TRIEBER, District Judge
(after stating the facts as above). The learned trial judge'held that, although appellee had a contract with the Gas & Electric Company made on May 2, 1910, to remain in force until November 30, 1930, the Commission could, under the police power of the state, to prevent injustice, and unreasonable and extortionate rates [41]*41for service by the Gas & Electric Company, exercise the power to raise the rates, if necessary to prevent a loss, but that the facts disclosed by the record did not justify the making of the order to add a surcharge on the rates fixed'by the contract with the plaintiff.
In behalf of the Railroad & Light Company it is claimed that the petition of the Gas & Electric Company did not state facts authorizing the Utilities Commission to take cognizance of the petition, as it failed to show that the contract rates are discriminatory and will result in injustice to the public, nor that without this surcharge the company would be unable to discharge its public duties, or that they will be impaired; nor docs it claim that insolvency would result unless permitted to add an additional surcharge to the contract price. It is further claimed that the petition failed to show any reason or justification for annulling the contract, of the parties; that no facts are stated in the order of the Commission authorizing the exercise of its statutory power as prescribed in the public utilities statute; that there is no finding of the unreasonableness of the rates existing between the parties nor any discrimination between this contract and the rates charged other members of the public.
The Commission made no order against the Railroad & Light Company; there is nothing in the order referring to any contract in existence; all the order attempts to do, and does, is to classify the customers of the Gas & Electric Company and allow a surcharge on three of the four classes, in which they are divided. That the Commission has, under the law creating it, authority to classify customers, is not questioned, nor can it well be.
[1] The failure?of the Gas & Electric Company to state in its petition that the rates then in force would cause it to become insolvent, or would prevent it from discharging its duty to the public, did not deprive it of the right to ask for compensatory rates from the large consumers, if the rates charged these consumers are noncompensatory, even ff, when added to the rates charged the smaller consumers, the, net income is sufficient to prevent the company from becoming insolvent, or enable it to discharge its duty to the public. In Northern Pacific Ry. v. North Dakota, 236 U. S. 585, 594, 596, 597, 35 Sup. Ct. 429, 432, 433 (59 L. Ed. 735, L. R. A. 1917F, 1148, Ann. Cas. 1916A, 1), the Supreme Court of North Dakota had held:
“In order to establish such a noncompensatory rate to be confiscatory (referring to rate on one article, lignite coal), it must further appear that any deficit under the rate affects the net intrastate freight earnings materially, and reduces them to a point where they are insufficient to amount to a reasonable rate of profit in the amount of the value of the railroad property within the slate contributing to produce such net earnings.”
This the Supreme Court of the United States held to be erroneous. The court said:
“The state cannot estimate the cost of carrying coal by throwing the expense incident to the maintenance of the roadbed, and the general expenses, upon the carriage of wheat, or the cost of carrying wheat by throwing the burden of the upkeep of the property upon coal and other commodities. * * * The outlays that exclusively pertain to a given class of traffic must be assigned to that class, and the other expenses must be fairly apportioned.”
[42]*42The same principle was announced in Norfolk & Western Ry. v. Conley, 236 U. S. 605, 35 Sup. Ct. 437, 59 L. Ed. 745. In that case the act involved was a passenger rate on railroads. The Supreme Court of West Virginia had followed the rule adqpted by the Supreme Court of North Dakota in the Northern Pacific R. R. Case. The Supreme Court, reversing the decree, held:
“The state may not select either of these departments [freight or passenger] for arbitrary control. Thus it would not be contended that the state might require passengers to be carried for nothing, or that it could justify such action by placing upon the shippers of goods the burden of excessive charges in order to supply an adequate return for the carrier’s entire service.”
In the instant case the Commission must have found the allegations in the Gas & Electric Company’s petition for the surcharge, that in the generation of electrical energy for large consumers fuel is approximately 75 per cent, of the cost of generation, and that the low rates given to these large consumers, in the schedule then in force, were noncompensatory by reason of the large increase in the cost of the coal used for the generation of electricity, and that for this reason there should be a surcharge sufficient to allow some profit on the investment, from the electricity furnished these large consumers.
