suit was commenced. Under all the circum- after the offer was made. The court there stances, we are of the opinion that plaintiffs held that he had not acted with sufficient were sufficiently prompt in demanding a promptness after the discovery of the alleged rescission. It is true, their demand and offer misrepresentations. The question as to whether an offer to rescind should be made before suit was not raised. The court did say that the fact that the plaintiff had remained in possession of the property and dealt with it as his own was evidence of an intention to abide by the contract. In that case, or in any, it certainly was evidence, and strong evidence, of such intention. to return the property received were not technical, or couched in the formal language that a lawyer would have used, but it was sufficient to convey to the defendants a knowledge of the fact that plaintiffs were ready to restore what they had received from defendants on condition that the latter would restore what they had received from plaintiffs. It is also true that the making of this offer was denied by defendant Bert Lootens and his faithful friend and witness, Giger, who by a singular coincidence always happened to be on hand when anything occurred between the parties. But the circuit court did not believe their testimony, and neither do we. In a case involving contradictory testimony, the opinion of the trial judge who saw the witnesses and had an opportunity to appraise the value of their testimony at first hand is entitled to great weight. [4, 5] Not only do we hold the offer sufficient, but it is far from being an invariable rule in equity that a party must offer to return the property received by him before bringing suit, if in his complaint he offers so to return it, and submits himself in that respect to the equitable jurisdiction of the court. A leading case on the subject in this state is Crossen v. Murphy, 31 Or. 114, 49 Pac. 858, in which Mr. Chief Justice Moore observed: "In a suit in equity for a decree of rescission, the complaint need not allege a tender or offer to perform. Bloomer v. Waldron, 3 Hill, 366; Hoyt v. Jaques, 129 Mass. 286.' The maxim that 'He who seeks equity must do equity' is evidently not violated by the failure of the plaintiff in a suit to rescind a contract for fraud to allege a restoration of, or an offer to return, the consideration, or a willingness even to do so; for by his application to the court for equitable redress he concedes that before it will be awarded he must do equity, which will compel him to account for everything of value he may have received, thereby tacitly inviting the court to protect the rights of the defendant by decreeing a restoration in consideration of the rescission. This method would permit a vendor who had been defrauded, but who was unable to restore the consideration, to institute a suit to rescind a contract voidable for fraud; for the court could do equity by all parties by decreeing that the amount so received should be a lien upon the property in favor of the vendee." This in no wise conflicts with the doctrine announced in Scott v. Walton, 32 Or. 460, 52 Pac. 180, Vaughan v. Smith, 34 Or. 54, 55 Pac. 99, and Seeck v. Jakel, 71 Or. 35, 141 Pac. 211, L. R. A. 1915A, 679. In Scott v. Walton the plaintiff, with full knowledge of the alleged misrepresentations, waited a full year before offering to rescind, and brought his suit for rescission the day Vaughan v. Smith, supra, was a suit to rescind a purchase of real property and to recover the purchase money paid thereon, on the ground that the seller had made false representations that there were no incumbrances on the land, whereas there was in truth and in fact an easement or right of way across the property which detracted from its value. The court below, the writer of this opinion being the trial judge, found that plaintiff with full knowledge of the ex istence of the incumbrance had entered into land and received the rents and profits and continuously retained possession of the thereof, amounting to $675, and had never offered to pay for the use and occupation of the land, disaffirmed the contract, offered to reconvey the land to defendants, or made any demand on them for the money he had already paid, but had in all respects acted as the owner of the land. Upon this state of facts the circuit court entered a decree dismissing plaintiff's suit, which decree was affirmed on appeal. The opinion in that case was written by Mr. Justice Moore, who also wrote the opinion in Crossen v. Murphy, supra; and, far from attempting to overrule the doctrine enunciated in that case, he cited it as an authority in the case he was then considering. Among other things, he said: "The law is well settled in this state that a party desiring to rescind a contract must act promptly upon the discovery of the accident, fraud, or mistake, which affords a ground for the relief sought, and place the other party in statu quo, returning or offering to return that which has been received. Knott v. Stephens, 5 Or. 235; Frink v. Thomas, 20 Or. 265, 25 Pac. 717, 12 L. R. A. 239; Clarno v. Grayson, 30 Or. 111, 46 Pac. 426; Crossen v. Murphy, 31 Or. 114, 49 Pac. 858. "In Scott v. Walton, 32 Or. 460, 52 Pac. 180, Mr. Justice Bean, in speaking of the right and duty of a party who seeks to rescind a contract, says: 'A party who has been induced to enter into a contract by fraud has, upon its discovery, an election of remedies. He may either affirm the contract, and sue for damages, or disaffirm it, and be reinstated in the position in before it was consummated. which he was These remedies, however, are not concurrent, but