Full opinion text
BLAIR, Justice. In the instant case this Court sustained the validity of an order of the Railroad Commission prescribing a 32-cent per thousand cubic feet city gate rate for domestic gas delivered by Lone Star Gas Company to its several allied distributing companies at the city gates of some 270 cities and towns in Texas, reversing the judgment of the District Court which declared the rate order to be invalid. See State of Texas et al. v. Lone Star Gas Company, Tex.Civ.App., 86 S.W.2d 484, 506. The Supreme Court of the United States reversed the judgment of this Court upon one ground (Lone Star Gas Company v. State of Texas et al., 304 U.S. 224, 58 S. Ct. 883, 891, 82 L.Ed. 1304), as follows: “The Court of Civil Appeals reversed the judgment upon a distinct ground. That was that appellant had not sustained its burden of proof because it had failed to make ‘a proper segregation of interstate and intrastate properties and business.’ Thus, the necessity for that segregation was made the criterion. That is clearly shown both from the Court’s main opinion and its opinion upon rehearing from which we have quoted. * * * “We think that this ruling as to the necessity of segregation, and that the sufficiency of appellant’s evidence should be determined by that criterion, was erroneous. This was not a case where the segregation of properties and business was essential in order to confine the exercise of state •power to its own proper province. * * * The effort at segregation came after voluminous testimony had been taken which fully presented appellant’s case with respect to the value of its property and the result of its operations as an integrated system and the bearing of this evidence upon the contested rate. This proof could not be ignored because of a futile attempt, in response to the State’s pressure, to find an alternative ground to support the attack upon the Commission’s order.” The cause was remanded to this Court “for further proceedings ’ not inconsistent with the opinion of the Supreme Court.” After receipt by this Court of the mandate of the Supreme Court, there arose a controversy as to what “further proceedings” should be had in the case and what judgment should be rendered thereon “not inconsistent with the opinion of the Supreme Court.” The Commission contends that since the Supreme Court reversed this Court’s judgment solely upon its “untenable” ruling as to the necessity of the Gas Company’s making -a proper segregation of its interstate and intrastate property and business, and remanded the cause “for further proceedings not inconsistent with the opinion of the Supreme Court,” this Court is required to review the “over-all” or unsegregated basis and evidence, which means the evidence relating to the Gas Company’s entire integrated operating system in both Texas and Oklahoma as considered by the Commission in prescribing the rate order, and render whatever judgment is proper; and either to reverse the judgment of the District Court and render judgment sustaining the rate order as this Court did before; or to reverse the judgment of the District Court on account of the several errors of practice complained of and remand the cause for another trial on the merits, according as such over-all evidence and law and justice may require; and that either course would be entirely consistent with the opinion of the Supreme Court. The Gas Company contends that in the “further proceedings” carrying out the mandate of the Supreme Court, this Court can not review, weigh, nor consider the so-called over-all evidence and make findings thereon, and then render any judgment such findings may require, and especially the same judgment that has already been reviewed and reversed by the Supreme Court; that the Supreme Court “reversed the judgment of this Court, not because this Court failed to make finding? on the over-all evidence, but because this Court set aside the findings made by the ‘trier of facts’ in the District Court by applying to the over-all evidence sustaining such findings, an improper test or standard to determine its sufficiency”; and that the only judgment this Court may now render is to affirm the judgment of the District Court. The contention now made by the Gas-Company that this Court held the over-all evidence insufficient to sustain the judgment of the District Court' is directly opposed to the position taken by it before the Supreme Court. There the Gas Company contended that this Court had not given any consideration, weight, nor effect whatever to the over-all evidence, but had' totally disregarded same, and had based its judgment solely upon its ruling as to the necessity of the Gas Company’s making a proper segregation of its interstate and intrastate property and business. So well did the Gas Company argue its point that the Supreme Court adopted that view and expressly reversed the judgment of this Court upon that sole ground. Whether this Court considered the over-all evidence sufficient to sustain the rate order as a matter of law, or considered the. Gas Company’s over-all evidence not sufficiently “clear and satisfactory” to sustain the District Court’s judgment declaring the rate order invalid, is not material, in view of the decision of. the Supreme Court that this Court did not consider the over-all evidence. That is, if this Court did so hold, such holding is now immaterial, because the Gas Company insisted and the Supreme Court held that this Court did not give any consideration, weight, nor effect whatever to the over-all evidence, but had based its judgment solely upon the “untenable” ruling as to necessity of the Gas Company’s making a segregation of its interstate and intrastate property and business; and upon “an alternative ground”, and “by the application of an untenable test or standard of proof,” relating only to “an alternative ground to support the attack upon the Commission’s order.” In view of these findings and conclusions, this Court is necessarily left free, and the Supreme Court so intended, to review the entire evidence bearing upon the over-all or unsegregated property and business of the Gas Company; and upon such review either to reverse the judgment of the District Court and render judgment sustaining the validity of the rate order as this Court did before; or to reverse the judg-. ment of the District Court and remand the cause for another trial on account of the several errors of practice which were not discussed before; or to affirm the judgment of the District Court, according as the over-all evidence and law and justice may require. The Supreme Court also held that the Commission based its rate order and the District Court its judgment upon the evidence relating to the over-all or unsegregated basis; and that the “first and primary ground” to be determined was whether the rate was unreasonable, unjust, and confiscatory because not supported by the over-all evidence; but that this Court decided the case solely upon the alternative and improper segregated basis. The Supreme Court did not itself determine such first and primary ground; and if this Court did not, then no reason exists why it should not now do so. The Supreme Court further held that the “first and primary ground remained and the determination of the court of first instance as the trier of facts that the Commission’s rate was confiscatory could not properly be set aside by the application of an untenable standard of proof [necessity