[2] That the effect of the order would be to nullify .the contract theretofore entered into by the parties does not make the order obnoxious to the constitutional provision prohibiting states to enact laws impairing the obligation of contracts has been conclusively determined in Union Dry Goods Co. v. Georgia Public Service Corporation, 248 U. S. 372, 39 Sup. Ct. 117, 63 L. Ed. 309. The court in its opinion said:
“Except for tbe seriousness with, which this claim has been asserted and is now pursued into this court, the law with respect to it would be regarded as so settled as not to merit further discussion. That private contract rights must yield to the public welfare, where the latter is appropriately declared and defined and the two conflict, has been often decided by this court” — citing a number of authorities.
[3] The same conclusion was reached in Producers’ Transportation Co. v. Railroad Commission, 251 U. S. 228, 40 Sup. Ct. 131, 64 L. Ed. -, where the court said:
“That some of the contracts before mentioned were entered into before the statute was adopted or the order made is not material.”
This disposes of the claim that the Commission was without authority to make the order, to affect the contract of the plaintiff, because it was made before the act creating the Public Utilities Com-miission was enacted.
In Kansas City Bolt & Nut Co. v. Kansas City Light & Power Co., 275 Mo. 529, 204 S. W. 1074, it was held: Rates fixed by contract with a public service company for electricity to be supplied, are superseded' by rates fixed by the Public Service Commission, since the police power of the state cannot be abridged by contract. On writ of error from the Supreme Court, this judgment was affirmed by a [43]
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TRIEBER, District Judge
(after stating the facts as above). The learned trial judge'held that, although appellee had a contract with the Gas & Electric Company made on May 2, 1910, to remain in force until November 30, 1930, the Commission could, under the police power of the state, to prevent injustice, and unreasonable and extortionate rates [41]*41for service by the Gas & Electric Company, exercise the power to raise the rates, if necessary to prevent a loss, but that the facts disclosed by the record did not justify the making of the order to add a surcharge on the rates fixed'by the contract with the plaintiff.
In behalf of the Railroad & Light Company it is claimed that the petition of the Gas & Electric Company did not state facts authorizing the Utilities Commission to take cognizance of the petition, as it failed to show that the contract rates are discriminatory and will result in injustice to the public, nor that without this surcharge the company would be unable to discharge its public duties, or that they will be impaired; nor docs it claim that insolvency would result unless permitted to add an additional surcharge to the contract price. It is further claimed that the petition failed to show any reason or justification for annulling the contract, of the parties; that no facts are stated in the order of the Commission authorizing the exercise of its statutory power as prescribed in the public utilities statute; that there is no finding of the unreasonableness of the rates existing between the parties nor any discrimination between this contract and the rates charged other members of the public.
The Commission made no order against the Railroad & Light Company; there is nothing in the order referring to any contract in existence; all the order attempts to do, and does, is to classify the customers of the Gas & Electric Company and allow a surcharge on three of the four classes, in which they are divided. That the Commission has, under the law creating it, authority to classify customers, is not questioned, nor can it well be.
[1] The failure?of the Gas & Electric Company to state in its petition that the rates then in force would cause it to become insolvent, or would prevent it from discharging its duty to the public, did not deprive it of the right to ask for compensatory rates from the large consumers, if the rates charged these consumers are noncompensatory, even ff, when added to the rates charged the smaller consumers, the, net income is sufficient to prevent the company from becoming insolvent, or enable it to discharge its duty to the public. In Northern Pacific Ry. v. North Dakota, 236 U. S. 585, 594, 596, 597, 35 Sup. Ct. 429, 432, 433 (59 L. Ed. 735, L. R. A. 1917F, 1148, Ann. Cas. 1916A, 1), the Supreme Court of North Dakota had held:
“In order to establish such a noncompensatory rate to be confiscatory (referring to rate on one article, lignite coal), it must further appear that any deficit under the rate affects the net intrastate freight earnings materially, and reduces them to a point where they are insufficient to amount to a reasonable rate of profit in the amount of the value of the railroad property within the slate contributing to produce such net earnings.”
