I dissent. Since the majority of the court have construed and interpreted the section of the statute involved in this case, which construction will henceforth be binding upon everyone; and since another case like this will probably never arise under the section as now written and construed, little purpose would be served by writing a dissenting opinion were it not for the fact that all seem agreed that the legislature should rewrite, amend or clarify the section. That the commission, utilities, legislature, bar, and others interested therein may better understand the difficulties of the problems presented by the section, I deem it advisable to show why I cannot concur in the views of the majority, and what I deem the error in the prevailing opinion. *Page 519
I admit I do not see the relevancy of what is said about the liability of a surety on an undertaking. We are here not concerned with any surety or liability on a bond. The bond would merely go to the condition that the company would pay the money into the fund, which then is subject to the control of the court or the commission. That was done here. We have the fund, and are here concerned only with the question as to whether at this time the company is entitled to the whole of the fund by writ of mandate. We should not confuse the furnishing of bond to stay the commission's order, which may have other results than the creation of a fund, or result in damages other than the impounding of the fund, with the problem as to whether the company is now entitled to the whole of the fund.
As to the meat of the controversy, it is the position of the prevailing opinion, as I read it, that our former decisions,105 Utah 230, 142 P.2d 873, 882, and 105 Utah 266, 145 P.2d 790, 791, decided merely that the order of the commission should be set aside. In the first opinion we said:
"The Commission having correctly held that the evidence prima facie showed unlawful discrimination, the burden was on Mountain States to justify the differentials."
We then declare that the company failed to justify, and then we say:
"Hence the Commission was not arbitrary in assuming the present differences were unreasonable."
And again,
"The burden is on Mountain States to overcome the effect of the showing that its present rates are unjust."
The order made in that opinion reads:
"The matter [is] remanded to the Commission for a determination as to what would be a reasonable and just rate for intrastate toll service." *Page 520
In the opinion (last citation above) on petition for rehearing, from which opinion the writer dissented, the court said:
"The Commission concluded from the evidence adduced that the existing differences were unwarranted and discriminatory. We held that there was ample evidence to support this finding."
Again:
"The difficulty with the position taken by the Commission is that under the evidence it clearly appears that the order wentbeyond merely eliminating the discrimination. * * * Hence the relationship of Mountain States intrastate rates to Long Lines rates does not under the evidence submitted justify the fullreduction made. Other than this relationship between the two schedules there is no evidence to justify any reduction in intrastate rates for there is no contention that existing rates are inherently unreasonable. This relationship does not, under the evidence, justify the reduction to the level of Long Linesrates. But the evidence does show that the existing intrastaterates are somewhat higher than this relationship with Long Linesrates would justify. Thus there is no evidence in the record tojustify the extent of the reduction made." (Italics added.)
It is not contended that we did not decide in those opinions the matters we therein stated we were deciding. If that is correct then the rehearing for which the writer voted, should have been granted.
But since I think we did decide in that opinion the matter herein indicated as decided in 105 Utah 230, 142 P.2d 873, and which the court does not now overrule, I must indicate an interpretation of the statute which I think is the only one compatible with the former declarations of this court.
This involves an interpretation of Sec. 76-6-17(3) and (4), U.C.A. 1943, which read in part:
"(3) * * * The supreme court, in case it stays or suspends the order or decision of the commission in any matter affecting rates * * * shall also by order direct the public utility affected to pay into court from time to time, there to be impounded until the final decision of the case or into some bank * * * under such conditions as the court shall prescribe, all sums of money which it may *Page 521 collect from any person in excess of the sums such person would have been compelled to pay, if the order or decision of the commission had not been stayed or suspended.
"(4) * * * The commission * * * shall forthwith require the public utility affected * * * to keep such accounts, verified by oath, as may in the judgment of the commission suffice to show the amounts being charged or received by such public utility pending the review in excess of the charges allowed by the order or decision of the commission, together with the names and addresses of the persons to whom overcharges will be refundable, in case the charges made by the public utility pending thereview are not sustained by the supreme court. The court may from time to time require such party petitioning for review to give additional security or to increase the said suspending bond whenever in the opinion of the court the same may be necessary to insure the prompt payment of such damages and such overcharges. Upon the final decision by the supreme court all moneys which the public utility may have collected pending the appeal in excess of those authorized by such final decision, together with interest in case the court ordered the deposit of such moneys in a bank or trust company, shall be promptly paid to the persons entitled thereto in such manner and through such methods of distribution as may be prescribed by the commission. * * *" (Italics added.)