wholy inconsistent. The adoption of one is the exclusion of the other. If he desires to rescind, he must act promptly, and return or offer to return what he has received under the contract. He cannot retain the fruits of the contract, awaiting future developments to de (203 P.) termine whether it will be more profitable for him to affirm or disaffirm it. Any delay on his part, and especially his remaining in possession of the property received by him under the contract, and dealing with it as his own, will be evidence of his intention to abide by the contract.' In the case at bar the evidence supports the finding of the court that plaintiff remained in possession of the land after he had discovered the existence of the right of way across the premises, and treated the property as his own, thereby manifesting an intention to ratify the contract, which precludes its rescis sion." Seeck v. Jakal, supra, is not in point here. In that case the defendants had purchased a feed barn in the town of Lebanon, the deed containing a condition that the conveyed premises should not be used for the carrying on of a livery business, and that if used for that purpose the property should revert to the grantors. The defendants suffered the premises to be so used, and the plaintiffs brought an action at law to recover possession. The defendants answered, and among other things alleged that the forfeiture clause in the deed was procured by fraud. This court found that in any event the transaction between the parties was entire, and, if repudiated or rescinded, should be canceled as a whole, and that the defendants with full knowledge of the facts had continued in possession of the property for more than four years without offering to rescind or offering either before the suit or in their answer to return the property. Among many other authorities the opinion cited Crossen v. Murphy, supra. Not only has the doctrine enunciated in Crossen v. Murphy been tacitly approved in the cases above cited, but it has been expressly approved and reiterated in the following cases: Owen v. Jones, 68 Or. 311, 136 Pac. 332; Merrifield v. McClay, 72 Or. 90, 142 Pac. 587; Palmiter v. Hackett, 95 Or. 12, 185 Pac. 1105, 180 Pac. 581. The last case, finally decided here in 1920, is the most recent authoritative utterance of this court, and may be considered as finally settling this contention. its decree in favor of plaintiffs contingent on their paying over the money received from the sale of cattle, hogs, and chickens, and adding thereto 6 per cent. interest from the date of sale. The decree puts defendants in statu quo financially, which is all that equity requires. [6] It is claimed for the defendants that the complaint is insufficient because it does not allege in terms that plaintiffs have been damaged in the exchange. No doubt this would be true in an action for deceit; but such is not the case where a rescission is sought. The plaintiffs were seeking a place where they could raise stock, and, incidentally thereto, hay, grain, potatoes, and other vegetables, and situated in a locality where a regular school was maintained. A tract which would not produce fair crops of hay and grain would be rather a sorry stock ranch; land that would not at least produce potatoes would be a poor place for a home; and a country where the population is so scant as to furnish few and irregular school facilities would not be a desirable locality in which to rear a family. Defendants promised plaintiffs all these, but failed to "deliver the goods," and should not be heard to say that they have delivered something just as valuable. McGowan v. Willamette Valley Land Co., 79 Or. 454, 155 Pac. 705. On the whole, we are of the opinion that the plaintiffs have made out a clear case, and that there is nothing in their conduct that should preclude them from equitable relief. The decree is eminently fair to the defendants, and should be affirmed. BURNETT, C. J., and HARRIS and RAND, JJ., concur. (59 Utah, 191) UTAH COPPER CO. v. PUBLIC UTILITIES COMMISSION OF UTAH et al. (No. 3659.) In the case at bar plaintiffs not only offer-I. ed to return the property before suit, but tendered a return after suit, except of such live stock as they alleged they had sold after suit to prevent the same from starving, and for which they offered to pay the money received and any further sum which the court might adjudge equitable. Whatever may be said of the legality of the sale made by plaintiffs after suit was begun, it was made with notice to defendants, and tended to minimize their damages. It was much better for all the parties, and more humane, than to leave the stock to suffer and starve during the winter. The court liberally provided for defendants in this regard by making (Supreme Court of Utah. Dec. 15, 1921.) Electricity -Public Utilities Commission properly refused to pass upon reasonableness of rates in proceeding involving issue as to whether rate charged particular consumer was discriminatory. Where proceeding before Public Utilities Commission, involving issue as to whether rates at which power company was furnishing power to particular consumer was discriminatory, in violation of Comp. Laws 1917, § 4789, was held concurrently with proceeding on power company's application to increase its rates, the Commission properly refused, in the first proceeding, to pass upon the reasonableness of the rates sought to be charged by the power company, or to pass upon the reasonableness of the rates being charged by the company according to its regular schedule, at which the company For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes was ordered to