cost is the legal equivalent of value. He | 48 L.R.A. (N.S.) 1151, 33 Sup. Ct. Rep. found that $19,000,000 was, on the evi- 729, Ann. Cas. 1916A, 18: The ascerdence, the lowest conceivable spot re- tainment of that value is not controlled production cost. He assumed that, by artificial rules. It is not a matter of since the utility was willing to ac-formulas, but there must be a reasonable cept this minimum reproduction judgment having its basis in a proper cost, no amount less than that could consideration of all relevant facts."" be found by him to be the value, or rate base. He believed that recent decisions of this court required him so to hold. In this belief he was clearly in error.

There is, so far as I recall, no statement by this court that value is tantamount to reproduction cost.

Nor do I find in the decisions of this court any support for the view that a That reproduction cost is not conclu- peculiar sanction attaches to "spot" resive evidence of value has been repeat- production cost, as distinguished from edly stated by a unanimous court. The the amount that it would actually cost rule of Smyth v. Ames, 169 U. S. 466, to reproduce the plant if that task were 547, 42 L. ed. 819, 849, 18 Sup. Ct. Rep. undertaken at the date of the hearing. 418, requires not only that each class of "Spot" reproduction would be impossiother evidence of value be considered, ble of accomplishment without [424] but also that each class of evidence "be the aid of Aladdin's lamp. The acgiven such weight as may be just and tual cost of a plant may conceivright in each case." [423] Similarly, ably indicate its actual value at the it was stated in the Georgia R. & Power time of completion or at some time Co. Case, 262 U. S. 625, 630, 67 L. ed. thereafter. Estimates of cost may 1144, 1147, 43 Sup. Ct. Rep. 680: conceivably approximate what the cost of reproduction would be at a given time. But where a plant would require years for completion, the estimate would be necessarily delusive if it were based on "spot" prices of labor, materials and money. The estimate, to be in any way worthy of trust, must be

"The refusal of the commission and of the lower court to hold that, for ratemaking purposes, the physical properties of a utility must be valued at the replacement cost less depreciation was. clearly correct. As was said in Minnesota Rate Cases (Simpson v. Shepard) 230 U. S. 352, 434, 57 L. ed. 1511, 1555, 'based on a consideration of the varying L. ed. 981, 31 A.L.R. 807, 43 Sup. Ct. Rep. | 544; Bluefield Waterworks & Improv. Co. v. Public Serv. Commission, 262 U. S. 679, 67 L. ed. 1176, 43 Sup. Ct. Rep. 675; Georgia R. & Power Co. v. Railroad Commission, 262 U. S. 625, 67 L. ed. 1144, 43 Sup. Ct. Rep. 680] were decided at a time when the court had, as a matter of history in this particular field of jurisprudence, full cognizance of the probative character and the propriety of considering evidence such as is popularly called evidence of historical cost, evidence of reproduction cost upon a certain price level, evidence of value which is called prudent investment value, and, fourth, evidence of what is strictly and technically reproduction spot depreciated at the time of the inquiry; these cases press upon us sharply the query of why these cases, in their results, disclose the emphasis given to the last named of these four character of evidence; and I am entirely content to accept the characterization made by the judges in the sixth circuit in the so-called Monroe Gas Case; that the necessary implication from their results is that dominating consideration should be given to evidence of reproduction value and, if that means anything, it means that evidence of reproduction value spot at the time of the inquiry must be considered as evidence of a primarily different character from either of the other three kinds of evidence. Now, the court is required, as it seems to

me, to apply the principles that are to be
discussed and to be accepted, as I indicated
in my preliminary remarks, as to what the
Supreme Court meant by what it said in
these three cases. Is it possible,
or can the court now rationally say, that
the commission here-and, in order to test
it out, include the court here—can, by any
sort of examination of the evidence, reach
a conclusion that upon unimpeached evi-
dence showing a minimum of spot repro-
duction values at $19,000,000, it will still
find reasonable value at $15,260,000?
Now, that brings us to the evidence in
this case and, as I said, can the commis-
sion or can this court now say that there
can be a rational reconcilement between
unimpeached evidence of $19,000,000, as a
minimum cost reproduction value spot, and
any other price level, particularly one show-
ing a disparity of five million dollars-
four to five?
I am not confronted
with the problem of fixing a valuation with-
in the range of dispute upon spot repro-
duction. I say I am not confronted with
that problem, because the complainant
comes into this court and offers to accept
$19,000,000, as a fair basis of valuation,
even though, as it says, and I think has
reason to say and could support it, it could,
upon the record, sustain a higher valua-
tion." The decree itself recited "that the
fair value of complainants' said property
was and is not less than $19,000,000."

Mr. Justice Stone joins in this dissent.

costs of labor, materials, and money for connection with those of which we have a period at least as long as would be re-judicial notice, do not justify holding quired to construct the plant and put it that rates which yield a return of less into operation. Moreover, the estimate than 7 per cent would be so unreasonmust be made in the light of a longer ably low as to be confiscatory. experience and with due allowances for the hazards which attend all prophecies in respect to prices. The search for value can hardly be aided by a hypothetical estimate of the cost of replacing the plant at a particular moment, when actual reproduction would require a period that must be measured by years.

