral evidence or by depositions exercises that function daily. It has never been suggested, in so far as I am aware, that the exercise of such a function is not judicial in nature. Yet, in effect, the able majority opinion so holds, — necessarily.
To go further and apply the 1951 Act to the question of fact before the Railroad and Utilities Commission in this case, we find that this Commission is required to determine “from the evidence” whether the public convenience will be promoted by the issuance of the certificate for which Robinson has applied. The 1951 Act merely requires the Chancellor to decide whether the preponderance of the evidence supports the Commission’s conclusion “from the evidence” that the certificate should be issued. This seems to me to be the exercise by the Chancellor of a judicial function.
It is argued in behalf of Robinson that the grant of such a review to the Courts destroys the common law writ of certiorari. This common law writ is secured by Section 10 of Article VI of our Constitution. While the relief afforded by' it cannot be taken away from the people, it being guaranteed by the Constitution, the quantity and quality of relief may be increased, since the Constitution does not prevent the Legislature from broadening the scope of the writ. Duggan v. McKinney, 15 Tenn. 21, 22-23. The legislature, in providing that the Court in reviewing a fact conclusion of an administrative board shall determine the question by the preponderance of the evidence rather than by the question *613of whether the Board’s conclusion is supported by material evidence, is merely to broaden, the scope of the writ in proceedings under Sections 9008-9018 of the Code.
It is a mistake, in my judgment, to say that the 1951 Act, construed as I construe it, converts the Court into a rate making body. If the statute provides that the Railroad and Public Utilities Commission shall determine “from the evidence” what rate shall be charged for a given service, and rate experts testify upon this question of fact, the Court is not exercising a rate making function in considering the evidence of these experts for the purpose of determining where the preponderance of the evidence is. The Circuit Court or the Chancellor may review the testimony of experts in the field of science, medicine, or other professional field for the purpose of ascertaining where the preponderance of the evidence is, and has done so from time immemorial. For identically the same reason, it seems to me to necessarily follow that the Court is merely exercising a judicial function in reviewing the testimony of experts in rate making for the purpose of ascertaining where the preponderance of the evidence is.
It is a mistake, I think, to cite Tomlinson v. Board of Equalization, 88 Tenn. 1, 12 S. W. 414, 6 L. R. A. 207, and that line of cases, in support of the proposition that the Court may not weigh the evidence for the purpose of determining where the preponderance is. In the Tomlin-son case the tax board was authorized to make assessments of real estate based upon its own opinion, rather than on an opinion formed from testimony of witnesses. Of course, in such a situation the Court would be substituting its opinion for that of the Tax Board were it permitted to review such an order. No judicial function was exercised because no evidence was weighed. The *6141951 Act makes no such provision. It merely requires the 'Chancellor to determine “on.the proof” introduced before the administrative board, and upon such additional proof as may he presented to the Chancellor as to where the preponderance of the evidence lies upon the question of fact decided upon evidence by the board or commission.
(C). The majority opinion, after calling attention to the fact that our state government is divided into three independent departments, then states that “Sec. 2, of Art. II, forbids the exercise by one of the function of another department.” This provision of the Constitution is not so absolute as that. Its provision is that neither department shall exercise a power properly belonging to either of the others, “except in the cases herein directed or permitted’’, (emphasis supplied) meaning, except in cases directed or permitted by other provisions of our Constitution. Richardson v. Young, 122 Tenn. 471, 491, 125 S. W. 664. So, this exception requires an examination of our Constitution for the purpose of determining whether it contains a provision which permits the Legislature to vest in the Courts the power and duty of determining whether a fact conclusion of an administrative board or commission is supported by the preponderance of the proof, that being the only requirement of the 1951 Act.
Article VI, Section 8 of our Constitution provides that the “Jurisdiction of the Circuit, Chancery, and other inferior courts, shall be as now established by law, until changed by the Legislature.” Jackson v. Nimmo, 71 Tenn. 597, 606, in construing this clause of the Constitution, said that a “change of jurisdiction, that is, enlargement or diminution of the (ir) sphere of action (of snch *615Circuit, Chancery or other inferior Courts) was to he left, and was authorized to be made by, the legislature ’ ’.
To provide, as Chapter 261 of the Public Acts of 1951 does, (as I construe the Act) that hereafter Chancery Courts must act in accordance with the preponderance of the evidence in reviewing a fact conclusion of any administrative board or commission when proceeding under Sections 9008-9018 “unless otherwise provided” is only to provide an ‘ ‘ enlargement — of their (Chancery Courts ’) sphere of action” under what were the proceedings under the common law writ as to a matter which has always been considered a proper function of courts, to wit, the function of weighing the evidence introduced in the trial of lawsuits. To me, then, it appears necessary to conclude that in the enactment of the 1951 Act the legislature only did that which the Constitution permits by its Article VI, Section 8.
Perhaps it is not amiss to say that I do not think that the statements of the United States Supreme Court referred to in .the majority opinion are of any assistance because our question is whether a State statute violates the provisions of our State Constitution. Of course, we must look to the language of our statute and of our Constitution in deciding that question.
For the reasons stated, I think the opinion of the Court of Appeals should have been affirmed.