of segregation] and in disregard of the evidence which had been * * * properly submitted to the jury.” The Supreme Court approved the form of a special issue submitting the question of whether the rate was “unreasonable and unjust” as substantially submitting the issue of “whether the rate was confiscatory”; and then applied the rule applicable to ordinary law suits as between individuals, to the effect that this Court could not set aside a jury finding upon conflicting evidence, and citing the cases of Post v. State, 106 Tex. 500, 171 S.W. 707, and United Gas Pub. Service Co. v. Texas, 303 U.S. 123, 58 S.Ct. 483, 82 L.Ed. 702. However, the Supreme Court specifically held that “the state is entitled to determine the procedure of its courts, so long as it provides the requisite due process”; and further held, “that a state may modify trial by jury or abolish it altogether.” [58 S.Ct. 492.] Our courts have uniformly held that the scope of the judicial review of a rate order of the Railroad Commission is to determine whether it is supported by “substantial” evidence; and have required the one attacking it to show by “clear and satisfactory” evidence that it is not supported by substantial evidence; and that whether there is any “substantial” or “clear and satisfactory” evidence presents a question of law to be determined by the “judicial mind” as in any civil case, and not by a jury of laymen. In view of the fact that such has been the consistent and uniform procedure adopted by the appellate courts -of this State for almost a half century, we can not follow the contention of the Gas Company that the Supreme Court intended that this Court should affirm the judgment of the District Court upon the jury’s general finding herein that the rate was “unreasonable and unjust.” Briefly, we construe the opinion of the Supreme Court as holding that in this statutory action to review and enforce the order of the Commission prescribing the 32-cent rate for gas supplied by the Gas Company to its allied distributing companies at the city gates of Texas cities and towns, which rate order was made upon consideration by the Commission of the Gas Company’s properties in both Texas and Oklahoma as an integrated system, the Gas Company was entitled to have the sufficiency of its evidence judged by the criterion used by the Commission; and that the trial court’s judgment based upon, the jury’s finding upon the same criterion that the rate was confiscatory could not be set aside by this Court upon the “untenable” and “alternative” ground and ruling as to the necessity of the Gas Company’s making a proper segregation of its interstate and intrastate properties and operations. That the Supreme Court did not itself determine from the over-all evidence the legal question of whether the Gas Company had shown by “clear and satisfactory evidence” that the rate order was not based upon substantial evidence, or that the rate prescribed would not afford the Gas Company a reasonable return on the fai-r value of its Texas and Oklahoma properties used in the Texas public service; and that having held that this Court did not consider, weigh, nor give any effect whatever to the over-all evidence, then this Court is now entitled and required to do so, and to determine the case according as such review of the over-all evidence and law and justice may require. Any other conclusion would deprive this Court of its final jurisdiction to determine all questions of fact raised on the appeal as it is required to do under the Texas Constitution, Vernon’s Ann.St. (Art. 5, § 6), which defines the jurisdiction of the Courts of Civil Appeals, and provides, “that the decision of said courts shall be conclusive on all questions of fact brought before them on appeal or error.” Having on the former hearing determined that no jury question arose under the facts when viewed in the light of the established scope of a judicial review of the legislative rate order of the Commission, the Court did not discuss nor determine the procedural or practice errors asserted, which would have required that the -cause be reversed and remanded. Not having jurisdiction o'f these questions, the Supreme Court did not determine them; and of course has not deprived this Court of its jurisdiction to now do so. And while this Court has again reached the conclusion that when viewed in the light of the over-all or unsegregated basis and evidence the legislative rate order is valid as a matter of law as against the attacks made upon it," it is thought proper to first point out the procedural or practice errors. This is not done for the purpose of now reversing and remanding the cause, but in order that the Supreme Court of Texas or the Supreme Court of the United States might have the views of this Court on the entire case, should either be again called upon to review the decision of this Court; and in order that either may accordingly direct final disposition of this long drawn out litigation. The trial court erroneously excluded the record of the proceedings before the Commission upon which it based its rate order. Such record consists of a transcript of 11,232 pages containing all of the testimony taken before the Commission relating to the over-all or unsegregated basis of operation in both Texas and Oklahoma, and to every element of a proper rate structure — rate base, expenses, revenues, depreciations, and rate of return. Since the rate order was attacked by both pleadings and evidence as being unreasonable, unjust, and confiscatory because not supported by substantial evidence, the most plausible and proper way to refute such an attack was to introduce the record of the evidence given on the hearing before the Commission. Shupee v. Railroad Com., 123 Tex. 521, 73 S.W.2d 505, affirmed Tex.Civ.App., 57 S.W.2d 295; Railroad Com. v. Galveston C. of C., 105 Tex. 101, 145 S.W. 573; Railroad Com. v. Rau, Tex.Civ.App., 45 S.W.2d 413; Railroad Com. v. Lamb, Tex.Civ.App., 81 S.W.2d 161; Humble Oil & Refining Co. v. R. R. Com, Tex.Civ.App., 99 S.W.2d 401; Railroad Com. v. Uvalde Construction Co. Tex.Civ.App, 49 S.W.2d 1113, writ refused; Humble Oil & Refining Co. v. R.R. Com, 94 S.W. 2d 1197, writ refused; Humble Oil & Refining Co. v. R. R. Com, 112 S.W.2d 222, 226, writ dismissed. This rule does not preclude the introduction of additional evidence pertinent to the issue in the court proceeding in the exercise of the independent jurisdiction of the court in the premises. Such is the procedure sanctioned in the recent case of United Gas Public Service Co. v. Texas, 303 U.S. 123, 58 S.Ct. 483, 82 L.Ed. 702, wherein the entire record of the proceedings before the Commission was introduced in the court proceeding and was considered along with additional evidence in sustaining the rate order of the Commission as against the attack that it was unreasonable, unjust, and confiscatory-because not supported by sufficient or substantial evidence. See this Court’s opinion in United Gas Public Service v. State, 89 S.W.2d 1094. See also the case of St. Joseph Stockyards Co. v. United States, 298 U.S. 38, 56 S.Ct. 720, 726, 80 L.Ed. 1033, wherein the only evidence before the courts was the record of the evidence presented at the legislative agency!s hearing and its findings; and in sustaining the rate 'order the Supreme Court say: “But this judicial duty to exercise an independent judgment does not require or justify disregard of the weight which- may properly