CHARLES H. GRAVES, Plff. in Err.,

V.

STATE OF MINNESOTA.

(See S. C. Reporter's ed. 425–429.)

right to pre

When a court declares that the rate base shall be the value, instead of the historical cost or the amount prudently invested in the enterprise, it selects the Physicians and surgeons standard for measuring the property on scribe qualifications. which compensation is to be paid. It 1. A state may constitutionally prelays down a rule of law; and in the per- scribe that only persons possessing the reaformance of that function there is al-sonably necessary qualifications of learning ways a legitimate field for theory. But and skill shall practise medicine or dentistwhen, having selected value as the stand-ry. ard for the rate base, the court under- Statutes takes to find what that value is at the

date of the rate hearing, it purports to make a finding of fact. The process of determining facts will inevitably be misleading unless each step bears a close relation to the realities of life.

The evidence introduced before the trial court, which seems to be in substance the same as that introduced before the commission, is now before this court. We have power to examine the evidence and to enter such decree as may be appropriate. Compare Denver v. Denver Union Water Co. 246 U. S. 178, 62 L. ed. 649, P.U.R.1918C, 640, 38 Sup. Ct. Rep. 278. But the better practice [425] requires that the case be remanded to the district court, SO that the evidence may be re-examined there in the light of the applicable rules. Oklahoma Natural Gas Co. v. Russell, 261 U. S. 290, 293, 67 L. ed. 659, 662, 43 Sup. Ct. Rep. 353; Pacific Teleph. & Teleg. Co. v. Kuykendall, 265 U. S. 196, 68 L. ed. 975, 44 Sup. Ct. Rep. 553. Compare Chicago, M. & St. P. R. Co. v. Tompkins, 176 U. S. 167, 179, 44 L. ed. 417, 422, 20 Sup. Ct. Rep. 336; Lutcher & M. Lumber Co. v. Knight, 217 U. S. 257, 267, 54 L. ed. 757, 761, 30 Sup. Ct. Rep. 505; Brown v. Fletcher, 237 U. S. 583, 59 L. ed. 1128, 35 Sup. Ct. Rep. 750; Gerdes v. Lustgarten, 266 U. S. 321, 327, 69 L. ed. 309, 312, 45 Sup. Ct. Rep. 107. To this end the decree should, in my opinion, be reversed.

validity

presumption. 2. A presumption must be indulged in favor of the validity of a statute. Constitutional law when statute declared unconstitutional.

3. The state is primarily the judge of regulations required in the interest of pubutes may only be declared unconstitutional lic safety and welfare, and its police statwhere they are arbitrary and unreasonable attempts to exercise the authority vested in the state in the public interest." Constitutional law police power requiring diploma to practise dentistry.

4. Requiring possession of a diploma from a dental college in good standing as to practise dentistry is not so arbitrary a prerequisite to examination for a license and unreasonable as to exceed the police power of the state.

Note.-For a discussion of police power, generally-see annotations to State v. Marshall, 1 L.R.A. 51; Re Gannon, 5 L.R.A. 359; State v. Schlemmer, 10 L.R.A. 135; Ulman v. Baltimore, 11 L.R.A. 224; Electric Improv. Co. v. San Francisco, 13 L.R.A. 131, and Barbier v. Connolly, 28 L. ed. U. S. 923.

As to constitutional equality of priv ileges, immunities, and protection, generally-see annotation to Louisville Safety Vault & T. Co. v. Louisville & N. R. Co. 14 L.R.A. 579.

to

On validity of statute providing for revocation of license of physician, surgeon, or dentist-see annotation Green v. Blanchard, 5 A.L.R. 94. On validity of class legislation, genTo avoid the possibility of misunder-erally-see annotations to State v. Goodstanding, I add merely that in my opin-will, 6 L.R.A. 621, and State v. Loomis, ion the facts of record, considered in 21 L.R.A. 789.

equal protection N WRIT of Error to the Supreme Court of the State of Minnesota to

pro se, filed a brief for plaintiff in er

ror:

The requirement in § 5760 that an applicant for a dental license must first present a diploma from an approved dental college before he will be permitted an examination by the state board is unconstitutional and void in that it is so unreasonable, arbitrary and capricious that it cannot be considered as constituting due process of law within the meaning of the 14th Amendment of the Constitution of the United States.

v. United States, 208 U. S. 173, 52 L. ed. 442, 28 Sup. Ct. Rep. 277, 13 Ann. Cas. 764; Smith v. Texas, 233 U. S. 630, 58 L. ed. 1129, L.R.A.1915D, 677, 34 Sup. Ct. Rep. 681, Ann. Cas. 1915D, 420; Smith v. Alabama, 124 U. S. 465, 31 L. ed. 508, 1 Inters. Com. Rep. 804, 8 Sup. Ct. Rep. 564; Yick Wo v. Hopkins, 118 U. S. 369, 30 L. ed. 226, 6 Sup. Ct. Rep. 1064; Reetz v. Michigan, 188 U. S. 508, 509, 47 L. ed. 566, 23 Sup. Ct. Rep. 390.

