(dissenting). I must dissent. The majority concedes that the hearing on an application for a permit under sec. 30.12 (2), Stats., is required; that it is a “contested case;” that the fair-play provisions of ch. 227, must be observed; and that findings of the commission and its action are subject to judicial review. Its opinion, however, characterizes the function of the administrative agency, Public Service Commission, as legislative and apparently reasons that because of this legislative aspect the commission is not strictly held to the adjudicative “fair-play” standards of secs. 227.07 through 227.13.
In support of the opinion that the commission’s function is legislative, the majority cites: Ashwaubenon v. State Highway Comm. (1962), 17 Wis. (2d) 120, 131, 115 N. W. (2d) 498 (hereinafter Ashwaubenon, first); Ashwaubenon v. Public Service Comm. (1963), 22 Wis. (2d) 38, 125 N. W. (2d) 647, 126 N. W. (2d) 567 (hereinafter Ashwaubenon, second); State v. Public Service Comm. (1957), 275 Wis. 112, 117, 81 N. W. (2d) *63371; Nick v. State Highway Comm. (1961), 13 Wis. (2d) 511, 109 N. W. (2d) 71, 111 N. W. (2d) 95.
These cases, in my belief, must be distinguished. In Ashwaubenon, second, supra, the statute under consideration, sec. 30.11, dealt with municipal bulkheads established in navigable waters. While the opinion of the court defines the function of the commission as legislative, the statute (sec. 30.11) does not provide for notice and hearing as does sec. 30.12 (2) under consideration herein. The opinion further specifically states, at page 46:
“We think it is clear that this is not a ‘contested case.’ Sec. 227.01 (2) Stats., defines a contested case as one in which there is a ‘hearing required by law.’ ”
State v. Public Service Comm., supra, dealt with a special act of the legislature wherein the city of Madison was given authority to make partial fill of a lake for parking and recreational purpose.
In Nick v. State Highway Comm., supra, the issue was the right to inverse condemnation by virtue of a designation of eontrolled-access highway. The court held the right to inverse condemnation did not lie and that plaintiff and her predecessors in title had not pursued or exhausted their administrative remedy in determining the validity of the controlled access order.
In Ashwaubenon, first, supra, we were concerned with the relocation of a substantial segment of an arterial highway. We stated therein, at page 127:
“The so-called fair-play provisions of ch. 227 (secs. 227.07-227.13, Stats., inclusive) do not apply to the case at bar because this is not a ‘contested case.’ Although a legislative-type hearing does not necessarily preclude the matter from being a contested case, we are unable to find a contested case in the matter at hand.”
The legislative function, if any, performed by the commission in deciding whether to issue the permit is *634slight. The crucial and overwhelming portion of the legislative discretion has been exercised by the legislature itself. By virtue of the provisions of sec. 30.12, Stats., the legislature has directed, in substance, that no structures or deposits can be placed on the bed of any navigable water unless a permit has been granted by the Public Service Commission “pursuant to statute.” The legislature then by statute (sec. 30.12 (2)) provided the Public Service Commission could “after notice and hearing” grant a permit to a riparian owner to build or maintain for Ms own use a structure otherwise prohibited, provided such structure “does not materially obstruct navigation or reduce the effective flood flow capacity of a stream and is not detrimental to the public interest.” The legislature and not the commission has determined that otherwise prohibited structures can be placed in navigable waters provided they meet certain standards. Whether these conditions or standards are or will be complied with by the applicant is to be determined by the commission after notice and hearing. The commission must, from the evidence before it, determine whether the conditions or standards fixed by the legislature have been met by the applicant, and if they have a permit should issue. The function of the commission is to make this determination by adjudicative process.
“The crucial question is not characterization of the whole proceeding as judicial or nonjudicial [legislative] but the presence or absence of issues of adjudicative facts.” Davis, The Requirement of a Trial-Type Hearing, 70 Harvard Law Review (1956), 193, 204.