Then follows a provision as to what is to be done with any money not claimed by individuals within one year "from the final decision of the supreme court." It is the commission's argument that the use of the phrase "final decision of the supreme court" indicates that the legislature meant the decision finally determining the controversy, rather than the decision finally determining any particular question arising in the controversy, while the utility contends it means until the court inquired into and determined the lawfulness of the order or decision of the commission.
The statute provides:
"The review shall not be extended further than to determine whether the commission has regularly pursued its authority including a determination of whether the order or decision under review violates any rights of the petitioner under the constitution of the United States or of the state of Utah. The findings and conclusions of the commission on questions of fact shall be final and shall not be subject to review." Sec. 76-6-16, U.C.A. 1943. *Page 522
See the same section also as to reasonableness and discrimination.
But in determining whether the commission regularly pursued its authority we may inquire into such questions, among others, as to whether proper notice was given; whether a proper hearing was had, McGrew v. Industrial Commission, 96 Utah 203,85 P.2d 608; whether the order finds a justification in the evidence, that is to say whether there is competent evidence from which a reasonable judging mind could come to the conclusion at which the commission arrived. Los Angeles S.L. Ry. Co. v.Public Util. Comm., 80 Utah 455, 15 P.2d 358; Id., 81 Utah 286,17 P.2d 287; whether the commission acted capriciously and arbitrarily in arriving at its decision, Gilmer v. PublicUtilities Commission, 67 Utah 222, 247 P. 284; Ostler v.Industrial Commission, 84 Utah 428, 36 P.2d 95; whether the commission misconceived and misapplied the law, Mulcahy v.Public Service Commission, 101 Utah 245, 117 P.2d 298;Bamberger Electric R. Co. v. Public Util. Commission, 59 Utah 351,204 P. 314; and whether the order or decision of the commission is confiscatory or otherwise deprives one of any rights protected by the constitution of the United States or of the state, Salt Lake City v. Utah Light Traction Co.,52 Utah 210, 173 P. 556, 3 A.L.R. 715.
When the order of the commission was brought before us on certiorari in 105 Utah 230, 142 P.2d 873, the lawfulness of the order was assailed on a multiplicity of grounds, going in one form or another into every field mentioned above except that of proper notice. We resolved all questions in favor of the lawfulness of the order assailed except the one as to the basis or formula used for computing in terms of money, the new rates ordered by the commission. Let us set forth a picture of the problems or questions there involved. Complaint being made before the commission that the utility was discriminating in its rates against Utah users of toll lines, issues were joined and hearing had. The questions before the commission, four in number, *Page 523 would unfold in this order: (a) Does the present intrastate rate schedule of the utility as to toll charges discriminate against the Utah users? The commission found the rate was discriminatory and we held that finding was justified by the evidence. (b) If the rates are discriminatory, is such discrimination unreasonable or is it justified by the difference in service and costs thereof? The commission found the discrimination was not justified and was unreasonable. We held that finding was justified by the evidence. (c) If the discrimination is unreasonable, that is, if the difference is not justified, should it be corrected by raising the lower rate, or by lowering the higher rate? The commission found the discrimination should be removed, that is the difference corrected by lowering the higher rate. We upheld that finding as justified by the evidence. (d) What is the amount of the unreasonable discrimination, that is what should the new rate be? The commission found that the amount of discrimination was the difference between the long line rates and the intrastate rates, and the new rate should therefore be the long line rates. We held this finding not justified by the evidence.
While numerous points were presented to us in the certiorari proceedings, they were all directed at these four findings, because if those findings were properly made the order of the commission must stand. Sec. 76-6-16, U.C.A. 1943.