attach to findings upon hearing and evidence. On the contrary, the judicial duty is performed in the light of the proceedings already had and may be greatly facilitated by the assembly and analysis of the facts in the course of the legislative determination. Judicial judgment may be none the less appropriately independent because informed and aided by the sifting procedure of an expert legislative agency.” And in the case of United States v. Idaho, 298 U.S. 105, 56 S.Ct. 690, 691, 80 L.Ed. 1070, wherein “the record made before the Commission was introduced in evidence; also some testimony ‘which merely amplified evidence already in the record’ ”, the court held that “although it would have been better practice to have introduced all relevant evidence before the Commission, as appellee’s counsel concede, the court did not err in admitting the additional testimony” which related to the mixed question of law and fact as to whether the trackage was a spur, and as to which Congress had not left final determination to the legislative or administrative agency. The Commission made its rate order and then carefully prepared findings of fact, which ably and expertly assembled, analyzed, and sifted all of the testimony before the Commission, referring to the pages of such transcript of the testimony from which the findings were taken. The Gas Company itself introduced these findings by the Commission, and then attempted to tear them down by introducing the elaborate calculations, estimates, and comparisons of its experts relating to the rate structure from the over-all or unsegregated basis; but which were the same, or in substance, effect, and result the same as were used and made by these experts on the hearing before the Commission. But when the record of the evidence before the Commission, and from which its findings were made and upon which the rate order was based, was offered in rebuttal after the Gas Company had rested, the Gas Company objected, and the record of the testimony before the Commission was excluded. Thus the Gas Company was allowed to offer evidence attempting to tear down the findings of the Commission; and the Commission was denied the right to refute the attack by the very evidence upon which it based its rate order; and under the rules above stated this was clearly error. And if any jury question were presented, then the jury was deprived of this complete transcript of the evidence adduced before the Commission bearing upon the only issue submitted to them. The record of the evidence before the Commission has been brought to this Court by a proper bill of exception. If any jury question were presented, then the trial court erred in its definition of the term “used and useful” in its charge to the jury, which reads: “By the term ‘used and useful’ is meant the property of the defendant actually being used by the defendant in the production, transportation, sale, and delivery of natural gas to its customers; and also such property as has been acquired by the defendant in good faith and held for use in the reasonably near future in order to enable it to supply and furnish adequate and uninterrupted gas service.” Under this definition of the term “used and useful” the jury, if not absolutely required to do so, were necessarily permitted to take into consideration in arriving at its rate base the book costs of gas leaseholds in the Petrolia Field, aggregating $687,781.15, for which the Commission refused to allow anything, except salvage value, because as pointed out in its findings of fact introduced by the Gas Company, the expenses of its operation substantially exceeded the value of the gas recovered when measured by the fact that the Gas Company could purchase all the gas it could use in the open market at a much smaller outlay. The question of what property was used and useful was primarily for the Commission to determine, and since it determined the question upon amply sufficient and very substantial evidence, as shown by its findings of fact in evidence, the issue should not have been submitted to the jury. The same is true of the Gas Company’s claim to the book costs of its undeveloped gas leaseholds, aggregating $893,291.18. The Gas Company’s developed and productive leaseholds were shown to be more than adequate for its gas needs for more than 40 years to come. An adequate open market supply of cheap gas also existed. Los Angeles Gas Co. v. R. R. Com., 289 U.S. 287, 53 S.Ct. 637, 77 L.Ed. 1180; Logan Gas Co. v. Pub. Utilities Commission, 121 Ohio St. 507, 169 N.E. 575. The charge also authorized and necessarily directed the jury that in determining its own rate base to take into consideration the highly speculative valuation of $7,436,-650 placed by the Gas Company upon its developed and productive leaseholds; and in any event the charge effectively closed the door to the Commission’s more simple and direct method of handling production costs and properties by allowing the full value of the gas at the wellhead at the current market price on an annual or current basis, which was shown to be a proper method of determining such matters. The trial court also erred in permitting the Gas Company’s witness, -Ed. C. Connor, to testify in effect that he knew what percentage rate of return the Railroad Commission had always fixed for gas utilities; and that it had never fixed a rate of less than 7%. This evidence was primarily intended to bear upon the question of the reasonableness or justness of the rate as to whether 6% would afford a reasonable return. The witness made no comparable basis between the rate fixed in this case and those which had been fixed for other similar gas utilities. So far as the record shows, this was the first pipe line gate rate case the Commission of Texas ever had up to that time. And while the record shows that the Commission has in some instances allowed a slightly higher rate of return to distributing companies, such difference in allowance has reasonable factual basis. In this situation, the testimony of the expert that the Commission had never allowed less than 7%— no factual basis showing any other gas utility of a similar nature had ever been allowed 7% on a comparable basis with this Gas Company—was clearly objectionable. The trial court erred in refusing to exclude upon objection of the Commission Volumes 7 and 8 of Exhibit 28, presented by the Gas Company’s expert Con-nor, because, in addition to estimates, calculations, and comparisons which may have been proper, they contained the written arguments and self-serving and hearsay declarations of the expert in support thereof. Such written arguments, hypotheses, and authorities cited by the expert witness in attempting to sustain his elaborate cal- ■ culations were improper, and were no more admissible than if a lawyer in the case had written his ■ argument and submitted it to ■the jury. Dallas Ry. & Terminal Co. v. Curtis, Tex.Civ.App., 53 S.W.2d 85; 22 C.J. 199. This same holding is made with respect to Exhibit No. 42 by the same witness Connor; and to Exhibits Nos. 4 to 14 both inclusive, by witness Hulcy. Exhibit No. 32 by Steinberger should have been excluded because it included in the rate base the undeveloped gas leaseholds valued at $893,291.18, which as above held was not used nor useful in the properties dedicated to the public service. Certain improper and prejudicial argument to the jury by counsel for the Gas Company with respect to who brought this