Section 5760 violates the equality provisions of the 14th Amendment of the Constitution of the United States and abridges the privileges and immunities contemplated by the amendment in that it sets up a classification which is unreasonable, arbitrary and discriminatory, is not based on any reasonable, substantial, or natural distinction, is not suggested by any reason of necessity and rests on grounds of public policy.

12 C. J. 929, § 441; Mugler v. Kansas, 123 U. S. 625, 31 L. ed. 205, 8 Sup. Ct. Rep. 273; 6 R. C. L. 236; New York ex rel. Silz v. Hesterberg, 211 U. S. 31, 53 L. ed. 75, 29 Sup. Ct. Rep. 10; Lawton v. Steele, 152 U. S. 133, 137, 38 L. ed. 385, 388, 14 Sup. Ct. Rep. 499; Bonnett v. Vallier, 136 Wis. 193, 17 L.R.A. (N.S.) 486, 128 Am. St. Rep. 1061, 116 N. W. 885; Health Dept. v. Trinity Church, 145 N. Y. 32, 27 L.R.A. 710, 45 Am. St. Rep. 579, 39 N. E. 833; Freund, Police Power, § 63; Welch v. Swasey, 214 U. S. 91, 53 L. ed. 923, 29 Sup. Ct. Rep. 567; State v. Walker, 48 Wash. 8, 92 Pac. 775, 15 Ann. Cas. 257; Dent v. West Vir-lis, 165 U. S. 150, 41 L. ed. 666, 17 Sup. ginia, 129 U. S. 114, 32 L. ed. 623, 9 Sup. Ct. Rep. 231; Lochner v. New York, 198 U. S. 53, 64, 49 L. ed. 940, 944, 25 Sup. Ct. Rep. 539, 3 Ann. Cas. 1133; Adair (1890) 44 Kan. 565, 21 Am. St. Rep. | practicing dentistry in the state before 306, 24 Pac. 346.

Nor is a statute requiring a certificate to practice dentistry unconstitutional, because it exempts persons practicing in the state at the time the statute was passed. Ex parte Whitley, supra.

The due process clause in the state and Federal Constitutions is not violated by a statute which requires a person to take an examination before he can practice dentistry, even though he has been licensed to practice in another state. State v. Crombie (1909) 107 Minn. 171, 119 N. W. 660.

Missouri v. Lewis (Bowman v. Lewis) 101 U. S. 22, 25 L. ed. 989; Moore v. Missouri, 159 U. S. 673, 40 L. ed. 301, 16 Sup. Ct. Rep. 179; Zoline, Fed. App. Jur. & Proc. 2d ed. § 429; 6 R. C. L. 373, 381, 383; Gulf, C. & S. F. R. Co. v. El

Ct. Rep. 255; Connolly v. Union Sewer
Pipe Co. 184 U. S. 540, 46 L. ed. 679,
22 Sup. Ct. Rep. 431; Cotting v. Kansas
City Stock Yards Co. (Cotting v. God-

the statute was passed. Ibid.

A state statute defining what constitutes "practising dentistry" is not unconstitutional as violating the state Constitution prohibiting special legislation, nor is it discriminatory where it sets a certain standard which all applicants must meet. People v. Keseling (1917) 35 Cal. App. 501, 170 Pac. 627.

But a statute regulating the practice of dentistry is unconstitutional as discriminating against persons engaged in the same profession and denying the equal protection of the laws, where it exempts from obtaining a license persons who have resided and practiced the profession of dentistry in a certain place within the state for a certain specified time before the passage of the statute. State v. Hinman (1889) 65 N. H. 103,

A statute exempting from the state dental examination persons registered in another state, in the discretion of the dental examiners, does not violate the state constitutional provision prohibiting the granting of a private corporation, association or individual an "ex-23 Am. St. Rep. 22, 18 Atl. 194. clusive privilege, immunity, or franchise." People v. Griswold (1914) 213 N. Y. 92, L.R.A.1915D, 538, 106 N. E. 929. The Federal constitutional provision prohibiting discrimination is not violated by a statute requiring a dentist to be registered on meeting certain qualified standards where it exempts persons'

And the statute violates the equality provision of both the state and Federal Constitutions, where, in providing for revoking dentists' licenses, it exempts from operation of the law persons lawfully practicing dentistry at that time within the state. State v. Luscher (1923) 157 Minn. 192, 195 N. W. 914,

ard) 183 U. S. 79, 46 L. ed. 92, 22 Sup. | writ of error on the constitutional quesCt. Rep. 30; Smith v. Texas, 233 U. S. 630, 58 L. ed. 1129, L.R.A.1915D, 677, 34 Sup. Ct. Rep. 681, Ann. Cas. 1915D, 420; Yick Wo v. Hopkins, 118 U. S. 369, 30 L. ed. 226, 6 Sup. Ct. Rep. 1064; State v. Walker, 48 Wash. 8, 92 Pac. 775, 15