car held himself out as engaged in a public utility business. If he did so hold himself out, it fixed the character of his business from then on, no matter how foolish he may have been in so doing, or how ignorant he may have been of the legal consequenccs. His petition for leave to discontinue of necessity assumed that he was in a public utility business, as otherwise the Commission would have had no authority in the premises. It was in effect a representation that he was so engaged. This representation, furthermore, was one made not only to the Commission, but to his own consumers, against whom the petition was directed and some of whom opposed it. The order of the Commission denying the request, while it does not expressly find that he was engaged in a public utility business, undoubtedly because no question was made upon the point, assumes it throughout and was made upon that basis. It may well be that, even by thus representing to the Commission and his consumers that he was engaged in a public utility business and submitting himself in that character to the jurisdiction of the Commission, Van Hoosear would not be estopped from showing that he was in truth not so engaged. But where, after having made this representation and after having been refused leave to discontinue, he to all outward appearances acquiesces in the refusal and continues his service, it is a fair inference that he continues in the character which he represented he had and which the Commission assumed he had; in other words, it is a fair inference that by continuing in business under these circumstances he held himself out, from then on at least, as doing a public utility business. So holding himself out, his business became in truth a public utility business, no matter whether it was previously so or not. There would seem, as we have said, no escape from this conclusion, and it is supported by the authority of Franscioni v. Soledad Land & Water Co. 170 Cal. 221, 149 Pac. 161, where a very similar state of facts was involved. This conclusion is decisive.

[2] To avoid any misapprehension, we might add that what we have said is not to be taken as meaning that it was a necessary inference that Van Hoosear had held himself out as engaged in a public utility business. Upon all the evidence in the case, the Commission might well have rejected the inference as contrary to the actual fact. But the Commission did not do this, and, the

inference mentioned being a not unreasonable one, it is sufficient to sustain the order.

We might also add that we have not overlooked the fact that, when Van Hoosear sold his place and discontinued service, all of his consumers, five only in number, had agreed, four of them in writing, that he might discontinue in case he sold. This circumstance, however, would not change the character of his business from a public utility business to a private business. If it were a public utility business, as the Commission found, it would remain so, no matter how the number of consumers dwindled, even if it dwindled to none at all, and, being a public utility business, authority to discontinue it could be had only from the Commission, and could not be conferred by the consumers. The circumstances might well have appealed strongly to the discretion of the Commission to permit him to discontinue, but over the discretion of the Commission we have no control.

Order affirmed.

We concur: Angellotti, C. J.; Shaw, J.; Lennon, J.; Wilbur, J.; Sloane, J.; Lawlor, J.

A water utility spread over a large area of sparsely settled territory requiring approximately 185 feet of main pipe for each consumer served, must wait until such time as its territory has been more fully developed before it can expect to earn a full return upon its investment.

[January 26, 1921.]

APPLICATION for authority to increase water rates; increased rate schedule on hand.

Appearances: Thomas C. Ridgway, for applicant.

By the Commission: Puente City Water Company, applicant in the above entitled proceeding, is a public utility water

company located at Puente, Los Angeles county, California, and engaged in the business of selling and distributing water for domestic and irrigating purposes to consumers in that vicinity.

In this proceeding, applicant asks for authority to increase its rates for water, alleging in effect that the present rates do not produce a sufficient revenue to provide maintenance and opcrating expenses, replacement fund and a fair interest return on the investment.

The present rates of this utility were established by the Railroad Commission in its Decision No. 4520, in Application No. 2839, dated August 7, 1917, Re Puente City Water Co. 13 Cal. R. C. R. 659, to which decision we hereby refer for the schedule of rates and other pertinent matter relating to the history of this company and its early operations.

A hearing was held in the present proceeding before examiner Westover at Puente, of which all interested parties were notified and given an opportunity to be present and be heard. Mr. F. H. Van Hoesen, one of the Commission's hydraulic engineers, submitted a report and appraisal of the system showing the estimated original cost of the used and useful properties of this utility to be $23,383, and a replacement annuity computed by the 6 per cent sinking fund method of $409.

Estimates of maintenance and operating expenses were submitted by both the applicant and the Commission's engineer. The figures for this item are not greatly at variance, and from the testimony presented it would appear that the sum of $5,099 is a reasonable figure for this item.

The following is a summary of the elements going to make up the reasonable annual charges of this utility:

The revenue produced by rates in 1919 was $3,192.18. Obviously, this sum is inadequate to meet the annual charges outlined above, but attention is directed to the fact that the system of this utility covers a large area of sparsely settled territory, requiring approximately 185 feet of main pipe line for each consumer served. There are some one hundred seventy consumers

on the system at the present time, and to require this number to return in the form of rates a revenue equal to the annual charges in the above tabulation, would be to impose an undue burden and possible hardship.

However, the district served is developing, as is evidenced by the addition of some fifteen or twenty new consumers during the past year. It is fair to assume that this development will continue and that in consequence the utility will receive increased

revenue.

After careful consideration of all the facts relating to this matter, a rate schedule is established in the following order which is designed to yield a larger income to applicant and is fair to the consumers.

1. Increased express rates, authorized by the Interstate Commerce Commission, do not justify increased intrastate rates without evidence showing that the business within the state warrants an increase.

2. Application for increased rates must show not only that an increase is justified because existing rates are too low, but also that the proposed rates are themselves reasonable.

3. When a deficit is claimed on a business as a whole, operated over the entire country, it must not be presumed that such a deficit, or any part of it, is chargeable to that part of the business conducted under the highest rates of all.

4. It was held that the American Railway Express Company had 'failed to justify any increase in intrastate rates in Idaho, although interstate rates had been increased 12 per cent and later 13 per cent to meet a wage increase.

[April 14, 1921.]

APPLICATION for increased express rates; denied.

Appearances: A. B. Roehl, Attorney, N. K. Lockwood, Superintendent Traffic Western Department, American Railway

Express Company, for American Railway Express Company; R. L. Givens, Assistant Attorney General, for the Commission; George B. Graff, for Boise Chamber of Commerce; H. W. L. Niemeyer, for Nampa Chamber of Commerce.

By the Commission: The American Railway Express Company filed with the Commission on the 12th day of July, 1920, an application reciting that the express business as conducted by the applicant incurred large deficits for the years of 1917, 1918, and 1919; that a petition for authority to increase its rates had been made to the Interstate Commerce Commission, Case No. 11326, and that, if and after new rates for interstate business were authorized by the Interstate Commerce Commission therein, similar or corresponding rates and changes be authorized by this Commission applicable to the business within the state of Idaho. By decision dated August 11, 1920, the Interstate Cominerce Commission authorized an increase of 12 per cent in the said case.

By subsequent application to this Commission, filed October 7, 1920, further increases and changes in rates were asked to conform with a decision of the Interstate Commerce Commission rendered September 21, 1920, in its Case No. 11416, predicated upon an award by the United States Labor Board. A separate hearing on each of the applications was held before this Commission, and in each hearing the applicant contented itself with showing the record made before the Interstate Commerce Commission and the decision of that body.

[1] The record before the Interstate Commerce Commission does not afford all that we need. If the decision of the Interstate Commerce Commission settle matters as to the intrastate rates within the state of Idaho, there is no need for the application before us. If they do not, and we hold that they do not, then it is incumbent upon the applicant to lay before us the essential facts relating to its business in Idaho upon which we can act. We have no disposition to withhold a justified increase, but we have no right to grant an increase until it is justified.

Section 2400, Idaho Compiled Statutes is as follows: "No public utility shall raise any rate, fare, toll, rental, or charge or so alter any classification, contract, practice, rule, or regulation