suit, or was responsible for it; and that a witness for the Commission and the two assistant attorneys general who represented the Commission were responsible for the suit and for the jury’s being “cooped up” during the long, dry, hot summer months, when they wanted to be away, should not have been permitted. We pretermit further discussion, because if another jury trial should be had such argument will no doubt not be made nor permitted to be made. But having again reached the conclusion that the over-all evidence substantially sustains the rate order against the attack made upon it, we pass to a consideration of the question, which is the only question left in the case, all other questions of interstate commerce and constitutional law having been heretofore determined by both this Court and the Supreme Court. See 86 S.W.2d 506, and 304 U.S. 224, 58 S.Ct. 883, 82 L.Ed. 1304: The specific attack made upon the rate order is that it is unreasonable, unjust, and confiscatory because too low to afford the Gas Company a reasonable return on the fair value of its properties, situated in both Texas and Oklahoma, and used in the Texas public service. In adjudicating this question, the scope of the judicial review is to determine whether the rate order is based upon “substantial evidence,” the burden being placed by statute (Art. 6059) on the Gas Company to show by “clear and. satisfactory evidence” that the rate order is not based upon substantial evidence, or that the rate prescribed will not afford the Gas Company a reasonable return on the fair value of its properties used in the Texas public service; and the question presented is one of law to be determined by the “judicial mind,” and not by a jury. In determining this scope of judicial review, our courts have been governed by two fundamental principles, which will be here pointed out. First. In the judicial review of a legislative rate order, or of any discretionary administrative order, rule, regulation, or conclusion of the Commission, the courts have regarded the Commission as occupying the position of the trial court or jury with respect to findings of fact, and have accorded to such findings the same degree of verity as is accorded to the findings of a trial judge or jury in any civil case; and in consequence the courts have established the rule that the scope of the judicial review is to determine whether the rate order, rule, ‘regulation, or conclusion of the Commission is based upon substantial evidence. In the case of State v. St. Louis Ry. Co., Tex.Civ.App., 165 S.W. 491, 495, the court held: “The findings of fact found by the trial court as to reasonableness and public necessity were the reverse of those found by us. Ordinarily we would feel bound by the findings of fact by the trial court, unless it clearly .appeared that such findings were wrong. In this case, however, we regard the Railroad Commission as occupying the place ordinarily occupied by a trial court. The duty devolved upon it primarily to ascertain the facts. The suit before the district court upon appellees’ answer was in the nature ’of an appeal from the findings of the commission. The statute'provides that in such suits the burden rests upon the party complaining of the orders of the commission to show, ‘by clear and satisfactory evidence,’ that the orders complained of are unjust and unreasonable. Article 6658, R.S.1911; [Railroad] Commission v. Chamber of Commerce, 105 Tex. 101, 145 S.W. [573] 580; [Gulf, C. & S. F.] Ry. Co. v. Commission, 102 Tex. [338] 353, 113 S.W. 741, 116 S.W. 795. The findings of fact by the commission upon which its orders are based are to be taken as prima facie correct. Revisory power is lodged in the court, but ‘it was not intended that we (nor the trial court) should substitute our judgment for that of the commission. i)c * * > " In the case of Producers’ Ref. Co. v. Missouri, K. & T. R. Co., Tex.Com.App., 13 S.W.2d 679, it is held: “The orders of the Railroad Commission are to.be likened to the judgments of courts. While the commission is’ not a part of our judiciary system, nevertheless its duties are quasi judicial, and its functions, in many respects, are those of a court. Aransas Harbor, etc. Co. v. Taber (Tex.Com.App.), 235 S.W. 841; Railroad Commission of Texas v. San Antonio Compress Co. (Tex.Civ.App.) 264 S.W. 214, writ refused; Missouri, K. & T. Ry. Co. v. State (Tex.Civ.App.) 275 S.W. 673. Whether it be treated as a tribunal of general or limited jurisdiction, the sanctity of its orders is the same. * * * It is the one tribunal with power to make rates affecting common carriers. When it establishes a rate, it necessarily finds that such rate is neither unreasonable nor discriminatory. The order, therefore, is not in violation of, but m exact keeping with, the requirements of the Constitution and statute.” And in the recent case of Humble Oil & Refining Co. v. Railroad Commission, Tex.Civ.App., 112 S.W.2d 222, 226, writ dismissed, the court held: “It is a familiar rule of law that a jury’s finding of fact is not reviewable in a direct proceeding on appeal, unless it is unsupported by evidence. The same is true of orders and findings of fact by a regulatory board or commission. The decision of such a board has at least as high standing in regard to finality as a verdict or finding of a jury. Texas Juris, Vol. 3, p. 1088 et seq. Such has been the uniform holding of our courts with reference to valuations found by tax and equalization boards; to orders, rules,- and regulations made by the state superintendent of public schools; with regard to the granting or refusing of a permit of convenience and necessity to operate buses and trucks; and with regard to the rates of railroad companies and public utility companies. Duck v. Peeler, 74 Tex. 268, 11 S.W. 1111; [Shupee v. Railroad Com., 123 Tex. 521; 73 S.W.2d 505], affirmed (Tex.Civ.App.) 57 S.W.2d 295; Texas & Pacific Motor Transp. Co. v. Railroad Com., 124 Tex. 126, 73 S.W.2d 509 [affirmed (Tex.Civ.App.) [Railroad Com. of Texas v. Winkle], 57 S.W.2d 287] ; State v. Lone Star Gas Co., Tex. Civ. App., 86 S.W.2d 484; Railroad Com. v. Lamb, Tex.Civ.App., 81 S.W.2d 161; Producers’ Refining Co. v. Missouri, K. & T. Ry. Co., Tex.Com.App., 13 S.W.2d 679.” Where the rate order is attacked upon the ground that it is unreasonable and unjust and confiscatory because not based upon substantial evidénce, as in the instant case, and the Commission is regarded as occupying the position of the trial court or jury with respect to findings of fact upon which the rate order is based, then the rule on the statutory appeal to the court is that the trial judge shall admit and review the record of the facts before the Commission, or its findings of fact, and such additional facts as might aid in determining whether the rate order is based upon substantial evidence, and the trial judge shall determine this purely legal question as in any civil case and in the light of the burden and quantum of proof placed by the statute upon the party complaining to show by “clear and satisfactory evidence” that the rate order is not based upon substantial evidence, or that the rate prescribed will not afford a reasonable return on the fair value of the property used in the public service. The rule is one of easy application and meets every test of due process and equal protection of laws. Under it the court on appeal simply admits and reviews the record of the evidence before the Commission, or