supply power to consumer to | mission, on finding the contract rate to be diswhom power had previously been furnished at discriminatory rate. criminatory, before making its order as to a proceeding, the regular schedule rate at which Public Utilities Commission's order that rate at which electricity was being furnished to particular consumer was discriminatory and preferential in violation of Comp. Laws 1917, § 4789, and that power should be furnished such consumer at the prevailing regular schedule rate, made in proceeding in which the Commission refused to express an opinion as to the reasonableness of such rates, and as to the power of the Commission to fix and enforce temporary rates, pending other hearing before the commission on the power company's appli-trative body, clothed by the Legislature with the cation to increase its rates, held not res adjudicata as to the reasonableness of such rates or the power of the Commission to fix and enforce such temporary rates. 3. Public service commissions 7 Public Utilities Commission empowered to fix rates regardless of contractual relations. Under Public Utilities Act (Comp. Laws 1917, § 4784, subd. 2, sections 4785, 4788, 4789, 4798, 4800, and section 4830, subds. 1 and 2), and in view of the Constitution, the Public Utilities Commission has power to regulate the public utilities of the state, and fix the rates to be charged the public in accordance with the act, regardless of contractual relations.1 4. Corporations 391-Police power to regulate public utilities based on right to secure just rates to consuming public. Fundamentally, the legislative or police power to regulate the public utilities of the state and fix rates rests on the legal right to secure to the consuming public just, uniform, and equitable rights, as applied to the service rendered. 5. Corporations 391-Serving utilities entitled to fair return, under Public Utilities Act. The Public Utilities Act contemplates that the serving utilities, burdened as they are, and as they should be, with the duty of rendering efficient service to the public, are entitled to earn a fair return or income from the property used in successful and economical operation. 6. Electricity -Public Utilities Commission, on finding contract rate discriminatory, could order consumer to pay schedule rate pending decision as to reasonableness. Where hearing before Public Utilities Commission, involving question as to whether rate charged particular consumer under a contract was discriminatory and preferential in violation of Comp. Laws 1917, § 4789, was being held concurrently with hearing on application of the power company to increase its rates, the Com Salt Lake City v. Utah L. & T. Co., 52 Utah, 210, 173 Pac. 556, 3 A. L. R. 715; Union Portland Cement Co. v. Public Utilities Com., 189 Pac. 593; Under Public Utilities Act (Comp. St. 1917, § 4834), and Const. art. 1, § 11, the Public Utilities Commission is peculiarly an adminis power to regulate the public utilities of the state, and the Supreme Court, on certiorari to review the Commission's order, has no right to interfere unless it clearly appears that the rates as established by the Commission are manifestly unjust or confiscatory in their nature, or that the Commission has acted outside its powers.2 Gideon and Weber, JJ., dissenting in part. Certiorari by the Utah Copper Company, to review an order of the Public Utilities Commission of Utah in the matter of the application of the Utah Power & Light Company for permission to increase its power rates under the Public Utilities Act. Orders and rulings of Commission affirmed. R. G. Lucas, of Salt Lake City, for plaintiff. H. H. Cluff, Atty. Gen., and John F. MacLane and C. C. Parsons, both of Salt Lake City, for defendants. CORFMAN, C. J. This case is brought here by the plaintiff on a writ of certiorari to review an order of the Public Utilities Commission of Utah made and entered on the 8th day of March, 1921, in the matter of the application of the defendant Utah Power & Light Company for permission to increase its power rates, under the provisions of title 91, Comp. Laws Utah 1917, commonly known and referred to as the Public Utilities Act. For convenience, hereinafter the plaintiff will be referred to as the "Copper Company," and the defendants, respectively, as the Commission" and the "Power Company," while the statute bearing on the questions involved will be referred to as the "Utilities Act." It appears that the Copper Company is engaged in the business of mining and reduction of ores upon an extensive scale in this state, and that the Power Company is Salt Lake City v. Utah L. & T. Co., 52 Utah, 210, 173 Pac. 556, 3 A. L. R. 715. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (203 P.) engaged in generating hydroelectric energy and furnishing the same to its consumers for heating, lighting, and power purposes. The latter owns and operates some 25 hydroelectric plants on the Bear river in Utah and Idaho. All of its plants are interconnected, and upon its power system approximately 80 per cent. of the population of Utah is dependent for electrical service, industrially and otherwise. The evidence discloses that initial cost, exclusive of overhead expenses, water rights, and intangible values, of the various power plants owned by the Power Company in Utah and Idaho, represents expenditures made on the part of the Power Company and its predecessor companies of about $42,000,000. The Power Company was created a corporation under the laws of the state of Maine in 1912. It began its actual business operations in this state January 1, 1913, and about that time it entered into a 25-year