ties; that said act is not repugnant to the provisions of the commerce clause of the constitution of the United States, or repugnant to the provisions of the constitution of this state; that the plaintiffs have no legal right to construct their lines into either of said cities without first obtaining a certificate of convenience and necessity; that no vested rights of the plaintiffs have been in any manner interfered with by the orders complained of, and that the orders made in the above-entitled cases by the commission are not unreasonable or unlawful, and must be affirmed, and it is so ordered. Costs awarded in favor of the defendants.

Walters, District Judge, concurs.

AILSHIE, C. J. (dissenting).—It seems to me that the construction placed on the statute by the opinion of my associate thwarts and sets at naught the intention of the legislature and renders meaningless the plain language of the statute.

Two things are made perfectly plain by secs. 48a and 48b of the act. First, that a power company that was engaged in business in the state when the act went into effect should not be required to secure permission from the commission to continue in business or to "increase the capacity" of an existing plant "and market the products thereof;" and, second, that the commission could not prevent a company going ahead and completing its plant and works and serving customers where it had secured a permit or franchise from the proper authorities prior to the utilities act going into effect and had commenced actual construction and prosecuted the same with reasonable diligence thereafter.

It is worthy of note that the statute, sec. 48a, closes with the following proviso: "Provided that power companies may, without such certificate, increase the capacity of existing generating plants or develop new generating plants and market [266] the products thereof." And there is immediately added the following proviso in section 48b, "Provided, that when the commission shall find, after hearing that a public utility has heretofore begun actual construction work and is prosecuting such work in good faith, uninterruptedly and with reasonable diligence in proportion to the magnitude of the undertaking, under any franchise or permit heretofore granted but not heretofore actually exercised, such public utility may proceed to the completion of such work, and may, after such completion, exercise such right or privilege." The foregoing scarcely admits of construction; the layman can understand that as well as the lawyer. The majority opinion, however, seems to hold these provisos to the statute as "nugatory" and that they should be "disregarded."

The commission itself originally took the same view of the statute I have above expressed, in a case designated as "Ashton & St. Anthony Case. No. F-5." There the company secured a franchise from Ashton on March 18, 1913, and from Marysville, April 7, 1913, which was only a short time before the utilities act went into effect. The company did some trivial work on its power site a couple of miles outside of the city prior to the going into effect of the utilities act. The commission held that, "Under this clause of the statute and under the facts so found, it would seem that the Ashton & St. Anthony Power Company, Limited, may proceed to the completion of its work and may after such completion exercise the rights and privileges granted to it by these franchises. It would appear from the statute and from such findings that no certificate of public convenience and necessity is required from the commission in order that the applicant company may proceed to the completion of its works, and after such completion may exercise the rights and privileges granted by the franchises aforesaid." The commission appears to have receded from the view there expressed in the present case.

Let us now see what the facts are in the case under consideration. In 1908 the predecessor of the plaintiff secured from the state engineer a permit for the diversion of 1,000 [267] second-feet of water from the Malad river in what is now Gooding county. That work has been prosecuted diligently ever since and diversion works have been constructed and power plants erected so that about 7,500 horse-power has been developed and utilized, and approximately 20,000 horsepower can be developed under this permit and diversion; that in the construction of diversion works and power and generating plants, $600,000 has been expended, and the total expenditure made by the company in constructing diverting works, power and generating plants and transmission and distribution lines aggregates about $1,500,000. It is claimed that more than one million of this investment had been made when the utilities act was passed. Prior to the time the utilities commission was created by act of the legislature, plaintiff's predecessor, the Beaver River Light & Power Company, had constructed a transmission line from the power plant on the Malad river by way of Glens Ferry and Mountainhome to Boise, a distance of something like 86 miles, and was then furnishing light and power in Boise City and towns along the course of the transmission line. The stipulation shows that even all these points did not consume all the electricity that plaintiff was then prepared to generate, and it had not yet developed more than about one-third of its water-power possibilities under its permit from the state

and the diversion made thereunder. In the meanwhile, many other towns were much closer to its power and generating plant than Boise and other towns already supplied, Twin Fails being only thirty miles away. It is also stipulated that the plan of development and purpose of plaintiff and its predecessor is and has been to develop the entire available power of the Malad river as rapidly as possible and as fast as the terms of their water permit would require, and to seek a market for the product of the plants.

The utilities act went into effect on May 8, 1913, and prior to that date the plaintiff's predecessor, the Beaver River Power Company, secured a franchise from the city of Twin Falls to construct transmission lines through the city and to deliver light and power to the city and its inhabitants, but [268] had not commenced any actual construction work within the city limits. It is admitted, however, that it was already equipped with a sufficient plant to supply all the electricity that would be needed or could be used at this place. In the meanwhile, the Great Shoshone and Twin Falls Water Power Company was supplying electricity to Twin Falls and neighboring towns.