There can be no doubt that the hearing called for by sec. 30.12 (2), Stats., is a contested case as defined in sec. 227.01 (2), and that the “fair-play” provisions, secs. 227.07 through 227.13, apply to the commission’s adjudication. 1
*635The majority opinion acknowledges that this is a contested case and then determines that the findings are supported by substantial evidence in view of the entire record and that the findings are not arbitrary or capricious.
The findings of fact and order of the commission, in their entirety, are as follows:
“Findings of Fact
“The commission finds:
“1. F. C. Hixon owns real property which is adjacent to Plum Lake in Vilas County, described as follows:
“Lot 1 except V141-235 of C. A. Goodyear’s Subdivision of part of Government Lots 9 and 10, section 29, township 41 north, range 8 east.
“Plum Lake is navigable in fact.
“2. During June and July of 1958, an excavation was made in the lake at a location adjacent to the Hixon property approximately 200 feet west of the east property line. The material removed from the excavation was placed on the bed of Plum Lake to form an extension of the upland into the lake. Timber piling has been installed along the inside edge of the fill and stone riprap has been placed along the outer or lake side.
“3. The fill is 85 feet wide at the base and is 139 feet in length along the north or lake side. The maximum extension into the lake from the former shoreline is 75 feet. The fill acts as a breakwater for a mooring facility adjacent to the excavated area.
“4. A sand bar exists on the bed of Plum Lake offshore from the applicant’s summer home. The purpose of the excavation was to provide access to the deep water of the lake across the sand bar from the applicant’s summer home.
“5. The area in Plum Lake occupied by the fill was navigable by small boats. The fill is spoil from the adjacent excavation and is an extension of the upland into the lake.
*636“6. The Commission on August 27, 1964, issued findings of fact and an order in Docket No. 2-WP-1961, Investigation by the Commission of Fill on the Bed of Plum Lake, Vilas County, by F. C. Hixon. A copy of said order was served upon F. C. Hixon and others by mailing a copy of the same to him by United States mail on August 27, 1964. The said order required F. C. Hixon to remove, prior to December 1, 1964 the fill placed on the bed of Plum Lake and provided that unless the Commission was informed within 30 days after the date of the order that the fill would be removed before December 1, 1964, the matter would be submitted to the Attorney General for enforcement as provided in section 30.03, Statutes. No application for rehearing on such order was filed with the Commission, at any time since said order was issued and served upon F. C. Hixon, although more than 20 days have elapsed since said order was issued and served upon him.
“7. The fill as it exists is an unnecessary obstruction to navigation. It is a material obstruction to navigation. It does not allow for the free flow of water thereunder and is detrimental to the public interest on the navigable water involved.
“Conclusions of Law
“The commission concludes:
“1. That the fill as described is material placed on the bed of Plum Lake and constitutes a violation of section 30.12, Statutes.
“2. That the fill is an obstruction to navigation in Plum Lake and, as such, is a violation of section 30.15, Statutes.
“3. That in accordance with the foregoing findings of fact, it has authority under section 30.03 (4), Statutes, to determine that the fill as located on the bed of Plum Lake is a violation of sections 30.12 and 30.15, Statutes. The order issued August 27, 1964 in Docket No. 2-WP-1961 and served upon F. C. Hixon and others on said day has become final and is not subject to attack in any court.
*637“Order
“The commission therefore orders:
“That the application herein by F. C. Hixon for a permit to maintain an existing fill as a structure on the bed of Plum Lake be and the same is hereby denied.”
This court has explicitly set down the standards by which the Public Service Commission must draw up its findings of fact under sec. 227.13, Stats. In Clintonville Transfer Line v. Public Service Comm. (1945), 248 Wis. 59, 81, 21 N. W. (2d) 5, the court said:
“The last sentence of sec. 227.13, Stats., is in legal effect a command to the Public Service Commission to conform to the decision in Cointe v. Congregation of St. John the Baptist (1913), 154 Wis. 405, 143 N. W. 180.