contract with the Copper Company to furnish the latter, for its operations in the mining and reduc tion of ores, 31,000 horsepower of hydroelectric energy, at a base rate of 4.208 mills per k. w. h. upon conditions therein named. Our Legislature passed the Utilities Act in 1917. Said act, among other things, provides: Section 4798: "The Commission is hereby vested with power and jurisdiction to supervise and regulate every public utility in this state, as defined in this title, and to supervise all of the business of every such public utility in this state, and to do all things, whether herein specifically designated, or in addition thereto, which are necessary or convenient in the exercise of such power and jurisdiction." will go into effect. The Commission, for good cause shown, may allow changes without requiring thirty days' notice herein provided for, by an order specifying the changes so to be made and the time when they shall take effect, and the manner in which they shall be filed and published. When any change is proposed in any rate, fare, toll, rental, charge, or classification, or in any form of contract or agreement, or in any rule, regulation, or contract relating to or affecting any rate, toll, fare rental, charge, classification, or service, or in any privilege or facility, attention shall be directed to such change on the schedule filed with the ed by the Commission, immediately preceding or Commission, by some character to be designatfollowing the item." Section 4788: "Except as in this section otherwise provided, no public utility shall charge * less or different compensation for any service rendered * * than the * applicable to such rates service as specified in its schedules on file and in effect at the time, nor shall any such public utility * ** extend to any corporation or person any form of contract or agreement except such as are regularly and uniformly extended to all corporations and persons; provided, that the Commission may by rule or order establish such exceptions from the operation of this prohibition as it may consider just and reasonable as to each public utility." Section 4789: "No public utility shall, as to rates, charges, service, facilities, or in any other respect, make or grant any preference or advantage. * Section 4800: "Whenever the Commission shall find after hearing that the rates collected by any public utility * the or that * practices, or contracts * * affecting such rates * are unjust, unreasonable, discriminatory, or preferential, or in any wise in violation of any provisions of law, or that such rates, fares, tolls, rentals, charges, or classifications are insufficient, the Commission shall determine the just, reasonable, or * rules, regulations, practices, or contracts to be thereafter observed and in force, and shall fix the same by order as hereinafter provided." Subdivision 2 of section 4784: "Under such rules and regulations as the commission may prescribe, every public utility other than a common carrier shall file with the Commission within such time and in such form as the Com-sufficient mission may designate, and shall print and keep open to public inspection schedules showing all rates, tolls, rentals, charges, and classifications collected or enforced, or to be collected or enforced, together with all rules, regulations, contracts, privileges, and facilities which in any manner affect or relate to rates, tolls, rentals, charges, classifications, or service. Nothing in this section contained shall prevent the Commission from approving or fixing rates, tolls, rentals or charges, from time to time, in excess of or less than those shown by said schedule." rates, Section 4830: "1. No public utility shall raise any rate, fare, toll, rental, or charge or so alter any classification, contract, practice, rule, or regulation as to result in an increase in any rate, fare, toll, rental, or charge, under any circumstances whatsoever, except upon a showing before the Commission and a finding by the Commission that such increase is justified. "2. Whenever there shall be filed with the Commission any schedule stating an individual Section 4785: "Unless the Commission other- or joint rate, fare, toll, rental, charge, classiwise orders, no change shall be made by any fication, contract, practice, rule, or regulation public utility in any rate, fare, toll, rental, increasing or resulting in an increase in any charge, or classification, or in any rule, regula- rate, fare, toll, rental, or charge, the Commistion, or contract relating to or affecting any sion shall have power, and it is hereby given rate, toll, fare, rental, charge, classification, or authority either upon complaint or upon its service, or in any privilege or facility, except own initiative without complaint at once and after thirty days' notice to the Commission if it so orders without answer or other formal and to the public as herein provided. Such no- pleadings by the interested public utility or utiltice shall be given by filing with the Commis-ities, but upon reasonable notice, to enter upon sion and keeping open for public inspection new schedules stating plainly the change or changes to be made in the schedule or schedules then in force, and the time when the change or changes a hearing concerning the propriety of such rate, fare, toll, rental, charge, classification, contract, practice, rule, or regulation, and, pending the hearing and the decision thereon, such rate, fare, toll, rental, charge, classification, contract, practice, rule, or regulation shall not go into effect; provided that the period of suspension of such rate, fare, toll, rental, charge, classification, contract, practice, rule, or