Now, the question arises: Did the legislature, when writing and enacting into law the above-quoted sections of the statute, intend to permit the utilities commission to exclude either one of these companies, or any company already in the field, from continuing to operate and seek a market for its products? To my mind, it is clear that the legislature intended to allow them to continue to operate and seek every available market for the products of their plants to the extent of the full capacity of their power and generating possibilities and to confer on the commission plenary power to regulate the service and fix rates. The chief thing the legislature had in mind was to confer the power to regulate public service corporations and fix rates to be charged consumers. They had no idea of discriminating between public service companies already in the field with their money invested and plants in operation; neither did they intend to make a pet monopoly out of one and wreck another that already had hundreds of thousands in cash invested in the state. I cannot conceive that lawmakers attempting to legislate for the people of the state could have meant any such thing, and it seems to me that they made it very plain by the above-quoted provisos that they did not intend such a thing.

It is said that because the plaintiff company had not commenced work within the corporate limits of Twin Falls, it had not done any work under its franchise. That is like saying that the man who shoves his hand through the window and takes your

coat off the hook didn't steal the coat from your dwelling-house because the motive and will power were outside the house.

We don't generally have great water-power sites in the city. We rather have to go out and build power and generating [269] plants where the streams flow and then convey the current long distances over transmission lines to places of consumption, and we find the bulk of consumers in the town and cities. The diversion of the water and construction of plants at the power site is as much a part of the work of supplying a city and its inhabitants with light and power as is the building of distributing lines. Again, it would seem to me that a plant large enough to generate current for transmission 86 miles to supply a city of twenty-five or thirty thousand people is certainly within the same "field" of operation comprising a city of nine or ten thousand that is only thirty miles distant.

Again, it would be the height of folly to say they can enlarge or increase existing plants and generate more electricity and still they cannot build more transmission or distributing lines but must carry the additional load and distribute it over existing lines or not at all. The mere statement of such a proposition refutes the claim. New and additional consumers must be served over other and different lines.

That

The fact that the plaintiff, Idaho Light & Power Company, had not filed an acceptance of the terms of the ordinance granting it a franchise prior to the time the utilities act took effect is without shadow of merit. the franchise was granted on the company's application was itself an acceptance and would bind it to the terms of the ordinance granting the same so long as the ordinance provided the exact terms proposed by the company soliciting the franchise. It is well settled that doing work under the terms of a franchise is an acceptance of its terms and conditions. (Allegheny v. People's Natural Gas, etc. Co. 172 Pa. St. 632, 33 Atl. 704, 705; City R. Co. v. Citizens' St. R. Co. 166 U. S. 557, 17 S. Ct. 653, 41 U. S. (L. ed.) 1114, 1118; Lincoln, etc. Bank v. Richardson, 1 Greenl. (Me.) 79, 10 Am. Dec. 34; Illinois River R. Co. v. Zimmer, 20 Ill. 654; Atlanta v. Gate City Gas Light Co. 71 Ga. 106, 117; State v. Dawson, 22 Ind 272, 274.)

[270] If the utilities act is valid and constitutional, then there can be no question about the right of the commission to regulate the service of the plaintiff and all other like concerns and to fix the rates it may charge, but it has no right to exclude it from the field and grant its competitor an exclusive monopoly of the business.

Entertaining, as I do, the opinion of this case just expressed, it would be useless for

"Now, the section before us prohibits a railroad corporation from exercising any of the powers conferred by law upon such a corporation until the board of railroad commissioners shall certify that certain specific conditions have been complied with, and also that 'public convenience and a necessity' require the construction of such railroad as proposed in said articles of association. The granting of such a certificate cannot be treated as an idle ceremony, required by the legis lature as a mere matter of form, for the board of railroad commissioners, in order to certify, must first determine what the fact is, and it must decide that the public convenience and a necessity require the construction of the proposed railroad before it can certify that such is the fact. To enable it to pass upon that question of fact it must be in possession of the necessary evidence upon which to base a decision, and in order that the people may have an opportunity to be heard and be permitted to produce evidence in opposition to the railroad's claim of a necessity, the statute requires the publication of the articles of association for three weeks in each county in which the road is proposed to be located, and further requires that the certificate shall be applied for within six months after the completion of such publication. Upon such hearing the commissioners have the right to administer oaths to witnesses, to authorize their examination and cross-examination by counsel, and while not bound by the technical rules governing the admission of evidence in actions and proceedings pending before the courts, the commissioners are authorized to, and do receive oral testimony, written and printed documents, and affidavits which in their opinion tend to throw light upon the question which in the end they are to pass upon, namely, whether 'public convenience and a necessity' require the construction of the proposed railroad. This determination is one of great importance from a public point of view, and so the statute requires that it shall be passed upon at the very threshold of the corporation's existence, for thus is prevented, if the railroad ought not to be built, a waste of the money contributed by the stockholders in proceedings which may come to naught should some owner of land through which the railroad is intended to pass succeed in establishing, in condemnation proceedings, that there is no necessity for the building of the railroad." See also In re Public Service Commission, 217 N. Y. 61, 111 N. E. 658, wherein the action of the commissioners on an application for such a certificate was said to be final. In Gratiot, etc. Tel. Co. v. Brownsville Farmers' Telephone Co. 34 Ohio Cir. Ct. Rep. 237 (affirmed without opinion 106 N. E. 1059), a telephone company sued to