This the Supreme Court of the United States held to be erroneous. The court said:
“The state cannot estimate the cost of carrying coal by throwing the expense incident to the maintenance of the roadbed, and the general expenses, upon the carriage of wheat, or the cost of carrying wheat by throwing the burden of the upkeep of the property upon coal and other commodities. * * * The outlays that exclusively pertain to a given class of traffic must be assigned to that class, and the other expenses must be fairly apportioned.”
[42]*42The same principle was announced in Norfolk & Western Ry. v. Conley, 236 U. S. 605, 35 Sup. Ct. 437, 59 L. Ed. 745. In that case the act involved was a passenger rate on railroads. The Supreme Court of West Virginia had followed the rule adqpted by the Supreme Court of North Dakota in the Northern Pacific R. R. Case. The Supreme Court, reversing the decree, held:
“The state may not select either of these departments [freight or passenger] for arbitrary control. Thus it would not be contended that the state might require passengers to be carried for nothing, or that it could justify such action by placing upon the shippers of goods the burden of excessive charges in order to supply an adequate return for the carrier’s entire service.”
In the instant case the Commission must have found the allegations in the Gas & Electric Company’s petition for the surcharge, that in the generation of electrical energy for large consumers fuel is approximately 75 per cent, of the cost of generation, and that the low rates given to these large consumers, in the schedule then in force, were noncompensatory by reason of the large increase in the cost of the coal used for the generation of electricity, and that for this reason there should be a surcharge sufficient to allow some profit on the investment, from the electricity furnished these large consumers.
[2] That the effect of the order would be to nullify .the contract theretofore entered into by the parties does not make the order obnoxious to the constitutional provision prohibiting states to enact laws impairing the obligation of contracts has been conclusively determined in Union Dry Goods Co. v. Georgia Public Service Corporation, 248 U. S. 372, 39 Sup. Ct. 117, 63 L. Ed. 309. The court in its opinion said:
“Except for tbe seriousness with, which this claim has been asserted and is now pursued into this court, the law with respect to it would be regarded as so settled as not to merit further discussion. That private contract rights must yield to the public welfare, where the latter is appropriately declared and defined and the two conflict, has been often decided by this court” — citing a number of authorities.
[3] The same conclusion was reached in Producers’ Transportation Co. v. Railroad Commission, 251 U. S. 228, 40 Sup. Ct. 131, 64 L. Ed. -, where the court said:
“That some of the contracts before mentioned were entered into before the statute was adopted or the order made is not material.”
This disposes of the claim that the Commission was without authority to make the order, to affect the contract of the plaintiff, because it was made before the act creating the Public Utilities Com-miission was enacted.
In Kansas City Bolt & Nut Co. v. Kansas City Light & Power Co., 275 Mo. 529, 204 S. W. 1074, it was held: Rates fixed by contract with a public service company for electricity to be supplied, are superseded' by rates fixed by the Public Service Commission, since the police power of the state cannot be abridged by contract. On writ of error from the Supreme Court, this judgment was affirmed by a [43]*43per curiam opinion upon the authority of Union Dry Goods Co. v. Georgia Public Service Corporation, supra.
[4] It is next claimed that the Commission had no authority, under the act creating it, to make such an order ,* but that has been adversely decided by the Supreme Court of Kansas in State ex rel. v. Kansas Postal Telegraph & Cable Co., 96 Kan. 298, 150 Pac. 544.
[5] That the Commission, when making the order complained of, made no special findings of fact, is wholly immaterial, as there is nothing in the act creating the Commission and defining its duties and powers requiring it. As said in Detroit, etc., R. R. Co. v. Railroad Commission, 171 Mich. 335, 137 N. W. 329:
“It is unfortunate tliat the courts do not liavo the assistance which would he derived from a finding made by the Commission which would distinctly state the ultimate facts found and the factors, at least the controlling factors, considered in determining whether a rate was or was not reasonable.”
Springfield Gas & Electric Co. v. Barker (D. C.) 231 Fed. 331, 344, and Public Utilities Commisson v. Springfield Gas Co., 291 Ill. 209, 125 N. E. 891, relied on by counsel for appellee are not applicable, as the statutes of Missouri and Illinois expressly provided that the Commission shall make and file its findings of fact in writing. In the Barker Case the opinion quotes that section of the Missouri statutes. There is no such provision found in the Kansas statute.