its findings of fact, and is left free, if it thinks proper in the exercise of its independent judicial judgment, to admit additional evidence pertinent to the issue, of whether the rate order is based upon substantial evidence, although recent descisions indicate that the power of admitting additional evidence should be used sparingly. St. Joseph Stockyard Co. v. U. S., 298 U.S. 38, 56 S.Ct. 720, 80 L.Ed. 1033; United States v. Idaho, 298 U.S. 105, 56 S.Ct. 690, 80 L.Ed. 1070; Baltimore & Ohio R. R. v. United States, 298 U.S. 349, 56 S.Ct. 797, 80 L.Ed. 1209. Compare Acker v. United States, 296 U.S. 426, 56 S.Ct. 824, 80 L.Ed. 1257. The' rule stated is substantially, if not precisely, the rule that has been actually applied by our courts in reviewing legislative and administrative action of the commission. We find no case reviewing a legislative rate order that was submitted to the jury in any form, and no case reviewing the administrative action of the Commission where final determination was predicated upon a jury finding. These two gas rate cases were the first to have ever been submitted to' a juryi and each was submitted on a general charge and a special issue, which method has been uniformly condemned in our practice. Cannon Ball Freight Lines v. Grasso, 125 Tex. 154, 81 S.W.2d 482; Art. 2190, Vernon’s Civil Statutes and Supp., and cases cited in footnote 20. And in sustaining the validity of the gas rate prescribed in said cases this Court specifically pointed out that under the scope of judicial review of rate making by the Commission adopted in this State, the jury’s finding was not necessary nor material, because the question presented was one of law to be determined by the “judicial mind” as in. any civil case. That is, in any civil case where the findings of fact by the trial court or jury, and upon which the judgment is based, are attacked as not being supported by “any evidence,” or by “any substantial evidence,” or, if the burden and quantum of proof require, by “clear and satisfactory evidence,” the question presented to the appellate court is one of law for the court to determine; and the power of all appellate courts to reverse the findings of fact of the trial judge or jury on these grounds is universally recognized. And the Constitution, the statutes, and the decisions of this State fully establish the power and authority of the Courts of Civil Appeals to review the evidence and to reverse the findings of fact of the trial judge or jury upon the grounds that same are not based upon “any or sufficient evidence,” or upon “substantial evidence,” or upon “clear and satisfactory evidence,” as the burden and quantum of proof may require; and to then render such judgment as the trial court should have rendered under the evidence. Art. 5, § 6, Constitution Vernon’s Ann.St.; Art. 1856, R.S.1925; Owens v. Tedford, 114 Tex. 390, 269 S.W. 418; Electric Express Co. v. Ablon, 110 Tex. 235, 218 S.W. 1030; Choate v. San Antonio Ry. Co., 9l Tex. 406, 44 S.W. 69; Holman v. Holman, Tex.Com.App., 288 S.W. 413; Gray v. Kaliski, Tex.Com.App., 45 S.W.2d 157; Westerly Supply Corp. v. State, Tex.Civ.App., 89 S. W.2d 244. And see particularly the following cases which hold that whether there is clear and satisfactory evidence is a question of law to be determined by the courts, and not by a jury: Railroad Com. v. Galveston Chamber of Commerce, 105 Tex. 101, 145 S.W. 573; Shupee v. R. R. Com., 123 Tex. 521, 73 S.W.2d 505, affirming, Tex.Civ.App., 57 S.W.2d 295; Reinhardt v. Nehring, Tex.Com.App., 291 S.W. 873; Carl v. Settegast, Tex.Com.App., 237 S.W. 238; Briscoe v. Bright’s Adm’r, Tex.Com.App., 231 S.W. 1082, wherein it is held that in treating the question of the sufficiency of the evidence to clearly and satisfactorily establish the findings upon which the judgment is based as one of law, only, the evidence must be viewed most strongly in support of the judgment of the trial court. And since the Commission is regarded as .occupying the position of the trial court with respect to its findings of fact upon which the rate order is based, then on appeal to the courts the evidence must be viewed most strongly in favor of the rate order. The rule of regarding the Commission as occupying the position of the trial court or jury with respect to the findings of fact upon which the rate order is based is not only one of easy application and reasonable, but, as applied to the instant case, any other rule would lead to utmost absurdity with regard to the hearing before the Commission and the enormous expense necessary to such hearing. A statement from the Commission’s original brief herein suffices to illustrate the point: “After due notice, a hearing extending over a period of eight months was held. Over 11,000 pages of testimony were taken. Countless exhibits were introduced. The Company furnished the Commission with a lengthy printed brief in support of its argument. Out of the mass of data, documents, and facts, experts passed upon what trained witnesses, experts and engineers had testified to. From this vast amount of technical facts, a result was reached by men of experience. For this hearing alone the Company paid out an amount aggregating $150,000 from the revenues derived from the ratepayers. The cost to the State was in excess of $75,000. Is this work to go for naught simply because of the power to file a contest?” Manifestly such was not the intention of the legislature because it declared that on the appeal to the court the rate order shall be regarded as presumptively valid, and that the one attacking it must show by “clear and satisfactory evidence” that it is. invalid or unreasonable. Art. 6059, which does not, as do some statutes, provide that the trial on the appeal to the court shall be de novo; but merely provides that “said action * * * shall be tried and determined as other civil causes.” This difference is not regarded as being of controlling materiality, because in construing this and similar statutes authorizing a court review of legislative and administrative action of the Commission, the courts have uniformly held that they are intended and calculated to guard the Commission against any undue interference by the courts, and are intended to attribute a high degree of verity to the findings and conclusions of the Commission. Railroad Com. v. Galveston C. of C, 105 Tex. 101, 145 S. W. 573; Shupee v. R. R. Com., 123 Tex. 521, 73 S.W.2d 505, affirming, Tex.Civ. App., 57 S.W.2d 295. If such findings and conclusions of the Commission and the testimony upon which they are based are excluded on the court hearing, how could a high degree of verity be given to them; and the legislature having so provided, it necessarily intended that such evidence, findings of fact, and conclusions of ' the Commission should be considered on the court review, because it directed the court to attach great verity to them. Had the trial court properly applied the aforementioned rule in the instant case, it would have greatly reduced the amount of testimony taken in the trial court, and would have conserved much time and expense necessary to the trial, because the testimony before the Commission and the testimony before the trial court was in the main and ultimate results the same. The testimony before the Commission consisted principally of numerous and voluminous calculations and estimates of six experts, two for the Commission and four for the Gas Company, and their explanations of the calculations and estimates. The Commission carefully prepared its findings of fact based upon the mass of evidence before it, interpreting the calculations and estimates of the experts; and by comparisons of their factual basis showed that the ones prepared by the Commission’s experts were better supported by the facts. These findings of fact by the Commission were introduced in the trial court by the Gas Company, and then 11,000 pages of testimony was taken, explaining the numerous calculations, estimates, and comparisons, aggregating more than 20,000 pages, which were also introduced in evidence and which were prepared by the same experts who appeared before the Commission; and which calculations and estimates in effect and ultimate results were the same and were based substantially upon the same factual basis as were those presented to the Commission. One illustration will suffice here. Before the Commission, the Gas Company estimated reproduction cost new value of its over-all property used in the Texas public service (Exhibit No. 6) at $73,927,635.