enjoin another company from constructing a competing line without a certificate of necessity from the public service commission. The court held that the defendant company was not within the terms of the act requiring such a certificate, but said obiter: "It might further be said that, before it could be held that the defendant should procure a certificate of public necessity from the public service commission, the adequacy or inadequacy of the service rendered in the locality where the plaintiff's property is located would first have to be determined; and while it might not be essential to its right to the relief sought in this action to show that it was rendering adequate service in the same territory, or in the same locality, where the defendant company expected to locate its lines, yet it would not be necessary to make such showing in this proceeding, but the question of the adequacy or inadequacy of its service would have to be raised and passed upon by the public service commission."

Instructions As to Weight of Evidence Necessity of Specific Objection.

In view of court rule 27 (164 N. C. 548, 81 S. E. xi), providing that it shall not be ground for exception that the court failed to charge the jury as to the effect to be given testimony admitted in corroboration or contradiction, unless such charges are specially requested, the giving of a charge which informed the jury that testimony was to be considered solely in impeachment of a witness, even if error, is harmless.

Appeal from Superior Court, Wake county: ALLEN, Judge.

Action for mandamus. J. R. Medlin, plaintiff, and County Board of Education of Wake County et al., defendants. Judgment for plaintiff. Defendants appeal. The facts are stated in the opinion. AFFIRMED.

Percy J. Olive and H. E. Norris for appellants.

W. B. Snow and Armistead Jones & Son for appellee.

[239] CLARK, C. J.-This is an action against the county board of education of Wake and the school committee of District No. 2 (white) of House's Creek Township. The plaintiff alleges that his children belong to the white race and are entitled to attend said school, but have been wrongfully and unlawfully debarred by defendants from attending the same on the false allegation that they are of mixed blood, and asks a mandamus to compel the defendants to admit his children to the said school for [240] whites. The defendants answer, admitting that plaintiff's children have been debarred, and aver that they are of mixed blood and therefore not entitled to attend.

It is admitted in the answer that the plaintiff, who is the father of the children, is of the white race. It is also admitted that Nan Powers was the mother of Mrs. J. R. Medlin and the grandmother of plaintiff's children. It was contended by plaintiff that John Powers and Lucy Powers, who are admitted to be of the white race, were the parents of Nan Powers, but this was denied by the defendants.

Revisal, 4086, forbids the admission of children to the white schools if there is any admixture of colored blood. Johnson v. Board of Education, 166 N. C. 468, 82 S. E. 832. The jury found that the children of the plaintiff were of unmixed white blood and entitled to attend the white school.

Exceptions 1 and 2 not being brought forward in defendants' brief, are abandoned. Rule 34.

Elma Maynard testified, on cross-examination in respect to Annie Powers, that the general reputation was that she was of mixed blood. The witness was then asked "If that general reputation has not sprung up through envy and jealousy of two or three men in that neighborhood in the last few years?" To I went which she replied: "I have heard so. to school with some of Mr. Medlin's children. It is generally reputed that two or three men started the rumor that Medlin's children were mixed blooded." This was a matter in the discretion of the court. It showed by the witness's testimony that there was no general reputation as to Nan Powers being of mixed blood; that what the witness meant was that there was a widely spread report which was not believed, because it was of general repute that it was a trumped-up charge.

Exceptions 4, 5, 7, 8, 18, 20, 23, and 26 seem to present substantially the same question, which is exemplified by the question, "who was said to be her mother?" Here it is not the general reputation that is asked for, but merely hearsay. To make such questions competent, the witness should have been asked, first, if she knew the general reputation. This defect applies to all these questions. The defendant did not offer to show general reputation in the family.

Exceptions 9 and 10 are those most strenuously contested. Thad Ivey, who was a witness for the defendants, testified that plaintiff Medlin had said to him: "I married a nigger;" and Hardie Bagwell, also witness for defendants, testified that Medlin said in his presence that he "knew his wife was onefourth nigger."

J. R. Medlin denied having made such state. ments, and testified that his wife was the daughter of Annie Powers, who was white, and that he had never known that she was reported to be of mixed blood; that Annie Powers was the daughter of John Powers and Lucy Powers, who are admitted on this trial to be of the white race.

[241] There was much conflicting evidence, but the jury found that the evidence showed that the children were of purely white blood.

Exceptions 9 and 10 are because the judge stated that the evidence of Bagwell and Ivey as to Medlin's statement was "impeaching evidence. The parties involved here are the children. It is only what we call impeaching evidence. It only affects Mr. Medlin's testimony as a witness, but it is not what we call substantive evidence as to the real color of the children. He denies having said that, and it is only a question affecting his testimony, that does not go to the jury in respect to the color of the