The only act in writing required by the statute is found in section 16 of the act (Daws 1911, c. 238), which provides:
“All orders and decisions of the Public Utilities Commission whereby any rates * * * are altered, changed, modified, fixed or established, shall be reduced to writing, and a copy thereof, duly certified, shall be served on the public utility or common carrier affected thereby, by registered mail.”
[8] The fact that plaintiff’s business is conducted wholly within the city of Wichita is immaterial. Pawhuska v. Pawhuska Oil Co., 250 U. S. 394, 39 Sup. Ct. 526, 63 L. Ed. 1054.
[7] It is also claimed that the act granting the Commission authority to make rates is unconstitutional, as being a delegation of legislative power. That it is not violative of any provision of the national Constitution was conclusively determined in Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. Ed. 1014, and followed by all the national courts ever since. That it does not violate any provision of the Constitution of the state of Kansas was determined in State v. Johnson, 61 Kan. 803.
[8] It is next contended that the order of the Commission does not state facts necessary to show that it had jurisdiction, and the rule that when a special tribunal, created with special powers to act, not in conformity with the rules governing actions at common law inter partes, the record must show all the facts necessary to establish jurisdiction, is invoked. But the petition of the Gas & Electric Company to the Commission is as much a part of the -record as the order, and it contains all the allegations necessary for the Commission to act in the matter. The petition is a part of the record. The allegations in the petition determine the jurisdiction. Hartford Life Ins. Co. v. Johnson (C. C. A.) 268 Fed. 30, decided June 28, 1920.
[44]*44• ■ The act creating the Commission, by section 20, expressly authorizes the Commission to act:
“Whenever any common carrier or public utility governed by the provisions of this act shall desire to make-any change in any rate, joint rate, toll, charge or, classification or schedule of charges, or in any rule or regulation or practice pertaining to the service or rates of any such public utility or common carrier, such public utility or common carrier shall file with the Public Utilities Commission a schedule showing the changes desired to be made and put in force by Such public utility or common carrier,” etc.
Section 13. of the act provides:
f‘It shall be the duty of the Commission, either upon complaint or upon its own initiative, to investigate all rates, * * * and if after full hearing and investigation the commission shall find that such rates,, * * * are unjust, unreasonable, unjustly discriminatory or unduly preferential, the eom-ipission shall have power to fix and order substituted therefor such rate or rates, * * * as shall be just and reasonable.”
[9] Section 18 of that act makes the orders of the Commission prima facie reasonable. As the record fails to show what evidence was before the Commission when it made its order, and recites that evidence was introduced, there is nothing to enable the court to find that the order was unreasonable, or without substantial evidence. The presumption is that there was substantial evidence to warrant the findings made.
[10] The claim that the order of the Commission is discriminatory against the plaintiff is clearly without merit. It applies to each party within the classes enumerated in the order. A rate which affects equally all in the same class, when the classifying is" not arbitrary, cannot be said to be discriminatory.
Counsel for appellee cite Kaul v. American Independent Telephone Co., 95 Kan. 1, 147 Pac. 1130, and Mollohan v. Atchison, Topeka & Santa Fé Ry., 97 Kan. 51, 154 Pac. 248, L. R. A. 1918A, 175, in support of the contention that such an order as made by the Commission in the instant case is discriminatory, and therefore void. Neither of these cases sustain this contention. In the Kaul Case the Telephone Company sought to raise its rates without any action of the Commission authorizing it, and it was held that the act did not automatically overthrow contracts, but that the Commission must first 'act. In the Mollohan Case it was held that the special privilege to stop cattle in transit is unlawful, until the schedules had been filed with and approved by the Commission, and the privilege is open to all shippers on equal terms. If it fails to grant the privilege to all shippers on equal terms, it is discriminatory.
The court below erred in refusing to dissolve the temporary injunction and making it perpetual. The case is reversed, with directions to proceed in conformity with the views expressed herein.