-43, and its depreciated estimated value at $70,156,465.73. In the trial court the same witnesses estimated reproduction cost new value of said property (Exhibit No. 28) at $73,983,405.37, and its depreciated value (Exhibit No. 37) at $69,738,,021.16. The book cost valuations before the Commission and the trial court were practically the same, or in substance, effect, and result the same. If the trial judge had admitted the testimony before the Commission, its findings of fact, and such additional evidence as was necessary to explain or correct them, much of the testimony and calculations and estimates before the trial court could have been excluded. Such procedure would not have deprived the parr ties of any evidence material to their case; and the “independent judicial duty” would have been “performed in the light of the proceedings already had” and would have been “greatly facilitated by the assembly and analysis of the facts in the course of the legislative determination,” because “judicial judgment may be none the less appropriately independent because informed and aided by the sifting procedure of an expert legislative agency.” St. Joseph Stockyard Company case, supra. The record of more than 40,000 pages, the aggregate of the testimony explaining the numerous elaborate calculations and estimates, together with such calculations and estimates, cannot be supported by any good reason or right; and frankness compels the admission that this court has not read every word and line of the calculations and estimates, and it would be too great a strain upon credulity to even assume that the jury in its less than three days deliberation on the case read every word and line of the more than 20,000 pages of estimates and calculations submitted to them. Second. Rate making is essentially a legislative function, and public utility rates fixed by the commission have the same force and effect of statutes, and are subject to court review to the extent only as statutes of the same import are so subject, with the additional statutory authority of the court to determine whether the rate is unjust and unreasonable, and the inherent power of the court to determine the constitutional question of corn fiscation. Missouri, K. & T. Ry. Co. v. R. R. Com., Tex.Civ.App., 3 S.W.2d 489, affirmed, Producers’ Ref. Co. v. Missouri, K. & T. R. Co., Tex.Com.App., 13 S.W.2d 679, 680. Rates fixed by the Commission are presumed to be valid, reasonable, and just until declared otherwise by a court of competent jurisdiction. Railroad Com. v. Uvalde Construction Co., Tex.Civ.App., 49 S.W.2d 1113. In order to overcome this presumption in favor of the validity of the rate on the constitutional ground of confiscation, the burden of proof rests heavily upon the complaining party. Dayton Power & Light Co. v. Public Utilities Com., 292 U.S. 290, 54 S.Ct. 647, 78 L.Ed. 1267. In order to set aside the rate as being unjust and unreasonable, the statute (Art. 6059) requires the complaining party to show “by clear and satisfactory evidence that” such rate is “unreasonable and unjust.” The party attacking a rate as being unreasonable and unjust must allege facts which, if proved, would show the rate to be unjust and unreasonable as a matter of law, and to prove by clear and satisfactory evidence “which leaves no reasonable doubt in the judicial mind that the rate or rule is unjust and unreasonable.” Railroad Com. v. Galveston Chamber of Commerce, 105 Tex. 101, 145 S.W. 573, 580; Railroad Com. v. Weld & Neville, 96 Tex. 394, 409, 73 S.W. 529. In advance of any actual tests of the practical result of the new rate, the court on appeal will not disturb the rate where it is based upon conflicting evidence as to valuations of property or as to any other item used as a basis for the calculation of the rate, because to do so would merely substitute the findings of the court or jury upon conflicting evidence for that of the Commission, and would therefore permit the court to exercise the legislative function of rate making. Newton v. Consolidated Gas Co., 258 U.S. 165, 42 S.Ct. 264, 66 L.Ed. 538, 547. Not only are rates presumptively valid because the statute makes them so; but being legislative or official determinations they are so without a statute. Railroad Com. v. Magnolia Pet. Co., 130 Tex. 484, 109 S.W.2d 967. Upon consideration of the aforementioned principles governing the scope of a judicial review of legislative or administrative action of the Commission or other governmental administrative agencies, the rule has been announced so repeatedly by the Texas courts that it has become an axiomatic principle of law that the Commission is the agency of the State with respect to the legislative or administrative power and authority vested in it, and that the courts have no power or authority to disturb any conclusion made by it within its delegated power and authority, when based upon substantial evidence. If a particular determination of the Commission or other agency is based upon substantial evidence, it is manifestly neither unreasonable, unjust, nor confiscatory. In so limiting the scope of judicial review of legislative or administrative action, the Texas courts have recognized and applied the doctrine of the separation of powers of government as provided for in both the State and the Federal Constitutions. They have also recognized that legislative or administrative action is usually placed in the hands of officials who are themselves, or who are authorized to employ persons of technical competence and specialized knowledge in their particular fields of governmental activity; and that review by non-expert judges or juries of the technical fact determination involved in large areas of modern administration, even where private interests are concerned, would be neither desirable nor possible; and have frankly recognized that from a purely functional standpoint, courts are ill equipped to exercise legislative or administrative policies, and therefore do not attempt to make legislative or administrative determination, but merely review legislative or administrative determination to require reasonableness of the determination made by the Commission or administrative body, and to prevent determination not authorized by statutory or constitutional law, and to require that the legislative or administrative determination be based upon substantial evidence. A