“. . . With this decision before it, no agency should have any difficulty in preparing findings of fact which state the ultimate conclusions upon each contested issue of fact and do that without reciting the evidence. It is to be hoped that all administrative agencies will take note of and comply with the provisions of sec. 227.13, Stats.”
The Cointe Case sets out the basic test in terms of an illustration at page 417:
“In a personal injury action by employee against employer, the evidence may tend to show that the place in which plaintiff worked was dark, that the floor was rough or insecure, that there was a concealed trap door with insufficient hinges or a rotten barrier, and numerous other facts. These facts are all evidentiary. The ultimate fact is that the employee was furnished an unsafe place to work. If such an action were tried by the court, the findings of fact should not contain a recitation of what this witness or that witness testified as to the darkness or the imperfect floor or the concealed trap door, but should contain a finding of the ultimate facts, namely, that the place was an unsafe place to work, by reason *638of the fact that it was dark, or the floor rough, or otherwise.”
Only findings of fact five and seven are disputed by the appellant. They are, of course, crucial to the controversy :
“5. The area in Plum Lake occupied by the fill was navigable by small boats. The fill is spoil from the adjacent excavation and is an extension of the upland into the lake.”
“7. The fill as it exists is an unnecessary obstruction to navigation. It is a material obstruction to navigation. It does not allow for the free flow of water thereunder and is detrimental to the public interest on the navigable water involved.”
The statutory standards to be met by the appellant are: (1) The structure does not materially obstruct navigation, (2) does not reduce the effective flood flow capacity, and (3) is not detrimental to the public interest.
A careful reading of the record from the two hearings reveals that seven witnesses testified in behalf of the appellant (six more were available to testify but were not permitted to do so upon the ground their testimony would be cumulative). They testified, in substance, that they were familiar with the area and that the sandbar was a hazard to navigation in that motorboats could not cross the bar; that the breakwater (it is in a cove) did not obstruct navigation but in fact improved it, that it did not affect the flow of the water, that the breakwater did not interfere with fishing, that it enhanced the beauty of the lake, and that it was not otherwise detrimental to the public use or enjoyment of the lake. The town board passed a resolution requesting that the commission not order the removal of the breakwater. A petition signed by nearly 100 percent of the residents of the town made a like request.
Two witnesses testified on behalf of the commission. One was Mr. Sayles, an engineer employed by the com*639mission who also conducted the examination and cross-examination of the witnesses on behalf of the commission. Mr. Sayles’ testimony is limited to the physical description of the breakwater and the lake. The other witness for the commission was Mr. Bendrick, the resident conservation warden. Mr. Bendrick testified that the sandbar was not navigable with a motorboat but could be crossed in a rowboat. However, the sandbar extends from 250 to 300 feet from the shore. Appellant’s witnesses stated that the bar could be crossed by a rowboat up to 50 to 70 feet from the shore and that then the occupant would have to get out and pull the boat. Mr. Bendrick did not dispute this testimony. He also testified walleyes spawned in the area of the sandbar but did not testify the breakwater adversely affected the spawning, in fact he testified that he observed them spawning on the sandbar after the breakwater was constructed. The sandbar can be crossed in the same manner after the construction of the breakwater as before, with the exception of the very limited area occupied by the breakwater. It protrudes no more than 85 feet and is not more than 20 feet wide. A pier for which no permit is needed would constitute the same area of obstruction.2 The navigable area of the lake has been decreased only a negligible amount, if at all, because the area where the fill was taken has become a part of the lake.
The findings of fact by the commission do not reveal the basic facts by which the commission concluded that the breakwater was a material obstruction to navigation nor in what manner or particular it was detrimental to the public interest. The findings of fact do not meet the basic test as set forth in the Comte Case, supra.
In State ex rel. Ball v. McPhee (1959), 6 Wis. (2d) 190, 94 N. W. (2d) 711, this court stated, at page 203:
“In the absence of required findings of fact, this court should not grope around in the dark to ascertain if there *640is evidence which will sustain any of the 28 specifications of charges. This is because we have no way of knowing which of such specifications the board deemed were sustained so as to justify the discharge. Some were not sustained. Other specifications, even if true, would not qualify as either inefficiency or bad behavior, the only two statutory grounds on which a discharge legally could be based.”
