I concur in the result announced in the opinion written by Mr. Justice STRAUP; but, since I am not in agreement with him upon all the points *Page 575 discussed I think it advisable to set out briefly my position with respect to them.
In the first part of the opinion, after the statement of the facts and the contentions of the various parties, is a discussion of the question of whether or not the Legislature, by the Public Utilities Act, intended to include utilities owned by municipal corporations among those over which the commission is given the power of control and jurisdiction for rate-making purposes, and the conclusion is reached that such was not the intention of the Legislature. With this conclusion, and with several of the minor statements and propositions made in support of it, I do not agree. It seems clear to me, from a reading of the Public Utilities Act, in connection with the statutes existing at the time of its enactment, relating to the powers of municipal corporations over public utilities, that the Legislature of 1917 intended to and did, constitutional objections aside, place municipal corporations owning electric light and power plants and other utilities within the jurisdiction of the commission to the same extent that private corporations and individuals are placed within that jurisdiction. As this court says in the St. George Case, "they are there treated precisely the same as all other corporations or persons that are affected or controlled by the act."
While it is true, as Mr. Justice STRAUP says, that this is a conclusion deducible from a consideration of the definitions contained in the act, yet I think it is the only sound conclusion that can be reached, if any meaning whatever is to be given to those terms of the act relating to municipal corporations. The case, therefore, in my estimation, is not one in which can be applied the rule of construction that if two meanings or constructions can fairly be given to an act, one rendering it in harmony and the other in conflict with the Constitution, the former should be adopted; for in my judgment the act is not fairly open to a construction in harmony with the Constitution. I think that if the act is constitutional, *Page 576 then the commission has the power to fix the rates and control the business of public utilities owned by municipal corporation to the same extent that it has that power over other utilities, except as its jurisdiction with respect to rate making may be found to be modified by the amendments made in 1925 to section 794.
Furthermore, the jurisdiction vested in the commission by the Public Utilities Act is not alienated, although it may be, and I think it is, by necessary implication, limited as regards rate making by section 794, as it stands after the amendments made in 1925. If due regard be given to section 794, as amended, then in making rates for municipal plants the commission is not bound by the same rules that it must apply in making rates for privately owned utilities; since in the former case, under the statute, the rates may or may not be made sufficient to cover bond interest and sinking fund requirements, as well as operating and maintenance expenses, and still be legal — that is, reasonable. But, except to this extent, I see see no irreconcilable conflict between the Public Utilities Act and the amended section 794. The conflict is more apparent than real. The amending act contains no express repeal of the Utilities Act. Nor does it expressly delegate to municipalities jurisdiction to fix rates. The power given to the city council is to levy taxes for deficiency, not to fix rates. The Utilities Act and section 794 relate to different matters. So in my judgment there is certainly no intention manifested by the Legislature, when it amended section 794, to repeal the Utilities Act in any particular, most assuredly not to the extent of taking municipal corporations entirely out of the jurisdiction of the commission; nor is there any irreconcilable conflict between the two, except to the extent above indicated.
With Mr. Justice STRAUP'S reasoning and conclusions upon the point that the commission did not regularly pursue its authority, assuming that it had jurisdiction, in fixing the rates for Logan City plant, because it ignored the law *Page 577 contained in section 794, as amended, I am in full accord. But I am in doubt as to the necessity of discussing this point, although it is one of the main points of contention in the case, because of the conclusions which I have reached regarding the validity of the Public Utilities Act in so far as it relates to municipal corporations.
That the people of Utah, when they adopted section 29 of article 6 of the state Constitution, intended to limit the power of the legislative branch of government, so as to prevent the delegation of the power to perform municipal functions, or the power to supervise or interfere with municipal property, to any commission outside the municipal fold, and that they thereby manifest an intention, which must be respected by the courts, that municipal property shall remain under the supervision and control of, and municipal functions shall be performed by, municipal officials, who are amenable to the will of the inhabitants of the municipalities, so long as municipal corporations continue to exist and that section remains a part of the fundamental law, are propositions about the soundness of which I have no doubt.
To the extent that the Legislature, in the Public Utilities Act, has delegated to the commission the power to supervise and control municipal corporations with respect to utilities owned by them, or to fix the rates to be charged by them, thus giving to the commission the power to interfere with and control municipal property and to perform municipal functions, has it transgressed the limits of its powers as defined by the Constitution. The Public Utilities Act, in this respect being in conflict with the constitutional provision above mentioned, in my opinion is void, and hence the commission had no power or jurisdiction to make the order setting aside the contracts between Logan City and its customers and fixing the rates to be charged by the Logan City plant. The reasons and arguments supporting the foregoing conclusions upon this branch of the case being set out by Mr. Justice STRAUP and also by Mr. Justice GIDEON in *Page 578 his concurring opinion, it would be mere repetition for me to write them down again.
I content myself, therefore, by stating that I concur with what they have said upon this subject.
CHERRY, J., dissents.
THURMAN, C.J., being disqualified, did not participate herein.