cursory review of the legion of Texas cases reviewing such legislative or administrative determination reveals the fact that such judicial review has done its full part in reversing invalid, arbitrary, and unreasonable action of the Commission, or other administrative bodies. ¡ The instant case is a concrete illustration [ of the fact that it is neither possible nor i desirable for the courts to extend review ! of legislative or administrative determina- ! tion beyond requiring that it shall be based upon substantial evidence. Practically all '¡of the evidence establishing the utility rate ; necessarily came from expert engineers and j accountants, which required expert knowl- ] edge or experience not required of the non-expert judge or jury. The expert evidence ’ given was then analyzed by the experts to determine the basic facts upon which final determination rested. The Commission afforded a full hearing, which extended 'over a period of more than seven months. The courts have now ha’d the rate order for review approximately six years, and final adjudication is still in the future; and no court has under its established rules of procedure unduly delayed action in the case. In the meantime the courts have enjoined the Commission from the enforcement of its rate order. And it is in the light of this established scope of judicial review that this Court has again concluded that the rate order is valid because based upon substantial evidence, that is, the over-all or unsegregated basis and evidence; and we pass to a consideration of it. Our findings of fact and conclusion that the rate order is based upon substantial evidence and that the Gas Company did not show by clear and satisfactory evidence that it was not based upon substantial evidence, are predicated on the findings of fact of the Commission introduced in the trial court by the Gas Company; the Gas Company’s testimony, estimates, and calculations adduced in the trial court; and the testimony, estimates, and calculations adduced by the Commission in the trial court. We do not predicate our findings and conclusion on the record of the testimony before the Commission, which was erroneously excluded by the trial court; although, with the exception of a few corrections, adjustments, and additional calculations, it is the same; or in substance, effect, and ultimate calculations and results the same as the testimony, estimates, and calculations given particularly by the Gas Company’s experts in the trial court. We have also considered the estimates and calculations shown by witness Connor’s Volumes 7 and 8 of Exhibits 28 and 42, and witness Hulcy’s Exhibits Nos. 4 to 14, both inclusive, eliminating therefrom the written arguments, hypotheses, and authorities cited to sustain them, which we held improper to submit to a jury, if a jury question were involved. The voluminous statement of facts and the multitude of estimates and calculations presented in the record render impossible any attempt to discuss them in detail. We must, therefore, be content with a statement of the controlling ultimate facts, and which, from our consideration of the entire record, show the principal differences between the parties, and show the rate order to be based upon substantial .evidence. Hearing before Commission. The Commission’s findings of fact represent a splendid piece of work fairly and expertly done. No complaint is made and none could be made that the Gas Company was not afforded a full and fair hearing before the Commission. Thousands of pages of testimony were taken and voluminous estimates and calculations made by the Commission’s and the Gas Company’s experts were introduced before the Commission. These estimates and calculations were then submitted to- and time given the experts of .both parties for examination, analysis, and criticism. And then with the aid of its experts, the Commission by its findings of fact assembled, analyzed, and sifted the testimony, estimates, and calculations before it. The facts thus found by the Commission are based largely upon the actual history and experience of the Gas Company’s business, the book costs, and the reproduction new costs of its entire properties, situated both in Texas and Oklahoma, and used in the Texas public service; rather than upon the hypothetical business and the highly speculative intangible valuations sought to be constructed and established' by the Gas Company’s employed experts. The year 1931 was selected by the Commission as a basis of calculation to determine whether the rate prescribed would earn a reasonable return on the fair value of the properties used in the public service. The rate was then tested by the detailed statements of the revenues, expenses, the book costs as taken from the re.cords of the Gas Company for the years 1927— 1932, both inclusive, and also reproduction new costs for the year 1931. The Commission also had before it the same character of statements for the year ending April 30, 1933. No comparable tests were made by the Gas Company. It presented such statements for only the calendar years 1931 and 1932, and the overlapping year ending April 30, 1933. The first three years, 1927-1929, as used by the Commission, were admitted to be prosperous years, and the last three years used by the Commission were lean years, due to the general depression prevailing everywhere, and including the year 1933, which was shown to be the warmest year in the history of the Gas Company’s business, although business conditions were better. Thus by shortening the period of operations, and in failing to make temperature adjustments, the Gas Company was able to show a much lower rate of return than it enjoyed for the longer six-year and overlapping year 1933 period employed by the Commission. The longer period employed by the Commission was manifestly the fairer and more reasonable test period. United Gas Public Service Co. v. Texas, 303 U. S. 123, 58 S.Ct. 483, 82 L.Ed. 702, Id., Tex. Civ.App., 89 S.W.2d 1094. Not having furnished statements covering a reasonable period of operation, the Gas Company did not show by clear and satisfactory evidence that the rate was unreasonable, unjust, or confiscatory. It selected a two- and one-third-year period, which represented the lowest earnings of its entire history, due to the business depression prevailing everywhere and to warm weather prevailing in the last year; and the evidence showed a definite up swing in business conditions for the year ending March 31, 1934, as presented in the trial court. And with respect to the right to make temr perature adjustments see Los Angeles Gas & Electric Co. v. Commission, 289 U.S. 287, 53 S.Ct. 637, 77 L.Ed. 1180. These same differences as to test periods and' temperature adjustments existed in the hearing in the trial court; however, each party extended statements down to March 31, 1934, in the trial court. Table I, hereto attached, represents calculations of returns based on the Commission’s findings and the 32-cent gate rate. Table II, hereto attached, represents the estimates and calculations used by the Gas-Company before the Commission. The record of the testimony before the Commission containing these estimates and calculations was excluded in the District Court, on the objection of the Gas Company, and such record is before us by bill of exception. Such estimates and calculations are used here only for the purpose of comparing same with the testimony, estimates, and