The commission had found and held that the existing intrastate rates were too high and had ordered a reduction. Under the plain mandate of the statute, the order of the commission would not be stayed pending review by this court, or except upon special order by the court. Sec. 76-6-17, U.C.A. 1943. Any charges, therefore, by the utility in excess of that order were stayed. When this court ordered a stay it was only on the condition that all moneys collected in excess of the rate ordered by the commission be impounded until it was finally determined by the supreme court whether or not the commission was justified in ordering therates reduced. Sec. 76-6-17, supra. *Page 524 If the commission was not so justified, of course the rate charged was proper and the money collected would belong to the utility. But if the court upholds the commission's determination that the rate charged is too high, then the utility during the review proceedings has been overcharging the customers, and it follows that the utility should not be entitled to the overcharge. That money, being an overcharge, belongs to the customer who paid it. The statute, Sec. 76-6-17, U.C.A. 1943, after providing that the court may stay the order of the commission pending review upon the impounding by the court of all moneys collected by the utility "in excess of the charges allowed by the order or decision of the commission" declares the utility must keep an account of all amounts so collected,
"together with the names and addresses of the persons to whom overcharges will be refundable, in case the charges made by thepublic utility pending the review are not sustained by thesupreme court." (Italics added.)
Here is a straight legislative declaration that in determining whether or not there is an overcharge in the rate collected by the utility — whether or not the customer is entitled to some refund — depends not upon whether the court sustains the reduced rate fixed by the order of the commission, but upon whether thecourt sustains the charges made by the utility pending thereview. The order is suspended during the pendency of the review at the instance of the utility to give it a chance to have itscharges sustained by the court. If the court does not sustain the charges made by the utility pending review, it follows as of course that such charge involved an overcharge. The amount of the overcharge is the money of the patron or customer. Bear inmind that Sec. 76-6-17(4), U.S.C. § 1943, has to do with thedesire of the utility to continue to charge its old rate, notwith the fact that it resists the order of the commission. If the utility did not desire to continue making the charges it had formerly made, it could have no occasion to ask a stay of the order even though it desired to have such *Page 525 order reviewed as to its lawfulness. It covers only the period when the matter is pending before this court on the request of the utility to have this court sustain its old rates. If the court sustains the utility in its charges, of course the moneys collected belong to the utility and should be turned over to it as the person "entitled thereto." If the court refuses to sustain the utility in its charges, that is sustains the commission's finding that the charges are too high then the excess, whatever it may be, should be paid to the patrons or customers, who had overpaid proper charges, they being "the persons entitled thereto." The commission will determine, or prescribe the manner and method of determining to whom and how the overcharges shall be paid. This duty is imposed upon it by the statute. Sec. 76-6-17(4), U.C.A. 1943.
When 105 Utah 230, 142 P.2d 873, the cause in which the moneys here involved were impounded, was before this court we refused to sustain the charges made by the utility. On the other hand we sustained the findings and holding of the commission that the charges made by the utility were discriminatory, and unreasonable, and that such rates should be reduced. Such holdings have the effect of saying that the utility charges made pending the review were excessive, involved overcharges, and that refunds of the overcharges should be made to "the persons entitled thereto." Any impounded funds which were not overcharges should be paid to the utility as the "person entitled thereto."
This brings us to the effect of the decision of the court in105 Utah 230, 142 P.2d 873, upon the determination of the amount of overcharge. The statute and the stay order of the court impounded all moneys "collected by the utility in excess of the rate allowed by the order of the commission." This court sustained the finding that the charges made by the utility were excessive, but we refused to sustain the commission in fixing the excessive charge as the difference between the charges made by the utility and the long line rates, because of the absence of evidence that the long line rates were fair, just and reasonable. Pending the review *Page 526 the utility paid into the impounded fund this difference as per the order of the court. Since we vacated the order of the commission as to the amount of reduction to be made in the rates held excessive the exact amount of the overcharge which the utility has been making pending the review is not at this time determinable in terms of dollars and cents. But the fact of overcharge has been settled, which overcharge is part at least of the money in the impounded fund. Until it is determined what a proper charge should be, we cannot tell what part, if any, of the impounded fund belongs to the utility and what part belongs to the patrons or customers who paid the overcharges. Of course, the utility would not be entitled to a writ of mandate which would give it more than is its fair and lawful share of the money. Since petitioner (the utility) has not shown what if any part of the fund belongs to it — is not an overcharge — it follows that it is not entitled to a permanent writ of mandate.
The alternative writ should be recalled and the cause dismissed. Further reasons for disagreement with the opinion of the court are set forth by Mr. Justice Wade in his dissenting opinion.