If the applicant has shown that his structure does not materially obstruct navigation or reduce the effective flood flow capacity of a stream, and that it is not detrimental to the public interest, he is entitled to a permit. From the findings of the commission this court has no way of knowing what basic facts or lack thereof were relied upon by the commission in its conclusions. A mere negative (or positive) recitation of the statutory standards in the language of the statute does not afford a basis for review.
Nor, in my opinion, are the findings of fact supported by substantial evidence.
In Silverberg v. Industrial Comm. (1964), 24 Wis. (2d) 144, 154, 155, 128 N. W. (2d) 674, we stated:
“The scope of review of administrative agency findings and the problems in respect thereto have been recently stated in Copland v. Department of Taxation (1962), 16 Wis. (2d) 543, 553-555, 114 N. W. (2d) 858.
“ ‘The majority and dissenting members of this court are in full agreement as to the principles of law governing the scope of judicial review of an agency’s findings of fact under the Wisconsin Administrative Procedure Act (ch. 227, Stats.). The controlling statute is sec. 227.20 (1) (d), which authorizes a reviewing court to reverse or modify an agency decision if substantial rights of the aggrieved party have been prejudiced as a result of the administrative findings being “unsupported by substantial evidence in view of the entire record as submitted.” (Italics supplied.)
“ ‘Thus, to apply this standard we must first determine what is meant by “substantial evidence.” E. Blythe Stason, in an article entitled “Substantial Evidence” in *641Administrative Law, 89 University of Pennsylvania Law Review (1941), 1026,1088, states:
“ ‘ “[T]he term ‘substantial evidence’ should be construed to confer finality upon an administrative decision on the facts when, upon an examination of the entire record, the evidence, including the inferences therefrom, is found to be such that a reasonable man, acting reasonably, might have reached the decision; but, on the other hand, if a reasonable man, acting reasonably, could not have reached the decision from the evidence and its inferences then the decision is not supported by substantial evidence and it should be set aside.”
“ ‘This court, in Gateway City Transfer Co. v. Public Service Comm. (1948), 263 Wis. 397, 405, 406, 34 N. W. (2d) 238, quoted from Consolidated Edison Co. v. National L. R. Board (1938), 305 U. S. 197, 59 Sup. Ct. 206, 83 L. Ed. 126, to the effect that “substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” (Emphasis supplied.)
“ ‘We deem that the test of reasonableness is implicit in the statutory words “substantial evidence.” However, in applying this test the crucial question is whether a reviewing court is only to consider the evidence which tends to support the agency’s findings, or whether it is also to consider the evidence which controverts, explains, or impeaches the former. Use of the statutory words “in view of the entire record as submitted” strongly suggests that the test of reasonableness is to be applied to the evidence as a whole, not merely to that part which tends to support the agency’s findings. This court so interpreted sec. 227.20 (1) (d), Stats., in Albrent Freight & Storage Co. v. Public Service Comm. (1953), 263 Wis. 119, 128, 56 N. W. (2d) 846, 58 N. W. (2d) 410, and Motor Transport Co. v. Public Service Comm. (1953), 263 Wis. 31, 45, 56 N. W. (2d) 548. See also 4 Davis, Administrative Law Treatise, pp. 129, 130, sec. 29.03.’ ”
As to whether the findings were arbitrary and capricious, I only note that at the oral argument counsel for the commission was asked: “At any rate, the Public Service Commission did not give much weight to the testimony of witnesses, is that correct?” His answer: “Correct.”
*642I would reverse and remand to the commission to make additional findings, with or without a supplemental hearing, in its discretion.
I am authorized to state that Mr. Justice Hallows and Mr. Justice Hanley join in this dissent.
Ashwaubenon, second, supra,; Hall v. Banking Review Board (1961), 13 Wis. (2d) 359, 108 N. W. (2d) 543.
See sec. 30.13, Stats.