regulation shall not extend beyond 120 days beyond the time when such rate, fare, toll, rental, charge, classification, contract, practice, rule, or regulation would otherwise go into effect unless the Commission, in its discretion, extends the period of suspension for a further period not exceeding six months. On such hearing the Commission shall establish the rates, fares, tolls, rentals, charges, classifications, contracts, practices, rules, or regulations proposed, in whole or in part or others in lieu thereof, which it shall find to be just and reasonable. On April 8, 1918, the Commission issued an order, or its "Tariff Circular No. 3," requiring all public utilities, including the Power Company, to file their tariffs or schedules of rates charged consumers. The order was complied with on the part of the Power Company, but its special contracts with the Copper Company and others were not then filed. On October 23, 1918, the Commission issued a supplement to its said Tariff Circular No. 3 in which attention was called to the provisions of the Utilities Act, and particularly to section 4788, supra, providing that no public utility shall charge less or different compensation for any service rendered than that specified in the schedules filed, or any deviation therefrom, and further requiring all special contracts to be filed with the Commission. Thereupon the Power Company, in response to said order, filed with the Commission its special contracts, including its said contract with the Copper Company. After examination of the special contracts, in September, 1919, the Commission, pursuant to the Utilities Act, issued an order calling attention to the fact that the rates fixed in the special contracts of the Power Company with its consumers were not in harmony with the general rates charged consumers by the Power Company, that such rates appeared to be discriminatory and preferential, and in violation of the Utilities Act, and ordered that the said consumers show cause why the said special contract rates should not be held in contravention thereof. Said order initiated case known and designated as case No. 230 before the Commission. While said case No. 230 was pending before the Commission the Power Company, on December 4, 1919, filed its petition for a general increase and revision of its power rates, thus initiating before the Commission the case under consideration, designated case No. 248. Thereafter the two cases, Nos. 230 and 248, proceeded before the Commission concurrently, and the record made, by stipulation of the parties interested, was made as one case in so far as the facts were applicable. On October 18, 1920, the Commission decided case No. 230, finding that the special con tracts under investigation in said case were discriminatory and preferential, and therefore in violation of the provisions of the Utilities Act. Thereupon the Commission ordered that the special contracts of the Power Company's consumers be modified to the extent that the "rates, rules and regulations prescribed in the standard schedules of the Power Company now on file with the Commission be, and they are hereby, applied to the service rendered to or for the said consumers in lieu of the rates, rules and regulations provided in said contracts; provided that the Power Company shall hold itself ready to make reparation, if any, as the Commission may order after its opinion and order in case No. 248 is issued." The special contract holders, including the Copper Company, thereupon applied for a rehearing before the Commission, and in response to the said petitions for rehearing the Commission made the following additional findings or order: "That the rates set forth in the special contracts under consideration, wherein they are different from those set out in the regular schedule applicable to like service, are discriminatory and preferential. "That the continuance in effect of these special discriminatory contract rates places an undue burden upon that part of the power consuming public that does not enjoy said special contract rates. "That the published and filed schedules and tariffs of the Power Company now on file with this Commission purport to be, and by their terms are, applicable to the service rendered to the holders of the special contracts, and are the schedules which are open to and actually used by the public generally for similar service, and, unless and until changed, amended, superseded, or annulled by this Commission, should be applied to all service to which by their terms they are applicable. "The foregoing findings are fundamental implications of the entire proceedings in this case, and are implied in the order of the Commission originally issued herein. This report is not intended to make any additional or new findings, but simply to clearly express the findings which were implied in the original report, and to indicate the Commission's attitude on some questions raised herein." Thereafter case No. 230 was brought to this court for review upon a writ of certiorari. The rulings of the Commission were affirmed February 28, 1921. The petitioners, consumers under special contracts, filed a petition for rehearing, which was denied. In denying the said petition for rehearing this court said: "The question of whether the rates fixed by the Commission, and which it ordered the plaintiffs aforesaid to pay, were just and reasonable, or whether they apply to any one or more, or all, of the plaintiffs, or whether, under the circumstances, the Commission had the power to make and enforce them, was not considered and not decided." U. S. Smelting, Refining & |