calculations adduced by the Gas Company in the District Court. Hearing before District Court. Although our statutes and court decisions attribute a high degree of verity to the findings of fact by the Commission in matters of legislative rate-making, the trial judge merely permitted the findings of fact of the Commission to be introduced in evidence, excluded the record or statement of fa.cts on which they were based, and did not determine from them and the other evidence adduced the legal question of whether the rate order was based upon substantial evidence; but submitted such findings by the Commission to the jury with instructions that “you may consider same for the purpose for which same were admitted in evidence, — that is, for the purpose of assisting you (if same does assist you) in determining whether the order (rate order) * * * ⅛ unreasonable and unjust to defendant, and for no other purpose.” Thousands of pages of testimony, estimates and calculations by both parties were then adduced before the District Court. Under this instruction the jury was manifestly permitted to either consider or not consider the findings of fact by the Commission, notwithstanding the statutes and decisions attribute to them a high degree of verity, and require that they be regarded as presumptively valid unless shown by clear and •satisfactory evidence to be unreasonable or invalid; and the -jury was manifestly permitted, upon substantially the same evidence as was before the Commission, to substitute its own findings for those of the Commission. Table III, hereto attached, represents the estimates and calculations used by the Commission in the District Court. They are based upon the findings of fact of the Commission, and testimony, estimates, and calculations adduced by both parties in the District Court. Table IV, hereto attached, represents the estimates and calculations adduced by the Gas Company in the District Court. ■These Tables have been prepared as a basis of calculations to determine whether or not the rate prescribed by the Commission will afford a reasonable return on the value of the Company’s properties situated in both Texas and Oklahoma and used in the Texas public service. It may be here observed that the Commission based its calculations upon an undepreciated rate base while the Company, by employing the straight line method in spreading depreciation on certain large items of property, involves the use of depreciated values, although it did not consistently use depreciated values in its calculations. The principal points of difference relate to: (1) rate base; (2) depreciation and depletion; and (3) operating expenses. The only material difference with respect to operating revenues relates to temperature adjustments and periods of calculations covered. A difference also arises with respect to what should be a reasonable rate of return. Rate Base. The Commission, in its determination of a rate base, found a reproduction cost new value at December 31, 1931, of $46,-246,617.53 for all of the Company’s gas properties and business in Texas and Oklahoma. The Commission also found the average book costs of the properties inclusive of the Petrolia Field investment ranging from $29,517,879.08 in 1927 to $46,745,646.84 in 1930. The book cost at December 31, 1931, was shown by the Company to be $47,776,-749.63. The Commission found the Company’s investment in the Petrolia Field (in the amount of $758,619.23) to be no longer useful, and properly excluded it from the rate base. The Commission in its findings of fact stated that “The present worth or fair value of the Petrolia Field public service property is nil; and we have not, therefore, determined a reproduction cost new for leaseholds, gas vwells, and field line equipment. We have included the full salvage value of all of the equipment in the Petrolia Field as part of Working Capital. We cannot condone an attempt to include worthless properties in an appraisal for the apparent purpose of increasing the Rate Base. The inclusion of these properties was questioned in the hearing, the Company failed to show any justification for continuing to operate this field at a loss.” The Company in no way refuted in the trial court these findings by the Commission. This leaves a difference between the Company’s book cost of property used and useful and the Commission’s reproduction cost new, of only $771,512.87. In discussing this difference, the Commission stated that, “Inasmuch as a large part of the properties were built during peak price periods (years 1928 and 1929), and inasmuch as the Rate Base is ‘undepreciat-ed’, the comparison is quite reasonable.” So far as actual structural costs are concerned, the Company’s experts found that it would cost less to reproduce numerous items of property than the amounts claimed as “book costs”. These illustrations will suffice here: In the matter of compressor stations the Company’s reproduction cost new at December 31, 1931 (January 1, 1932), was $89,000 less than their “book costs” at the same date. There appears a similar difference of $148,000 in the item “General Office Building.” Other items could be • cited. The Company presented in the hearing before the Commission a reproduction cost new rate base, of $73,927,635.43 as of December 31; 1931 (January 1, 1932), (see Table II), and presented during the trial in the District Court a corresponding figure (at January 1, 1933) of $73,983,405.47 (see Table IV). Since the Company’s figures as presented before the Commission and as submitted in the District Court are almost identical and the Commission’s figures as found by it in its findings of fact and introduced without change in the District Court, the evidence before the Commission may be adverted to for comparison purposes and as showing that the trial court had substantially the same evidence before it as was before the Commission. The rate base found by the Commission was at December 31, 1931. The record shows that effective January 1, 1932, the Lone Star Gas Company “acquired” from the Lone Star Gas Corporation the properties (principally production) of the Meridian Gas Company, all, or substantially all, of which were located in Oklahoma, at a “book cost” of $1,338,406.21. Also, as of October 1, 1932, the Lone Star Gas Company “acquired” certain other properties (principally production) from the Southern Oil Production Company, located in West Texas. The book costs attributed to the acquisition of these properties was $966,-600.11. A careful examination of the record fails to reveal any necessity for the acquisition of these properties or their usefulness to the' Company; or in any event the evidence is not clear and satisfactory in that regard. Mr. Hulcy, an official of the Company, gave as reason for acquiring the Meridian properties (from the parent corporation) that it was felt that they could be operated as a single unit as well as two units and that it was a logical transfer and consolidation of property. In 1931 the Company purchased 68.-32% of its gas requirement and in 1932, after the acquisition of these properties, it was still purchasing 68.27% of its requirements. And the following statement clearly shows that the Company made very little use of the production properties taken over during 1932: 12 Months Total Sales Ended MCE Total Pur- Purchases chases MCP as per cent of sales. 12/31/27 38,369,319 31,706,928 82.42 12/31/23 36,692,761 29,275,765 79.79 12/31/29